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PLD 2020 Lahore 394
Before Mujahid Mustaqeem Ahmed, J
BEGUM MAI---Petitioner
Versus
ADDITIONAL SESSSIONS JUDGE and others---Respondents
Writ Petition No.18401 of 2019, decided on 27th November, 2019.
(a) Islamic jurisprudence---
----"Life"--- Concept of life in Islam stated.
(b) Criminal Procedure Code (V of 1898)---
----S. 176---Penal Code (XLV of 1860), S.302(b)---Disinterment/ exhumation of dead body---Scope---In case when offence of murder had been committed in mysterious manner and evidence was destroyed and dead body buried in haste, under the social norms/pressure and designs of the killer(s), if circumstances so existed to reflect that death had occurred other than natural way, in order to make a probe, if it was necessary for the sake of justice, then even disinterment should be ordered---Mere fact that dead body had already been buried or family of the deceased was not consenting for disinterment was not a good ground to deny doing justice---Sole purpose of exhumation of dead body was to discover cause of death of the deceased and to unearth whether it was a natural death or otherwise (qatl-i-amd).
(c) Criminal Procedure Code (V of 1898)---
----S.176---Disinterment/exhumation of dead body---Locus standi of applicant/petitioner---Section 176(2) Cr.P.C. did not put any clog of locus standi to approach a Magistrate for exhumation of dead body---Order for exhumation could be made by the Magistrate on his own or on the request or information of even a stranger with the sole purpose to know the actual cause of death.
(d) Criminal Procedure Code (V of 1898) ---
----S.176---Disinterment/exhumation of dead body against wishes of legal heirs, order for---Ascertaining real cause of death and advancing cause of justice---Deceased-daughter of petitioner had died in suspicious circumstances---Applicant, who was a maternal cousin of the deceased, suspected murder and consequently moved an application before Special Judicial Magistrate for exhumation of dead body---Said application was contested by the petitioner which was, however, allowed by the Magistrate---Plea of petitioner that legal heirs of deceased appeared before the revisional Court and got recorded their statements to the effect that they were not interested in exhumation of dead body but such request was not considered in accordance with law---Held, that accusation of murder at least warranted an investigative probe which was only possible through forensic analysis of the corpse---Real cause of death could be ascertained only by exhuming the body of deceased---Since intent of impugned orders was merely to ascertain real cause of death, same was just and proper as the same was to advance the cause of justice---No mala fide whatsoever had been attributed against the applicant or local police for initiating the proceedings for exhumation of dead body of deceased---Exhumation and thereafter the postmortem were mere tools of investigation which, in the ordinary course, would not be interrupted---Special Judicial Magistrate after proper exercise of jurisdiction vested with him had allowed the application---Constitutional petition was dismissed accordingly.
Ameer Afzal Baig v. Ahsan Ullah Baig and others 2006 SCMR 1468; Khalid Pervez through Special Attorney v. Haji Akhtar Nisar and 6 others 2008 PCr.LJ 175 and Mst.Shama v. The State and 3 others PLD 2017 Lah.337 ref.
(e) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of the High Court---Scope---Discretionary jurisdiction of High Court under Art.199 of the Constitution was to be exercised for advancement of justice and not to perpetuate injustice.
Abdul Rashid Khan and 80 others v. President Services Institute PAF Base Lahore 1999 MLD 1870 ref.
Kanwar Farhan Ahmad for Petitioner.
Malik Shaukat Mahmood Marha, A.A.G. on Call.
ORDER
MUJAHID MUSTAQEEM AHMED, J.---Before adverting to the case in hand, it would be just, fair and proper to notice concept of "life" in Islam and Western jurisprudence. Allah Almighty commands:
"And do not kill a person whom Allah has given sanctity, except rightfully." (Surah Al-Anaam Verse 151)
"If a man kills a Believer Intentionally, his recompense is Hell, to abide therein (For ever); and the wrath. And the curse of Allah are upon him, and a dreadful penalty is prepared for him." (Surah Al-Nisah Verse 93)
"On that account: We ordained for the children of Israel that if anyone slew a person-unless it be for murder or for spreading mischief in the land, it would be as if he slew the whole people: and if anyone saved a life, it would be as if he saved the life of the whole people ." (Surah Al Maidah Verse 32)
In his Last Sermon delivered at the time of "Hajj" in the year 10 A.H. commonly known as "Khutba Hajja tul Widah" the Holy Prophet Muhammad (Peace Be Upon Him) said:
"O People, just as you regard this month, this day, this city as Sacred, so regard the life and property of every Muslim as a sacred trust... Hurt no one so that no one may hurt you".
As per Command of Allah Almighty in the Holy Quran, He is the Creator of whole universe. He has originated the creation and only He has to take it back. Thus life is sacred and precious gift from Allah Almighty. It is only He who gives life and death. It is bitter reality that death is part of scheme of creation. It is predetermined by Almighty Allah and the exact time of person's death is known only to Him. Since He has created life so it is His right/prerogative/privilege to take it back and not that of any human being. Thus willful taking one's life is considered a major sin in all religions including Islam and a gruesome crime in all civilized societies of the world.
2. Universal Declaration of Human Rights is a historic document that was adopted by the United Nations General Assembly at its Third Session on 10th of December, 1948 which consists of 30 Articles affirming an individual's rights. Articles 3 to 5 establish individual's right to life and prohibition of slavery and torture. Life is sacred right of human being so, in all constitutions of civilized countries this basic right has been recognized, safeguarded and protected as a fundamental right. The penal laws revolve around to protect this basic right. Under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 right of life of human being, as an inalienable right, has been protected. If this right is violated or snatched by any human being, law of land comes into motion to deal with such offender and different penal provisions under different laws are attracted to deal with such mischief monger(s).
3. In order to unearth as to whether one met natural or unnatural death probe must be made as no one on earth has a right to take away life of another except in accordance with law. In case when offence of murder has been committed in mysterious manner and evidence is destroyed and dead body buried in haste, under the social norms/pressure and designs of the killer(s), if circumstances so exist to reflect that death had occurred other than natural way, in order to make a probe, if it is necessary for the sake of justice, then even disinterment should be ordered. Mere fact that dead body had already been buried or family of the deceased is not consenting for disinterment is not a good ground to deny to do justice.
4. Now I come to the facts of the present case.
5. Mst. Hakim Mai (Married Lady) daughter of the present petitioner died in suspicious condition. Her maternal cousin, namely, Muhammad Saleem/respondent No.4 (respondent) moved an application before learned Special Judicial Magistrate, Multan for exhumation of dead body. The application was contested by the petitioner which was, however, allowed by the Magistrate vide impugned order dated 21.10.2019. Feeling aggrieved of the said order, the petitioner approached the learned Additional Sessions Judge, Multan by way of revision petition but failed and the said petition was dismissed by learned revisional Court vide order dated 05.11.2019 while observing as under:-
"The petitioner has assailed the order dated 21.10.2019 whereby the learned Special Judicial Magistrate ordered for exhumation of the grave and disinterment of dead body of Mst. Hakim Mai. Learned counsel for the petitioner argued that Mst. Shehzan Perveen (sister), Mushtaq Hussain (husband), Mst. Irshad Bibi (sister), Mst. Shamshad Ajmal (sister), Mst. Begum Mai (mother/petitioner), Muhammad Zafar (brother) and Muhammad Akbar (brother) put their appearance in the court and have tendered their affidavits (Mark-A to Mark-H) and deposed that Mst. Hakim Mai committed suicide and they are not ready for the exhumation of her grave and disinterment of her body. Learned Special Judicial Magistrate, while accepting the petition, observed that statement of husband of deceased raised suspicion about the circumstance of her death. Mst. Hakim Mai deceased died on 29.08.2019. Respondent contended that Mst. Hakim Mai was murdered, so, he was every right to know the real cause of death of deceased. Learned counsel for the petitioner raised objection that when the original legal heirs are not ready for the exhumation of the grave and disinterment of the body of deceased then, the impugned order is not in consonance with the law. Seeking guidance from 2017 PCr.LJ 1341 "For exhumation of the grave and disinterment of the dead body, mere suspicion was sufficient to ascertain the actual cause of death of the deceased to exonerate any slightest doubt in the minds of the relatives of the deceased, which was their legal right to know". Real cause of death can be ascertained only by exhuming the body of the deceased. I am fortified by PLD 2007 Lahore 176 "No time fixed in Pakistan for disinterment of body". So, the order passed by learned lower court does not suffer from any infirmity." (Underlined to provide emphasis)
In this back ground, the petitioner by filing this constitutional petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has assailed the above orders passed by learned Courts below with following supplication:
"In view of the above circumstances, it is most respectfully prayed that this writ petition may kindly be accepted and the impugned orders dated 5.11.2019 and 21.10.2019 passed by learned two courts below/respondents Nos. 1 and 2 may kindly be declared as illegal, unlawful, without lawful authority and the same kindly be set aside, resultantly the application moved by respondent No. 4 may kindly be dismissed."
6. Learned counsel for the petitioner contends that the impugned order has been passed by learned Special Judicial Magistrate without giving opportunity of hearing to the legal heirs. Adds that the legal heirs appeared before the learned revisional Court and got recorded their statements to the effect that they were not interested in exhumation of dead body but such request was not considered in accordance with law. In support of contention reliance has been placed on case 'Muhammad Akram v. Additional Sessions Judge, Depalpur and 3 others' (2014 PCr.LJ 1030 Lahore) and 'Yar Muhammad v. The State' (2017 PCr.LJ 694 Peshawar).
7. On the other hand learned law officer who has entered appearance on court call, has vehemently opposed the petition.
8. Arguments heard and documents attached with this petition examined.
9. Section 174(1)(c) of the Cr.P.C. stipulates that when an officer incharge of a police station or some other competent police officer receives information that a person has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Magistrate of Ist Class to hold inquests and shall make an investigation and forward report thereof to the concerned Magistrate. Section 176 Cr.P.C. postulates that when any person dies while in police custody or in any other case mentioned in Section 174(1) clauses (a)(b) and (c) a competent Magistrate may hold an inquiry into the cause of death irrespective of investigation by police and during such process if he considers expedient to make an examination of dead body of any person who has been already interred, in order to discover the cause of his death, he may cause the body to be disinterred and examined under subsection (2).
10. Bare perusal of above provisions of law would reflect that sole purpose of exhumation of dead body is to discover cause of death of the deceased and to unearth whether it was a natural death or otherwise (Qatl-e-Amd). It is basic scheme of criminal law that an offence if committed must be unearthed for which criminal machinery has to be set into motion. Section 176(2) Cr.P.C. does not put any clog of locus standi to approach a Magistrate for exhumation of dead body. It can be carried out by the Magistrate on his own or on the request or information of even a stranger with the sole purpose to know the actual cause of death. Accusation of murder at least warranted an investigative probe which was only possible through forensic analysis of the corpse. Real cause of death could be ascertained only by exhuming the body of deceased. Since intent of impugned orders was merely to ascertain real cause of death, same was just and proper as the same was to advance the cause of justice, as such the same cannot be annulled in the discretionary jurisdiction under Article 199 of the Constitution. Of course such jurisdiction is to be exercised for advancement of justice and not to perpetuate injustice. Steering thoughts in this regard have been gathered from cases Abdul Rashid Khan and 80 others v. President Services Institute PAF Base Lahore (1999 MLD 1870 Lahore).
11. The learned Special Judicial Magistrate after proper exercise of jurisdiction vested with him has allowed the application moved by respondent and no mala fide whatsoever has been attributed against the said respondent or local police for initiating the proceedings under challenge. The Revision Petition filed by the petitioner and other close relatives stood dismissed while considering each and every aspect of the case. The orders impugned herein are in line with the principle laid down in case 'Ameer Afzal Baig v. Ahsan Ullah Baig and others' (2006 SCMR 1468), wherein following dictum has been laid down:-
"We have gone through the detailed reasoning given in the impugned order and observed that the same was quite logical, fair and just. In the circumstances of the present case at least the legal heirs had a right to get the suspicion removed, more particularly, when the exhumation by itself could never lead to the involvement of some one unless the post-mortem is conducted and the report is positive. When report is positive, the persons involved certainly require to be proceeded against. Exhumation and thereafter the post-mortem are mere tools of investigation which, in the ordinary course, would not be interrupted. It may be recalled that after preliminary inquiry, the Magistrate in his first order had found the exhumation to be justified. The learned Additional Sessions Judge as well as the learned High Court is of the same opinion and hence any interference by this Court would be totally uncalled for. The petition is hereby dismissed and leave to appeal refused." (emphasis supplied by me).
This principle was also relied and followed in cases Khalid Pervez through Special Attorney v. Haji Akhtar Nisar and 6 others (2008 PCr.LJ 175 Lahore) and 'Mst. Shama v. The State and 3 others' (PLD 2017 Lahore 337) .
12. In case Faryad Ali v. The State (2008 SCMR 1086) it has been held:
"Coming to the contention of the learned Deputy Prosecutor General that the re-examination of the dead body conducted by the Special Medical Board after about 10 months of the burial, suffice it to answer that the medical jurisprudence has not provided any time limit for exhumation/disinterment of the dead body in India and England while in France the period is limited to 10 years and 30 years in Germany. Reference is made to Modi's Medical Jurisprudent and Toxicology (Chapter IV Page 90)
13. In the wake of above legal position, I do not see any valid ground for exercise of Constitutional jurisdiction and issue writ to set aside the impugned orders. As such this writ petition is dismissed in limine.
MWA/B-1/L
Petition dismissed. D 2020 Lahore 394
Before Mujahid Mustaqeem Ahmed, J
BEGUM MAI---Petitioner
Versus
ADDITIONAL SESSSIONS JUDGE and others---Respondents
Writ Petition No.18401 of 2019, decided on 27th November, 2019.
(a) Islamic jurisprudence---
----"Life"--- Concept of life in Islam stated.
(b) Criminal Procedure Code (V of 1898)---
----S. 176---Penal Code (XLV of 1860), S.302(b)---Disinterment/ exhumation of dead body---Scope---In case when offence of murder had been committed in mysterious manner and evidence was destroyed and dead body buried in haste, under the social norms/pressure and designs of the killer(s), if circumstances so existed to reflect that death had occurred other than natural way, in order to make a probe, if it was necessary for the sake of justice, then even disinterment should be ordered---Mere fact that dead body had already been buried or family of the deceased was not consenting for disinterment was not a good ground to deny doing justice---Sole purpose of exhumation of dead body was to discover cause of death of the deceased and to unearth whether it was a natural death or otherwise (qatl-i-amd).
(c) Criminal Procedure Code (V of 1898)---
----S.176---Disinterment/exhumation of dead body---Locus standi of applicant/petitioner---Section 176(2) Cr.P.C. did not put any clog of locus standi to approach a Magistrate for exhumation of dead body---Order for exhumation could be made by the Magistrate on his own or on the request or information of even a stranger with the sole purpose to know the actual cause of death.
(d) Criminal Procedure Code (V of 1898) ---
----S.176---Disinterment/exhumation of dead body against wishes of legal heirs, order for---Ascertaining real cause of death and advancing cause of justice---Deceased-daughter of petitioner had died in suspicious circumstances---Applicant, who was a maternal cousin of the deceased, suspected murder and consequently moved an application before Special Judicial Magistrate for exhumation of dead body---Said application was contested by the petitioner which was, however, allowed by the Magistrate---Plea of petitioner that legal heirs of deceased appeared before the revisional Court and got recorded their statements to the effect that they were not interested in exhumation of dead body but such request was not considered in accordance with law---Held, that accusation of murder at least warranted an investigative probe which was only possible through forensic analysis of the corpse---Real cause of death could be ascertained only by exhuming the body of deceased---Since intent of impugned orders was merely to ascertain real cause of death, same was just and proper as the same was to advance the cause of justice---No mala fide whatsoever had been attributed against the applicant or local police for initiating the proceedings for exhumation of dead body of deceased---Exhumation and thereafter the postmortem were mere tools of investigation which, in the ordinary course, would not be interrupted---Special Judicial Magistrate after proper exercise of jurisdiction vested with him had allowed the application---Constitutional petition was dismissed accordingly.
Ameer Afzal Baig v. Ahsan Ullah Baig and others 2006 SCMR 1468; Khalid Pervez through Special Attorney v. Haji Akhtar Nisar and 6 others 2008 PCr.LJ 175 and Mst.Shama v. The State and 3 others PLD 2017 Lah.337 ref.
(e) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of the High Court---Scope---Discretionary jurisdiction of High Court under Art.199 of the Constitution was to be exercised for advancement of justice and not to perpetuate injustice.
Abdul Rashid Khan and 80 others v. President Services Institute PAF Base Lahore 1999 MLD 1870 ref.
Kanwar Farhan Ahmad for Petitioner.
Malik Shaukat Mahmood Marha, A.A.G. on Call.
ORDER
MUJAHID MUSTAQEEM AHMED, J.---Before adverting to the case in hand, it would be just, fair and proper to notice concept of "life" in Islam and Western jurisprudence. Allah Almighty commands:
"And do not kill a person whom Allah has given sanctity, except rightfully." (Surah Al-Anaam Verse 151)
"If a man kills a Believer Intentionally, his recompense is Hell, to abide therein (For ever); and the wrath. And the curse of Allah are upon him, and a dreadful penalty is prepared for him." (Surah Al-Nisah Verse 93)
"On that account: We ordained for the children of Israel that if anyone slew a person-unless it be for murder or for spreading mischief in the land, it would be as if he slew the whole people: and if anyone saved a life, it would be as if he saved the life of the whole people ." (Surah Al Maidah Verse 32)
In his Last Sermon delivered at the time of "Hajj" in the year 10 A.H. commonly known as "Khutba Hajja tul Widah" the Holy Prophet Muhammad (Peace Be Upon Him) said:
"O People, just as you regard this month, this day, this city as Sacred, so regard the life and property of every Muslim as a sacred trust... Hurt no one so that no one may hurt you".
As per Command of Allah Almighty in the Holy Quran, He is the Creator of whole universe. He has originated the creation and only He has to take it back. Thus life is sacred and precious gift from Allah Almighty. It is only He who gives life and death. It is bitter reality that death is part of scheme of creation. It is predetermined by Almighty Allah and the exact time of person's death is known only to Him. Since He has created life so it is His right/prerogative/privilege to take it back and not that of any human being. Thus willful taking one's life is considered a major sin in all religions including Islam and a gruesome crime in all civilized societies of the world.
2. Universal Declaration of Human Rights is a historic document that was adopted by the United Nations General Assembly at its Third Session on 10th of December, 1948 which consists of 30 Articles affirming an individual's rights. Articles 3 to 5 establish individual's right to life and prohibition of slavery and torture. Life is sacred right of human being so, in all constitutions of civilized countries this basic right has been recognized, safeguarded and protected as a fundamental right. The penal laws revolve around to protect this basic right. Under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 right of life of human being, as an inalienable right, has been protected. If this right is violated or snatched by any human being, law of land comes into motion to deal with such offender and different penal provisions under different laws are attracted to deal with such mischief monger(s).
3. In order to unearth as to whether one met natural or unnatural death probe must be made as no one on earth has a right to take away life of another except in accordance with law. In case when offence of murder has been committed in mysterious manner and evidence is destroyed and dead body buried in haste, under the social norms/pressure and designs of the killer(s), if circumstances so exist to reflect that death had occurred other than natural way, in order to make a probe, if it is necessary for the sake of justice, then even disinterment should be ordered. Mere fact that dead body had already been buried or family of the deceased is not consenting for disinterment is not a good ground to deny to do justice.
4. Now I come to the facts of the present case.
5. Mst. Hakim Mai (Married Lady) daughter of the present petitioner died in suspicious condition. Her maternal cousin, namely, Muhammad Saleem/respondent No.4 (respondent) moved an application before learned Special Judicial Magistrate, Multan for exhumation of dead body. The application was contested by the petitioner which was, however, allowed by the Magistrate vide impugned order dated 21.10.2019. Feeling aggrieved of the said order, the petitioner approached the learned Additional Sessions Judge, Multan by way of revision petition but failed and the said petition was dismissed by learned revisional Court vide order dated 05.11.2019 while observing as under:-
"The petitioner has assailed the order dated 21.10.2019 whereby the learned Special Judicial Magistrate ordered for exhumation of the grave and disinterment of dead body of Mst. Hakim Mai. Learned counsel for the petitioner argued that Mst. Shehzan Perveen (sister), Mushtaq Hussain (husband), Mst. Irshad Bibi (sister), Mst. Shamshad Ajmal (sister), Mst. Begum Mai (mother/petitioner), Muhammad Zafar (brother) and Muhammad Akbar (brother) put their appearance in the court and have tendered their affidavits (Mark-A to Mark-H) and deposed that Mst. Hakim Mai committed suicide and they are not ready for the exhumation of her grave and disinterment of her body. Learned Special Judicial Magistrate, while accepting the petition, observed that statement of husband of deceased raised suspicion about the circumstance of her death. Mst. Hakim Mai deceased died on 29.08.2019. Respondent contended that Mst. Hakim Mai was murdered, so, he was every right to know the real cause of death of deceased. Learned counsel for the petitioner raised objection that when the original legal heirs are not ready for the exhumation of the grave and disinterment of the body of deceased then, the impugned order is not in consonance with the law. Seeking guidance from 2017 PCr.LJ 1341 "For exhumation of the grave and disinterment of the dead body, mere suspicion was sufficient to ascertain the actual cause of death of the deceased to exonerate any slightest doubt in the minds of the relatives of the deceased, which was their legal right to know". Real cause of death can be ascertained only by exhuming the body of the deceased. I am fortified by PLD 2007 Lahore 176 "No time fixed in Pakistan for disinterment of body". So, the order passed by learned lower court does not suffer from any infirmity." (Underlined to provide emphasis)
In this back ground, the petitioner by filing this constitutional petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has assailed the above orders passed by learned Courts below with following supplication:
"In view of the above circumstances, it is most respectfully prayed that this writ petition may kindly be accepted and the impugned orders dated 5.11.2019 and 21.10.2019 passed by learned two courts below/respondents Nos. 1 and 2 may kindly be declared as illegal, unlawful, without lawful authority and the same kindly be set aside, resultantly the application moved by respondent No. 4 may kindly be dismissed."
6. Learned counsel for the petitioner contends that the impugned order has been passed by learned Special Judicial Magistrate without giving opportunity of hearing to the legal heirs. Adds that the legal heirs appeared before the learned revisional Court and got recorded their statements to the effect that they were not interested in exhumation of dead body but such request was not considered in accordance with law. In support of contention reliance has been placed on case 'Muhammad Akram v. Additional Sessions Judge, Depalpur and 3 others' (2014 PCr.LJ 1030 Lahore) and 'Yar Muhammad v. The State' (2017 PCr.LJ 694 Peshawar).
7. On the other hand learned law officer who has entered appearance on court call, has vehemently opposed the petition.
8. Arguments heard and documents attached with this petition examined.
9. Section 174(1)(c) of the Cr.P.C. stipulates that when an officer incharge of a police station or some other competent police officer receives information that a person has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Magistrate of Ist Class to hold inquests and shall make an investigation and forward report thereof to the concerned Magistrate. Section 176 Cr.P.C. postulates that when any person dies while in police custody or in any other case mentioned in Section 174(1) clauses (a)(b) and (c) a competent Magistrate may hold an inquiry into the cause of death irrespective of investigation by police and during such process if he considers expedient to make an examination of dead body of any person who has been already interred, in order to discover the cause of his death, he may cause the body to be disinterred and examined under subsection (2).
10. Bare perusal of above provisions of law would reflect that sole purpose of exhumation of dead body is to discover cause of death of the deceased and to unearth whether it was a natural death or otherwise (Qatl-e-Amd). It is basic scheme of criminal law that an offence if committed must be unearthed for which criminal machinery has to be set into motion. Section 176(2) Cr.P.C. does not put any clog of locus standi to approach a Magistrate for exhumation of dead body. It can be carried out by the Magistrate on his own or on the request or information of even a stranger with the sole purpose to know the actual cause of death. Accusation of murder at least warranted an investigative probe which was only possible through forensic analysis of the corpse. Real cause of death could be ascertained only by exhuming the body of deceased. Since intent of impugned orders was merely to ascertain real cause of death, same was just and proper as the same was to advance the cause of justice, as such the same cannot be annulled in the discretionary jurisdiction under Article 199 of the Constitution. Of course such jurisdiction is to be exercised for advancement of justice and not to perpetuate injustice. Steering thoughts in this regard have been gathered from cases Abdul Rashid Khan and 80 others v. President Services Institute PAF Base Lahore (1999 MLD 1870 Lahore).
11. The learned Special Judicial Magistrate after proper exercise of jurisdiction vested with him has allowed the application moved by respondent and no mala fide whatsoever has been attributed against the said respondent or local police for initiating the proceedings under challenge. The Revision Petition filed by the petitioner and other close relatives stood dismissed while considering each and every aspect of the case. The orders impugned herein are in line with the principle laid down in case 'Ameer Afzal Baig v. Ahsan Ullah Baig and others' (2006 SCMR 1468), wherein following dictum has been laid down:-
"We have gone through the detailed reasoning given in the impugned order and observed that the same was quite logical, fair and just. In the circumstances of the present case at least the legal heirs had a right to get the suspicion removed, more particularly, when the exhumation by itself could never lead to the involvement of some one unless the post-mortem is conducted and the report is positive. When report is positive, the persons involved certainly require to be proceeded against. Exhumation and thereafter the post-mortem are mere tools of investigation which, in the ordinary course, would not be interrupted. It may be recalled that after preliminary inquiry, the Magistrate in his first order had found the exhumation to be justified. The learned Additional Sessions Judge as well as the learned High Court is of the same opinion and hence any interference by this Court would be totally uncalled for. The petition is hereby dismissed and leave to appeal refused." (emphasis supplied by me).
This principle was also relied and followed in cases Khalid Pervez through Special Attorney v. Haji Akhtar Nisar and 6 others (2008 PCr.LJ 175 Lahore) and 'Mst. Shama v. The State and 3 others' (PLD 2017 Lahore 337) .
12. In case Faryad Ali v. The State (2008 SCMR 1086) it has been held:
"Coming to the contention of the learned Deputy Prosecutor General that the re-examination of the dead body conducted by the Special Medical Board after about 10 months of the burial, suffice it to answer that the medical jurisprudence has not provided any time limit for exhumation/disinterment of the dead body in India and England while in France the period is limited to 10 years and 30 years in Germany. Reference is made to Modi's Medical Jurisprudent and Toxicology (Chapter IV Page 90)
13. In the wake of above legal position, I do not see any valid ground for exercise of Constitutional jurisdiction and issue writ to set aside the impugned orders. As such this writ petition is dismissed in limine.
MWA/B-1/L
Petition dismissed.
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