ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Misc. A. No. S- 433 of 2024

Date	Order with signature of Judge

                        1. For orders on office objection-A.

                        2. For hearing of main case.

                        3. For hearing of MA No.7316/2024. S/A.

05.03.2025.

                        Mr. Aijaz Ali Chandio, advocate for the Applicant.

                        Mr. Nazir Ahmed Bhangwar, DPG for the State.

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Khalid Hussain Shahani J. Through the instant Criminal Miscellaneous Application, the applicant has challenged the legality and propriety of the orders dated 29.07.2024, passed by the learned 2nd Judicial Magistrate, Mehar, whereby the application filed by the applicant/complainant seeking to restrain the exhumation of the deceased minor, Mst. Aneela Lakhair, the applicant's daughter, was rejected. Additionally, the applicant impugns the order dated 11.12.2024, passed by the learned Additional Sessions Judge-II, Mehar, in Criminal Miscellaneous Application No.49 of 2024, which upheld the previous order. The applicant seeks the annulment of both impugned orders, contending that they suffer from legal infirmities and are contrary to the principles laid down by the Honorable Supreme Court of Pakistan regarding the exhumation of deceased persons in criminal investigations.

02.      Learned Counsel for the applicant submits that the applicant, being the mother of the deceased, is no longer interested in the exhumation of the deceased's body. The record indicates that the orders for exhumation were passed primarily on the basis that Section 311 PPC, along with other provisions, was mentioned in the FIR. The primary purpose of the exhumation was to determine whether the cause of death was homicidal in nature, particularly in light of allegations related to Siahkari. However, in light of the applicant’s disinterest and the absence of any compelling evidence necessitating further inquiry, the learned counsel argues that the exhumation is unwarranted and serves no legal purpose.

03.      Learned Deputy Prosecutor General, Sindh, acknowledges that the applicant, being the complainant, has expressed disinterest in proceeding with the exhumation of the deceased’s body to determine the cause of death. Furthermore, in light of the circumstances and the available record, it is evident that the exhumation process would serve no legal or evidentiary purpose, as no new material facts are likely to emerge that would alter the course of the investigation. The Honorable Supreme Court of Pakistan has consistently held that exhumation should only be ordered when there is a compelling reason supported by substantial evidence indicating the necessity of such an inquiry. In the absence of such justification, the process of exhumation is unwarranted and does not serve the interests of justice.

04.      The applicant, being the complainant and the mother of the deceased, initially lodged an FIR bearing Crime No.100 of 2024 at Police Station Mehar under Sections 302, 311, and 34 PPC, alleging Qatl-e-Amd against the accused and requesting the exhumation of the deceased's body for postmortem examination, as no such procedure had been conducted earlier. However, following the registration of the FIR on 09.04.2024, the applicant subsequently filed an application seeking to restrain the Investigating Officer from proceeding with the exhumation through a Medical Board. This contradictory stance led to the filing of an application before the 2nd Judicial Magistrate, Mehar, which was declined. Thereafter, the applicant challenged the said order in a revision application, which was also dismissed.

05.      The applicant’s conduct reflects an apparent reluctance to proceed with the exhumation of the deceased’s body, raising concerns about the credibility of her allegations. The Honorable Supreme Court of Pakistan has consistently held that once a complainant invokes the legal process, they must demonstrate bona fide intent and not act in a manner that obstructs the course of justice. The shifting stance of the applicant suggests the possibility of either a compromise with the accused or an ulterior motive behind her reluctance. Given these circumstances, even if the exhumation is carried out, it would serve no meaningful purpose, as it is unlikely to yield any material evidence that could alter the course of the investigation. Accordingly, the present application is allowed, and both impugned orders passed by the courts below are set aside.

06.      Instant application stands disposed of. 

JUDGE

S.Ashfaq/-