' MUHAMMAD HASHIM KHAN KAKAR, J.---Through this criminal revision petition, petitioner Haji Abdul Hameed seeks declaration to the effect that the order dated 25th May 2013 (the "impugned order"), passed by learned Sessions Judge, Loralai (the "trial Court"), is without lawful authority and of no legal effect.
2. The facts leading to filing of this petition are that on 4th November 2011, Abdul Qayyum, brother of the petitioner, was, allegedly, murdered and a case vide F.I.R. No.27 of 2011 dated 4th November 2011, under section 302 read with section 34 of the Pakistan Penal Code 1860 (P.P.C.) was registered against accused/respondent No.1 Raz Muhammad and absconding accused persons; viz, Baz Muhammad and Noor Muhammad at Sanjavi Police Station.
3. The deceased was examined by P.W.6. Dr. Irfan-ud-Din, District Health Officer, Ziarat on 4th November 2011 at R.H.C, Sanjavi Nos.1 and 2, caused with sharp weapon, hypovolemic shock and massive/excessive bleeding. After examination of the recovery witness i.e. P.W.5 on 21st March 2013, an application under Section 176 of the Cr.P.C. Was moved before the learned trial Court on behalf of accused/respondent No.1 for disinterment of corpse in order to obtain a part of deceased's body for D.N.A test in order to cross-match with recovered bloodstained knives, which was accepted on 21st May 2013, hence this petition.
4. I have heard the learned counsel for the parties and considered their rival contentions in the light of relevant provisions of law and also perused the record available to me with their valuable assistance. Before dilating upon the said contentions, it would be relevant and advantageous to reproduce herein below the provisions of section 176 of the Cr.P.C, which deals with the controversy involved in the instant petition:-- "176. Inquiry by Magistrate into cause of death.--(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 the 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 cases.
(2) Power to disinter corpses.--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.
5. A plain reading of the aforesaid section would show that it relates the to the death of a person, while in custody of the police, whereas in the instant case, deceased Abdul Qayyum was not in the custody of police at the time of his death. It also clearly demonstrates that the investigation and inquiry under sections 174 and 176 of the Cr.P.C. Are related to discovery of real cause of death and not to identify or locate the perpetrators.
6. Whereas, all this presently appears to be an academic exercise, which is being done after almost 18 months of the occurrence, therefore, the impugned order of the learned trial Court shall not he acted noon of PW-6 Dr. Irfan-ud-Din, District Health Officer, Ziarat could be demolished by cross- examining him, in case he nourishes strong doubts about the nature of Injuries Nos.1 and 2 or crime weapon used in the commission of the offence. The accused in his defence could not ask the Court for disinterment. The only right available to him was to challenge his opinion by way of cross- examination or examine another expert witness to challenge the opinion expressed by the expert on whose report the prosecution relies or rebut the said opinion with the aid of authoritative textbooks. Therefore, the view taken by the learned trial Court that the disinterment was inevitable is not sustainable. All this is being said because the accused/respondent has agitated this question after a delay of about 18 months based on the statement of P.W.5, of which the respondent was, obviously, aware months back while facing trial.
7. It needs to be mentioned that this Court is not closing an opportunity of disinterment, but this should only be exercised, in case the respondent succeeds in making a persuasive accusation after explaining the delay and then moves for disinterment of the body through police, who has then to collect evidence. Being Muslims, we have to respect dead bodies, the disinterment of a dead body is not as simple as mere legal process in view of our cultural values and social atmosphere, where such a process is generally considered with humiliation of the legal heirs and disrespect to the deceased person and only against serious accusation should allow disinterment.
8. Intent and scope of section 176 of the Cr.P.C. Is only to discover the actual cause of death of a deceased person. Subsection (1) of section 176 of Cr.P.C. Provides for conducting an inquiry into the cause of death either instead of or in addition to the investigation held by police, if the case is covered by subsection (1) of section 174 of the Cr.P.C. Even an F.I.R. Is not an impediment for holding an inquiry into the cause of death of deceased persons under section 176 of the Cr.P.C, thus, it is by now settled that the purpose of investigation under Section 174 of the Cr.P.C. Or inquiry under section 176 of the Cr.P.C. Is only to ensure that no offence has been committed in connection with death of a person and such investigation or inquiry cannot be carried out for the purpose to determine the crime of weapon used in the commission of an offence or seat of injuries on the person of deceased because the medical expert can safely opine that a specific injury was inflicted by which kind of weapon. An investigation or inquiry under sections 174 and 176 of the Cr.P.C. And exhumation of dead body can only be allowed if the real cause of death is shrouded in mystery. Needless to observe that Section 176 of the Cr.P.C. Relates to death of a person, while in custody of police, but not in case of death out of custody of notice The Magistrate can only cause any dead body disinterred and was not obliged to do the same on the request of accused for academic purposes, that too, after a delay of about 18 months.
9. I am conscious of the fact no time limit has been provided in Pakistan for disinterment of dead body, however, in the attending circumstances of the case in hand, disinterment would certainly serve no fruitful purpose and the accused/respondent was absolutely not justified for making such request. It is trite saying that the cause of death of the deceased can only be gathered safely through conducting a postmortem examination as laid down by the Hon'ble Supreme Court of Pakistan in the case of Mrs. Alia Tareen, Managing Director, Pakistan General Hospital, Quetta v.
Amanullah Khan Advocate, PLD 2005 SC 99, however, in the instant case, the dead body of deceased Abdul Qayyum was examined by PW-6 Dr. Irfan-ud-Din, who had categorically stated regarding crime weapon and cause of death in his medico legal certificate Exh. P/6-A.
10. It is worth mentioning that during the course of cross-examination of P. Ws. 5 and 6, neither was the cause of death disputed by the defence, nor was any, query made by the defence regarding nature of the injuries or crime weapons used by the culprits at the time of commission of the offence, Where on a material part of his evidence a witness is not cross-examined, it may be inferred that the truth of such statement has been accepted. Statement of a witness, which is material to the controversy of the case, particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true displaced by reliable, cogent and clear evidence.
11. The impugned order seems to be passed and disinterment has been ordered for the sole object to carry out DNA test for cross-match with recovered bloodstained Churries/knives, but the learned trial Court has tailed to take notice of the fact that the role of causing these injuries has been attributed to the proclaimed offenders i.e. Baz Muhammad and Noor Muhammad, whereas the accused/respondent No.1 has only been assigned the role of ineffective firing, Thus, the accused/respondent was absolutely not justified to ask for disinterment of the dead body in order to determine as to whether the alleged crime weapons i.e. Knives were stained with human blood or otherwise. Moreover, the recovery of knives in the instant case is not of much help to the prosecution, particularly when neither Serologist's report, nor Chemical Examiner's reports have been procured so as to prove that the knives were bloodstained and if it were so, it had human blood of the same group as was of the deceased. The recovery of crime weapon is only of supportive nature/character and the same loses all its value in a case like the present one. Where there no experts reports.
12. As has been observed, the statement of PW-6 is not disputed or challenged by the defence, nor an attempt was made by the defence to ask any question in cross-examination to clarify this matter. It seems that the accused/respondent has made an attempt to build up the case of the proclaimed offenders, who happen to be his real brothers by moving the instant application for disinterment of the dead body, that too, at the verge of completion of prosecution's evidence after a period of about 18 months. The learned trial Court, while passing the impugned order, seems to be ignorant to the settled proposition of law that on the question of conflict between ocular and evidence of corroboratory nature, the prosecution and not the accused is obliged to clarify the position. In case of any lacuna or shortcomings in the prosecution's case, the benefit thereof always goes in favour of the accused.
' For the aforesaid reasons, irrespective of the bona fide or mala fide on the part of accused/respondent, I am of the confident view that in the attending circumstances of the case, the disinterment of the dead body was not inevitable and the application in question was, admittedly, moved only for determination of academic questions and the trial Court has fallen in error, while allowing the same. Thus, the petition is allowed and the impugned order passed by the learned trial Court is set aside. The observations, made hereinabove, are of such nature, which shall not prejudice the case of both the parties being made only for disposal of the instant petition and the learned trial Court shall not get influenced by it in any manner.