IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Misc. Appln. No.S-168 of 2023
Applicant : Anwar Ali Kharl, through Mr. Ahsan Ahmed Qureshi
Advocate.
State : Through Mr. Ali Anwar Kandhro, Additional
Prosecutor General.
Respondents : Through Mr. Amanullah Luhur Advocate.
No.4 to 6.
Date of hearing : 13.07.2023.
Date of Decision : 13.07.2023.
O R D E R.
Through this criminal miscellaneous application, applicant/ complainant has impugned the order dated 06.12.2022 passed by the Court 5th Civil Judge & Judicial Magistrate, Larkana in miscellaneous application filed under Section 176(2) of Cr.P.C. After hearing the parties, the said application was dismissed. Being aggrieved by the said order, the applicant filed the revision application before the Sessions Judge, Larkana. Same was transferred to the learned 2nd Additional Sessions Judge being Cr. Revn. Application No.24/2022 re-Anwar Ali v. SHO of PS Allahabad and others. After hearing the parties, the said revision application was also dismissed vide order dated 02.01.2023. Being aggrieved against both the orders, the present criminal miscellaneous application has been filed by the applicant before this Court.
2. Per learned Counsel, the exhumation of dead body of deceased is necessary in order to discover and ascertain the actual cause of his death, particularly in view of the facts that there were injuries on the person of deceased; there was bleeding from his mouth, nostrils, left ear, there were abrasions on his face, as per postmortem both hands of deceased were cuffed and abdomen was disintended, and Shalwar and Kameez of deceased were stained with blood; that the Special Medical Board constituted on the request of the applicant only testified about genuineness of the postmortem report of deceased and not about the actual cause of his death; that the Medical Superintendent, CMCH, Larkana being Chairman of the Special Medical Board and the Convener of Board acted malafidely by changing the dates of the meeting of the said Board in collusion with the Doctor, who had issued the Final Postmortem Report of the deceased; that the report of Special Medical Board has been issued by Additional M.S, CMCH as it’s Chairman, though the M.S. of CMCH was appointed as Chairman; that as per report of the Special Medical Board, I.O. was directed to produce the clothes of deceased, but the I.O. replied to them that the clothes were not available and those were washed by the relatives of the deceased, though the clothes of deceased are shown as case property in the challan; that the learned Magistrate and the learned Additional Sessions Judge while dismissing the application u/s 176(2), Cr.P.C. as well as the revision application of the applicant have committed illegality by not considering the grounds raised before them and also by not considering the documents/record produced by the applicant; that the impugned orders are based on mis-reading and non-reading of the material placed by the applicant before both the learned Courts below. He, therefore, prayed that the impugned orders may be set aside and by allowing instant criminal miscellaneous application, the prayer of the applicant may be allowed. In support of his contentions, he relied upon the cases reported as Muhammad Ramzan v. The State (1987 SCMR 272), Ameer Afzal Baig v. Ahsan Ullah Baig (2006 SCMR 1468), Nargis v. District Magistrate (1985 MLD 782), Riaz-ul-Hassan Shah v. Additional Sessions Judge (2006 YLR 2953), Mansab Ali v. Asghar Ali Faheem Bhatti (PLD 2007 Lahore 176) and Fozia Shabnam v. Additional Sessions Judge (PLD 2016 Lahore 518).
3. On the other hand, learned Counsel for private respondents No.4 to 6 as well as the learned Addl. P.G. supported the impugned orders.
4. From the face of the record it appears that the applicant lodged FIR vide Crime No.52/2022 at P.S Allahabad, Larkana, alleging that his son deceased Ali Asghar, aged about 12/13 years, went with neighbourers Manzoor Hussain, Ameer Ali, Sarfraz Ali and others. Deceased Ali Asghar did not return back to the house. On 02.07.2022, in the morning, the dead body of deceased was found in Kinna Khooh (drainage nala) at Khalique Colony, Larkana. The dead body was shifted to the hospital and subsequently FIR was registered. The postmortem of deceased was conducted on 02.07.2022 at CMC Hospital, Larkana. The provisional postmortem report also submitted.
5. The main contention of the learned Counsel for the applicant is that the applicant/complainant has apprehension that before committing death of the deceased, the sodomy was also committed with him, as such, he submits that in order to verify the contention of the applicant, the application u/s 176(2), Cr.P.C. was filed for exhumation of the dead body of his deceased son. In the medical certificate it was opined by the doctor that death of deceased is due to asphyxia caused by drowning. Drowning is ante-mortem in nature and sufficient to cause death in ordinary course of nature, to exclude possibility of poison viscera were taken and sent to histo-pathological and chemical examination. Anal canal swabs also taken for any spermatozoa and X-ray for radiological report; when all such reports received will be communicated later on and in the final postmortem report. The anal swabs of deceased were sent to the office of Chemical Examiner and as per chemical report dated 30.8.2022 the test was performed and the report received from the Chemical Examiner except diatom positive, other tests were received in negative; as per result of the Chemical Examiner Diatom was detected from the piece of lung of bottle No.2. As per postmortem report, the deceased died due to drowning in the canal. The main contention of the learned Counsel that sodomy was committed, as such, anal canal swabs were taken; however, as per the Final Postmortem Report dated 19.09.2022 the Pathologist Dr. Raj Kumar, CMCH, Larkana did not find any alive or dead sperms during examination of the anal swabs and only bacterial contamination was noted. The postmortem report and other reports of deceased Asghar Ali were also challenged by the applicant before the Special Medical Board constituted by the Director General, Health Services Sindh, at Hyderabad. The Special Medical Board in their report dated 16.5.2023 concluded as under:-
“After thorough/detailed examination followed by discussion the members of Special Medical Board observed that the concerned MLO Dr.Rashid Ali Siyal has maintained all the proper protocol, that no any misappropriation / discrepancy was found in such reports. So the Postmortem Certificate issued by above mentioned Doctor stands correct and appropriate.”
6. In view of above, learned Counsel for the applicant has failed to point out any illegality or irregularity in the impugned orders passed by the learned Courts below. Resultantly, instant criminal miscellaneous application being devoid of merits is dismissed.
JUDGE
Qazi Tahir PA/*