MALIK HAQ NAWAZ, J.---The brief history giving rise to the present revision petition is that one Amaldar son of Subedar resident of Lark Tangir lodged FIR No, 19/15 under section 302, P.P.C. on 21/07/2015 at Police Station Tangir regarding murder of his son Mehfoozullah by unknown culprits.
2. After registration of case, the investigation started and accused Azam Khan son of Bakder Khan was arrested and sent to judicial lock up to face trial.
3. It is pertenient to mention here that on the day of occurrence, when after registration of FIR, the local Police reached at the site of occurrence, started investigation and completed some codel formalities. The father of accused Mehfoozullah submitted an application to the SHO, that he is not willing for postmortem of his deceased son and as a result the postmortem was not conducted.
4. When the challan of the case came before the learned trial Court, the learned trial Judge on 14/12/15 passed an order which is reproduced as under.
'Father of deceased Mefoozullah present. SHO Police Station Tangir present. Co-accused Hazrath Bilal and Hazrath Noor also in attendance. It is on record that father of deceased has resisted the post-mortem examination vide his application dated 21-07-2015 on record and SHO Police Station Tangir has accepted the said application and handed over the dead body of deceased Mehfoozullah without post-mortem examination. This action of father of deceased and SHO Police Station Tangir clearly comes within the ambit of section 201, P.P.C. SHO Police Station Tangir Mir Ghani and father of deceased Mehfoozullah are included in this case for causing disappearance of evidence. They are directed to file bail bonds of Rs, 200,000/- with two sureties each in the like amount to the satisfaction of this Court otherwise co-accused Mir Ghani and Amaldar be sent to judicial (sic.). Order regarding discharge of co-accused Hazrat Bilal and Hazrat Noor by learned Judicial Magistrate has already canceled therefore these be sent to judicial(sic.). Put up next on 01-03-2016 for framing charge. Documents of the case be supplied to SHO Mir Ghani and Amaldar father of deceased.'
5. The learned counsel submitted that the postmortem was not a legal requirement, when the cause of death was clear and moreover the postmortem cannot be carried out without the consent of the parties. The orders of the le"arned Judge per learned counsel are in excess of jurisdiction and needs to be corrected by this Court.
6. The learned Advocate General, half heartedly defended the judgment of the learned trial Court.
7. I have heard both the parties and have also gone through the record of the case annexed with the petition.
8. As evident from the record Amaldar father of deceased Mehfoozullah submitted an application on 21/07/2015, that he is not willing for postmortem on the corpus of his deceased son, which was duly verified by two respectable of the locality and the present petitioner being SHO of Police Station Tangir accepted the request of the father of deceased and did not took the dead body to BHU for postmortem.
9. Modi's medical jurisprudence and toxicology chapter 12 (page 293) defines the types of postmortem which portion is reproduced for the purpose of convenience.
Post-Mortem is of two types.
The chemical or academic post-mortem is one in which medical practitioners perform a post- mortem with the consent of the relatives to know the extent of the illness for which the deceased was treated.
The medico-legal or forensic post-mortem is performed on the requisition of a legal authority responsible for the investigation of sudden, suspicion, obscure, unnatural, litigious or criminal deaths. The legal authority is usually a police officer not below the rank of a sub-inspector or an executive magistrate.
Clinical/Academic * Post- mortem Medico-legal/Forensic Post- mortem Performed to know the extent of the illness for which the deceased was being treatedPerformed to know the cause of death Consent of the relatives of the deceased is necessaryNot necessary No requisition from the legal authority is necessaryRequisition from the legal authority is necessary It may be limited to the area of disease aloneAll the three-cranial, thoracic and abdominal cavities are opened and explored 10.From the bare reading of the judgment it appears that the learned trial Judge has travelled far from his jurisdiction and I, cannot subscribe to the observation which may suggest that failure to conduct post-mortem would demolish the prosecution case.
11.Obviously there would be numerous situations when for certain reason post-mortem would not have possibly conducted. In various parts of the Country on account of long standing customs and established tradition the legal heirs do not allow post-mortem of deceased and this practice/custom is being followed in Kohistan and Diamer, area. 12.The Court may take other factors into account and where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injuries without being any element of negligence or other intervention, the non-performance of post-mortem would not be fetal. Even otherwise the medical evidence is also corroboratory/confirmatory in nature. The medical evidence only describes the seat of injuries and weapon used but cannot establish the identity of accused.
13.As discussed above, the father of deceased due to long standing custom of the are submitted an application which was made a part of police record and resultantly, the post-mortem was not got conducted by the 1.0, the father of accused and the I.0 (petitioner) cannot order to stand in the list of accused as ordered by the learned trial Court. It will be mockery in the eyes of law that complainant Amaldar, who lodged the FIR, will be standing in witness box as a witness of prosecution and after his evidence when he comes out from witness box, he will join the accused side to defend the charge under section 201, P.P.C. The provisions of section 201, P.P.C. are not attracted in the case in hand. The order of the learned trial Court is not only mockery in the eyes of law but it also depicts the lack of basic knowledge of the learned trial Judge.
14.The General public is losing confidence in Court because of some erroneous decision and the Judges should keep in mind that every erroneous decision is detrimental for the reputation of judiciary as a whole.
15.The powers of this court under sections 435/439, Cr.P.C. are unfettered. Powers\conferred by these sections as a Court of appeal, in case of any proceeding the record of which has been called by itself, or otherwise comes to its knowledge, and where a wrong order in excess of jurisdiction is passed, it becomes obligatory for this Court to correct the error.
16.However, for smooth function of the Court and fair trial, the SSP Diamer is directed to inform all the SHO/IO of all the Police Station, that is case the legal heirs of the deceased are not willing for post-mortem of any deceased, the respective IO/SHO will get the dead body externally examined by a medical expert and it will be made a part of Police as well as judicial file and the concerned doctor will also be cited in calendar of witness to verify the apparent cause of death, which will serve the purpose.
17.The result of above discussion is that the revision petition is allowed and the order passed by the learned trial Court is set aside. The complainant, against whom the same order has been passed, has not challenged the vires of this order, by filing a revision petition before this Court, due to the reasons best known to him. By exercising the powers conferred on this Court under sections 435 and 439, Cr.P.C., the order against the non-petitioner (complainant) Amaldar is also set aside in the larger interest of justice.