' SH. JAVAID SARFRAZ, J:--Briefly the facts, according to the petition, are that the wife of the petitioner namely Mst. Sardaran Bibi died between the night of 5th /6th September, 2005. An application was moved on 27th September, 2005 by respondent No,3 for the exhumation of the grave of Mst. Sardaran Bibi, which was dismissed by learned Judicial Magistrate, Nankana Sahib on 14-2-2006. This was challenged by respondent No,3 before the learned. Sessions Judge, Nankana Sahib through revision petition. It was heard by the learned Additional Sessions Judge, Nankana Sahib, who vide order dated 22-3-2006, remanded it to the trial court, which on remand was accepted by respondent No, 1/learned Senior Civil Judge/Judicial Magistrate, Nankana Sahib on 26-4-2006. This order was challenged before the respondent No, 1/learned Addl. Sessions Judge, Nankana Sahib by filing of a revision petition by the petitioner herein, which was dismissed on 12-5- 2006. The orders dated 12-5-2006 and 26-4-2006 passed by respondents Nos.1 and 2 respectively have been assailed through this petition.
2. Learned counsel for the petitioner in support of this petition submitted that the inquiry regarding the cause of death and to pass an order under section 176, Cr.P.0 is not done on the judicial side, but on the executive side; that under section 173, Cr.P.C. Also the learned Magistrate acts on the executive side and against the order passed under section 173, Cr.P.C, revision petition is not competent. Refers to Hakam Ali etc. v. The State (PLD 2006 Karachi 302); that order passed under section 176, Cr.P.C. Is also not revisable Order, that under section 435, Cr.P.0 the High Court or Sessions Judge may call for and examine the record of any inferior Criminal Court but under section 176, Cr.P.0 the Magistrate is not working as a Criminal Court, therefore, the revisionary power is not available. Referred to "Trovlokhanath Biswas and Ram Churn Biswas" (ILR 3 Cal. 742) and "Laxminarayan Timmanna Kavki" (AIR 1928 Bombay 390) and contended that order dated 14-2- 2006 passed by the learned Magistrate under section 176, Cr.P.0 was not a judicial order, therefore, the revision petition filed by the respondent No,3 against this order was not competent. Thus, the remanding order dated 22-3-2006 passed by the learned Sessions Judge in the revision petition was illegal and void. Hence,, the order 'dated 14-2-2006 of learned Judicial Magistrate remains in the field whereby the application for exhumation was dismissed; that the High Court under the inherent jurisdiction may pass any such appropriate order as it may deem fit; that due respect should be given to the deceased and her body should not be exhumed; that this application is mala fide. Reliance was also placed upon Abdul Majeed v. The State (2006 PCr.LJ 818). On the factual aspect he submitted that after Mst. Sardaran Bibi passed away, the matter was decided between the parties on oath, according to which, respondent No,3 had stated that he was satisfied that his sister Mst. Sardaran had a natural death and the petitioner had no role whatsoever, that in fact the dispute related to the dowry of Mst. Sardaran Bibi, which had been taken by her brother and this petition had been filed only because of the fact that the present petitioner was asking for that dowry. Correspondingly, two sisters .Of the petitioner, who were married in the respondent's family, were also turned out of their house and their dowry had not been returned to them and currently these two sisters were with the petitioner.
3. Conversely, the learned counsel for respondent No,3 submitted that the present case is covered by section 174(1)(c) of Code of Criminal Procedure; that the Magistrate while holding inquiry sought comments from the police, who on 16-5-2005 submitted that there was a dispute between the present petitioner and his wife as he wanted to marry again which was opposed by his wife; that in the evening of 5th September, 2005 the deceased Mst. Sardaran was hale and hearty, but during night she was strangulated to death by the petitioner; that the order passed by the learned Magistrate under section 176, Cr.P.0 being a judicial order, therefore, revision petition was competent before the learned Additional Sessions Judge. In support of this, reference was made to Khuda Bakhsh v. Province of West Pakistan PLD 1957 W.P. (Lahore 662), The State v. Ch. Altaf Hussain Magistrate 1st Class, Gujrat and 2 others PLD 1978 Lah. 1259; Muhammad Anwar v. Sheikh Qurban Ali and 3 others 1973 PCr.LJ 882; Ghulam Hussain v. District Magistrate, Muzaffargarh and 3 others 1993 KLR (Cr.C) 179 and Mst. Nargis v. The Dsitrict Magistrate Gujrat and others 1985 Law Notes 1010. While referring to Ghulam Nabi v. District Magistrate, Okara 1989 MLD 4147 it was further submitted that it was the right of any relative of the deceased to know the actual cause of death.
4. The learned A.A.-G. Also opposed this petition.
5. Arguments heard.
6. The main argument of learned counsel for the petitioner that order of the learned Magistrate was passed on the executive side, therefore revision petition did not lie against his order before the learned Sessions Judge is misconceived. The learned Magistrate ordered for the disinterment of body of deceased vide order dated 26-4-2006. This order was challenged by the present petitioner by filing a revision petition, which was heard by the learned Additional Sessions Judge, Nankana Sahgib, who dismissed the same. When the petitioner himself availed the same remedy by filing the revision petition against the order of Magistrate, therefore, the objection that the earlier revision petition against the order dated 14-2-2006 of the Magistrate could not be filed by respondent No,3 is frivolous. Nevertheless, on a perusal of the judgments of the superior courts as referred by the learned counsel for the respondent No,3, it has been seen that it is the consistent view of this Court that the order passed by the learned Magistrate under section 176, Cr.P.0 is a judicial order and against this, a revision petition was competent before the learned Sessions Judge. In the light of these judgments, the Indian case-law, referred to by the learned counsel for the petitioner is to being followed. Hakam Ali v. The State (Supra) and Abdul Majeed v. The State (Supra) referred by him do not apply to the facts and circumstances of this case. The contention of the learned counsel for the petitioner that due respect should be given to the deceased, and her body should not be exhumed does not carry weight, as there is an allegation that the deceased died an unnatural death, therefore, the only way to ascertain her real cause of death is by exhuming her body.
Respondent No,3 is the brother of the deceased Mst. Sardaran Bibi and suspects that her death is not on account of natural causes and, thus, is interested in disinterment of her body in order to know the real cause of her death. The legal heirs of the deceased and other close relatives have the right to know the cause of death, if they feel that the deceased did not have a natural death. To get the body exhumed for this purpose is their right. In Ghulam Nabi v. District Magistrate, Okara 1989 MLD 4147, the application for disinterment of the dead body was moved by the brother of the deceased which was also allowed and the District Magistrate was directed to take action in this regard. Respectful reliance is also placed upon Ameer Afzal Baig v. Ahsan Ullah Baig 2006 SCMR 1468.
7. The deceased passed away on the night between 5/6th September, 2005 even after a lapse of 13 months, this order for disinterment could be passed. In Pakistan, there is no time limit fixed for the disinterment of body. Modi in his Medical Jurisprudence and toxicology giving the time limit of exhumation writes:- "In India-Pakistan, no time limit is fixed for the disinterment of a body. In France, this period is limited to 10 years, while it is 30 years in Germany."
' Reliance is placed upin Muhammad Ramzan v. State 1987 SCMR 272 in which the Hon'ble Supreme Court of Pakistan did not interfere in the order passed by this court even one year from the date of death of the deceased. Mst. Ghazala Begum v.The District Magistrate, Khanewal 1996 PCr.LJ 389 is also referred.
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. It is, therefore, in the interest of justice that order of exhumation of dead body of the deceased is passed and in such-like cases no interference by this Court is called for. Under the facts and circumstances of the present case, a serious allegation of murder has been levelled against the petitioner, suspecting him of the murder of the deceased. A fact which has been vehemently denied by the petitioner himself. It would, therefore, be in his interest also that the body of the deceased is exhumed so as to exonerate him from this allegation forever.
10. For what has been discussed above, no illegality, infirmity has been observed in the orders so impugned by the petitioner. Accordingly, by dismissing this petition the orders dated 12-5-2006 passed by the learned Additional Sessions Judge, Nankana Sahib and the order dated 26-4-2006 passed by the learned Judicial Magistrate Section 30, Nankana Sahib are upheld. Resultantly, the learned Additional Sessions Judge, Nankana Sahib shall make arrangements for the disinterment and exhumation of dead body of the deceased Mst. Sardaran Bibi and then proceed in accordance with law.