2009 P Cr.

L J 1281

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD HANEEF SHAH----Petitioner

Versus

MUHAMMAD KHALIL AHMAD SHAH and 2 others----Respondents

Writ Petition No.2770 of 2009, heard on 12th March, 2009.

Penal Code (XLV of 1860)---

----Ss. 337-A(i)/337-A(ii)/337-L(ii)/337-F(i)/148/149---Punjab Government Notification

No.SO(H&D)6-1/90, dated 12-2-1990---Punjab Government Notification No.SO(H&D)6-
1/90, dated 8-2-1992---Constitution of Pakistan (1973), Art.199---Constitutional petition-
--Magistrate had allowed reexamination of the injured witness o n the application of
accused, which order had been set aside by Sessions Court in revision on the ground that
Medical Board could not be constituted after 21 days of the first medical examination of
the injuries, as the injuries would have healed up in 5 to 7 days---Validity---Notification of
the Government of Punjab, Health Department No.SO(H&D)6-1/90, dated 12-2-1990 had
ordained that the order for constitution of Medical Board to re-examine the injuries must
be passed within three weeks---Another notification No.SO(H&D)6-1-/90, dated 8-2-1992
had clarified that if re-examination order was passed by the District, Magistrate in judicial
capacity even after three weeks of the first examination, the same would supersede the
Notification, dated 12-2-1990---Magistrate had ordered re-examination of the injured
after. a period of six months of his first examination, which was not much in quest of justice
at such a belated stage---Even Sessions Court did not appear to be aware of the notification
dated 8-2-1992---By the time re-examination of the injured was directed the injuries must
have healed up and any opinion of the Medical Board would be more on a topsy-turvy view
which could create misgivings---Conclusion drawn by the Sessions Court was
consequently upheld by High Court for its own reasons---Constitutional petition was
dismissed accordingly.

1999 PCr.LJ 2005 and 2001 MLD 1242 r e f .

Ch. Farooq Mehmood Kehloon for Petitioner.

Shabir Ahmed Khan for Respondents.

Date of hearing: 12th March, 2009.

JUDGMENT

SYED ALI HASSAN RIZVI, J.--- Muhammad Hanif Shah petitioner has filed this writ
petition to challenge the validity of the order dated 4-2-2009 whereby he had set aside the
order dated 26-1-2009 passed by the learned Magistrate Section 30, Tandlianwala, District
Faisalabad.

2. At the instance of Dilawar Ahmad case F.I.R. No.479 of 2008 was registered under
sections 337-A(i)/337-A(ii)/337-L(ii)/337-F(i)/148/149 at Police Station Saddar
Tandlianwala, District Faisalabad.

3. The accused party moved an application before the learned Illaqa Magistrate Section 30,
Tandlianwala praying that the injured be got re-examined. This application was allowed
by order dated 26-1-2009 by Mr. Nadeem Tahir Syed, 'learned Magistrate Section 30,
Tandlianwala. However, in revision filed by Muhammad Khalil Ahmad Shah, the order
dated 26-1-2009 was set aside by Mr. Muhammad Rafat Sultan Sheikh, learned Additional'
Sessions Judge, Tandlianwala on the ground that the Medical Board could not be
constituted after 21 days of the first medical examination of the injuries. He relied upon
1999 PCr.LJ 2055 and 2001 MLD 1242. He was of the view that the injuries would have
healed up in 5 to 7 days as per medical jurisprudence by Modi. He, therefore, accepted the
revision petition on 4-2-2009 a s afore-said.

4. The main ground urged by learned counsel for the petitioner/ complainant was that
constitution of Medical Board was in quest of justice and that the judicial order passed by
the learned Magistrate Section 30 on 264-2009 being quite lawful, could not have been
disturbed in revision.

5. On the other hand, learned counsel for private respondent and learned D.P.-G. for
respondents Nos.2 and 3 supported the impugned order passed by the learned Additional
Session Judge. I have also gone through the record carefully.

6. It appears that the learned Magistrate while passing the impugned order o n 26-1-2009
was unaware of the notification of the Government of the Punjab, Health Department
No.SO(H&D)6-I/90 dated 12-2-1990 which ordained that the orders for constitution 'of the
Medical Board to re-examine injuries, must be passed within three weeks.

7. There is also another Notification No.SO(H&D)6-122/88 dated 21-11-1988 which

related to medico legal examination and constitution of Standing Medical Boards where
police was involved as a party. This Notification has no relevance in the present context.

8. There was yet another Notification No.SO(H&D)6-I/90 dated 8-2-1992 whereby a

clarification was made that if re-examination orders were passed by the District Magistrate
in judicial capacity even after three weeks of the first examination, the same would
supersede the instructions issued by the Health Department by the Notification dated 12-
2-1990.
9. In this case, the occurrence had taken place on 21-7-2008, on which date the medical
examination of the injured Muhammad Hanif Shah was conducted. The learned Magistrate
passed the orders for re-examination of the injuries suffered by' him on 26-1-2009 i.e. after
a period of six months. At such a belated stage, directing re-examination, of the injuries
suffered by Muhammad Hanif Shah was not much in quest of justice. The learned
Magistrate as already noted above, while passing the orders on 26-1-2009 appeared to be
oblivious of the Notification dated 12-2-1990 issued by the Government of the Punjab,
Health Department. He was also not aware of the law laid down in 1999 PCr.LJ 2055 and
2001 MLD 1242. His order dated 26-1-2009 is held to be per incuriam.

10. On the other hand, the learned Additional Sessions Judge was also not perhaps aware
of the Notification dated 8-2-1992 referred to above which clarified that if re-examination
orders were passed by a Judicial Officer after three weeks of the first examination, those
would supersede the instructions issued by the Health Department by Notification dated
12-2-1990.

11. Be that as it may, directing re-examination of the injuries after about six months of the
first examination was not much in quest of justice. The reason is that by that time, the
injuries must have healed up and any opinion coming from the Medical Board would be
more on a topsy-turvy view. That situation is bound to create misgivings. There is no dearth
of cases where the medical opinion recorded by renowned doctors, was ignored by the
Courts and direct evidence was believed in preference thereto on proper showings. The
petitioner/complainant would be at liberty to prove his case on the basis of direct evidence
in preference to the medical opinion if irksome in his calculation. As a result, I would
uphold the conclusion drawn by the learned Additional Sessions Judge, Tandlianwala but
for my own reasons as given above, the writ petition is dismissed. As the question involved
was not free from difficulty, I leave the parties to bear their own costs.

12. A copy of this order shall be sent to Mr. Nadeem Tahir Syed, learned Magistrate Section
30, Tandlianwala as also to Mr. Muhammad Rafat Sultan Sheikh, learned Additional
Sessions Judge, Tandlianwala for future guidance, through the learned Sessions Judge,
Faisalabad.

N.H.Q./M-344/L Petition dismissed.