' SYED ALI HASSAN RIZVI, 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 reexamined. This application was allowed by order dated /6-1-2009 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 M LD 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 as 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 26.1-2009 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 on 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 reexamination 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 205Y and 2001 M LD 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.