MUHAMMAD OWAIS vs AAWAL KHAN Ss — 2021 PCrLJ 1638 QUETTA-HIGH-COURT-BALOCHISTAN

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MUHAMMAD OWAIS VS AAWAL KHAN Ss. 561-a, 156(3), 174 & 176---Order for exhumation of dead body---Quashing of order, petition for---Petitioner, who was brother of the deceased, had sought quashing of order passed by the Judicial Magistrate, ordering exhumation of dead body of the deceased for post-mortem examination---Scope---Record showed that petitioner/ complainant lodged a case against accused/respondent under S. 302, P.P.C. with the allegation and he along with two other companions made firing on his brother who received injuries and later on died---During the investigation, respondent/accused was arrested, who moved an application for digging the grave of deceased for confirmation of the cause of his death and the same was accepted---Being aggrieved from the said order, complainant/petitioner filed revision petition, but was dismissed---Validity---In the present case, there was a way open for the accused/respondent that the evidence of the doctors, who examined the deceased, could be demolished by cross-examining them, in case they nourished strong doubts about the nature of injuries or cause of death of the deceased or crime weapon used in the commission of the offence---accused in his defense could not ask the court for disinterment---Only right available to accused was to inquire the doctor's opinion by way of cross-examination or cross-examining another expert witness to challenge the opinion expressed by the expert on whose report the prosecution relied or rebut the said opinion with the aid of authoritative textbooks---View taken by the courts below that the disinterment was inevitable was not sustainable---all that was being said because the accused/respondent had agitated that question after a delay of six months based on the injuries received by the deceased on his skull---No time limit had been provided for disinterment of the dead body, however, in circumstances, disinterment would certainly serve no fruitful purpose and the accused/respondent was not justified for making such request---Cause of death of the deceased could only be gathered safely through conducting a post-mortem examination---Dead body was examined by two Medical Officers, who had categorically stated regarding the crime weapon and cause of death in their Medico-Legal Certificates---FIR was lodged by the complainant promptly with the allegation that the accused and his companions made firing upon the deceased with pistols, who received injuries and later on succumbed to the injuries---Medical Officers who examined the deceased also gave the same opinion that the deceased received injuries by means of firearms and the cause of death were also mentioned as receiving injuries on the skull---Investigating Officer also conducted an inquiry under S. 174, Cr.P.C., who also gave the cause of death of the deceased in his report---Exhumation of the dead body was not inevitable, in circumstances---application against exhumation of dead body was allowed.

MUHAMMAD OWAIS vs AAWAL KHAN Ss — 2021 PCrLJ 1638 QUETTA-HIGH-COURT-BALOCHISTAN

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