1. ' SHAHID ANWAR BAJWA, J.--- The applicant/complainant, according to his complaint, on 18-5- 2005 met with accused/respondent/ Dr. Imtiaz Hussain posted at Ziauddin Hospital, Karachi, along with son of the complainant, master Tousif Ahmed. Accused/respondent advised complainant to get his son admitted in hospital for operation of spinal chord/back bone on 27-5-2005, child was admitted accordingly. M.R.I. Tests were conducted twice and all the other relevant tests were conducted and the child was declared fit for operation in all respects. On 30-5-2005 one staff nurse asked complainant to sign some papers saying that they were required only as a formality.
2. The child was wheeled in operation theatre at 9-00 a.m. And the complainant/father waited outside. Operation stated to have continued for six to seven hours and then child was shifted to I.C.U. In comatose condition. Complainant was informed that surgeon has left the hospital and other doctors told him that his child's condition was serious. Accused came back to hospital later in the day and informed complainant that all efforts to save life of his son had failed and the son had expired. Complainant alleged carelessness, negligence and inexperience on part of the surgeon during operation at the operation theatre. Body of the child was handed over to the complainant without any post-mortem. The complainant complained that many times he tried to contact the accused and hospital and his queries were parried on one pretext or the other. Ultimately complainant moved an application before S.H.O. Police Station Boat Basin for legal action. However no legal action was taken. Thereafter complainant filed a Criminal Miscellaneous Application No,264 of 2006 in the Court of Sessions Judge, South Karachi, which application was disposed of by Sessions Judge with directions to S.H.O. Police Station Boat Basin to register F.I.R. Police registered F.I.R. No,196 of 2006 under section 322, Qisas and Diyat Ordinance. Investigation was entrusted to investigation cell. A report, alleged by complainant to be collusive with the accused, was submitted before Judicial Magistrate-VI, Karachi South for approval of "C" Class. Learned Magistrate did not agree with the investigation office and passed an order for constitution of Medical Board for going through the medical record and establishing cause of death. Report of the Medical Board was received. Complainant did not know fate of the case. Thereafter, complainant filed a private complaint. Since by that time again learned Judicial Magistrate had disposed of the case in "C"
3. Class, a Criminal Revision Application No,164 of 2007 was filed by complainant in the Court of III- Additional Sessions Judge, Karachi' South, both the direct complaint and the criminal revision application were dismissed vide order dated August, 4th 2009.
4. ' At the very outset of his arguments, learned counsel for complainant conceded that against order passed by the Judicial Magistrate on police report under section 173, Cr.P.C. No revision is maintainable and in any case if one revision has been decided under section 439-A of the Criminal Procedure Code, no second revision is maintainable by High Court in view of section 439(4)(b) of the Criminal Procedure Code. Therefore, he stated that he would confine himself to challenge order of the Court below on his direct complaint.
5. ' Learned counsel referred to the order passed by learned Judicial Magistrate on 8-6-2006 on report under section 173, Cr.P.C. Order is in following words:--- "Heard the Investigating Officer and counsel for both complainant and accused and carefully perused the record. It reveals that cause of death of complainant's child is still in dark. Investigating Officer did not' bother to make efforts to find out the same. In absence of cause of death no conclusion can be drawn as to guilt or innocence of accused. It is a case of further enquiry which requires Expert's opinion. It is ordered that .a Medical Board comprising of Neuro Surgeon, Orthopedic Surgeon and Anesthiastic expert be constituted to examine whole medical record of deceased patient for ascertaining his cause of death. Investigating Officer is directed to submit fresh report in the light of findings of Medical Board as soon as possible."
6. ' Thereafter, Medical Board submitted its report, the conclusions of the Medical Board were as follows:--- "(1) Surgery for kyphoscoliosis is a complex procedure, associated with serious risks of morbidity and mortality. It is undertaken in only one or two centres in whole country. The preset team has already undertaken 75 such procedures with no mortality or any major morbidity.
(2) The patient had been admitted and adequately investigated at Dr. Ziauddin Hospital and had been cleared for surgery.
(3) There was no untoward event reported by the surgeon or the anaesthetist during surgery except the unexplained tachycardia and hypotension towards the end of surgery which remained refractory to fluid and blood replacement. The total blood loss was around 1000 cc, it had been adequately replaced during surgery. The surgery was performed from the posterior aspect. After surgery the child was woken up and following extubation was reported to be moving his legs, as there was no spinal cord injury during surgery. The child had sudden cardiac arrest some time after extubation.
(4) In the absence of the benefit of post-mortem examination it is not possible to ascertain the exact cause of death. However, some of the possible causes seen in such type of cases are:--7"
7. ' After this medical report was submitted, thereafter second order on report under section 173, Cr.P.C. Was passed, wherein learned Judicial Magistrate came to the conclusion that case fell .Under general exceptions under section 88, P.P.C. And the report was disposed of under "C" Class.
8. ' In the private complaint statement of complainant was recorded. Thereafter statement of brother-in-law of complainant was recorded. They substantially stated the same as has been reproduced earlier. Learned counsel submitted that the child expired purely and purely due to negligence, inexperience and carelessness of the accused. The child was in a perfectly healthy and fit condition. It was not a life threatening operation. The child had been declared fit after all the necessary tests. Learned counsel relied upon Muhammad Shamim v. Ali Gohar and 3 others 1990 PCr.LJ 1932 to contend that Judicial findings must rest on legal grounds established by legal testimony.
9. ' Learned Additional Prosecutor-General submitted that the opinion of the Medical Board did not support contentions raised by the learned counsel.
10. ' I have heard learned counsel and have also gone through the record.
11. ' I have all the sympathies with the father/complainant who has lost his son in budding years of his life. His grief cannot even be imagined, muchless described or alleviated. But the hard fact is that no post-mortem was carried out. The only straw that one can latch on to is report of the Medical Board. One aspect which has come stark clear in the statement of Dr. Akhtar Aziz that after patient was brought from operation theatre to I.C.U. He had tachycardia condition. Tachycardia condition means heart beat was faster than normal. The doctor stated that I hand ventilation was made but tachycardia persisted. Thereafter, the Medical Board has opined that there are serious chances of morbidity and mortality associated with such procedures. They further stated that doctors' team had already undertaken 75 such procedures with no mortality or major morbidity so far. No untoward incident has been reported either by the surgeon or Anesthetiasologist during surgery except techy cardiac and hypotension (low blood pressure) towards end of the surgery. Blood loss was adequately replaced during surgery. After surgery the child woke up and after extubation was reported to be moving his legs. Thereafter, child had sudden cardiac arrest and some time after extubation he expired. The ultimate opinion of the Board was that in the absence of post-mortem examination it was not possible to ascertain exact cause of death. One can only surmise and conjecture but surmises or conjectures are no substitutes for hard I piercing evidence.
12. ' Thereafter order passed by learned III-Additional Sessions Judge, Karachi South is justified on the basis of available evidence. This criminal revision application is, therefore, dismissed.