' ZUBDA-TUL-HUSSAIN, J.---Respondent No,2 Mst. Zainab Bibi submitted an application to the learned Judicial Magistrate, Ferozewala seeking disinterment of her deceased brother Muhammad Hussain on the ground that he was injected poison by Muhammad Shafiq son of Nazir, Muhammad Tuffail son of Ismail, Mst. Perveen Bibi wife of Muhammad Shafiq and Mst. Shukaria Bibi who is a nurse at Sharaqpur Sharif, District Sheikhupura: The learned Magistrate summoned the accused persons, recorded the statements of Mst. Zainab Bibi and the witnesses produced by her as well as those of the respondents and by an order, dated 4-5-2009 dismissed the application. The respondent Mst. Zainab Bibi filed a revision petition before the learned Additional Sessions Judge, Ferozewala. It was allowed by an order, dated 9-6-2009 which is impugned in the present writ petition.
2. The learned counsel for the petitioner has argued that the death of Muhammad Hussain had taken place in normal course and there were no such circumstances as could raise a reasonable suspicion that some other person had committed an offence. It was further stated by the learned counsel for the petitioner that the application by the respondent No,2 was purely mala fide and she only wanted to blackmail the legal heirs of Muhammad Hussain because the deceased was residing with her and she had in fact grabbed the money received by the deceased from the sale of his land and now by implicating the accused in the murder of Muhammad Hussain. She was only trying to digest the proceeds of the sale of the land of the deceased. The learned counsel then submitted that the petitioner being real brother of the deceased did not want to humiliate the dead body of his deceased brother as the exhumation was intended only to advance the cause of the mala fide of the respondent No,2.
3. Although it cannot be denied that disinterment of a dead body is not as simple as mere legal process in our social atmosphere where such a process is generally actuated with humiliation of the legal heirs and disrespect to the deceased person yet the process of law cannot be overthrown only because of the apprehension of humiliation and disrespect, if the case is otherwise within the ambit of section 174(1), Cr.P.C. And an action is necessitated in terms of section 176, Cr.P.C. In the instant case, versions of both the sides were brought on record by the learned Magistrate but then he proceeded to dilate upon the veracity of the contention of the parties regarding the inheritance of the deceased. This was essentially beyond the scope of the authority of the learned Judicial Magistrate. The sensitive and intricate matters of inheritance or the endeavours of the parties to achieve their objectives in that behalf could not be determined in the course of the investigation under sections 174/176, Cr.P.C. The question of exhumation has to be decided only keeping in view the circumstances relevant to clause (a) or (b) or (c) of subsection (1) of section 174, Cr.P.C. There should either be an indication that the information relates to the commission of suicide or regarding the killing of a person by another person or by an animal or by machinery or by an accident. The other aspect relevant for disinterment is the existence of the circumstances raising a reasonable suspicion that some other person has committed an offence in relation to the death of the deceased required to be disinterred.
4. The respondent No,2 being the real sister of the deceased had all the genuine cause to dispel the suspicion of unnatural death of her deceased brother. It is also noteworthy that on the application of son of the respondent No,2, the learned Addl. Sessions Judge, Ferozewala, had vide an order, dated 29-4-2009 directed the S.H.O. Concerned to investigate the matter for drawing up report of the cause of death of the deceased either under section 174, Cr.P.C. Or the other relevant provisions of law and then proceed further in the matter according to law but the S.H.O. Did not hold any such investigation for ascertainment of the cause of death of deceased Muhammad Hussain. It also follows from the impugned order that the learned Judicial Magistrate while passing the order, dated 4-5-2009 failed to take cognizance of the fact that by the aforementioned order, dated 29- 4-2009, the learned Addl. Sessions Judge, Ferozewala had already passed a direction to the S.H.O.
Concerned for necessary investigation under section 174, Cr.P.C. Or other relevant provisions of law.
The learned Additional Sessions Judge while passing the impugned order was, therefore, justified to set at naught the findings and order of the learned Judicial Magistrate.
5. The scope and intent of section 176, Cr.P.C. Is to discover the actual cause of death of a deceased person. Subsection (1) of section 176, Cr.P.C. Makes a provision for conducting an inquiry into the cause of death either instead of or in addition to the investigation held by the police if the case is covered by subsection (1) of section 174, Cr.P.C. Even the registration of an F.I.R. Is not an impediment for holding an inquiry into the cause of death of deceased person under section 176, Cr.P.C. In the wake of a specific allegation and apprehension of unnatural death of the deceased, brother of the respondent No,2, the requirements of section 174 read with section 176, Cr.P.C. Could not be ignored or kept aside by deriving certain conclusions regarding the interests, whether bona fide or mala fide, of the parties. The only thing that had to be considered by the learned Judicial Magistrate was whether the death had taken place under the circumstances raising a reasonable suspicion that some other person had committed an offence, which in the light of the statement of the respondent No,2 could not be brushed aside. The learned Additional Sessions Judge, was, therefore, justified to interfere with the findings and order of the learned Judicial Magistrate and directing the learned Judicial Magistrate to manage the disinterment of the body of the deceased for the purpose of ascertainment of cause of death.
6. Irrespective of the revision petition or the question of its maintainability and in addition to the findings of the learned Additional Sessions Judge, a perusal of the plaint/application of the respondent No,2 certainly gives arise to the circumstances falling within the ambit of clause (c) of subsection (1) of section 174, Cr.P.C. The exercise of writ jurisdiction being an equitable relief, this Court can validly look into the matter even for the ends of justice. The record placed by the petitioner on the file of this writ petition shows that only the statements of accused persons/party were before the learned Judicial Magistrate and he ignored the effect of circumstantial evidence of the witnesses produced by the respondent No,2. I am, therefore, of the view that disinterment of the dead body of Muhammad Hussain was inevitable to determine the cause of his death or at least to inquire into the allegations and suspicions of the respondent No,2. This writ petition has no force, which is dismissed in limine.