' TARIQ SHAMIM, J.--- Through this petition the petitioner has assailed the order of the learned Additional Sessions Judge, Sargodha dated 30th July, 2007 passed in a criminal revision filed by respondents Nos.1 to 4 setting aside the order of the learned Magistrate Section 30, Camp at Sillanwali dated 18-7-2007 whereby the learned Magistrate had ordered disinterment of the dead body of Mst. Nargas, the daughter of the petitioner.
2. The facts of the case are that the petitioner, who is the real father of deceased Mst. Nargas aged about 22/23 years and mother of three children, received information about her demise on 16-5- 2007 whereupon the petitioner went to the house of in-laws of the deceased and feeling suspicion made a clandestine inquiry from the residents of the village who informed him that Mst. Nargas was in good health till the evening of the preceding day whereafter she was taken in a car by respondents Nos.1 to 4 and at about 11-00 p.m. An announcement was made from the mosque to the effect that Mst. Nargas had passed away who was buried in a haste by respondents Nos.1 to 4 at 5-00 a.m. Akhtar Nisar respondent No,1, the real brother of the deceased's husband was a person of bad character who had been forbidden by the petitioner from visiting his house on account of which he had been nursing a grudge against the deceased. The petitioner suspecting foul play submitted an application to the local police expressing suspicion of murder of the deceased at the hands of the respondents. The application was entertained but instead of recording a First Information Report the police proceeded to enter the same in the Daily Diary on 17-5-2007. On the next day i.e. 18-5-2007 Muhammad Altaf Hussain, Sub-Inspector filed an application with the Ilaqa Judicial Magistrate seeking exhumation of the dead body of Mst. Nargas so that the actual cause of her death could be determined. The learned Magistrate issued notice to respondents Nos.1 to 4 who on their appearance before the learned Magistrate submitted an application seeking dismissal of the disinterment proceedings. The learned Magistrate after hearing the parties, rejected the objections and proceeded to record evidence of the parties. On being convinced that the application had substance, the learned Magistrate vide order, dated 18- 7-2007 accepted the application and directed the Medical Superintendent, Rural Health Centre, Sillanwali to depute a senior lady doctor for conducting post-mortem of the deceased on 21-7- 2007. The order of the learned Magistrate was challenged by respondents Nos.1 to 4 through a revision petition which was accepted by the learned Additional Sessions Judge, vide order, dated 30-7-2007. Hence, this petition.
3. The learned counsel for the petitioner has contended that the order passed by the learned Additional Sessions Judge is absolutely illegal, unwarranted and a result of misconception of law; that the order of the learned Magistrate did not suffer from any illegality or irregularity and, therefore, the same did not call for any interference by the learned Additional Sessions Judge; that the learned revisional Court misinterpreted the provisions of sections 174 and 176, Cr.P.C. Which clearly envisage holding of an inquiry in a case regarding disinterment of a dead body and not an investigation and that there was no delay on the part of the petitioner to report the matter to the police through an application in which he had raised 'genuine suspicion in respect of the death of the deceased.
4. The learned Deputy Prosecutor-General has adopted the arguments 'advanced on behalf of the petitioner.
5. The learned cbunsel appearing on behalf of respondents Nos.1 to 4 has vehemently opposed the petition and has contended that in the absence of a duly registered First Information Report neither the police nor the learned Magistrate had the jurisdiction to proceed in the matter.
6. I have heard the learned counsel and gone through the record.
7. The petitioner is the real father of the deceased Mst. Nargas who was aged of about 22/23 years and a mother of three minor children at the time of her demise. The deceased was living with respondents Nos.1 to 4 (her in-laws) as her husband was employed abroad. According to the inquiry made by the petitioner she was in good health and seemed to be alright till about 5-00 p.m. On 16-5-2007 when she was taken away by respondents Nos.1 to 4 to some unknown place whereafter at about 11-00 p.m. An announcement was made from the mosque of the village that she had passed away and was buried in a haste at about 5-00' a.m. By the said respondents without even waiting for the arrival of her parents and other relatives. This obviously gave rise to reasonable suspicion which was voiced by the petitioner in his application filed with the, local police on 17-5-2007. As the application was based only on suspicion, therefore, the police instead of registering a formal F.I.R. Proceeded to record the same in the Daily Diary kept at the police station which is evident from entry dated 17-5-2007. However, Muhammad Altaf Hussain, Sub- Inspector, on the next day i.e. 18-5-2007, submitted an application to the learned Ilaqa Judicial Magistrate requesting for exhumation of the dead body of the deceased in order to ascertain the actual cause of her death through a post-mortem examination. The Magistrate after summoning the respondents and recording evidence of the parties, being convinced that the deceased had died under unusual and mysterious circumstances, proceeded to order exhumation of her dead body for the purpose of conducting an autopsy vide order, dated 18-7-2007. The order was assailed by respondents Nos.1 to 4 through a criminal revision which was accepted on 30-7-2007 and the order of the learned Magistrate was set aside. A perusal of the order impugned in the petition reveals that the learned Additional Sessions Judge had proceeded to accept the criminal revision solely on the premise that since a First. Information Report was not registered, therefore, the Ilaqa Magistrate had no jurisdiction to proceed in the matter or to order disinterment and post- mortem examination of the deceased. I am afraid the ground, on the basis of which the criminal revision had been accepted by the learned Additional Sessions Judge, is not sustainable in law as the provisions of sections 174 and section 176, Cr.P.C. Read conjunctively are fully applicable to the facts of the instant case. The relevant portions of the aforesaid sections are reproduced hereunder for easy reference:- "174. (1) The officer incharge of a police station or some other Police Officer specially empowered by the Provincial Government in that behalf, on receiving information that a person:
(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. ' shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
176. (1) When any person dies when 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 subsection (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.
(2) 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."
8. From the above it is evident that by virtue of the provisions of subsection (2) of section 176, Cr.P.C., the Magistrate is fully competent to order disinterment of the dead body of a person in order to discover the actual cause of his death. Subsection (1) of section 176 provides for holding an inquiry into the cause of death either instead of, or in additional to, the investigation held by the police in cases covered by clauses (a), (b) and (c) of subsection (1) of section 174, Cr.P.C. Which includes ascertaining the cause of death of a person who has died under circumstances raising reasonable suspicion. It is manifest from the provisions of law referred to above that contrary to what has been held by the learned Additional Sessions Judge, there is no requirement of registration of an F.I.R. Before proceedings with the matter of disinterment. In the instant case not only the petitioner submitted an application promptly to the police but the police after inquiry felt convinced that the suspicion cast by the petitioner had substance and, therefore, proceeded to file an application with the learned Magistrate seeking disinterment of the dead body. The learned Magistrate on receiving the application and after summoning the respondents and recording the evidence also arrived at a conclusion that the circumstances demanded disinterment of the dead body. The procedure required under the law was followed by the learned Magistrate, hence, no illegality has been committed by him. Further, it is the right of the relatives of the deceased to know the actual cause of death of a deceased person so that their apprehensions are laid to rest once and for all. It may be noted that an application for disinterment can be moved on the ground of suspicion only and it is in the interest of justice that an order for exhumation of a dead body is passed in such case.
For what has been discussed above this petition is accepted and the order of the learned Additional Sessions Judge dated 30-7-2007 accepting the revision petition and setting aside the order of the Magistrate dated 18-7-2007 being contrary to law and facts of the case is set aside.
' There shall be no order as to costs.