' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made prayer as follows;-- "Under these circumstances it is respectfully prayed that order dated 14-06-2013 passed by respondent No,2 and order dated 03-07-2013 passed by respondent No,1 may very graciously be declared void, illegal, in-operative and the same may kindly be set aside.
' It is further prayed that the operation of the impugned orders dated 14-06-2013 and 03-07-2013 passed by respondents Nos.1 and 2 respectively may kindly be suspended during the pendency of present petition.
' Any other relief which this Hon'ble Court deems fit and proper may also kindly be awarded to the petitioner".
2. Facts of the case, succinctly required for disposal of the case in hand, are that one Muhammad Aslam son of Bhai Khan died on 18-07.2010 who was buried in the ancestral graveyard after performing all the rituals permissible under Islamic law. Subsequent to that a dispute arose between the parties regarding the distribution of the inheritance of the deceased, who was a very rich man having ancestral property. In this regard case FIR No,79, dated 14.02.2012, offence under Sections 420, 468, 471, P.P.C., was lodged with Police Station, Cantt. District Sargodha, at the instance of Muqadas Rani widow of aforesaid Muhammad Aslam (complainant/respondent No,3).
After the registration of the case, an application was moved by said Muqadas Rani on 29.01.2013 with the averments that her husband was done to death in mysterious circumstances. She had stated that earlier she could not lodge her protest as she was forbidden by her close relatives; therefore, the deceased was buried hurriedly. She stated that in fact her husband was done to death by Riasat Ali, Liaqat Ali and lqbal Bibi after administering poison to him. It is pertinent to mention here that this application was filed subsequent to the earlier application which was dismissed due to non-prosecution on 19.12.2012. (Neither the application nor the contents of the same have been disclosed during the course of arguments). The learned Illaqa Magistrate after hearing both the parties issued direction for disinterment of the dead body vide order dated 14.06.2013. The crux of the order passed by the learned Illaqa Magistrate is that the very purpose of filing the application is to ascertain the actual cause of death. While elaborating his jurisdiction, the learned trial court has passed the order in the following terms: - "The first part of this section makes it clear that the first part of the section is related to the death of Person while in custody of police, therefore, the first part of section is not applicable to the preposition in hand while the second part of this section fully empowers the Magistrate to disinter the body in order to discover the cause of death. Furthermore, there is no legal hurdle for the acceptance of this petition. Resultantly, this petition is hereby accepted and the body of deceased Muhammad Aslam would be disintered on 2Ith May. 2013 at 10:00 a.m. A letter in this regard be issued to DPO, Sargodha through worthy, District and Sessions Judge, Sargodha, for provision of security and a separate letter also be issued to M.S. DHQ Sargodha for constitution of Medical Board for the date fixed. TMO, Kot Momin is directed to make necessary arrangement for digging up the grave. Now, the file be produced on 24.06.2013".
' The order dated 14.06.2013 passed by the learned Illaqa Magistrate was assailed before the learned Additional Sessions Judge, Bhalwal through revision petition, which was dismissed in terms of order dated 03.07.2013. The orders of both the learned courts below have been assailed by means of constitutional petition in hand.
3. While opening his arguments, learned counsel for the petitioner submits that the learned Illaqa Magistrate has passed the order impugned in a cyclostyle fashion without adverting to the real facts and circumstances of the instant case. It is contended that even the learned Additional Sessions Judge has fallen in error while maintaining the order of the learned Illaqa Magistrate. As a matter of fact, learned counsel submits that the whole proceedings carried out by Muqadas Rani/respondent No,3 are nothing but just to deprive the other legal heirs of Muhammad Aslam (deceased) from his ancestral property. It is contended that undeniably she is second wife of Muhammad Aslam (deceased). It is argued that she got lodged case FIR No,79, dated 14.02.2012, offence under Sections 420, 468, 471, P.P.C., with Police Station, Cantt. District Sargodha, which too relates to the distribution of the property. Learned counsel submits that when she found that she is going to lose something, just to pressurize the other party, she moved application before the learned Illaqa Magistrate for disinterment of the dead body, but the same was dismissed for non prosecution and subsequent to that another application was filed which proved fruitful and the order was also upheld by the learned Additional Sessions Judge, Bhalwal. Contends.That filing of application for disinterment of the dead body at a belated stage itself speaks volumes especially when the dispute over the distribution of the property had already surfaced and in this regard even a criminal case has also been got lodged. Learned counsel submits that possibility cannot be ruled out that each of the party would have played foul play for its benefits, but that cannot be equated with the commission of the murder.
4, Learned Law Officer has not supported the order impugned, however learned counsel representing respondent No,3 has opposed this petition with vehemence. It is argued that in criminal cases there is no limitation. It is contended that for disinterment of the dead body no limitation has been provided under the statute. Learned counsel submits that it is right of every person to know the cause of death being the legal heirs of the deceased. It is submitted that respondent No,3 being widow of the deceased is also entitled for the same treatment. Learned counsel while placing his reliance upon the dictums of law laid down in the cases of "Ameer Afzal Baig v. Ahsan Ullah Baig and others" (2006 SCMR 1468) and "Mansab All v. Asghar All Faheem Bhatti, Additional Sessions Judge, Nankana Sahib and 3 others (PLD 2007 Lahore 176) has prayed for dismissal of the petition in hand.
5. Arguments advanced pro and contra have been heard and record available on file perused.
6. There is no second cavil to this proposition that in ordinary circumstances to know the cause of death is a reasonable approach by the family including wife. However, the Court while passing such like orders has to evaluate the genuineness of the lis before it. In the instant case it is an admitted fact that Mst. Muqadas Rani was second wife of Muhammad Aslam (deceased).
According to the bond of our family system, she was not accepted by her in laws. When this aspect of the case is scrutinized, as an abundant caution, this Court has to see the authenticity of the litigation before it while keeping in view the prevailing circumstances in our society. This Court cannot lose sight of the fact that Muqadas Rani/respondent No,3 is legally wedded wife of the deceased though it is argument that she is second wife and had already indulged in dispute over property with the other legal heirs of the deceased, but this aspect alone cannot deprive her from the right to know the cause of death of her husband, but at ,the same time, a pivotal question arises here that why she kept mum for such a long time. She has tried to advance the reasoning for keeping mum for such a long time by way of stating that she had the suspicion in her mind right from the day first, but she was forbidden by the elders of the family to raise any voice. This reasoning given by said Muqadas Rani/respondent No,3 at a belated stage is not sufficient to accept her stance without taking into consideration the other aspects of the case in hand. She moved her first application after the elapse of about two and half years and then second application was filed by her with the further delay of more than one month. Earlier to this, upon the application of Muqaddas Bibi criminal case FIR No,79, dated 14.02.2012, offences under Sections 420, 468, 471, P.P.C., was lodged with Police Station, Cantt. District Sargodha. The constitution petition bearing Writ Petition No,19905/2012 preferred by Muqaddas Bibi against the order dated 23.07.2012 passed by the learned ex-Officio Justice of Peace, Bhalwal, has already been dismissed by this Court in terms of order dated 03.04.2013 with the following observations: - "3. When confronted, learned counsel for the petitioner admits that it clearly reflects from the application filed by the petitioner while getting succession certificate that death of Muhammad Aslam was natural one. The order passed by the learned Additional Sessions Judge/Ex-Officio Justice of Peace is reasonable and do not require any interference by this Court. Learned counsel for the petitioner has failed to point out any illegality or infirmity in the order impugned. Moreover, the instant petition has been filed at a belated stage maliciously. This petition is devoid of any force and, the same is dismissed accordingly".
Bare reading of the order reflects that it was an admitted fact that earlier the stance of respondent No,3 was entirely on different footings and it was said while filing succession certificate that the death of the deceased was natural. Change of stance by respondent No,3 at a belated stage after the elapse of about three years coupled with the registration of criminal case bearing FIR No,79, dated 14.02.2012, offence under Sections 420, 468, 471. P.P.C., lodged with Police Station, Gantt.
District Sargodha, filing of application for disinterment of the dead body is nothing but seems to be a malicious attempt to involve her opponents in the said case at the part of the respondent to alarm them to keep away from demanding their share in the inheritance of the deceased.
7. Apart from this, another aspect of the case which requires close scrutiny by this Court is that we are living in an Islamic society wherein Article 2-A has been made part of the Constitution through an amendment vide S.R.O. No,1273(I)/85 dated 29th December, 1985, by which the objective resolution was considered to become part of substantive provisions. Article 2-A reads as under: - [2A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly].
' Bare reading of Article 2-A clearly reflects that Islam is the State religion and all the injunctions of Islam are to be followed in letter and spirit. In Islam, sanctity has been attached to human beings irrespective of being alive or dead. Even any offence with a dead soul was considered to be an offence while invoking Article 2-A of the Constitution. Reliance in this regard is placed upon the dictum of law laid down by the august Supreme Court of Pakistan in the case of 'Muhammad Naseer v. The State" (PLD 1988 Federal Shariat Court 58). The relevant portion of the same is as follows:- "19. The custom in certain cases and Muslim Personal Law in others, which we find in codified forms, in various books, like Customary Law by Rattigan and Muhammadan Law by Mulla, were never codified by any legislature yet they were applied to all the issues of custom and Muslim Personal Law. In fact these codifications were made by private people from the available customary practices, decided cases of personal law as revealed by Qur'an and Sunnah or laid down by Muslim Jurists. It may be interesting to record here that though the Muslim Personal Law had the Divine source for it, the parliament of England hal throughout been recognizing the Common Law as the Law of the land though it was developed in a vacuum by the Courts and the Jurists and was never enacted or codified by the parliament.
21. So just a provision by the ordinary competent legislature made an uncodified law applicable to all matters mentioned therein and it was left to the people or the Courts to identify, dig out and apply that law. Now the entire field of Muslim Law has been made applicable, not by any ordinary law, but by the Constitution itself, as per Article 2-A, enforced with effect from 3rd of March, 1985.
' The result is that previously the ordinary legislature without specifically enacting the custom or the usage and bits of personal law, in detail, and in codified enactments, made them part of the law of land and it is more than a century that not only no objection was raised by any one; rather, the wheel of life of the community was kept going by those precepts smoothly and peaceably.
Now in 1985, it is the entire body of Muslim Law which has been enforced and so no objection is due for lack of it being in the form of codified enactment, to make it the Existing Law of Pakistan-- -".
' Similar view has been taken up in the cases of "Messrs Bank of Oman Ltd. v. Messrs Estate Trading Co. Ltd. And others" (PLD 1987 Karachi 404 and Mirza Qamar Raza v. Mst. Tahira Begum and others (PLD 1988 Karachi 169).
While taking into consideration this aspect of the Constitution, this Court is conscious of the fact that disinterment can be done in pursuance of a judicial intervention and there is no legal bar in the same. However, the Court is squarely under obligation to ascertain the element of personal grouse or grudge, coupled with mens rea or before passing such order which might cause disgrace even to a dead subject while exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan. Keeping in view all these facts and circumstances, this Court is of the considered view that in the case in hand there is every likelihood that the application for disinterment of the dead body was filed with an attempt to settle the old scores with the other party under the garb of depriving them from an expected division of inheritance of the deceased.
8. For the foregoing facts and circumstances as well as keeping in view the Islamic point of view on the subject, this Court is persuaded to accept this petition. As a consequence whereof the impugned orders dated 14.06.2013 passed by learned Illaqa Magistrate and order dated 03.07.2013 passed by the learned Additional Sessions Judge, Bhalwal, are set aside.