Tariq Saleem Sheikh, J. - The Petitioner resides in Mouza Tibba Noorpur, Old Chichawatni, District Sahiwal. She states that her two sons, Muhammad Nasir and Muhammad Rashid, were killed in a police encounter, whereupon FIR No. 604/2018 dated 13.10.2018 was registered at Police Station Luddan, District Vehari. The police conducted their postmortem examinations and later buried their bodies in the graveyard of Chak No.182/9-L, Chichawatni, District Sahiwal. The Petitioner further states that Owais Ali subsequently implicated her other sons, Atif and Kashif, in FIR No.396/2019 dated 27.08.2019, registered at Police Station Dera Rahim, District Sahiwal, for the murder of one Sami Ullah. As a result, the Petitioner's family faces serious difficulties in visiting the graves of Nasir and Rashid, which are located in the area of their adversaries. She, therefore, filed an application before the Respondent Magistrate, seeking permission to transfer the remains of her deceased sons to the graveyard at Mouza Tibba Noorpur. The Magistrate sought a report from Respondent No.2 (SHO, Police Station Saddar Chichawatni), who informed the court that the police had no objection to the request. However, the Magistrate dismissed the application vide order dated 22.02.2022 (hereinafter referred to as the Impugned Order ), holding that it was beyond the scope of section 176 of the Code of Criminal Procedure 1898 (hereinafter referred to as "Cr.P.C." or the "Code"), and thus he had no jurisdiction to entertain it. The Petitioner has challenged that order through the present writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution").
2. It is noteworthy that although FIR No. 604/2018 was registered in District Vehari, Nasir and Rashid were buried in District Sahiwal. The record is silent as to why the police opted for burial outside the territorial jurisdiction of the investigating police station. However, as neither party has raised any objection in this regard, and the legality of the burial site is not under challenge, this inconsistency bears no material impact on the adjudication of the present petition, which turns solely on the permissibility of disinterment.
3. The Petitioner's counsel, Ch. Zulfiqar Ali Sidhu, Advocate, submits that the Petitioner and her family have a longstanding enmity with Owais Ali's family. The Magistrate failed to consider the genuine hardship that the Petitioner's family faces in visiting the graves of Nasir and Rashid, which lie in Chak No.182/9-L - an area under the influence of their rivals. The counsel argues that there is no legal prohibition or restriction on the disinterment of the bodies or their relocation. He maintains that the Petitioner and her family have a fundamental right to visit the graves of Nasir and Rashid, which cannot be denied to them. He asserts that the Impugned Order is unsustainable.
4. The Assistant Advocate General has opposed this petition. He contends that neither the Shariah nor the laws of our country permit shifting of the remains of a deceased on the ground raised by the Petitioner.
5. This case involves a question of public importance, including the application of Shariah law.
Therefore, this Court requested (i) Mufti Abdul Hakeem (Jamia Khairul Madaris, Multan); (ii)
Sahibzada Farooq Ahmad Sayedi (Jamia Islamia Arabia Anwar-ul-Aloom, Multan); and (iii) Agha Ghazanfar Haideri (Jamia-tul-Abbas, Multan) for assistance in this matter. Their written opinions are attached to this judgment as Appendices I, II, and III.
Discussion
6. Section 174(1) Cr.P.C. mandates that the officer in charge of a police station, or any officer specially authorized by the Provincial Government, must immediately inform the nearest Magistrate when a person has (a) committed suicide; (b) been killed by another person, animal, machinery, or accident; or (c) died under circumstances that raise a reasonable suspicion of an offence. Unless otherwise directed by rules, the officer must proceed to the place of occurrence, conduct an investigation in the presence of at least two respectable residents, and prepare a report describing the apparent cause of death and any visible injuries, including how and by what means they were likely inflicted. Section 174(5) Cr.P.C. empowers a Magistrate of the First Class to conduct inquests.
7. Section 176(1) Cr.P.C. provides that when a person dies in police custody, the nearest Magistrate authorized to conduct inquests must hold an inquiry into the cause of death. In other cases falling under section 174(1), clauses (a), (b), and (c), any empowered Magistrate may conduct such an inquiry, either in place of or in addition to the police investigation. If the Magistrate decides to proceed with the inquiry, he shall exercise the same powers as in an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in the manner prescribed by law, depending on the circumstances of the case. Section 176(2) empowers the Magistrate to order exhumation if necessary to determine the cause of death, even after burial.
This provision is supplemented by the Lahore High Court Rules and Orders (Vol. III, Chapter 18, Part A, Rules 2 and 3).[1] These provisions make clear that disinterment is legally permissible only when specifically justified and must be carried out under proper medical supervision and With due regard for the dignity of the deceased. There is no provision in the Code, the Lahore High Court Rules and Orders, or even the Police Rules that permit exhumation merely to alleviate emotional hardship or to address access difficulties.
8. An examination of the Petitioner's application before the Magistrate shows that no allegation of unnatural death was made. Instead, she requested shifting her sons' remains because of hostility with the complainant of FIR No. 396/2019. Therefore, her request is beyond the scope of section 176(2) Cr.P.C. A Magistrate, being a statutory officer, may only exercise powers conferred upon him by law. As adumbrated, under section 176(2) Cr.P.C., disinterment is permissible solely for the purpose of determining the cause of death and only where there is suspicion of unnatural death. In the present case, no such suspicion was alleged. Therefore, the Magistrate lacked the jurisdiction to allow disinterment under the Code. His order dated 22.02.2022 is upheld.
9. Given that there is no statutory provision governing the relocation of graves, the next question is whether the refusal to permit such relocation infringes any of the Petitioner's fundamental rights and, if so, whether this Court may grant relief under Article 199(1)(c) of the Constitution.
10. Across various civilizations, traditions, and religions - both ancient and modern - death is often viewed as a transitional phase between different stages of existence. Burying the dead serves as a means to honour their dignity, show respect, and acknowledge the feelings of their surviving loved ones. Throughout history, religious beliefs, traditions, and cultural practices have shaped the treatment of the deceased in times of both peace and conflict, and they continue to do so today.
11. In Islam, human dignity is a divine right granted to all individuals, as they are regarded in the Quran as Allah's vicegerents (Khalifah) on Earth. This dignity is recognized from before birth, with the fetus entitled to protection and rights, and continues beyond death. Islam teaches that the human body, created by Allah in its most perfect form, must always be treated with respect and honour, whether the individual is alive or deceased. This fundamental respect for human dignity is reflected in various teachings of the Quran. For example, Verse 58 of Surah Ahzab ordains that those who cause harm to Muslim men and women without justification commit a great sin. Islamic scholars interpret this verse as applicable to both living and deceased Muslims. Similarly, in Hadith Nos. 3208 and 1618 of Sunan Abu-Dawood and Hadith No. 1616 of Ibn-e-Maja, Hazrat Ayesha R.A. narrated that the Prophet Muhammad (peace be upon him) said that causing harm to a dead person is akin to harming a living person.
12. The above principle is further highlighted regarding the deceased in Verse 31 of Surah Maidah, where it is narrated that when Cain was uncertain about how to handle the body of his brother Abel, whom he had murdered, Allah sent a raven as a sign. The raven dug the earth to bury another raven, thus teaching Cain the proper way to bury his brother's body.
13. In response to the challenges of ensuring the dignified burial of the deceased during armed conflicts, violence, and natural disasters, classical Muslim jurists developed Islamic laws to address these situations. These laws uphold the dignity of the deceased while considering the feelings of their loved ones to the greatest extent possible. The issue of respecting the dignity of the dead frequently arises in the writings of classical Muslim jurists, particularly in discussions on topics such as the exhumation of graves - a key issue for our purposes here.
14. The following excerpt from Durr-ul-Mukhtar[2] extensively examines the issue of relocating a deceased's body from its original burial site to another location with reference to the views of each of the four recognized Sunni schools of thought:
15. The celebrated book, A Selection of Islamic Laws,[3] based on the verdicts of Grand Ayatollah Yousaf Saanei, a prominent Shia jurist, addresses the issue of exhumation in the following terms: "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 buried 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 Qibla.
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.
16. Similar views are found in Tawdheeh al-Masaa'il by As-Sayyid Ali al-Husseini al-Seestani, another eminent Shia scholar. He states: "647. If it is proposed to transfer the dead body to some other town or its burial is delayed owing to some reason, the Wehshat prayers should be deferred till the first night of its burial.[4]
648. It is Haraam to open the grave of a Muslim, even if it belongs to a child or an insane person.
However, there is no objection to do so if the dead body has decayed and turned into dust.
649. Digging up or destroying the graves of the descendants of Imams, martyrs, the Ulema, and pious persons is Haraam, even if they are very old because it amounts to desecration.
650. Digging up the grave is allowed in the following cases: 1) When the dead body has been buried in a usurped land, and the owner of the land is not willing to let it remain there.
2) When the Kafan of the dead body or any other thing buried with it had been usurped and the owner of the thing in question is not willing to let it remain in the grave. Similarly, if anything belonging to the heirs has been buried along with the deceased and the heirs are not willing to let it remain in the grave. However, if the dead person had made a will that a certain supplication or the Holy Qur'an or a ring be buried along with his dead body, and if that will is valid, then the grave cannot be opened up to bring those articles out. There are certain situations when the exhuming is not permitted even if the land, the Kafan or the articles buried with the corpse are Ghasbi. But there is no room for details here.
3) When opening the grave does not amount to disrespect of the dead person, and it transpires that he was buried without Ghusl or Kafan, or the Ghusl was void, or he was not given Kafan according to religious rules, or was not laid in the grave facing the Qibla.
4) When it is necessary to inspect the body of the dead person to establish a right, which is more important than exhumation.
5) When the dead body of a Muslim has been buried at a place that is against sanctity, like, when it has been buried in the graveyard of non-Muslim or at a place of garbage.
6) When the grave is opened up for a legal purpose, which is more important than exhumation. For example, when it is proposed to take out a living child from the womb of a buried woman.
7) When it is feared that a wild beast would tear up the corpse or it will be carried away by flood or exhumed by the enemy.
8) When the deceased has willed that his body be transferred to sacred places before burial, and if it was intentionally or forgetfully buried elsewhere, then the body can be exhumed, provided that doing so does not result in any disrespect to the deceased."
17. Mufti Abdul Hakeem (Appendix I), Sahibzada Farooq Ahmad Sayedi (Appendix II), and Agha Ghazanfar Haideri (Appendix III) have examined various aspects of the matter in their written opinions submitted to this Court. Their views are consistent with the classical treatises cited above.
All three scholars are unanimous that relocation of a grave is impermissible in Islam except in clearly defined exceptional circumstances.
18. It is, however, necessary to emphasize that whenever the issue of relocation of a grave arises, the matter must be determined in accordance with the personal law of the deceased.
19. The Petitioner's grievance stems from personal hardship and the emotional impact of being unable to visit the graves of her sons. However, this does not amount to a violation of any constitutional right. Mr. Sidhu has apprised the Court that the Petitioner and her deceased sons adhere to the Hanafi school of thought. Under Hanafi jurisprudence, the circumstances presented do not fall within the recognized exceptions that would permit the relocation of a grave. The scholarly opinions referenced earlier, though not binding, support this view and have been treated as persuasive in this case.
20. Mr. Sidhu submits that the Prophet Muhammad encouraged Muslims to visit graves, relying on a Hadith narrated by Hazrat Anas bin Malik (may Allah be pleased with him), wherein the Prophet stated: I had previously prohibited you from visiting graves. Behold, now I permit you to visit them, for they soften the heart, bring tears to the eyes, and remind one of the Hereafter."[5] Mr. Sidhu contends that the Petitioner cannot comply with this prophetic directive due to safety concerns; therefore, relocation of the graves is necessary. This raises the broader question of whether the relocation of a grave can be justified under Islamic law when visitation becomes impracticable.
21. No doubt, the above-mentioned Hadith encourages visiting graves, but it does not create an obligatory command such that non-compliance would entail religious liability. Most importantly, it does not require visitation to a particular grave or obligate a specific individual to visit the grave of a specific deceased person. The prophetic instruction is general in nature and directed at the Muslim community as a whole. Its religious benefit - softening the heart and remembering the Hereafter - can be attained by visiting any grave or cemetery. The benefit of grave visitation primarily accrues to the living, and prayers for the deceased may be offered from any location without the necessity of physical presence at the burial site. Mr. Sidhu's argument, therefore, lacks merit and is hereby rejected.
22. It is important to point out that with the advancement of modern technology, human remains can now be relocated without causing physical damage or visible disruption to the grave.
Techniques such as block disinterment or monolithic removal, commonly used in forensic and archaeological contexts, allow the grave and surrounding soil to be excavated and relocated as a single unit. The Petitioner did not express any intention to use the aforesaid technology, and, more so, no assistance was provided to this Court on whether it can be permitted under the Injunctions of Islam. Therefore, this point is left to be determined in some other appropriate case.
23. In view of the foregoing discussion, this petition is dismissed.
[1]For facility of reference, Rules 2 and 3 are reproduced below:
2. Duty of Medical Officer to conduct post-mortem examination when nothing is known about causes.--In each case, the circumstances, so far as they are known, respecting the death and the discovery of the body, which are communicated by the Police, will enable the Medical officer to form an opinion as to whether it would be possible by a post-mortem examination to throw any light on the cause of death; and wherever such possibility exists, or whenever nothing is known, it is his duty to make as full an examination as possible.
3. Examination of body when advisable for examination.--These considerations should guide a Magistrate in determining on the propriety or otherwise of exerting the power given to him by law of ordering the exhumation of a body. In cases of doubt the Magistrate should, if possible, consult a medical officer before passing such an order.
2. Allama Muhammad Alauddin Haskafi, Durr-ul-Mukhtar, Vol. 1, p.840. Also see: Imam Muhammad Bin Ali Shukani, Neel-ul-Autar, Vol. 4, p.112.
3. Translation by Muhammad Yasser Kimyaei Far (2007).
4. Namaz-e-Wehshat, also known as Salat ul-Wahshat, is a recommended two-rakah prayer performed for the deceased on the first night after their burial. It is considered good to offer this prayer at the start of the evening after the Isha prayers. The prayer is offered in the first rakah, reciting Surah Fateha followed by Ayatul Kursi, and in the second rakah, reciting Surah Fateha followed by Surah Al-Qadr ten times. After completing the prayer, a specific supplication is recited.
5. This narration, authenticated by Al-Albani in Sahih al-Jami' (Hadith No. 4584), is also reported by Ahmad, Abu Ya'la, and Al-Hakim.