Through this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the following prayer has been made:- "Under the above mentioned circumstances and facts of the case, it is respectfully prayed that by accepting instant writ petition, the impugned order dated 29-01-2020 passed by the learned Respondent No.3 and judgment dated 10-02-2020 passed by the learned Respondent No.2 may graciously be set aside as illegal, void, against the law and facts, the same are not sustainable in the eyes of law and the application for exhumation for grave of deceased Najma Saeed filed by the Petitioner may also be accepted as prayed for in the interest of justice.
It is further prayed that the proceedings of exhumation of deceased Najma Saeed may also be conducted under the supervision of learned Senior Civil Judge (Criminal Division) Bahawalnagar/Respondent No.3.
2. Brief facts of the case leading up to the filing of this petition are that the to the effect that Najma Saeed (deceased), sister of the petitioner , was married to Shahid Ramzan (respondent No.6) ten years before her death and was blessed with the birth of two children, however , on 16.09.2019, the petiti oner got information that Najma Saeed had died, upon which, the petitioner along with her husband and others rushed to the house of the Najma Saeed and confronted Shahid Ramzan, Muhammad Azal, Ambreen Bibi and Saeed Akhtar (respondents No.6 to 9), as to the circumstances of her death, who confessed to having had murdered Najma Saeed (deceased) but still Najma Saeed (deceased) was buried. Subsequently , the petitioner moved an application under section 176, Cr.P.C. for disinterment of the body of the deceased before the learned Senior Civil Judge (Criminal Division), Bahawalnagar , which was dismissed vide order dated 29.01.2020. The order of the learned Senior Civil Judge (Criminal Division), Bahawalnagar was assailed through an application under section 439-A, Cr.P.C. which was also dismissed vide order dated 10.02.2 020 passed by the learned Additional Sessions Judge, Bahawalnagar , hence, the instant petition.
3. The learned counsel for the petitioner , inter-alia, contended that the order dated 29.01.2020 passed by the learned Senior Civil Judge (Criminal Division), Bahawalnagar and the order dated 10.02.2020 passed by the learned Additional Sessions Judge, Bahawalnagar were liable to be set aside being against the facts and law; that Shahid Ramzan, Muhammad Azal, Ambreen Bibi and Saeed Akhtar (respondents No.6 to 9) confessed to having had murdered Najma Saeed (deceased) in the presence of the witnesses; that there is no legal bar or restriction for the disinterment of the dead body and lastly that the law has not prescribed any limitation for proceeding under section 174 read with section 176, Cr .P.C.
4. I have heard the learned counsel for the petitioner and perused the documents appended with this petition as well as the order dated 29.01.2020 passed by the learned Senior Civil Judge (Criminal Division), Bahawalnagar and the order dated 10.02.2020 passed by the learned Additional Sessions Judge, Bahawalnagar .
5. The perusal of the record reveals that that Najma Saeed (deceased), sister of the petitioner , was married to Shahid Ramzan (respondent No.6) ten years before her death and was blessed with the birth of two children, however , on 16.09.2019, the petitioner got information that Najma Saeed had died, upon which, the petitioner along with her husband and others rushed to the house of Najma Saeed and confronted Shahid Ramzan, Muhammad Azal, Ambreen Bibi and Saeed Akhtar (respondents No.6 to 9), as to the circumstances of her death, who confessed to having had murdered Najma Saeed (deceased) but still Najma Saeed (deceased) was buried. The most vital aspect of the whole matter is the fact that despite the claim of the petitioner that Shahid Ramzan, Muhammad Azal, Ambreen Bibi and Saeed Akhtar (respondents No.6 to 9) confessed to having had murdered Najma Saeed (deceased) in the presence of the witnesses, still Najma Saeed (deceased) was buried and no proceedings were initiated by the petitioner for getting the post mortem examina tion of the dead body of Najma Saeed (deceased) conducted. This fact alone is sufficient to prove that the petitioner was satisfied that Najma Bibi deceased) had not been murdered, therefore, she did not act in any manner towards getting the circumstances identified in which Najma Saeed (deceased) had lost her life. Had a confession been made by Shahid Ramzan, Muhammad Azal, Ambreen Bibi and Saeed Akhtar (respondents No.6 to 9) that they had committed the Qatl-i-amd of Najma Saeed (deceased), then it would not have happened that the petitioner would have not got the post mortem examination of the dead body of the deceased conducted. The silence of the petitioner reveals that she did not doubt the circumstances in which her sister namely Najma Saeed (deceased) had died and there did not exist any reason with the petitioner to suspect Shahid Ramzan, Muhammad Azal, Ambreen Bibi and Saeed Akhtar (respondents No.6 to 9) of having committed the Qatl-i-amd of Najma Saeed (deceased). More so, during the course of proceedings of the application of the petitioner , it was admitted that it was only after the dispute arose with regard to the mutation of land in the name of the children of Najma Saeed (deceased), that the petitioner proceeded to seek the exhumation of the dead body of the deceased and its post mortem examination. Even Mst.
Naheed Akhtar , the woman who gave bath to the dead body of the deceased, got her statement recorded to the SHO, police station City A-Division, Bahaw alnagar , District Bahawalnagar that she did not observe any evidence of foul play at the time of giving the ritual bath to the dead body of Najma Saeed (deceased). Furthermore, the medical history of Najma Saeed (deceased) (Mark-F to Mark-I) brought on record showed that she did suffer from illness before her death. Another vital aspect of the case is that Najma Saeed (deceased) lost her life in the house of her own parents, in their presence and they strongly objected to the exhumation of the body of the deceased as according to them, the death of the decea sed was quite natural. 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 of Islamic Republic of Pakistan, 1973, 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 ef fect according.
The bare reading of Article 2-A of the Constitution of the Islamic Republic of Pakistan, 1973, 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 irrespe ctive 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 of Islam ic Republic of Pakistan, 1973.
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 has 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 applic able, not by any ordinary law, but by the Constitution itself, as per Article 2-A, enforced with ef fect 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."
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 ill-will before passing such order , which might cause disgrace even to a dead subject while exercising powers under Article 199 of the Constitution of the Islamic Republic of Pakistan. An eminent Scholar , Grand Ayatollah Yousaf Sannei, in Muntakhab-ul-Masaa'il, has dealt with the subject of exhumation in the following manner:-- "Exhumation (Nabsh-ul-Quabr): 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."
From the above, it must be clear that Islam has given much respect to the dead body of a Muslim and without any justifiable cause, the disinterment of the grave and exhumation of the body would be considered an iniquity . 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. Besides, the learned counsel for the petitioner has not been able to point out any illegality , infirmity or jurisdictional error in the order dated 29.01.2020 passed by the learned Senior Civil Judge (Criminal Division), Bahawalnagar and the order dated 10.02.2020 passed by the learned Additional Sessions Judge, Bahawalnagar , which would warrant interference by this Court in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
6. For the above identified reasons, this petition, being meritless, is dismissed.