IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
Crl. Revision Appln. No. S- 38 of 2020.
Pir Bux and another through
Messrs Munir Ahmed Khuhawar
AndAhsan Ahmad Quraishi, Advocates
The State through Mr. Muhammad Noonari,
Deputy Prosecutor General.
Nisar Ahmed Shaikh (Complainant), through,
Messrs Sarfraz Khan Jatoi and Muhammad Afzal
Jagirani, Advocates for respondent No.2.
Dates of hearings: 01.03.2021 & 05.03.2021.
Date of Decision: 05-04-2021.
O R D E R
Zulfiqar Ali Sangi, J- Through captioned criminal revision application, the applicants have impugned order dated 20.08.2020, passed by the learned 1st Additional Sessions Judge, Kamber, whereby he has allowed application for exhumation of dead body of deceased Mst. Qamar-u-Nissa filed by respondent No.2 the complainant in Sessions Case No.495/2005 Re; State v. Raza Muhammad and others, arisen out of F.I.R No.78/2005, registered with P.S Drigh (District Kamber-Shahdadkot @ Kamber), for offences punishable under Section 324, 337-H (2), 148 & 149 P.P.C.
2. The relevant facts spelt-out from the contents of the revision application are that on 13.09.2005 complainant Nisar Ahmed/ respondent No.2 lodged F.I.R No.78/2005 with P.S Drigh against applicants/ accused and others for causing firearm injuries to Mst. Qamar-u-Nissa and others. After completion of investigation the challan of the case was submitted before concerned Court of law on 13.10.2005, and presently the case is pending trial before learned 1st Additional Sessions Judge, Kamber, where complainant/ respondent No.2 filed an application for exhumation of dead body of injured / deceased Mst. Qamar-u-Nissa, which was allowed by the learned trial Court vide impugned order, hence this criminal revision application is filed by applicants/accused before this Court.
3. Learned counsel for the applicants mainly contended that the trial Court has erred, both on law and the factsand has not applied the legal mind to the facts of the case. He further contended that learned Court below while passing the impugned order has gone beyond its mandate. Per learned counsel the alleged incident of causing firearm injury to Mst. Qamar-u-Nissa (whose exhumation has been ordered) had taken place about fifteen (15) years back; whereas she had died on 23.05.2007 about thirteen years back; however application for exhumation of her dead body has been filed in recent days by complainant/ respondent No.2 with malafide intention and ulterior motives. According to learned counsel the alleged incident had taken place on 13.09.2005, and challan of the case was filed on 13.10.2005 and at that time the injured Mst. Qamar-u-Nissa was alive with sound health. He next contended that it is matter of record that injured Mst. Qamar-u-Nissa died after about one and half year of the alleged incident and the complainant never approached to concerned police for the postmortem at that time in order to ascertain cause of death; that after about two years of the alleged incident Mst. Qamar-u-Nissa fallen ill due to paralysis and cardiogenic shock on 22.05.2007 and expired in a private medical center, namely, Hyder Eye & Medical Complex, Larkana on following day i.e. on 23.05.2007. Learned counsel has placed on record photocopy of death certificate of Mst. Qamar-u-Nissa. Per learned counsel Mst. Qamar-u-Nissa died by natural death due to paralysis after about two years of the alleged incident, as such it cannot be said that she died due to firearm injury sustained by her in the alleged incident two years back. Learned counsel further contended that long period of thirteen years has passed to death of Mst. Qamar-u-Nissa, therefore, no purpose would be served, if, her dead body is exhumed. Learned counsel contended that prior to this application, similar applications were also filed twice, which were dismissed and that, complainant party had also filed an application before learned trial Court for amending the charge from Section 324 to 302 P.P.C, but such application was also dismissed vide Order dated 08.05.2008. Lastly, learned counsel submitted that besides merits of the case legal point is also involved in the instant case, i.e. to say that the learned trial Judge has allowed the application in terms of Section 176 (2) Cr.P.C; though this section does not empower the trial Court to exercise such powers, but it is for the Magistrate to exercise such powers and that it will be futile exercise and will cause delay in disposal of the case, because the applicants have already undergone agony of protracted trial. In support of their contentions learned counsel for applicants relied upon case of Mukhtar Ahmed v. The State 1991 P.Cr.L.J 896, Amir Khan v. The District Magistrate Chakwal and 2 others 1998 P.Cr.L.J 1326, Muhammad Rafiq v. The State (2005 YLR 3247), Rehmatullah v. Colonel (R) Muhammad Latif Khan (2005 YLR 3278), and Zafar Ali v. Mst. Muradan and another (2017 P.Cr.L.J 1341).
4. On the other hand learned Advocate for complainant/ respondent No.2 contended that the trial court passed the order in accordance with law; that trial court passed order in view of order dated: 20-02-2020 passed by this court in Cr. Rev. Application No. 34 of 2019; that trial court can pass such like orders to reached and arrived at the right conclusion; that the actual cause of death is to be ascertained after the exhumation of the dead body. They relied upon the unreported order of this courtdated: 23-10-2020, inCriminal Misc. Appln. No.S-311 of 2020.
5. Learned D.P.G. did not support the impugned Order by contending that the specific provision for that purposed is provided in the law; that S. 176 Cr.P.C; that trial court cannot passed an order which amounted to start investigation after the cognizance was taken; that Dr Rehana the WMO was examined before the trial court; that the death certificate relied upon by the complainant has no signature of any issuing authority; that no postmortem was conducted and the application was moved after the complainant party of the present case was convicted in the case of applicant party and the appeal in respect of the said conviction is pending before this court. Learned D.P.G. also placed his reliance upon case ofZafar Ali v. Mst. Muradan and another (2017 P.Cr.L.J 1341).
6. I have heard learned counsel for the parties and have go through the material available on the record with their able assistant and have perused the relevant law including that cited at the bar.
7. The investigation officer submitted the challan before the learned Magistrate under section 173 Cr.P.C and the same after its acceptance was routed in view of section 193 (2) Cr.P.C. The case thereafter was transmitted to the learned Additional Session Judge-1/ MCTC-1 Kambar for its disposal in accordance with law. Record reflects that some of the prosecution witnesses were examined before the trial court including the WMO. Record further reflects that complainant after the death of Mst. Qamar-u-Nissafiled an application before the trial court for adding section 302 PPC and amendment of the charge which was disposed of vide order dated: 08-05-2008 with direction that complainant may repeat the same after the examination of witnesses which includes investigation officer and the doctor. Complainant filed another application to that respect after the examination of witnesses and the doctor. The trial court once again turndown the same by relying on the evidence of the Doctor Rehana vide order date: 18-05-2019.Record further reflects that learned DDPP for the state filed an application under section 540 Cr.P.C for examination of Dr Asad Shaikh who issued the certificate in respect of the death of the deceased Mst. Qamar-u-Nissa, application was allowed by the trial court and summons were issued for procurement of attendance of Dr. Asad Shaikh for recording his evidence and the same has not yet recorded.The order of the trial court dated: 18-05-2019 was challenged before this court in Cr. Rev. Application No.S- 34 of 2019 and the same was disposed of vide order dated: 20-02-2020, this court in the order made observation in paragraph No. 10 and the same is reproduced as under:-
"10. It is matter of record that injured Mst. Qamarunissa died after about one and half year of the alleged incident. The complainant has not approached to police after her death to conduct her postmortem in order to ascertain the cause of death, in my view ambiguity and conformity involved in this case cannot be resolved without autopsy and pathological examination or exhumation of the body parts. Postmortem examination report is authentic document which confirms the cause of death. In the present case, complainant has not approached to police after her death or to any other competent forum in order to conduct post mortem examination of injured Mst. Qamarunissa. Admittedly Mst. Qamarunissa had developed Quadri Plegria and she was paralyzed due to injury sustained by her but it cannot be suffice to say that the cause of death is injury sustained by her in absence of postmortem report. As for the contention of learned counsel for the applicant that private doctor has issued her death certificate, which does not show the time and date as to when it was issued, even it has come on the record that trial Court had considered the application moved by D.D.P.P for the State for examination of private doctor Asad Sheikh and summon was issued for his appearance through Administrator Hyder Eye Medical Complex but he did not come forward to own the alleged certificate and to satisfy the learned trial Court about its validity, worth and relevancy with regard to cause of death of Mst. Qamarunissa."
8. The learned trial court while relying on the above order of this court passed the impugned order dated: 20-08-2020 and the relevant portion of the impugned order is reproduced as under:-
“Undeniably postmortem of the deceased lady was not conducted and nothing is available on record to decide that whether she expired unnaturally as asserted by the prosecution or naturally as asserted by the defence side.
Undeniably there is no bar of limitation for exhumation and the Honourable High Court of Sindh Circuit Court Larkana vide order dated 20.02.2020 dismissed Criminal Revision A. No. S- 34 of 2019 with observation as under:
“In my view ambiguity and conformity involved in this case cannot be resolved without autopsy and pathological examination or exhumation of the body parts. Postmortem examination report is authentic document which confirms the cause of death.”
Consequently, application in hand merits consideration, I therefore feel no hesitation to allow it as prayed for. Let the copy of this order be communicated to MS CMC Hospital Larkana for constitution of Medical Board in respect of Exhumation of dead body of deceased Mst. Qamar Khatoon in accordance with law/ rules and to submit such report before this Court before next date of hearing viz. 24.9.2020 without fail.”
9. No doubt, the constant view of the Superior Courts is that exhumation of dead body could be ordered on the request of or on the information of even a stranger for the purpose to know the actual cause of death so that criminal machinery be set in motion; for the said purpose time-limitation is also not a ground to deny such course. In the case of Ghazala Begum V. District Magistrate(1996 P Cr.L.J 389), it is observed as:-
“6. …. The contention that exhumation at this stage will serve no useful purpose pales into significance for the sole reason that there is no time limit for the disinterment of the body. Modi in his Medical Jurisprudence and Toxicology in Chapter IV opines:-
“In India and in England, no time-limit is fixed for the disinterment of a body. In France, this period is limited to ten years and it is thirty years in Germany.”
Reliance can be placed on Muhammad Ramzan and others v. The State and another (1987 SCMR 272), wherein the objection of such nature was overruled observing that disinterment can take place even after one year to ascertain the cause of death.”
10. I would add that a legal position or fact, including observation of superior Courts on any of such points, shall never justify departure from the prescribedcourse, so provided by the Law or Procedure in this regard. Thus, such observation of this Court in referred Revision, even,can’t be referred or relied to make a departure for obtaining an order of exhumation of dead body, therefore, both the complainant and the learned trial Court were / are always required to appreciate that jurisdiction and competence to entertain an application or to grant a relief is always subject to law. This (jurisdiction)can neither be created by consent of parties nor referral to need of that thingalonebecause lack of competence / jurisdiction shall leave such an order / judgment with no other status but that of being void and of no legal effect. Reliance is place on the case of S.M. Waseem Ashraf v. Federation of Pakistan (2013 SCMR 338),wherein it was held as under:-
“6. .. It is a settled law that any forum or court, which, if lacks jurisdiction adjudicates and decides a matter, such decision etc. shall be void and of no legal effect. Therefore, as the clear command of section 3 ibid only a Bench of the High Court comprising of two or more Judges has the jurisdiction to entertain / hear the ICA.
11. Here, it is worth adding that the relief, claimed by the complainant in the application before the trial court,in view of the above order of this court can be claimed by filling an application before the police concerned in view of the Rule 25 (34) and (35) of the Police Rules, 1934,or by filling an application before the Magistrate concerned under section 174 or 176 Cr.P.C but not by approaching the trial court. The trial court, passed the order for exhumation of dead body only for the purpose to know the actual cause of death of the deceased Mst. Qamarunissa and the same required investigation for which the trial court is not competent to direct for investigation, however, the same can be done by exercising the powers under section 156 Cr.P.C or under section 190 Cr.P.C only by the Magistrate concerned or by the police. There is also a bar for taking cognizance of the certain offences directly by the Session Judges or by the Additional SessionJudges in view of section 193 Cr.P.C and the same reproduced as under:-
193. Cognizance of offences by Courts of Session. (1) Except as otherwise expressly provided by this Code or by any other law for time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction (unless the case has been sent to it under section 190- sub- section (2).
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.
12. It is observed that when the law required that a particular procedure must be followed, its non-compliance would create numerous complications. Any action performed, however, honestly, but in violation of statutory provisions, would damage the end result. It is further observed that the things required to be done in a particular manner should be done in that manner and if anything was done contrary to that then same should be deemed to have not been done at all. In the present case the trial court on application filed by DDPP for the State under section 540 Cr.P.C has already called Dr. Asad Shaikh who as per complainant issued death certificate of the deceased but the said doctor’s evidence has yet not been recorded and the said powers under section 540 Cr.P.C has rightly been exercised by the trial court.
13. Thus based on the particular facts and the circumstance of the case as discussed above the order passed by the trial court viz Additional Session judge-1 Kamber, dated 20-08-2020 is without jurisdiction and is set-aside by allowing this Criminal Revision Application, however the complainant is at liberty to approach proper forum as discussed abovewho, however, shall always be required to pass an order independentlyas required by the law.
14. The criminal revision application is disposed of in the above terms.
J U D G E