ASGHAR ALI vs SENIOR CIVIL-JUDGE/MAGISTRATE and others
This criminal revision petition challenges an order passed by a Magistrate directing the disinterment and autopsy of the deceased victim's dead body upon the complainant's application. The core legal question was whether the Magistrate's order for exhumation and autopsy by a board of experts was justified, given that the initial post-mortem examination was allegedly conducted improperly by a sweeper rather than a medical officer, leaving the complainant unsatisfied. The Lahore High Court held that the father of the deceased has a fundamental right to know the true cause of his son's death, especially where the initial post-mortem was conducted in a slipshod manner. The Court laid down the principle that the revisional jurisdiction under the Code of Criminal Procedure 1898 will not be exercised to interfere with routine procedural irregularities or technicalities unless glaring irregularities or patent improprieties vitiate the decision, and it would be unfair to leave the relatives of the deceased in perpetual doubt regarding the cause of death.
- Whether a Magistrate can order the disinterment and exhumation of a dead body for a fresh autopsy when the initial post-mortem examination was conducted in a defective or slipshod manner?
- Can the revisional jurisdiction of the High Court be invoked to set aside orders based merely on routine procedural irregularities or technicalities?
- Does the father of a deceased victim have a legal right to seek an autopsy to ascertain the true cause of death?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
ORDER
' TARIQ SHAMIM, J.-Through this petition, the petitioner has challenged the order dated i3-6-2007 passed by the learned Magistrate Section 30, Kasur, whereby he, on an application filed by the complainant of case F.I.R. No,244 of 2007, for offences under sections 302, 109, 148, 149 P.P.C.
Registered at Police Station Saddar Kasur, had ordered disinterment of the dead body, of the deceased Salamat.Son of complainant for the purpose Of autopsy.
2. The brief facts of the case are that the aforesaid F.I.R. Was lodged by Khushi Muhammad against the petitioner and others alleging that they had committed the murder of his son, namely, Salamat.
The autopsy was not conducted by the medical officer as required under the law but the same was conducted by a sweeper who after mutilating the dead body had produced the viscera before the medical officer, who remained present outside the mortuary. The postmortem proceedings were witnessed by Lumberdar Yaseen, Atif Iftikhar, Ameen, Liaqat, Niamat and Zafar, who were sitting under the tree with the medical officer. Thereafter, pieces of abdomen, small and long intestines, liver, kidney and spleen were sent to the medical laboratory wherefrom a negative report was received. Being dis-satisfied with the manner in which the postmortem examination was conducted the complainant-respondent No,2 submitted an. Application' for exhumation of the dead body for the purpose of autopsy by a board comprising of experts. The learned Magistrate keeping in view the contents of the F.I.R. And the fact that respondent No,2 being father of the deceased was not satisfied with the postmortem report had ordered exhumation of the dead body vide the impugned order.
3. ' The learned counsel for the petitioner has contended that while passing the impugned order the learned Magistrate had neither held an inquiry nor had he associated the petitioner or his co- accused with the proceedings and, therefore, the impugned order was bad in law and was liable to be set aside.
4. I have heard the learned counsel and gone through the documents placed on the record.
5. The deceased Salamat Ali, the son of complainant was last seen in the company of the petitioner and others by the witnesses. On a search launched by the complainant-respondent No,2 and others the dead body of Salamat Ali was discovered. The complainant in the F.I.R. Expressed his apprehension that his son had been murdered by the petitioner and others at the instance of Mst.
Shazia Shaheen, the wife of deceased with whom he had strained relations and litigation was also pending between them. From the contents of the application filed by respondent No,2, it is manifest that the postmortem of the deceased was conducted in a slipshod manner in the presence of a number of witnesses. In such a situation, respondent No,2 is justified in seeking disinterment of the dead body of the deceased for the purpose of autopsy. The very fact that the petitioner has assailed the order of disinterment of the deceased leaves an impression that the petitioner has something to hide and is afraid that during autopsy something will come to surface which may have adverse implications. Further, the father of the deceased has a right to know the cause of death of his deceased son. The impugned order, therefore, advances the demand of justice which even otherwise cannot be interfered with in the discretionary jurisdiction of this Court under sections 435/439, Cr.P.C. It may be observed that the revisional jurisdiction would not be exercised in every case merely on account of procedural irregularity etc. In the case of Haji Behram Khan v.
Akhtar Muhammad and others (PLD 1993 Quetta 31), it has been observed as under:- "Therefore, unless glaring irregularities materially affecting proceedings or patent improprieties vitiating impugned decision are pointed out, revisional jurisdiction cannot be sought in every case of mere procedural irregularities, routine defects or technicalities."
6. Reference is further made to the cases of Ameer Afzal Baig v. Ahsan Ullah Baig and 3 others (2003 PCr.LJ 2000) and Amir Khan v. The District Magistrate Chakwal and 2 others (1998 PCr.LJ 1326), wherein it has been observed that it would be rather inhuman or unfair to leave the relatives of the deceased lurking in a doubt for the rest of their lives with regard to the death of the deceased. In the facts and circumstances noted above, the' present case does- not warrant interference by this Court in the impugned order.
7. For what has been stated above, this petition has no force which stands dismissed in limine.
Revision .