' Through this Constitutional petition, the petitioner has prayed that: "the entire proceedings having been carried out by respondent No,1 over and above the report of Mr. Saeed Abdullah, the Magistrate, dated 19-3-1997 and orders passed by him to that effect culminating into his final order, dated 10-5-1997, be kindly declared to be without lawful authority having been passed with wrongful exercise of powers; that the said proceedings are nullity in eyes of law enjoying no legal value and effect and that respondent No,2 has not performed his duties lawfully by adding offence under section 302, P.P.C. Against the petitioner in acting upon the orders of respondent No, 1 ."
2. The facts in brief are that on the application of one Ahmad Khan a case was registered vide F.I.R.
No,711, dated 2-12-1996 under section 365, P.P.C., Police Station Civil Lines, Rawalpindi, on the allegation that he and wife Mst. Malkani visited the District Courts on 16-9-1996. He boarded the bus for Taxila whereas his wife proceeded towards the village and when he returned to the village he was told by Mulazam Hussain and Akbar Shah that his wife had been abducted by the petitioner, his brother Muhammad Ashraf and his maternal nephew Sabobar in a white-coloured vehicle at pistol-point. It was further alleged that despite the efforts made, the complainant failed to retrieve his wife.
' On 4-12-1996, an unidentified body of a woman was found in village Saraal, a case vide F.I.R.
No,140, dated 4-12-1996 was registered under section 302, P.P.C. At Police Station Dhudhial, District Chakwal. The autopsy of the dead body was conducted which revealed that she died of blunt weapon injuries and her body was partly burnt. On the application moved by the complainant' for disinterment of the afore-referred body, an inquiry was conducted by Malik Saee Abdullah who vide his report, dated 19-3-1997 held that the disinterment of the dead body was not called for as the mother of Mst. Malkani had already stated that the dead body was not that of her daughter.
Feeling dissatisfied with the afore-referred report, the husband of Mst. Malkani moved yet anqther application to the District Magistrate whereupon he directed the Ilaqa Magistrate to supervise the disinterment of the dead body, upon which he carried out the disinterment on 16-4-1997 in presence of both the parties. The following persons of the complainant party namely Muhammad Ahmad, Gulistan Khan, Muhammad Afzal, Mst. Fazeelat Bibi (daughter of Mst. Malkani), Muhammad Bashir, Mst. Zatoon Bibi (sister of Mst. Malkani), Matloob Bibi, Mst. Rehmat Jan, Muhammad Akram, Muhammad Zameer, Haji Abdul Rehruan and Feroze Khan identified the dead body to be that of Mst. Malkani whereas six persons of the petitioner's party also appeared who stated that the said dead body was not that of Mst. Malkani. In view of the afore-referred report, District Magistrate, Chakwal, directed that the dead body be handed over to Ahmad Khan. However, since on the initial post-mortem examination report, the age of the woman was written as 30 years, whereas the District Magistrate on the application of the husband of Mst. Malkani i,e, Ahmad Khan vide his order, dated 21-4-1997 directed that a Medical Board under the supervision of Medical Superintendent, D.H.Q., Hospital, Chakwal, should conduct the re-post-mortem examination for the determination of age. Pursuant to the afore-referred direction and without disinterment, the Medical Board, Chakwal, informed the District Magistrate that scientifically age of a dead person is determined between a specific range, especially after the age of 25 and it can be assessed only in decades.
According to them, the determination of exact age was not possible, therefore, age between 30 to 42 years was a very narrow range. The Medical Board further observed that ever since the first post-mortem examination, no guard had been placed at the grave. In view of this, both the parties were summoned and heard. The husband of Mst. Malkani stated that he would not like to press his application for re-post-mortem examination for the determination of the age in view of the report of the Medical Board whereafter the District Magistrate recalled his earlier order and directed that the dead body should be exhumed but only for the purpose of handing that over to Ahmad Khan for re-burial (this was vide order, dated 10-5-1997).
3. Learned counsel for the petitioner submits that the order passed by the District Magistrate on 8- 4-1997, disinterment of the dead body pursuant thereto and the report of the Ilaqa Magistrate, dated 16-4-1997 as also the orders of the District Magistrate, dated 21-4-1997 and 10-5-1997 are not sustainable in law as the District Magistrate had no authority to revise his earlier order, dated 19-3- 1997 and that' disinterment of the dead body and report of the Magistrate, dated 16-4-1997 has materially prejudiced the petitioner's interest inasmuch as he has been linked with a murder case registered on the statement of the husband of Mst. Malkani. In support of his submissions, learned counsel for the petitioner has relied on Khuda Bakhsh v. Province of West Pakistan etc. PLD 1957 (W.P.) Lail.
662.
4. Learned Additional Advocate-General, who entered appearance on Court's call submitted that the Magistrate who submitted the initial Inquiry Report, dated 19-3-1997 had not disinterred the dead body; that the disinterment was made only once by the order of the District Magistrate, dated 8-4-1997 and the report was submitted by the concerned Magistrate on 16-4-1997 and in view of afore-referred report, the orders of the District Magistrate, dated 21-4-1997 and 10-5-1997 were justifiably passed as eleven relatives of Mst. Malkani had identified her dead body; and that the husband of Mst. Malkani wanted re-postmortem examination for the determination of her age but subsequently withdrew his application whereafter the latter order was passed by the District Magistrate and no exception can be taken to that.
5. I have heard the learned counsel for the petitioner as also learned Additional Advocate-General.
The first inquiry held by the Magistrate which formed the basis of the report, dated 19-3-1997 was primarily based on the statement of the S.H.O. Who stated that the dead body of the woman was not that of Mst. Malkani and that even the mother of Mst. Malkani could not identify her. The Magistrate who conducted the inquiry did not himself examine the mother of Mst. Malkani and he also did not even cause the disinterment of the dead body. Aggrieved by the afore-referred report, Ahmad Khan, husband of Mst. Malkani gave an application to the District Magistrate who vide order, dated 8-4-1997 directed the Ilaqa Magistrate to disinter the dead body and inquire into the matter. It was pursuant to that direction that the disinterment was made and report submitted which was to the effect that eleven relatives including the husband, mother and sister identified the dead body to be that of Mst. Malkani. Since the age of the woman on the first post-mortem report was written as 30 years and Mst. Malkani was aged 40 years so on account of this discrepancy, Ahrnad Khan (husband of Mst. Malkani) had given an application to the District Magistrate for re- post-mortem examination for determination of her age which was allowed. The Board was constituted but on account of the initial comment made by the said Board so constituted (the comment was given without re-post-mortem examination) that the age of a dead person had to be given approximately in terms of the decades, the said Ahmad Khan withdrew his earlier application whereafter the District Magistrate recalled his earlier order and directed that the dead body should be handed over to Ahmad Khan for exhumation. Thus, factually there was no second disinterment of the dead body. The disinterment had taken place only once and that too as earlier report of the Magistrate was not based on disinterment and, therefore, did not meet the ends of justice. Admittedly, there was no allegation that the woman on whose dead body the inquiry or disinterment was ordered died in police custody. That being so, the initial inquiry conducted by the Magistrate and the second inquiry/ disinterment conducted were not the inquiries under section 176, Cr.P.C. Those were primarily inquiries under section 174, Cr.P.C. The Magistrate has the powers to direct disinterment of the dead body and has also the powers to refuse to make such a direction.
Subsection (5) of section 174 stipulates that the inquest cannot only be held by the Magistrate but also "Sub-Divisional Magistrate or a Magistrate of the 1st Class and any Magistrate especially empowered in this behalf by the Provincial Government or the District Magistrate". The question whether a Magistrate having once passed an order under the afore-referred provisions can modify the same and whether the resultant order would not be hit by the bar contained in section 369, Cr.P.C. Came up for consideration before this Court in The State v. Altaf Hussain Magistrate 1st Class, Gujrat, and others PLD 1978 Lah. 1259 and relying on a Supreme Court's judgment, this Court held that there is no bar for passing a second order modifying the earlier one. At page 1270, it was held as under:--- "It is clear from the rulings noted in the second category that the police can conduct more than one investigations in the same case of course, depending upon the circumstances of each case, justifying such an extraordinary act. If two investigations can be done, then the inquest being a part of the investigation, a process included therein (inquest) can also be conducted more than once, provided the circumstances justifying the same. For example, one post-mortem examination by one doctor would not bar by another post-mortem by another doctor or a Board of Doctors.
Similarly, after one general post-mortem has been done, there will be no bar to a part of the post- mortem being done by a different specialist, say, in anatomy or pathology. Again, if a police officer, acting under subsection (3) of section 174, during one investigation comes to a conclusion that post-mortem examination is not necessary; he may come to a different conclusion during the other investigation and may seek the post-mortem examination before the burial or, with due observant of procedural requirements in this behalf, after the burial. That would involve disinterment of the body. If the police officer during the investigation can ask for more than one postmortem examination and resultant inquests in the same case and has also the power, having once decided not to seek post-mortem, to subsequently get it done; the Magistrate can also exercise similar power which is deducible as 'already discussed from the combined reading of sections 174 and 175, Cr.P.C. He can after having passed the order prohibiting post-mortem examination, on discovery of new facts, direct the conduct of such an examination and vice versa.
Accordingly, the necessary corollary that would follow in this case is that the learned Magistrate having passed the order on 24-4-1978 prohibiting the postmortem examination, was competent, and under the above spelled out conditions, to pass fresh order on 25-4-1978 for disinterment of the body and its autopsy under his supervision. His action was not beyond his jurisdiction."
6. For the afore-referred reasons, I do not find any illegality in the order passed by the Magistrate or the District Magistrate. This petition having no merit fails and is hereby dismissed.