IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Misc. Appln. No.S-311 of 2020.
Applicants: Mst. Iqra and others
Through their advocates M/s Asif Ali Abdul Razak Soomro and Athar Abbas Solangi.
Respondent No.1 Zubair Khan Jakhrani,
Through his advocate Mr. Barrister Arsalan Raja.
Anum Mehsud D/o
Razaullah Khan (in person).
Official respondents through Mr. Liaquat Ali Shar, Additional Advocate General and Mr. Aitbar Ali Bullo, D.P.G.
Date of hearing: 22-10-2020 & 23-10-2020.
Date of decision: 23-10-2020
O R D E R
ZULFIQAR ALI SANGI, J.- Through instant Criminal Miscellaneous Application, filed under section 561-A Cr.P.C, the applicants have called in question the orders dated 10-10-2020, passed by Ist: Judicial Magistrate, Jacobabad on Cr. Misc. Application. No.73/2020, moved by respondent No.1 for exhumation/disinterment of deceased Faisal Ramzan Mugheri and order dated 16.10.2020, passed by Additional Sessions Judge-I, Jacobabad in Criminal Revision Application No.10/2020, “re: Mst. Iqra Faisal and others vs. Zubair Khan and another”, moved by the applicants, whereby both the learned courts were pleased to direct D.G Health Services, Hyderabad for constitution of Medical Board for the postmortem of deceased Faisal Ramzan Mugheri (after disinterment) and submit such report before the concerned court of Magistrate within 15 days. The applicants pray that record and proceedings of both the courts below be called and after scrutinizing the legality, propriety and correctness, the said orders may be set-aside/quashed.
2. Facts of the case are that respondent No.01 Zubair Khan moved an application dated 21.09.2020 for exhumation/disinterment of deceased Faisal Khan Mugheri further alleging therein that the mysterious and sudden death of deceased, namely, Faisal Khan Mugheri was taken place on 15.09.2020 in the deceased's house at Jacobabad. According to the respondent No.1, the said death has raised reasonable suspicions and doubts among the citizens of Jacobabad and close friends of deceased that some persons/culprits (close family members of deceased) have committed "murder" of deceased. According to respondent No.01, the deceased was receiving numerous" death threats" from very close family relatives and a bare look on the neck and lower body of deceased suggested that he had been a victim of physical assault. It was further alleged by respondent No.01 that in presence of suspicions and doubts, the disinterment/exhumation and postmortem of dead body was necessary to discover the actual cause of death in terms of section 174 & 176 of Cr.P.C. for that purpose, being a close friend, the respondent No.01 approached Deputy Inspector General (D.I.G) & the concerned Senior Superintendent of Police (S.S.P) for the registration of criminal case in terms of Section 154 Cr.P.C as despite availability of witnesses but the DIG and S.S.P failed to take any action. Thereafter he filed a criminal misc. application U/S 174 & 176 of Cr.P.C before the court of Judicial Magistrate-I, Jacobabad.
3. After receiving of application, the learned Judicial Magistrate issued notice to the concerned SHO for conducting inquiry and subsequently on 29.09.2020 he called report of legal heirs of the deceased Faisal Ramzan Mugheri from Mukhtiarkar (R) Jacobabad
4. During course of inquiry the SHO concerned recorded the statements of legal heirs of deceased Faisal Ramzan viz. Applicants No.01 to 6, including Molvi Habibullah who performed "Ghusul" of deceased Faisal, Muhammad Yousif Abro, Rafique Ahmed Soomro, Rasheed Ahmed Bugti, the neighbors of Faisal Ramzan, Ghulam Murtaza Soomro servant/attendant of deceased Faisal Ramzan, Mir Hassan and Bashir Ahmed both sons of Nabi Bux Nasirrani maternal uncles of Faisal Ramzan and statement of Respondent No.01 Zubair Khan. All the above witnesses except Zubair Khan denied the contention of application filed by respondent No.01 Zubair Khan and submitted before the SHO that Fisal Khan was a drug addict and died a natural death.
5. The SHO concerned after completion of inquiry submitted his report before the learned Judicial Magistrate dated 23.09.2020 by stating that during course of inquiry the respondent No.01 failed to provide any concrete evidence to establish that Faisal Ramzan died an unnatural death, after hearing the parties learned Magistrate passed the impugned order dated: 10-10-2020. Thereafter the applicants impugned the same order before the court of Sessions Judge Jacobabad by filing Criminal Revision Application No.10/2020 which was assigned to the court of Additional Sessions Judge-I, Jacobabad and the same was dismissed vide order dated: 16.10.2020.
6. Mr. Athar Abbas Solangi counsel for the applicants has contended that the application before the learned Magistrate was filed with malafide intention; that respondent No.1 has an enmity with the family of deceased Faisal Mugheri, therefore, he only moved an application for disgrace and humiliation of the family of applicants; that respondent No.1 was political rival of the applicants and is a convict and was remanded jail by this court; that no any application was filed by deceased Faisal before any forum that he received a threat from his family members; that application U/S 22-A & B Cr.P.C for registration of FIR of the murder of deceased Faisal, filed by respondent No.1 was also dismissed vide order dated 16.10.2020 by I-Additional Sessions Judge, Jacobabad; that on the directions of learned Magistrate, police has conducted an enquiry and came to the conclusion that death of deceased Faisal Mugheri was natural; that Mst. Anum is not wife of the deceased Faisal Mugheri and she was managed by respondent No.1, even the respondent No.1 has not mentioned about the second wife of deceased Faisal Mugheri in his application submitted before learned Magistrate nor Mst. Anum had filed a separate application for exhumation of dead body; that applicants being legal heirs does not want exhumation of dead body as they are of the firm view that death of the deceased Faisal was a natural death; that learned Magistrate so also the Additional Session Judge have not applied their judicial mind and allowed the application of an stranger, who belongs to another tribe. In support of his contentions, he has relied upon the case laws reported as MUHAMMAD AKRAM vs. ADDITIONAL SESSIONS JUDGE, DEPARLUR and 3 others (2014 P.Cr.L.J 1030),YAR MUHAMMAD Vs. The State (2017 P.Cr.L.J 694), Ghulam Mustafa Vs. The STATE and 5 others (2015 Y L R 2230) and Haji ABDUL HAMEED versus RAZA MUHAMMAD and another (PLD 2014 Baluchistan 50)
7. Conversely, the learned Counsel for the Respondent No.1 submits that reasoning rendered by the learned Ist: Judicial Magistrate Jacobabad and learned Additional Sessions Judge-I, Jacobabad while passing the impugned orders are neither illegal nor called for any interference by this Court, as such, he prays for maintaining the impugned orders and dismissing the present Criminal Miscellaneous Application. In support of his contentions, he has relied upon the case of BEGUM MAI Vs. ADDITIONAL SESSIONS JUDGE and others (PLD 2020 Lahore 394).
8. Learned Deputy Prosecutor General, Sindh, and learned Additional Advocate General, Sindh have supported the arguments of the learned counsel of the applicants and submitted that both the courts below failed to consider the contentions raised on behalf of the applicants and wrongly passed the orders in favour of the respondent Zubair. They further contended that during the inquiry the Molvi who gave bath “GHUSUL” to the dead body was examined by the police who stated that there were no marks of violence on the body of deceased Faisal Mugheri and prayed that this application may be allowed and the orders passed by the courts bellow may be set-aside.
9. I have given due consideration to the arguments advanced by the learned Counsel for the respective parties and perused the impugned orders as well as the material available on the recordwith their able assistance.
10. Before attending the merits of the case, I find it appropriate to examine ‘object’ of insertion of Section 176 of the Code because the matter in hand revolves round the applicability or otherwise of Section 176 of the Code. The provision reads as under:
176. Inquiry by Magistrate into cause of death: (1) When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in Section 174, clauses (a), (b) and (c) of sub-section (1), any Magistrate so empowered may hold an inquiry into the cause of death either, instead of, or in addition to, the investigation held by the police-officer, and if he does so, he shall have all the powers in conducting it which he would have in holding:, an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case.
11. A bare reading of the subsection (1) of Section 176 of the Code shows that it (section 176 of the Code) is in continuity of Section 174 of the Code whereby an information regarding one:-
a) has committed suicide, or
b) has been killed by another, or by an animal, or by machinery, or by an accident, or
c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence;
is to be made to the nearest Magistrate who, within meaning of Section 176 of the Code, shall be required to hold an inquiry for no other purpose but to know ‘the cause of death. The inclusion of sections 174 & 176 of the Code themselves show that legislatures have attempted to secure the right of all, interested in knowing the ‘cause of death’ of their loved one. Needless to add that ‘death of all living’ is undeniable (Kullu Nafsin Zaiqa-tul-mout). This, however, can’t be an excuse for allowing any imbalance in the ‘society’ where everybody is responsible to own consequences of his ‘acts and omissions’. In addition to this, it is legitimate right of every single person to know the ‘cause of death’ of his loved one because sorrow of a natural death is much lighter than the pain of unnatural death (which normally is sudden). A conscious notice of this, prima facie, appears to have convinced the legislatures to include the category “C” (mentioned in section 174 of Code) whereby such inquiry can competently be initiated merely on existence of ‘’reasonable suspicion”. Reference to relevant portion from a case, reported as MANSAB ALI versus ASGHAR ALI FAHEEM BHATTI, ADDITIONAL SESSIONS JUDGE, NANKANA SAHIB and 3 others (PLD 2007 Lahore 176), being relevant in support of point, is made hereunder:-
“9. It may be noted that even on simple ground of suspicion, an application for disinterment can be moved. This is more so because a person should have a right to ascertain the real cause of death of his dear one. In Ameer Afzal Baig v. Ahsan Ullah Baig (supra) on the ground of suspicion, the order of disinterment passed by this court was upheld by the Hon’ble Supreme Court of Pakistan…
Such right, I would insist, has been protected even where the body has been interred, therefore, the subsection (2) was added which reads as:-
(2) Power to disinter corpses: 'Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.
12. If both the subsections i.e (1) and (2) of Section 176 of the Code are read together, it could well be summarized that for making an application under section 176(2) of the Code, nothing is necessary except that of satisfaction of Magistrate only to extent that ‘exhumation is expedient for knowing cause of death’. I would also add that since such order is always meant to remove the clouds therefore discretion needs to be exercised as such even if a single reasonable circumstance / suspicion so justifies because ‘cause of death’ would do nothing but determines whether to set the criminal machinery into motion or otherwise?. The exercise, even, be not denied merely on count of request being made by a stranger if, otherwise, circumstances so justifies because for bringing the law into motion the requirement of move by blood-relation is never insisted. I would add that there can be no exception to the fact that even close blood relations are found involved in homicide (s) of their loved one, therefore, mere resistance by close relatives alone would not be a sufficient ground to deny such exercise if the other circumstances convince the Magistrate to take such initiative. Reference to relevant portion of the case of Muhammad Saleem v. State (2014 P Cr.L.J 219) is made, being relevant. The same speaks as:-
“15. It is constant view of the Superior Courts that exhumation of dead body could be ordered on the request of or on the information even a stranger for the purpose to know the actual cause of death so that criminal machinery be set in motion…
13. I would add that even time-limitation is not a ground to deny such course. In the case of Ghazala Begum V. District Magistrate (1996 P Cr.L.J 389), it is observed as:-
“6. …. The contention that exhumation at this stage will serve no useful purpose pales into significance for the sole reason that there is no time limit for the disinterment of the body. Modi in his Medical Jurisprudence and Toxicology in Chapter IV opines:-
“In India and in England, no time-limit is fixed for the disinterment of a body. In France, this period is limited to ten years and it is thirty years in Germany.”
Reliance can be placed on Muhammad Ramzan and others v. The State and another (1987 SCMR 272), wherein the objection of such nature was overruled observing that disinterment can take place even after one year to ascertain the cause of death.”
Thus, now I can safely conclude that if there is even a single circumstance/suspicion, reasonably convincing the Magistrate that disinterment is necessary to know cause of death then such discretion, be not avoided on counts of:-
i) application is by a stranger;
ii) there has lapsed time to interring of dead body;
14. Keeping in view the said object of the provision of Section 176 of the Code in mind, I would take up main contentions of the learned counsel of the applicants that the Respondent No.1 is an stranger having enmity with the family of the deceased and is political rival so also there is tribal dispute with the family of the deceased Faisal Khan Mugheri has no force as during the arguments he admitted that the Respondent No.1 was friend of the deceased but has inimical terms with the applicant Sher Muhammad for which no proof has been submitted. Learned counsel further admitted that the Respondent No.1 was available in all the proceedings till the deceased was buried, even he was available in the ambulance in which the dead body was brought at the graveyard. This fact also finds support from the statement of the applicant Sher Muhammad, given to the police during inquiry wherein he stated that the dead body of the deceased was buried in presence of persons of the city, relatives and friends and Zubair Jakhrani (Respondent No.1), If this is a true picture then in my view the respondent No.1 who filed the application for exhumation to know the cause of death of the deceased Faisal Khan Mugheri is not a stranger, the word stranger has been defined as “a person whom one does not know or with whom one is not familiar”. It is settled by now, as discussed above, that exhumation of the dead body could be ordered on the request or information of even a stranger for the purpose to know the actual cause of death, so that criminal machinery be set into motion or the interested and related could get satisfied about death of deceased as not homicide. In the present case one friend come forward to know cause of death, according to him he had seen the neck of the deceased was unbalanced and the colour of the face was also changed, therefore, he has shown his suspicious as according to him deceased was asking him and other friends that he has some threats from the family members for his murder.
15. Another aspect of the case is that Mst. Anum Mehsud claiming to be the second wife of the deceased Faisal Khan Mugheri was appearing before every court with contentions that her husband was not a drug addict and was aged about 29/30 years having good health, the police has managed all these things to show deceased as drug addict which according to her confirm her suspicious that the deceased was not died by natural death and requested that being the legal heir of the deceased she must know and has right to know the cause of death of her husband. Her contentions have force from the fact that she was not informed about the death of the deceased by the relatives of deceased Faisal Khan Mugheri though they know about her marriage with the deceased. She produced the Nikahnama which shows that her Nikah was performed in the year 2018 further she stated that she has a documentary proof that her husband deceased Faisal Khan Mugheri was maintaining her and was sending money through bank. Though the marriage of Mst. Anum has been denied by the applicants the same is not question here to decide which is left for the family court to decide if parties approached the family court. However at this stage when there is conflict in the stand taken by the applicants and the police so also Mst. Anum it is necessary to know the actual cause of death of the deceased Faisal Khan Mugheri who was aged about 29/30 years having no pervious history of any disease.
16. I would add that learned Magistrate discussed each and every point raised before him in the impugned order and no exception could be taken to such an order (the impugned order) which, otherwise, would help in removing clouds over sudden death of a young person under mysterious circumstances. The relevant paras of the order are reproduced as under:-
12/- Heard and perused the material available on the record before going to the factual merit of the case, I would like to response on legal question, the learned counsel on behalf of legal heirs by arguing raised the objection that, the applicant Zubair Khan and Mst. Anum Mehsud have filed 22/A-B before the court of Honourable District & Sessions Judge/Justice of Peace, Jacobabad. In this respect, they have submitted title page of such application. In this respect, I am of the humble view that, admittedly the application under section 22/A-B is pending before the court of Honourable District & Sessions Judge/Justice of Peace, Jacobabad. The pendency of any application does not affect any other proceedings in respect of the cause. Therefore, I am of the humble that, the mere pendency of any application before the competent Forum is not sufficient to make infructuous any litigation which is in last set of proceedings. Learned counsel on behalf of applicant argued that, Mst. Anum Mehsud and her Nikah Nama is managed one and she is not legal wedded wife of the deceased. In this respect, this court called the report from the Cantonment Board Clifton Karachi, they have submitted the copy of computerized Nikah Nama, which is available on the record and the case before this court is only to determine the cause of death of deceased. So I am of the humble view that, for the sack of arguments, if she is not legal wedded wife of the deceased then both parties have remedy to approach at competent forum for declaration of relation as well as cancellation of Nikah Nama. Moreover, the learned counsel also argued that, since, the lady Mst. Anum Mehsud is not legal wedded wife hence, she has no locus standee to file this application and proceed with this. Moreover, he also argued that, the applicant Zubair Khan is also involved in criminal cases and he is absconder from the legal proceedings, therefore, his locus standi is also not justified with the Law to proceed this application. The learned counsel of legal heirs also argued that, the witness in Nikah Nama Ali Dost is also one of the criminal and required the police authorities in number of cases. Therefore, his name in column of the Nikah Nama is create serious doubt and so also shown the malafide intention of the applicants. In this respect, I perused the record, which reveals that, admittedly the learned defence counsel of legal heirs submitted PS copy of FIRs and photographs, in which, witness Dost Ali is wanted in number of criminal cases and so also applicant Zubair is also wanted in FIR, but as per legal approach I am of the humble view mere pendency of FIRs does not reflect that, the someone is wanted in criminal cases, in order to declare someone criminal, the final Judgments of the cases must to be required, which might have to be in favor of the alleged accused. Further, learned counsel on behalf of legal heirs also stated that, such character of the applicant has snatched the locus standi to proceed with the application. Therefore, the application may be dismissed on account of locus standi. In this respect, I am of the humble view, that in number of cases, it has been well settled principle that, any stranger can file the application for dissenter of the dead body of any deceased in order to know the actual cause of death. And it is not required in Law that, the character of the man is to be required in filling such like application. Therefore, when any stranger has a right to know the cause of death then the friends or alleged legal wedded wife has also right to know the actual cause of death of deceased. Now I turned to the main point the present case is only for unearth the truth of death of deceased Faisal Khan Mugheri. Therefore, I am of the humble view, this court has no jurisdiction to declare someone as proclaimed offender and bad character in this type of application, hence, the arguments of the learned counsel of legal heirs does not sustain any worth.
13/- Learned counsel on behalf of legal heirs has declined the case Laws, produced by the applicant’s counsel viz. PLD 2020 394, 2020 MLD 474, 2018 MLD 460, 2017 P.Cr.L.J 1140, 2016 PLD 518 Lahore, 2018 P.Cr..L.J 1455, 2016 P.Cr.L.J 613, 2006 SCMR 1468, 1996 MLD 626. Learned counsel on behalf of the legal heirs argued that, only the ratio deciendai is precedent however, the remarks of Judges are not binding upon the court. Before going to further discussion on above points, I gone through Black’s Law Dictionary 09th Edition, which is available in the court, in which, the definition of ratio deciendai is given as below for the sack brevity and convenience:-
i. The principle or rule of Law on which a court decision is founded > Many poorly written judicial opinions do not contain a clear ascertain ratio deciendai.
ii. The rule of Law on which, a later court thinks that, a previous court founded its decision; a journal rule without which a case must have been decided otherwise> this opinion recognized Supreme Court, ratio deciendai in the school desegregation cases.
14/- From the reading of above definition of ratio deciendai, I am of the humble view that, the case Laws produced by the learned counsel on behalf of applicant No.01 PLD 2020 394 Lahore. In this case, I am of the humble view that, the Honourable Apex courts has decided the subject litigation and so also open the door by interpreting the section 176 in order to remove ambiguities as far as the question of ratio deciendai. I am of the humble view, in light of above definition that, the reasoning is given in the context of the litigation, therefore, such case Laws as per the constitution of Pakistan is binding upon the Lower courts. As far as question regard the remarks was given by the Lordship by deciding the above case that, even can stranger filed an application? Which is the smooth interpretation of the statue in light of the constitution of Pakistan and as per constitution of Pakistan the interpretation of any Law is soul Power of Honourable Apex Court and which is precedent for the lower courts, hence, such Laws are binding upon the Lower courts.
15/- Now I would like to turn to the factual point of the case. The application filed by the applicant Zubair Khan Jakhrani, after that, another applicant came into the court and she introduced herself as Mst. Anum Mehsud as widow of deceased Faisal Khan Mugheri. In this respect, this court ordered to the SHO Airport, to conduct the enquiry and record the statements of all the legal heirs and in compliance of that, he recorded the statements of all the legal heirs, but he did not did not record the statements of applicant Mst. Anum Mehsud as she alleged to be the widow of deceased Faisal Khan Mugheri. Moreover on the same day, this court also called the list of legal heirs from concerned Mukhtiarkar who submitted the list of legal heirs, in which, he submitted the list which shown the legal heirs every one namely 1. Sher Muhammad Mugheri (step brother of deceased), 2. Iqra Faisal (widow of deceased), 3.Mst. Hakimzadi (step sister of deceased) 4.Mst. Nusrat Ramzan (step sister of deceased), 5.Mst. Shabana Riaz (step sister of deceased) and 6.Mst. Musarat (real sister of deceased). The SHO of the PS Airport, recorded their statement and same was kept on record. All the legal heirs of the deceased have shown their satisfaction as per their statements that, the deceased was died due to the natural death. I perused the statement of Mst. Musarrat, she is the real sister of deceased Faisal Mugheri, but in entire statement of the Mst. Musarrat, she did not disclose about her availability at her house where the death was occurred. Moreover, the second important witness legal heir the wife of deceased Faisal Khan Mst. Iqra Faisal, she narrated in her statement that, on the day of death of deceased Faisal Khan Mugheri, she was not available alongwith the Faisal Khan Mugheri and she herself admitted that, she was available at her father’s house at the time of death and she was informed that, the Faisal Khan Mugheri has been expired. She stated that, her Brother-in-Law Haji Sher Muhammad Mugheri was in Karachi. Now it is pertinent to mention here that, the most important witness of this case the servant of Faisal Khan Mugheri namely Ghulam Murtaza son of Khadim Hussain by caste Mugheri, he stated in his statement that, since 04 to 05 years he was serving as a domestic servant at the Bungalow of Faisal Khan Mugheri, he was very close to Faisal Khan Mugheri and he use to wait even in odd hours of night in service of deceased. He himself stated that, due to lapse of sufficient time, when the Faisal Mugheri did not call him, he went into his room, where he saw that, the Faisal Mugheri was straightly sleeping on his bed and his body was cold. And after that, he approached the Muhammad Sharif and when they checked the deceased they themselves declared him as dead. Now in ordinary course of life when beloved one sustain any simple pain the ordinary prudent mind always took effort to take medical assistance but in entire episode non from witnesses/legal heirs has stated that, the deceased was brought at hospital or tried to give him medical assistance despite having a number of cars available on the bungalow of Faisal Khan Mugheri, but non from them has stated that, they approached to the medical officer or brought the body at Hospital. Therefore, I am of the humble view that, the circumstances, demanded to know the real/actual cause of the death of the deceased. As far as, the statement of Molvi, he stated that, he did not found any mark of violence on the body of deceased. For the sack of arguments, if we believe that, there is no any mark of violence on the body of deceased, which is not sufficient to justify that, the deceased was not meet with unnatural death. As it is the only way to know actual cause of death is to conduct the post mortem of deceased. After that, the question on the death either it is natural or unnatural will be determined. Moreover, the medical examination of the deceased is only just show the conformity with the question of death. The medical evidence does not itself implicates any person in the case. This will be the opinion of the expert and the medical opinion has required property investigation. Therefore, in this respect I relied upon the Case Law 2008 SCMR 1086. The objection of legal heirs is that, if the body of the deceased dissenter it shall be disgrace of grave of deceased. No doubt, the legal heirs are custodian of grave, but when the legal heir is came in the circle of suspiciousness then they loss their such right. In this respect, I relied upon case Law 2014 P.Cr..L.J 219, for the sack of arguments, if we exclude the locus standi of both the applicants even though the Honourable Apex court has observed in number of case Law viz. PLD 2017 Lahore 337, PLD 2020 394 Lahore, 2014 P.Cr.L.J 219. The Magistrate even on his own accord or on information or any Stanger can file an application to know the actual cause of death.
17. The order, passed by the Ist. Additional Session Judge, Jacobabad while dismissing the revision application filed by the applicants thereby maintaining the order of Magistrate is also in affirmation to legally established principles. I found no illegality or infirmity in the order and the same is maintained, whilst dismissing this criminal Misc. Application.
18. These are the reasons of my short order dated 23-10-2020.
JUDGE