' This Constitutional petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the order dated 22-8-1994 passed by the 'District Magistrate, Jhang, respondent No, 1 herein, and seeking a direction for exhumation of the dead body of Mst.
Khatoon for re-postmortem examination by the Medical Board of the District Headquarters Hospital, Jhang.
2. The facts, in brief, as narrated in the instant petition are; that six years ago, the petitioner No, 1 had married with Mst. Khatoon and in return Mst. Sahib Bibi, sister of Khizar Hayat, petitioner herein was married to Umar Hayat, respondent No, 2 herein, who is the real brother of Mst. Khatoon, deceased. Mst. Khatoon, deceased, was present in the house of her husband when she died on 27- 7-1994. The parents of the deceased were duly informed, who took her dead body to their own native village and burried there. Umar Hayat, applied to the District Magistrate Jhang on 31-7-1994 alleging that the death of Mst. Khatoon was not natural and she had been murdered by her husband-Khizar Hayat, petitioner herein and his co-accused and that her dead body should be exhumated for the purpose of autopsy. The District Magistrate vide his Order No,910/R.D.M. Dated 31-7-1994 without any notice to the petitioner or to the Public Prosecutor directed the Medical Officer Tehsil Headquarters Hospital, Chiniot to exhume the body of the deceased for post-mortem and formation of the opinion as to the cause of death. Accordingly the Medical Officer Tehsil Headquarters Hospital, Chiniot exhumed the dead body of the deceased on 4-8-1994, conducted the post-mortem and found injury No, 1 contusion 12 x 8 cm on the back of the neck. In the opinion of the Medical Officer, the cause of her death was as follows:-- "Compression of spinal cord because of dislocation at the level of cervical vertibera 384 resulting in death possibly due to direct violence as a result of injury No, 1 so injury No, 1 is sufficient to cause death in ordinary course of nature. This injury is antemortem and blunt in nature."
3. On the basis of this postmortem report, Umar Hayat, respondent No,2 applied to the Deputy Commissioner, Jhang and the Superintendent of Police, Jhang for the registration of the case.
4. Umar Hayat, the real brother of the deceased filed Writ Petition bearing No,9751/94 and through the intervention of this Court, the case F.I.R. No,284/94 dated 29-8-1994 under section 302/34, P.P.C.
Was registered at Police Station, Rabwah, District Jhang. In the meantime, one Suleman and Ex- Councillor of the village of the petitioner applied to the District Magistrate, Jhang on 11-8-1994 asserting therein that Mst. Khatoon had committed suicide by taking poisonous pills of intoxicant and that the previous post-mortem examination report dated 4-8-1994 was manipulated by the parents of Mst Khatoon in collusion with the Medical Officer. He further asserted that no viscera was preserved by the Medial Officer for chemical examination and that it was necessary that the dead body be exhumed once again for fresh postmortem examination by a Medical Board for the determination of the real cause of her death. This application was referred by the District Magistrate to the Medical Superintendent, District Headquarters Hospital, Jhang for comments. The Medical Superintendent made a report on 15-8-1994 that "the final opinion in this case can only be given after re-postmortem after exhumation by the standing Medical Board. The date will be fixed after your further orders please".
5. On the receipt of this report, the District Magistrate rejected the prayer for re-exhumation and re- postmortem of the dead body on the ground that he was not shown any rule which require the Medical Officer to preserve viscera for chemical examination even where the cause of death was discernable; order of the learned District Magistrate dated 22-8-1994 is now subject-matter of this writ petition.
6. The learned counsel for the petitioners vehemently argued that the learned District Magistrate erred in passing the first order dated 31-7-1994 in directing the exhumation and post-mortem without notice to the accused or the Public Prosecutor. He further argued that the second impugned order of the District Magistrate dated 22-8-1994 was absolutely unjustified. He referred to Modi's jurisprudence Chapter 4 to support his contentions that "as many viscera as can be obtained should be preserved " by the Medical Officer performing the autopsy for the purpose of chemical examination. The Medical Officer in this case did not perform his duty to preserve viscera and the District Magistrate exceeded the limits of his authority in rejecting the prayer for exhumation and subsequent autopsy. He contended that the true cause of death of the deceased could not be found out without taking the viscera and its chemical examination.
7. While opposing the petition, an objection has been raised by the learned Additional Advocate- General that this writ petition is not competent, as the impugned order of the District Magistrate was a judicial order which was revisable by this Hon'ble Court under section 439, Cr.P.C., therefore, a revision petition should have been filed. In support of his contention, he has relied upon The State v. Ch. Altaf Hussain Magistrate 1st Class, Gujrat and 2 others PLD 1978 Lahore 1259 and Ghulam Hussain v. District Magistrate 1992 PCr.LJ 1870. This petition, conversely, has been opposed by the learned counsel for respondent No, 2 on the ground that there was no justification for the second exhumation and re-postmortem examination, particularly after the lapse of more than seven months of her burrial, as no useful purpose will be served by it. It has further been argued that the District Magistrate while directing the exhumation and post-mortem was not obliged to hear the accused.
8. I have heard the learned counsel for the petitioners as well as the learned Additional Advocate- General and also the learned counsel for respondent No,2 at considerable length. I have also given my anxious consideration to the facts and the law and have perused the record with their able assistance.
9. Reference to sections 174 and 176 from the Code of Criminal Procedure would show that the purpose of an inquest is only to find out the cause of death of a person and not the person who have caused it as was held in Chaman Lal v. The Emperior AIR 1940 Lahore 210. The inquest held by a Magistrate under section 176, Cr.P.C. Is an "inquiry". The word "inquiry" has been defined in section 4(1)(k) of Criminal Procedure Code to include every inquiry other than a trial conducted under this Code by a Magistrate or Court. I respectfully follow the view held by this Court in Ghulam Hussain v.
District Magistrate 1992 PCr.LJ 1870 and Muhammad Anwar v. District Magistrate, Sahiwal 1991 PCr.LJ
806. It was held in the former case after the survey of the case-law that the District Magistrate while allowing exhumation of the dead body for fresh post-mortem without hearing either the accused or the prosecution acted in defiance of the principle of natural justice. It is a fundamental principle of our law that the Magistrate or a Court while holding of inquiry is acting judicially and should observe the norms of the judicial proceedings. A notice of hearing to the accused and the prosecution was, therefore, necessary. An objection on behalf of respondent No, 2 that no useful purpose shall be served by re-exhumation after a long period of seven/eight months of burrial, also carries no weight in view of Chapter 4 of Modi's Jurisprudence where it is opined that there is no time limit for disinterment of a body. In case of Muhammad Ramzan v. The State 1987 SCM R 272 the disinterment was allowed even after lapse of one year. The objection of the learned Additional Advocate-General that the impugned order of the District Magistrate was revisable under section 439, Cr.P.C. Is valid so far it goes. But this Court has the inherent power to try the proceedings of one type to be a proceedings of another kind. This writ petition is treated as revision petition. The purpose of an inquest is to determine the true cause of death. For this purpose, the Medical Officer should have preserved viscera for examination as opined in Chapter 4 of Modi's medical jurisprudence relied upon by the learned counsel for the petitioner.
' In view of what has been discussed above, the writ petition succeeds and the impugned order of the District Magistrate, Jhang dated 22-8-1994 is, therefore, set aside. He is directed to pass an order for exhumation of the dead body of Mst. Khatoon, deceased, for fresh post-mortem examination by a Board of doctors and for the chemical examination of viscera and other body parts taken during the autopsy.