' AFTAB AHMED GORAR, J.---This application is directed against the order dated 15-2-2013 passed by the learned V-Additional Session Judge, Karachi (Central) in Session Case No.372 of 2012, for the offence punishable under section 302/34, P.P.C., crime No. 123 of 2012, Police Station North Karachi Industrial Area.
2. In a nut-shell, the facts leading to the present revision application are that, applicant is real brother of deceased; as per postmortem report the cause of death is mentioned as phision, accused had put pillow over mouth of the deceased which caused stoppage of breathing, it is therefore, logically presumed that while struggling to ,save her life and to get her free from the clutches of the accused, alleged scratches on the body of the accused, resultantly some part of skin must have trapped in the nails of the deceased but Investigating Officer ignored this important piece of evidence, as such sending the same for DNA. Applicant/complainant placed request being refused by the Investigating Officer and also moved several applications before High Officials/authorities concerned but all in vain, finding no way, the, applicant/complainant moved an application in the Court of Judicial Magistrate IV-Karachi Central which was notices to other side to hearing of arguments, same was on technical functus officio without touching merits of the case. The applicant/complainant moved criminal revision application before the learned III- Additional Sessions Judge, Karachi (Central), same was also mentioning the order of learned Judicial Magistrate, revisional court giving an impression that since after sending (the case after taking cognizance) to the Sessions Court for trial, the learned Judicial Magistrate not passed order on the application of the applicant, since trial Court has jurisdiction to collect additional evidence to decide such application.
3. The applicant/complainant moved fresh application before the trial Court for exhumation of dead body of the deceased to obtain the material for DNA test; same was dismissed vide order dated 15-2-2013.
4. I have heard the learned counsel for the applicant/complainant, learned counsel for the accused and the learned APG for the State.
5. Learned counsel for the applicant/complainant contended that impugned order is illegal and unlawful and against the settled proposition. .Of law therefore, liable to be set aside; further submitted that impugned order is without reasoning and passed without applying judicial mind.
The observations of learned trial Court that, applicant/complainant has not challenged post mortem report, had no relevancy of the issue involved. Further submitted that, the complainant never questioned authenticity or otherwise of post mortem report but the grievance of the applicant was only to collect further/additional evidence was that application under section, 176, Cr.P.C., was moved, the trial Court miserably failed to discuss the merits of the case as appearing from impugned order as such applicant/complainant condemned unheard. It was further submitted that trial Court also failed to consider the prayer of exhumation of body of his real sister after failing to get relief from police official and in such circumstances, it was incumbent upon the learned trial Court to consider request of the applicant so that material evidence might come on court record for just and fair decision, the trial Court has failed to consider the merits of the case.
He further argued that since application of the applicant was pending before the learned trial Court and appellant did not challenge the order of learned revisional court with the hope that he will get justice from the learned trial Court, however; learned trial Court dismissed application on the ground because in both cases jurisdiction of court was different and now the applicant has challenged the order of the learned revisional Court.
6. Learned counsel for the applicant/complainant has placed reliance in the case of Mst. Ghazala Begum and others v. District Magistrate Khanewal, reported in 1996 PCr.LJ 389, in the case of Javed Iqbal v. The State and others reported in 1996 MLD 626 and in the case of Muhammad Ramzan and others v. The State and others reported in 1987 SCMR Page 272.
7. Learned counsel for the accused has contended that more than one year to death of deceased have passed and no fruitful result could be achieved, if the dead body of deceased is taken out from the grave. Learned counsel further submitted that it will ridicule and/or disgrace the family of the deceased if the dead body of the deceased is taken out and the applicant/complainant is unnecessarily initiating the proceedings just to harm the accused persons. He prayed that, the impugned order passed by the learned V-Additional Sessions Judge, Karachi (Central) is according to Law.
8. Learned Assistant Prosecutor-General, supported the contents of the application; he placed his reliance in the case law reported in 2010 MLD 1681.
9. I have heard the arguments advanced by the learned counsel for the applicant/complainant, learned counsel for the accused and the learned APG for the State.
10. It is observed from the file of case that, applicant/complainant filed application against the Investigating Officer of the case before the hi-ups of the police for transfer of investigation and exhumation of the dead body of the deceased. Applicant also filed application before the Learned IV-Judicial Magistrate Karachi (Central) but same was dismissed so also moved revision application before the Court of learned III-Additional Sessions Judge, Karachi (Central), both applications were dismissed on the point of jurisdiction. After that he has moved application before the learned trial Court (V-Additional Sessions Judge, Karachi (Central)) same was also dismissed on the point of jurisdiction and also learned V-Additional Sessions Judge, observed that, the appellant neither challenged the order of learned Judicial Magistrate nor order of the revisional Court before any appellate forum for which the applicant remained silent.
11. In the case of Muhammad Ramzan and others v. The State and others reported in 1987 SCMR Page 74, Hon'ble Supreme Court has held as under:-- "---Article 185(3)---Criminal Procedure Code (V of 1898), Ss.176(2) and 439---Exemption of dead body---Lapse of one year---High Court in revision setting aside order of Sessions Court and directing exhumation of dead body to ascertain cause of death---Order impugned---Pleas that on numerous inquest/ inquiries cause of death was stated to be natural and that after lapse of one year no useful purpose would be served by disinterment, repelled---Petitioner at initial stage had stated that he had no objection if dead body was exhumed and that disinterment could take place even after one year to ascertain cause of death---Impugned order, held, not open to interference."
12. In the case of Mst. Gahzala Begum and others v. District Magistrate, Khanewal and others, reported in 1996 PCr.LJ 389, it has been held as under:-- "----S. 176(2)---Exhumation of dead body---Time limit---NO time limit for disinterment of the dead body which can be done even after one year to ascertain the cause of death",
13. In the present case, applicant had moved an application for postmortem exhumation of the deceased which was supported by the learned APG, learned Additional Sessions Judge., however; dismissed the said application without applying his judicial mind to the facts of the case and order would be treated as non-existence in law. Said order was constantly could be declared without lawful authority and of no legal consequence.
14. The contention that exhumation at this stage will serve no useful purpose pales into significance for the sole reason that there is no time limit for the disinterment of the body. Modi in his Medical Jurisprudence and Toxicology in Chapter IV opines:- "In India and in England, no time-limit is fixed for the disinterment of a body. In France, this period is limited to ten years and it is thirty years in Germany."
' Reliance can be placed on Muhammad Ramzan and others v. The State and another 1987 SCMR 272 wherein the objection of such nature was overruled observing that disinterment can take place even after one year to ascertain the cause of death".
15. It is constant view of the Superior Courts that exhumation of dead body could be ordered on the request of or on the information even a stranger for the purpose to know the actual cause of death so that criminal machinery be set in motion. In the present case, applicant is closely related (real brother) to the deceased and he is justified in making an application for exhumation of dead body of the deceased to know the cause of death. The judgment cited by the learned counsel for the applicant fully supports the case of the applicant.
16. In the circumstances I allow this application and in view of above, learned Judicial Magistrate- IV, (Central) Karachi and in case he was not available, his successor will disinter the dead body of Mst. Rizwana for D.N.A. Examination after joining both the parties soon after the receipt of this order and complete the whole process within a fortnight.
' These are the reasons for the short order dated 2-9-2013.