' IBAD-UR-REHMAN LODHI, J.---Through this Constitutional Petition, the petitioner has challenged the findings contained in two orders, first passed by a learned Magistrate, Rawalpindi, when he proceeded to dismiss the application, moved under the provisions of section 176(2), Cr.P.C., for disinterment of the grave and exhumation of the body of Mst. Masaib Bano (deceased) on 11-7- 2013, and the other one, passed by a learned Additional Sessions Judge, Rawalpindi, on 31-7-2013, when the revision filed against magisterial order, was dismissed.
2. Facts relevant for the purposes of present petition are that, the present petitioner moved the local police on 14-6-2013, requiring the disinterment, of the grave of his paternal aunt Mst. Masaib Bano, who according to him, expired on 29-5-2013, at the age of 75/80 years. According to the petitioner, the said lady was issueless and her husband Amanat Khan entered into a second marriage with Mst. Raj Begum and from the said wedlock, one daughter Mst. Mumtaz, and three sons Mohammad Ammad, Muhammad Riaz and Mohammad Sajjad, were born. Their mother Mst.
Raj Begum died 15/22 years, and Mst. Masaib Bano has been residing with her such step-sons. The petitioner, according to his own claim, has been settled in the Kingdom of Saudi Arabia for the last 23/24 years. By alleging that on 15-3-2013, the stepsons of Mst. Masaib Bano with whom, she has been residing since a considerable period, got recorded her statement before the revenue authorities and managed transfer of 62- kanals of land of Mst. Masaib Bano in their own favour, the petitioner raised suspicion that at the time of final bath of the dead body of. Mst. Masaib Bano, some bluish marks were found on the body of the deceased and on such information, he raised a suspicion of unnatural death of Mst. Masaib. Bano.
3. The police, after reducing such stance of the petitioner in writing, placed the same before the learned Sessions Judge, Rawalpindi, and it was marked to the learned Ilaqa Magistrate.
4. The learned Magistrate, on 26-6-2013, got recorded the statement of the present petitioner, wherein he has reiterated his version, as was taken before the police; however, in his such statement on Oath, he restricted his allegation of presence of bluish marks only on the hands of Mst. Masaib Bano, by raising his suspicion over Mohammad Sajjad etc., as to the murder of said lady.
5. After recording such statement, the learned Magistrate, by means of order dated 11-7-2013, dismissed such request by holding that it was nothing, but a lust for the landed property already transferred in favour of the respondents, which prompted the petitioner to ask for exhumation of the corpse of his deceased paternal aunt.
6. Being unsuccessful, the petitioner preferred Criminal Revision before the learned Sessions Judge, Rawalpindi, which was taken up for hearing by a learned Additional Sessions Judge on 31-7-2013, and the same was dismissed; hence this petition before this Court.
7. The petitioner mentioned in his application moved before the police that he has been in the Kingdom of Saudi Arabia for the last 23/24 years and used to visit Pakistan after every two years.
When on 14-6-2013, he approached the police for disinterment of the grave of Mst. Masaib Bano, he got recorded his stay in Pakistan for the last two months, meaning thereby that, since the mid of April, 2013, he has been in Pakistan, as such, on 29-5-2013, when Mst. Masaib Bano breathed her last, the petitioner was present in Pakistan. On record, it has never been disclosed as to which lady gave the last bath to the body of Mst. Masaib Bano and, as to when the alleged presence of bluish marks on the hands of the body of Mst. Masaib Bano were made known to the petitioner. Even the name of such lady has not been disclosed by the petitioner what to talk of recording the statement of such lady.
8. Admittedly, before her death, Mst. Masaib Bano had been living with the respondents for the last 30/40 years and there is no allegation as to any maltreatment on the part of the respondents with the said lady. There has been no criminal case registered as to the alleged murder of the deceased at the time of her death. There was no suspicion as to any unnatural death of said lady and naturally, there is no medico-legal report available on the record, because the body of the deceased was never sent for such examination purposes.
9. In view of the provisions of sections 174 and 176, Cr.P.C., it is only after registration of a criminal case that the police has to collect evidence for the purposes of proceeding further on the ground that a crime was committed.
10. This Court in Zafar Iqbal alias Kaka v. Additional Sessions Judge and 3 others 2006 PCr.LJ 736, in similar circumstances, has held that the FIR has its own implications, because a wrongly lodged FIR is triable under the law, whereas, without there being any criminal case registered, the acts under above-noted Sections of the Criminal Procedure Code, 1898, were nothing, but an academic exercise.
11. The date of death of Mst. Masaib Bano is 29-5-2013, and keeping in view the process of decomposition of the body, after expiry of almost one year, there is no possibility that the skin of the hands of the corpse would still be in the same condition, as to provide a circumstance for the exhumation to locate the alleged bluish marks on the hands of the body. The Disinterment process, in such circumstances, would be nothing, but a disrespect to the body of Mst. Masaib Bano (deceased).
12. The Qur'anic Command as ordained in Surah Ahzab Ayat No,58 is to the effect that they, who cause any injury to the Momin men and Momip women without any justification, they commit a great sin. In view of the interpretation of such above noted Ayat, such order of Qur'an shall be effective both for the alive and dead Momeneen. In view of Hadith No,1431 in Sunan Abu-Dawood Sharif, Hazrat Ayesha R.A. Narrated that Mohammad (P.B.U.H) has said that causing fracture of a dead person is just like causing fracture of an alive person.
13. An eminent Scholar from Sunni School of Thought Grand Ayatollah Yousaf Sannei, in a Selection of Islamic Laws, has dealt with the subject of exhumation and when issues Nos.290 and 291, were dealt with, it was responded in the following manner:-- "Issue 290: It is forbidden to exhume the dead body of a Muslim, that is, to open their grave even if it belongs to a child or an insane person. However, it does not matter to do so if the dead body has been decomposed and turned into dust.
' Issue 291: To exhume the dead body of a Muslim is not forbidden in the following cases:
(1) When the dead body has been buried in a usurped land whose owner does not consent for the dead body to be buried there.
(2) When the shroud or any other thing buried with the dead body is a usurped property whose owner does not consent for it to remain with the dead body in the grave. Similarly, when any part of the dead person's legacy for his heirs or heiresses is buried in the grave and the heirs and heiresses do not consent to let it remain with the dead body in the grave, but if the legacy is not considerable and costly, for instance, a ring and the like, especially if it does not inflict any considerable harm to the heirs and heiresses to let it remain with the dead body, it will be a case of Ta'ammul and Ishkaal, (i,e,, a case of precaution not to do it). However, if the dead person has willed some certain written prayer, the Holy Quran, or a ring of theirs to be bureid with their dead body, it is not permissible to open the grave in order to take these things out provided that the willed thing to remain with the dead body do not exceed one-third of their property.
(3) When the dead body has been buried without the obligatory Ghusl or without a shroud; or when others learn that the Ghusl given to the dead body has been void or the dead body has not been shrouded according to religious rules, or when it is learned that the dead body has not been placed in the grave facing the Quiblah.
(4) When it is necessary to see the dead body in order to defend a right.
(5) When the dead body has been buried in a place where it is seen as disrespect to the dead person, for instance, in a place where garbage is thrown.
(6) When it is the matter of a legal purpose which is considered more important than exhumation, for instance, to open the grave in order to take a living baby out of the womb of a dead woman who has been buried.
(7) When it is feared that a predator would tear up the dead body or it will be taken away by flood or exhumed by enemies.
(8) To bury a part of a buried dead body, but as an obligatory precaution, it must be placed in the grave in such a way that the dead body is not seen.
14. On the other hand, an eminent Scholar from Shia School of Thought, AsSayyid Ali Al-Husseini As- Seestani, in English Version of Tawdheehil-Masaae'I According to the Verdicts Of His Eminence Ayatul-Lah Al-U'dhma, has dealt with the issue of exhumation and at serial Nos. 647 to 650, in the following manner:-- "647. If it is proposed to transfer the dead body to some other town or its burial is delayed owing to some reason, the wahshat prayers should be deferred till the first night of its burial.
648. It is haraam to open the grave of a Muslim even if it belongs to a child or an insane person.
However, there is no objection in doing so if the dead body has decayed and turned into dust.
649. Digging up or destroying the graves of the descendants of Imams, the martyrs, the Ulama and the pious persons is Haraam, even if they are very old, because it amounts to desecration.
650. Digging up the grave is allowed in the following cases: ' When the dead body has been buried in an usurped land and the owner of the land is not willing to let it remain there.
' When the Kafan of the dead body or any other thing buried with it had been usurped and the owner of the thing in question is not willing to let it remain in the grave. Similarly, if anything belonging to the heirs has been buried along with the deceased and the heirs are not willing to let it remain in the grave. However, if the dead person-had made a will that a certain supplication or the koly Qur'an or a ring be buried along with his dead body, and if that will is valid, then the grave cannot be opened up to bring those articles out. There are certain situations when the exhuming is not permitted even if the land, the Kafan or the articles buried with the corpse are Ghasbi. But there is no room for details here.
' When opening the grave does not amount to disrespect of the dead person, and it transpires that he was buried without Ghusl or Kafan, or the Ghusl was void, or he was not given Kafan according to religious rules, or was not laid in the grave facing the Qibla.
' When it is necessary to inspect the body of the dead person to establish a right which is more important than exhumation.
' When the dead body of a Muslim has been buried at a place which is against sanctity, like, when it has been buried in the graveyard of non-Muslim or at a place of garbage.
' When the grave is opened up for a legal purpose which is more important than exhumation. For example, when it is proposed to take out a living child from the womb of a buried woman.
' When it is feared that a wild beast would tear up the corpse or it will be carried away by flood or exhumed by the enemy.
' When the deceased has willed that his body be transferred to sacred places before burial, and if it was intentionally or forgetfully buried elsewhere, then the body can be exhumed, provided that doing so does not result in any disrespect to the deceased.
From the above, it must be clear that our Religion has given much respect to the dead body of a Muslim and without any justifiable cause, the disinterment of grave and exhumation of body would be considered as a sin, and being Muslims, we have to respect a dead body and only against serious accusations, should allow the disinterment. The order of exhumation must be based on detailed reasoning and it should be quite logical, fair and in order to further the cause of justice.
Mere submission of an application and that too, after a considerable time of death of Mst. Masaib Bano (deceased), is not sufficient to ask for the disinterment and exhumation.
15. For what has been discussed above, the findings of both the courts-below seem to be just, legal and reasonable, which do not warrant any interference in Constitutional Jurisdiction of this Court.
16. This petition, having no merits is, therefore, dismissed.