Through the instant petition, the petitioner has challenged the vires of orders dated 16.03.2019, 29.04.2019 and 30.04.2019 passed by the learned courts below whereby application filed by Mst. Zohra Bibi seeking exhumation of the grave of her daughter, namely, Shehnaz Bibi for autopsy of her dead body was accepted vide order dated 16.03.2019 by the learned Magistrate Section 30, Shakargarh. The present petitioner assailed the said order dated 16.03.2019 by filing Revision Petition before the learned Addl. Sessions Judge, Shakargarh who dismissed the same vide order dated 29.04.2019. Thereafter, the learned Magistrate vide an interlocutory order dated 30.04.2019 directed the SHO concerned to depute guard on the grave of the deceased so as to prevent any untoward incident. The Medical Superintendent, DHQ Hospital, Narowal was also directed to depute experts team of medical to conduct autopsy of dead body of the deceased, hence this criminal miscellaneous petition.
2. The elaborate factual matrix of instant criminal miscellaneous application, as gleaned out, on perusal of the application of the petitioner (Annexure "A") submitted to the SHO, Police Station Kot Naina, Shakargarh is to the effect that on 08.11.2018 at about 8.00 p.m. (night) during cleansing a pistol by his son Rafaqat Ali, inadvertently its trigger got pressed, two fires shots emitted out of it, hit on the abdomen of Rafaqat's mother, namely, Mst.
Shahnaz Bibi, (wife of the petitioner). The petitioner, due to severe injuries and her critical condition, did not inform the police, and at the first instance, shifted the lady injured to THQ Hospital, Shakargarh but in view of her critical condition, the Medical Officer, referred her to Mayo Hospital where she succumbed to her injuries on 11.11.2018.
The application goes to further say that, he being husband of the deceased, along with other LRs, neither want to get the post mortem examination of the dead body of the deceased nor register a criminal case. It is noticed that after receiving said application, the SHO, instead of registering a criminal case, only recorded Rapt No.10 dated 11.11.2018. The SHO entrusted the matter to Muhammad Younas, SI of Police Statin Kot Naina to inquiring it under section 174 Cr.P.C. It further transpired from the record, that Muhammad Younas, SI of said Police Station, moved application (Annexure-"C") to the learned Illaqa Magistrate, reiterating the facts contained in (Annexure-B), with the prayer to get permission for post mortem examination over the dead body of the deceased, who after recording presence of legal heirs (without due verification from any independent quarters), observed that since the death of the deceased was result of receiving accidental fire shots and the legal heirs of the deceased also do not want to get the post mortem examination conducted over the dead body of the deceased, and turned down the request of the police, however, he observed that proceedings under section 174 Cr.P.C. be initiated and inquiry report be submitted before him. Needless to say that a death certificate issued by the Mayo Hospital, Lahore (Annexure-"D") is also available on record confirming the death of Mst. Shahnaz Bibi as a result of firearm injury. The report under section 174 Cr.P.C. was also prepared declaring the death of the deceased to be an accidental death.
Later on, mother of the deceased Mst. Zuhra Bibi, respondent No.3 herein, submitted her application before the learned Magistrate requesting for disinterment and post mortem over her dead body. She has alleged that the death of the deceased was not the result of accidental fire shot rather the same was an intentional murder, committed by Rafaqat Ali and Safarish Ali, through two successive fire shots. The learned Magistrate after hearing the parties, proceeded to pass the order dated 16.03.2019 which reads as under:- The perusal of the record reveals that the cause of death of deceased Shahnaz Bibi was not determined at the time of her death rather it was mentioned that it to be ascertained after autopsy . In the given circumstances, in order to know the real facts and have a definite opinion about the cause of death, examination of dead body is very necessary which can only be conducted after disinterring of the dead body . Hence, in the interest of justice, application in hand is accepted and SHO concerned is directed to depute guard on the grave of the deceased so as to prevent any untoward incident with the dead body of deceased. The M.S. DHQ Hospital, Narowal is directed to depute a medical team to conduct examination of dead body of the deceased on 27.03.2019 at about 09.30 a.m ."
3. The petitioner challenged the said order by filing a Criminal Revision Petition which has been dismissed vide order dated 29.04.2019, as a sequel of the above proceedings, the learned Magistrate in order to get the autopsy conducted after disinterment of her body , passed the order dated 30.04.2019, hence this petition.
4. At the very outset, learned counsel for the petitioner submits that respondent No.3 Mst. Zohra Bibi with her malafide intention, moved application before the learned Magistrate for exhumation of the grave of her daughter Mst.Shehnaz Bibi who without considering the earlier proceedings and ignoring the order dated 11.11.2018, (passed by the learned Magistrate whereby he turned down the request of the police for conducting post mortem examination) had pass the impugned order dated 16.03.2019; adds that while deciding the revision petition, the learned Addl. Sessions Judge had also ignored the order dated 11.11.2018. He states that none of the legal heirs, wanted autopsy over dead body of their near and dear.
5. On the other hand, it is contended that even the application moved by the present application either before the SHO or before the Magistrate clearly indicates that death of the deceased was result of a fire shot which amount the commission of offence under sectio n 322 PPC "Qatl-bis-Sabab (defined under section 321 PPC) and is punishable under section 322 PPC, therefore, the entire range of exercise of power either by the police or by the learned Magistrate vide order dated 11.11.2018 is not sustainable, as such the same amounts, to screen off the offender .
5. Heard. Record perused.
6. Verbiage aside, the petitioner himself moved application (Annexure-"A: and "B") before the SHO as well as before the learned Magistrate stating, that on 08.11.2018 at about 8.00 p.m. (night) his son Rafaqat Ali, allegedly was cleansing a pistol, due to incidental, trigger pressing, emitting two fire shots, hit on the abdomen of Mst. Shahnaz Bibi, as a result whereof, she succumbed to her injuries. Rest of the detail of facts has already been given in the previous paragraphs of this order, hence need no reiteration. It is also not disputed that after receipt the application Annexure-A, moved by the petitioner, the SHO endorsed his opinion while incorporating it in Rapt No.10 dated 11.11.2018 and through a request in writing, submitted by Muhammad Younis, SI, Police Station Kot Naina before the learned Magistrate seeking permission for getting conduct the post mortem examination which was turned down by the learned Magistrate vide order dated 11.11.2018, this order has presumably been passed in presence of the legal heirs of the deceased. No individual statement of the LRs is available on the record and he only got signatures of the alleged LRs on the margin of the order sheet, directing the police to proceed under section 174 Cr.P.C. and submit a report before him. Respondent No.3 is mother of the deceased, on whose application, order dated 16.03.2018 was passed for disinterment of the dead body by the learned Magistrate, which has also been upheld even by the Revisional Court.
7. It is an admitted fact that death of Mst. Shahnaz Bibi was result of two successive fire arm shots, emitted from the pistol being cleansed by Rafaqat Ali, the real son of the deceased. Mst. Shah naz Bibi died in Mayo Hospital, her death certificate also confirms that she has died as a result of fire shot injuries. Keeping in view even the contents of application moved by the present petitioner , clearly the commiss ion of offence Qatl-bis-Sabab punishable under section 322 PPC, a cognizable offence is made out. For ready reference, section 321 PPC is reproduced as under:
321. Qatl-bis-Sabab . Whoever , without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit Qatl-bis-sabab.
The order dated 11.11.2018 passed by the learned Magistrate whereby he turned down request of the police for post mortem examination on the concession of the LRs of the deceased, amounts to diverting the process of law by allowing the LRs compounding the offence by way of its application to waive their rights of Qisas and the question arises whether the learned Magistrate under the law is invested with the said jurisdiction, to pass the order. The answer is in negative. The post mortem examination is got conducted under Chapter XXV of the Police Rules, 1934. The offence under section 322 PPC can, not doubt, be compounded by the LRs of the deceased but with the permission of a court of competent jurisdiction only as per mandate of law, after submission of the challan and taking cognizance of the offence by a court. The order of the learned Magistra te whereby he has turned down the request of the police only on the concession of the LRs of the deceased, appears to be illegal, unlawful, without jurisdiction and without lawful authority , therefore, the objection of the learned counsel for the petitioner that the order dated 11.11.2018 passed by the learned Magistrate, since has not been challenged and has attained the finality , cannot be entertained, and the same is turned down, and order is also set aside while exercising power under section 561-A Cr.P.C. It also noticed that the action of the SHO for initiating the proceedings under section 174 Cr.P.C. instead of proceedings under section 154 Cr.P.C. is also uncalled for, and amounts to failure in discharge of his duty and the same is not appreciated. The offences against human body are though compoundable but at the same time it is an offence against the State for which the State machinery has to take the steps for prosecution of the offender, which, in the instant case, is lacking. It was yet to be investigated whether the offender was keeping the pistol, with or without licence. In case, he was having unlicensed arm, can be allowed, through the way the police, the Magistrate have allowed him to go escorted free. Both the learned courts below have passed the impugned orders quite in accordance with law as the medical evidence cannot be dispensed with, for establishing a charge or offence, against a human body. Learned counsel representing the petitioner could not point out any illegality in the impugned orders, being impugned through this petition.
8. Resultantly , this petition having no force, is hereby dismissed .
9. Office, however, is directed to send a copy of this order to DPO, Narowal to look into the matter and find out, whether the conduct of his subordinates in dealing with the matter, does not come within the purview of making attempt for damaging and the evidence apart from failure in discharge of his duty.