Through this Intra Court Appeal under Section 3 of Law Reforms Ordinance, 1972, the appellant challenged the vires of order dated 29.07.2015 passed by learned single Judge in Chamber in Writ Petition No.5134-2015/BWP, which was accepted and order dated 24.06.2015 passed by learned Ex- officio Justice of Peace was set-aside.
2. The brief facts of the case are that the appellant filed a petition under Section 22-A & 22-B Cr.P.C.
Before learned Ex-officio Justice of Peace, Rahim Yar Khan seeking direction to the SHO concerned for registration of criminal case against respondents No.3 to 6 as they allegedly committed the murder of his son namely Saifullah by administering black-stone poison, whereby learned Justice of Peace vide order dated 24.06.2015 directed the S.H.O. Concerned to record version of the appellant under Section 154 Cr.P.C. And then proceed in the matter strictly in accordance with law.
4. Respondent No.4 Rashid Javed and others being aggrieved by order dated 24.06.2015 passed by learned Ex-officio Justice of Peace, filed writ petition No. 5134-2015 for setting-aside of said order before this Court, whereby learned single Judge in chamber vide order dated 29.07.2015 set-aside order dated 24.06.2015 passed by learned Ex-officio Justice of Peace and directed the SHO concerned to look into the possibility of procedure to be adopted in order to comply with the direction which may include one provided under Section 174 Cr.P.C. Feeling aggrieved by the order of learned single Judge in chamber, Mst. Riaz Bibi, the appellant preferred the instant appeal.
5. Learned counsel for the appellant submits that impugned order dated 29.07.2015 passed by learned single Judge in chamber is against the law and facts of the case as is envisaged by Bashir Ahmad's case (PLD 2007 S.C. 539); that Saif-ullah, real son of the appellant has been murdered by respondents No.3 to 6 by administering black-stone poison, which was confirmed by the Doctors.
Hence, the impugned order is liable to be set-aside; that the learned single Judge in chamber did not consider this aspect of the case and learned Ex-officio Justice of Peace has rightly passed order dated 24.06.2015, in which clear-cut direction was issued to the concerned SHO regarding the initiation of criminal proceedings against respondents No.3 to 6. Therefore, it has been prayed for setting-aside order dated 29.07.2015 passed by learned single Judge in chamber.
Learned counsel for the appellant in support of his contention has referred case law reported as "Sardar Ali. Vs. SHO, Warburton". (1980 P.Cr.L.J. 1058) and "Khalid Pervez. Vs. Haji Akhtar Nisar and 6- others," (2008 P. Cr. L. J. 175).
6. We have heard the learned counsel for the appellant at some length and gone through the record available on the file.
7. It has been observed by us that the alleged occurrence took place on 06.04.2015 but the appellant kept mum for a period of more than one and half months till filing of petition under Section 22-A & 22-B Cr.P.C. Before the learned Ex-officio Justice of Peace as according to the appellant, his son namely Saif-ullah had died due to administering the black-stone/poison. The deceased remained admitted in the various Hospitals, but surprisingly, the appellant never appeared before any forum regarding the alleged occurrence i.e. SHO concerned, D.P.O. Or before any Court of law for the redressal of her grievance.
8. It has also been noticed by us that after expiry of real son of the appellant, funeral ceremony was performed and hundreds of people participated in the funeral ceremony, but at that time the appellant never extended any suspicion regarding the alleged occurrence mentioned in petition filed under Sections 22-A & 22-B Cr.P.C. And after performing the funeral ceremony, she interred her son and never agitated the matter before any forum that the post mortem examination is required as her deceased son was murdered. She never made any application before learned Judicial Magistrate concerned for disinterment of dead body of the deceased for probing into the actual cause of death under Section 176 (1) Cr.P.C. It is also note worthy to mention here that even the registration of F.I.R is not impediment for holding an inquiry into cause of death of deceased person under Section 176 Cr.P.C. In this regard, we take guide line from the case law reported as "Ameer AfzaL Baig. Vs. Ahsan-ullah Baig and other" (2006 SCM R 1468), wherein the August Supreme Court of Pakistan has held that suspicion can only be removed more particularly when the exhumation by itself could never lead to involvement of someone unless the post mortem examination is conducted and report is positive.
9. We have also observed that during the pendency of petition under Section 22-A & 22-B Cr.P.C.
Learned Ex-officio Justice of Peace called report & parawise comments from the police concerned, according to which no cognizable offence was committed by respondents No.3 to 6 as during his admission in the Hospitals, the deceased remained in senses and he never uttered even a single word that respondents No.3 to 6 had administered the black-stone poison to him. It was also clearly mentioned in the comments of the police that respondents No.3 to 6 not only got him medically examined but also after expiry of the deceased, they participated in his funeral ceremony, but learned Ex-Officio Justice of Peace ignored all these facts and circumstances of the case and passed the impugned order in mechanical manners hastily and arbitrarily, which was rightly set-aside by learned single Judge in chamber.
10. It is settled principle of law that when there is suspicion regarding the death of the deceased, procedure provided under Sections 174 & 176 Cr.P.C. Should be adopted, as the intent of criminal law is to save the innocent persons from the agonies of endless litigation based on suspicion, fabricated, fictitious and concocted allegations. We have also observed that learned single Judge in chamber directed the S.H.O. Concerned to look into possibility of procedure as mentioned above.
Moreover, the allegation cannot be levelled against the innocent persons to get them involved in a criminal case of a heinous offence unless sufficient incriminating material is available against them. The intention of the legislation behind this might be to save or to protect the innocent persons to involve in such heinous offence without having the inquiry of cause of death and then to proceed under Section 154 Cr.P.C. The case law referred by learned counsel for the appellant is not applicable to the facts and circumstances of the present appeal.
11. In view of above discussion, we are of the considered view that impugned order dated 29.07.2015 passed by the Hon'ble learned single Judge in chamber is quite in accordance with law laid down by the Superior Courts reported as "Rai Ashraf and others. Vs. Muhammad Saleem Bhatti and others" (PLD 210 S.C. 691) and "Muhammad Waris. Vs. SHO and another" (2014 M.L.D. 1033). The learned counsel for the appellant could not point out any infirmity and illegality in the impugned order dated 29.07.2015 passed by the Hon'ble learned single Judge in chamber and the same is up-held.
Resultantly, the instant Intra Court Appeal being devoid of any force is hereby dismissed in limine.