. ORDER ' SAGHEER AHMED QADRI, J.-Mushtaq Ahmed S/o Budha Khan-respondent No,3 vide Rapt No,13 dated 14-1-2009 submitted an application before the SHO, Police Station Tammon, District Chakwal mentioning therein that he was married with Mst. Kalsoom Bibi D/o Muhammad Iqbal, the present petitioner in the year 2006 and he in order to earn his livelihood used to reside at Karachi; that in June, 2006 when he came to his home he found in his absence his wife Mst. Kalsoom has become pregnant. It further transpired in his absence that she had developed illicit relations with one Sajid Shah S/o Noor Shah and she conceived due to that illicit relations; that subsequently due to strained relations Mst. Kalsoom went to her uncle's house; that on 10-1-2009 she gave birth a daughter who at the time of delivery was alive, however, Mst. Kalsoom, his mother Sultan Begum, uncle Nazeer Ahmed and Sajid Shah in connivance with each other killed that minor to avoid any further complications as according to them the complainant earlier had shown his suspicion on the character of Mst. Kalsoom. Thereafter they killed the minor and buried her in a nearby graveyard. The occurrence allegedly took place in the presence of Mst. Shamim Akhtar wife of Rustam Khan and Muhammad Iqbal S/o Madid Khan who although forbade them from doing so but they were asked not to interfere into their affairs. Subsequently this incident was informed by Mst. Shamim Akhtar and Muhammad Iqbal to the complainant. It was prayed that action be taken accordingly.
2. This complaint was recorded by the I.O. In the above mentioned Rapt No,13 dated 14-1-2009 and he on 15.1.2009 submitted an application to the Area Magistrate, Talagang mentioning therein that Mushtaq Khan S/o Budha Khan has alleged that his wife Mst. Kalsoom gave birth a daughter who was murdered by her, her mother Sultan Begum, uncle Nazeer Ahmed and Sajid. On this report Rapt No,13 was recorded. It was prayed that the Medical Superintendent be directed to disinter the dead body and submit report about the cause of death of the said deceased. On this application the learned Magistrate vide order dated 17-1-2009 directed the MS, District Headquarters Hospital, Chakwal to make arrangements for disinterment of the dead body and submit report about the cause of death while concluding the order the following direction was also passed by the learned Magistrate--- " M.S DHQ Hospital Chakwal is also directed to make necessary arrangement for taking sample for DNA test from the body of the deceased."
3. The petitioner feeling aggrieved preferred a revision petition whereby the order dated 17-1-2009 passed by the learned Magistrate was challenged to the extent that the direction passed for collecting sample for DNA test was illegal and without any lawful authority. The learned revisional court vide order dated 29-1-2009 dismissed the revision of the petitioner. Feeling aggrieved by that order Mst. Kalsoom Bibi, the present petitioner filed this writ petition.
4. This writ petition was admitted for regular hearing on 13-2-2009 and the admitting note hereby reproduced for facility of reference:--- "After arguing the matter at some length, the learned counsel on reconsideration has opted to accept the impugned order to the extent of disinterment of dead body of the child and its post mortem examination. However, he has seriously challenged the direction of learned courts below to the Medical Officer for DNA test of the dead body with the plea that legitimacy of the child was not a point in issue before the Police and the Criminal Court and that it was beyond their jurisdiction to touch the said issue.
2. The contention raised by the learned counsel needs consideration.
3. Notice. At this stage, the learned Law Officer, his entered appearance on court's call and has accepted notice or behalf of the State. Let notice be issued to Mushtaq Ahmed, respondent No,3 for 3-3-2009. Meanwhile, the direction of the learned Area Magistrate regarding DNA test of the dead body is suspended.
5. Learned counsel for the petitioner argued before the court that as far as the inquiry and disinterment of the dead body of the minor deceased is concerned the impugned orders passed by the learned Judicial Magistrate as well as the learned Additional Sessions Judge are perfectly lawful and justified and he has no grievance to that extent. As far as the direction issued by the learned Judicial Magistrate for collection of the sample for conducting DNA test is concerned, the learned Magistrate exceeded his jurisdiction while passing such direction; that the learned Additional Sessions Judge also did not take into consideration this legal aspect. Learned counsel referred section 176, Cr. PC and argued that no such powers are vested with a Magistrate to issue direction to collect any such evidence or to issue direction for conducting any DNA test as such the powers are only vested to the extent of conducting inquiry to know the cause of death of any person; that even Pervez Akhtar, S.-I. Who submitted application before the learned Magistrate did not make any such prayer. Learned counsel prayed that to that extent the order passed by the learned Magistrate dated 17-1-2009 and subsequently upheld by the learned Additional Sessions Judge by order dated 29-1-2009 be declared without lawful authority and in excess of jurisdiction vested in both the learned courts below.
6. On the other hand, learned counsel representing respondent No,3 has vehemently opposed this writ petition on the grounds that if Rapt No, 13 on the basis of which the learned Judicial Magistrate directed to conduct an inquiry and disinterment of the dead body was directed to the Medical Superintendent, DHQ Hospital it was specifically mentioned that the complainant Mushtaq Ahmed- respondent No,3 had shown suspicion against Mst. Kalsoom Bibi that she in his absence had developed illicit relations with one Sajid Shah and subsequently she conceived a pregnancy and gave birth to a minor female baby who was subsequently murdered. Learned counsel argued as there was clear allegation levelled in the application/Rapt, therefore, the order passed by the learned Magistrate for conducting the DNA test to enquire whether the deceased was the off spring of the complainant or otherwise, therefore, both the impugned orders passed by the learned trial court as well as the learned revisional court are quite lawfully justified. Learned counsel argued that even otherwise the DNA test was conducted and report has also been submitted. It was prayed that the writ petition being without any lawful justification be dismissed. Learned AAG supported the arguments advanced by the learned counsel for respondent No,3 complainant.
7. I have heard the learned counsel for the parties and perused the record.
8. If the application under section 176 Cr.PC moved by Pervez Akhtar. S.-I, of Police Station Tammon is seen he specifically mentioned that "Mushtaq Ahmed S/o Budha Khan, Caste Awan, resident of Dhoke Sher Ghanaal Dakhli Multan Khurd, has submitted an application that his wife Mst. Kalsoom Bibi gave birth to a minor daughter on 10-1-2009; that the said minor was murdered by Kalsoom, his mother Sultan Begum, uncle Nazeer Ahmed and one Sajid Shah and she was buried in the night time; that on the said application Rapt No, 13 dated 14-1-2009 has been entered in the Register Roznamcha. In these circumstances, it was prayed that M.S. Be issued direction that he should disinter the dead body and conduct post mortem examination and submit his report about the cause of death so that action be taken against the responsible persons."
9. If this application is seen the I.O. Has not prayed in the application about the conducting of DNA test. The learned Judicial Magistrate, however, on the basis of arguments advanced by the learned counsel for the complainant passed the impugned order whereby on one hand it was directed that a Medical Board be constituted for exhumation had disinterment of the dead body and for conducting the post mortem examination report and at the same time a further direction was issued that DNA test from the body of the deceased be procured. If section 176 Cr.PC is seen it is specifically provided that in case of unnatural death the circumstances are mentioned in section 174, Cr.PC. A Magistrate may hold an inquiry to know the cause of death either himself or he may got investigated the matter by a police officer and subsection (2) of section 176 ibid it is provided that if necessary in order to conduct an exhumation of the dead body of any person if it is buried an order can be passed for disinterment/exhumation and further post mortem examination, etc. Can also be directed to be conducted. If the language of section 176, Cr.PC is seen it only empowered a Magistrate to hold an inquiry to know the cause of death in cases when there are suspicion or circumstances in which one can say the death of a person was caused in unnatural way. However, the provision of section 176 Cr.PC does not empower a Magistrate to hold an inquiry or direct for procurement of samples for DNA test, etc. It is only the prerogative of the Investigating Officer if any such circumstances exist. Herein although the directions have been passed by the learned Judicial Magistrate for exhumation/disinterment of the dead body, however, the cause of death has to be still conclusively given by the concerned medical board as certain reports of chemical examiner, etc, are still awaited.
10. As far as the allegation levelled by the complainant about the character of Mst. Kalsoom Bibi, the petitioner is concerned it is another question which does not fall within the ambit of section 176, Cr.PC and the learned Magistrate while passing such direction exceeded his jurisdiction which was not vested with him. The same illegality was committed by the learned Additional Sessions Judge while upholding the order passed by the learned Magistrate.
11. Resultantly, this writ petition is allowed and the order passed by the learned Judicial Magistrate dated 17-1-2009 upheld by the revisional court vide order dated 29-1-2009 to the extent of passing direction for conducting DNA test of the dead body of the minor is declared without lawful authority, in excess of jurisdiction and hereby set aside.
12. The impugned order dated 17-1-2009, was suspended, to the extent of obtaining the samples and subsequent DNA test vide admitting note dated 13-2-2009. It is brought into the notice of this court, during arguments that most probably DNA, test report was obtained inspite of the above mentioned suspension order. As subsequent action i,e, the obtaining of DNA test and procuring the report was subsequent to the above said suspension order, therefore, all such actions are illegal, without lawful authority and hereby declared ineffective upon the rights of the petitioner.