' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the order of Additional Sessions Judge, Gujrat, dated 13-5-2003 reversing the order of Judicial Magistrate, dated 3-4-2003, and restoring the order of Special Judicial Magistrate, dated 22-1- 2003.
2. Briefly the facts of the case are that Muhammad Inayat Baig father of Ihsan Ullah Baig, respondent No,1 died on 17-3-2002. Son of the deceased nourished suspicion that his mother Karam Fatima killed his father by administering poison to him with the conspiracy of Ameer Afzal Baig (petitioner), Ameer Akbar Baig and their sister Sardar Bibi as she had illicit relation with petitioner. His suspicion was strengthened when his mother sold his father's property and fled away with Ameer Akbar Baig and thereafter married him. Ihsan Ullah submitted an application on 17-12- 2002 for exhumation of dead body of his father to Special Judicial Magistrate, who after due scrutiny ordered for disinterment on 22-1-2003 but petitioner meanwhile moved an application before learned Sessions Judge for transfer of the case, which was accepted and case entrusted to another Judicial Magistrate. The transferee Court after recording the evidence, going through the record and hearing counsel for the parties dismissed the application vide order, dated 3-4-2003.
3. Respondent No,1 challenged the order in revision before learned Additional Sessions Judge, who after hearing the parties accepted the revision and set aside the order, dated 3-4-2003 and restored the order of Special Judicial Magistrate, dated 22-1-2003.
4. Ammer Afzal Baig, one of the respondents before learned Additional Sessions Judge has approached this Court through this petition with the prayer that the impugned order be declared without lawful authority, illegal and without jurisdiction.
5. Mr. Nazir Ahmed Ghazi learned counsel for petitioner contends that respondent No,1 is playing in the hands of his enemies Mst. Karam Fatima, widow of the deceased contracted marriage with the brother of petitioner namely Ameer Akbar Baig, who was subsequently murdered and case F.I.R.
No,33 of 2003 was registered against the witnesses of the instant case Ihsan Ullah, respondent No,1 son of the deceased submitted an application for disinterment of dead body on 17th of December, 2002 after nine months of death of the deceased. The application was moved with the intention to pressurize the witnesses of the afore-referred murder case, which was accepted on 22-1-2003 by Special Judicial Magistrate but he recalled the order just after three days on 25-1-2003, after hearing the parties and stayed the operation of his previous order. The application of respondent No,1 was motivated one and moved with the connivance of accused, who murdered the brother of petitioner. He also got case F.I.R. No,509 of 2002 registered under the Hudood Ordinance against his mother Karam Fatima, which was found false and cancelled later on. The allegation of poisoning of deceased by petitioner and his co-accused is baseless and learned Magistrate after recording evidence of the parties and hearing their learned counsel for valid reasons dismissed the application on 3-4-2003 for exhumation of dead body. Learned Additional Sessions Judge while passing the impugned order has not properly considered the background of enmity and mala fide on part of respondent No,1 in making application after nine months of death of his father in its true perspective and as such the order is wholly without jurisdiction and is liable to be declared without lawful authority.
6. Kh. Mehmood Ahmed, learned counsel for respondent No,1, on the Others hand, submits that a suspicion is lurking in the mind of son of the deceased that his father has been done to death through poison by petitioner and its co-accused. ,Learned Additional Sessions Judge while accepting the revision petition of respondent No,1 has advanced the cause of justice by permitting disinterment of dead body of deceased. The jurisdiction of this Court under Article 199 of the Constitution is to be exercised in aid of justice and not in aid of njustice. The impugned order is just and fair and immuned from interference under Constitutional jurisdiction. He has relied upon the case of Ghulam Nabi v. D.M., Qkara 1989 M LD 4147.
7. Heard. Record perused respondent No, l's application, dated 17-12-2002 was accepted by Special Judicial Magistrate on 22-1-2003 after recording the statement of two witnesses produced by respondent No, 1 . Before the said order could be implemented the Magistrate himself stayed its operation vide order, dated 25-1-2003. Subsequently, on acceptance of transfer application of petitioner on 6-3-2003, the same was dismissed by Ch. Muhammad Nawazish Ali, Judicial Magistrate on 3-4-2003, after recording the evidence and hearing the parties. Son of the deceased challenged it in revision and through the impugned order learned Additional Sessions Judge dealt with all the objections of petitioner and through a detailed and comprehensive order accepted the revision petition and restored the original order of Special Judicial Magistrate, dated 22-1-2003. The grounds urged against the impugned order are relatable to assessment of evidence produced by the parties in the Court of learned Judicial Magistrate. This Court is not sitting in appeal to assess the evidence and give its own findings. Extraordinary Constitutional jurisdiction is to be exercised in aid of justice. Father of respondent No,1 has died and he suspects that deceased was administered poison by the accused. Mere submission of application after nine months of death alone is not sufficient to dismiss his application. Paras. 8 and 9 of the judgment referred by learned counsel for respondent No,1 are as under:- "8. In the circumstances the entertainment of suspicions and doubts by the relatives of Mst.
Parveen Bibi about the possibility of the said lady having met a violent death could not be said to be completely ill-founded. If the close relatives of Mst. Parveen Bibi had no objection the exhumation of the dead body and were in fact agitating for the same, then there was hardly any reason for the District Magistrate not to accept. The said prayer. The question whether Haider Ali aforesaid had or had not killed Mst. Parveen Bibi is not for the R.M. Or D.M. To determine.
9. Needless to say that the relatives of Mst. Parveen Bibi do have a right to know and to find out how she met her death. It would be rather inhumane and unfair to leave to brother and other relatives of Mst. Parveen Bibi lurking in a doubt throughout their lives with regard to her death."
8. The law laid down in the aforesaid judgment.Is fully attracted in the instant case. Son of the deceased has a doubt that petitioner and his co-accused have administered poison to his father.
The disinterment of dead body will determine the cause of death. The impugned order of learned Additional Sessions Judge is just and fair and advances the cause of justice. It does not suffer from any jurisdictional or legal defect warranting interference through this petition. It is devoid of any merit and is dismissed with no order as to costs.