ANW AARUL HAQ PANNUN, J.---Through the instant petition under sections 498 and 498-A, Cr.P.C, the petitioner seeks confirmation, of concession of ad-interim pre-arrest bail already extended vide order dated 06.08.2019 to him, which he has been declined while confirming pre-arrest bail of his co-accused Shahid Hussain and Asad, both his sons and one Sana Ullah, vide order dated 2'1.12.2018 by the learned Additional Sessions Judge, Jampur , in case/FIR No. 227, dated 09.11.2018, offence under sections 337-A(i)/337-F(i)/337-F(v)/337-L(2)/34, P.P.C., registered at Police Station Hanif Ghauri Shaheed Dajal, District Rajanpur .
2. Precisely , according to the prosecutio n's case, on 14.10.2018 at 8.00 'a.m., the petitioner along with his co- accused allegedly being armed with their respective weapons i.e. sotas, made house trespass, caused injuries to the complainant Mst. Ashraf Mai and her daughter namely Mst. Asima Bibi. With specificity , the role attributed to the petitioner is that he gave a sota blow hitting on right leg and fingers of Mst. Ashraf Mai, complainant.
3. Heard and record perused.
4. It has been noticed that though the medical examination of the complainant/injured as well as other injured PWs was conducted under the supervision of police on the following day of the alleged occurrence i.e. 15.10.2018, yet the FIR had been lodged with an. inordinate and unexplained delay of 25 days. While giving the history of patient, as per MLC, the initial medico-legal officer has recorded the complain of pain on the right leg of the examinee/injured, but he found no corres ponding injury on her body . The injury No.1 has been declared as "Jurh Ghayr Jaifah Mutalahimah". It has been noticed that the Medical Officer has expressed his opinion in the column of Medico Legal Certificate which is specified for his remarks regarding the possibility of fabrication of injury , if any, in- affirmative i.e. yes. The Medical Officer, however has failed to assign any reason for giving his above noted-opinion about the injury . Therefore, to better comprehend the procedural aspects with regard to issuance of the medico-legal Certificate by the Medical Officers, a review of the relevant law, rules and instructions is deemed necessary which is undertaken hereunder .
5. In any case involving physical violence, amounting to commission of some cognizable offence, necessitating medical opinion, the required mechanism, which has to be followed by the police and the medical officers, for conduction and issuance of Medico Legal Certificates, post-mortem reports etc. according to Police Rules, 1934 is, to the following ef fect. According to Rule 25.19(1) of the Police Rules, 1934: Medico-legal opinion.---(1) When a medical opinion is required in police cases, the persons to be examined shall be produced before the highest medical authority available on the medical staff of the district.
Persons requiring examination at the headquarters of a district shall be taken to the Civil Hospital and not to a branch dispensary; similarly in rural areas, where a hospital is accessible, medico-legal cases shill be sent there and not to a rural dispensary .
(2) Medical Officers of the Irrigation Department are prohibited from undertaking medico-legal work and officers in charge of district board dispensaries may only be called upon to do such work, for which they must be qualified in other respects, in cases of emergency . Medical Officers may not be called upon to proceed to the scene of an occurrence to examine injured perso ns except in cases of real urgency and when it is impossible to convey the injured person to the nearest dispensary or hospital.
(3) Police Officers cannot legally compel injured persons to submit for medical examination, and such persons have a right to be examined privately at their own expense by medical practitioners. "Injury Statements " [25 .39(1) are intended solely for the use of the Civil surgeon of the district or any medical officer subordinate to him, on whom the police may call for a report. Such forms must not be given to injure d persons for the purposes of examination at their private choice, nor must they be sent with injured persons to - Government medical officers of another district.
All medical officers in charge of hospital and dispensaries are required to report to the nearest police station within 24 hours all cases of serious injury of poisoning admitted by them for treatment, whether such cases have been brought in by the police or not.
(4) Medical officers of Government, or those employed by local bodies, are entitled to charge fees for medico-legal work performed in their private capacities for parties to cases, but no fees whatsoever are leviable by Government medical officers for work in cases in which the [State] is the complaint, including all post mortem examination, such work being part of their regular duties. The rules under which medical officers, other than those subordinate to the District Health Officer, may charge fees for medical-legal work on behalf of Government are given in the Punjab Medical Manual ; in certain cases fees may also be charged by medical officers employed by district board. In no case, however , are such fees debitable to the police department; any claims submitted to Superintendents should be passed on, with the necessary information, to the District Magistrate.
(5) Police officers should refrain from sending persons whose injuries are obviously slight for medico-legal examination, and should exercise their discretion in obtaining a medical opinion as to whether injuries received by complainants constitute a cognizable of fence.
(6) Medico-legal cases not requiring urgent attention should be sent for examination during hospital hours only .
(7) The unnecessary summoning as witnesses of medical subordinates, to the detriment of their proper activities, shall be avoided as far as possible, and, when the attendance of such an officer is necessary , as much notice as possible shall be given him. When the necessary evidence can be given by the investigating officer or by another medical witness stationed at the place where the case is being prosecuted a medical subordinate should not be summoned from a distance merely to give corroborative evidence.
Furthermore, according to Rule 25.22 for Medical examination of women-- No examination by a medical officer of a living women's person shall be made without her consent and without a written order from a magistrate, addressed to the medical office r, directing him to make such examination.
In all cases in which the police consider such an examination to be necessary , the woman shall be taken before a magistrate for order . This rule shall also apply to similar examinations by dhais or any other person.
The word "person" applies only to those parts of the body , to expose which would violate a woman's modesty .
Female Assistant or Sub-Assistant Surgeon in Government service shall only be required to do medico-legal work on behalf of Government when the woman or girl concerned refuses to be exam ined by a male doctor . When a female doctor is summoned by a Court she must attend (Punjab Government endorsement No. 558-M-36/9932, dated the 25th March, 1936).
Importantly as per Rule 25.33. Investigation of ficers - action at scene of death : On arrival at the place where the body of a deceased person is lying, the police officer making the investigation shall act as follows:---
(1) He shall prevent the destruction of evidence as to the cause of death.
(2) He shall prevent crowding round the body and the obliteration of footsteps;
(3) He shall prevent unnecessary access to the body until the investigation is concluded.
(4) He shall cover up footprints with suitable vessels so long as may be necessary .
(5) He shall draw a correct plan of the scene, of death including all features necessary to a right understanding of the case.
(6) If no surgeon or other officer arrives , he shall, together with the other perso ns conducting the investigation, carefully examine the body and note all abnormal appearance.
(7) He shall remove, mark with a seal, and seal up all clothing not adhering to, or required as a covering for, the body , all ornaments anything which may have caused or been concerned in the death of the deceased and shall make an inventory thereof describing the position in which each thing was found and any blood-stain, mark, rent, injury or other noticeable fact in connection with such thing. The number and dimension of such stains, marks, rents, injuries, etc., shall also be given in the inventory .
A counterpart of the mark and seal attach ed to such thing or to the parcel in which it has been enclosed shall be entered in, or attached to the inventory .
(8) He shall take the finger prints of the deceased person if the body is unidentified.
(9) The photographing of the body in situ and of the scene of the occurrence may prove of great evidential value.
[25.36 deals with Post-mortem examination ---As to when and by whom it is to be held, 25.37 explains the action to be taken by police]. Rule 25.39 deals with the Form which has to accompany the body or injured person], is reproduced as under:- FORM T O ACCOMP ANY BODY OF INJURED PERSON. SENT FOR MEDICAL EXAMINA TION
1. Name of injured or deceased person, parentage, caste, residence and condition of life.
2. Sex and supposed age.
3. Report of Police Officer:- a. Description of any injuries or marks of violence received, wounds and bruises, position, length and breadth. (b) Brief report by dispatching police of ficer stating the manner in which the injuries or death is supposed to have been caused. If by poison, the poison suspected to have been used. (c) Date and hour it was administered, the date and hour of commencement of symptoms, the date and hour of death, and the nature and duration of treatment adopted by the police or friends of the deceased
4. Brief report and opinion in simple language dictated by the medical officer and followed by his initials:- a. as to the means by which the injuries were caused. (b) In the case of injuries, poisoning not causing death, the extent of the injuries or sickness, and, in the latter case, the nature of the poison ascertained or suspected. (c) In the case of death (1) Whether death by violence is ascertained and cause of death, and
(2) Whether' death is suspected from poisoning, the poison ascertained or suspected.
[Rule 25.40 deals with the sending of Articles for medical examination, 25.41 Chemical Examiner--relates to channel of communication and 25.47 deals with report of medical officer , respectively].
6. Despite the above rules being in vogue, unfortunately there remained prevailing a persistent confusion in the mind of the public-at--large as to whether a person injured during some occurrence in a police case, could be given first aid or medical treatment without interference or request of the police or not. In order to remove such misconceptions, as a result of which, the provision of first aid and the treatment of the injured person used to be delayed resulting into further medical complications and loss of life as well, the legislature rose to the occasion. By legislating, "The Injured Persons (Medical Aid) Act, 2004" , containing provisions for protecting health and save lives of the injured persons, in order to provide medical aid and treatment during some emergency . It may be pointed out that under section 2 of the ibid Act, certain terms i.e. Doctor , Government, Hospital and the injured person have been defined. Under section 3 of the ibid Act, injured persons has been directed to be treated on priority basis, Section 4 deals with non-interference by the police. Under section 5, consent of relatives has been dispensed with in certain cases, section 6 directs the hospital not to shift an injured person until stabilized, As per section 7 it is manda tory that the hospital be notified, section 8 provides that the injured persons not be taken to a police statio n, section 9 prohibits that the person bringing the injured person to hospital should not be harassed, section 10 deals with launching of awareness campaign in this regard, section 11 prescribes certain penalties, section 12 points out about cognizance of cases, section 13 deals with instruction and section 14 pinp oints the power of the rule-making authority by the Federal or Provincial Government, as the case may be. [which have not been framed till today].
7. The Government of the Punjab Health Department Lahore has issued the instructions regarding the conduct of Medico Legal/Post-Mortem Examinations bearing No.SO (H&D) 5-5/2002, dated 1st December , 2004 and in the year 2015. The instructions regarding the conduct of Medico Legal/Post-Mortem Examinations bearing No.SO(H&D) 5-5/2002, Government of the Punjab Health Department dated Lahore, the 1st December , 2004, comprising over various parts , which are as follows"- PART-I, General Instructions for conducting Medico Legal Examination.
PART-II, Specific instructions for various Medico Legal Examination in the living cases.
(i) Physical Assault/trauma
(ii) Female victim of sexual assault
(iii) Male victim of sexual assault
(iv) Examination of alleged suspect/assailant of sexual assault for potency
(v) Estimation of age
(vi) Alleged intoxication/suspected poisoning
(vii) Alleged pregnancy/criminal abortion PART-III, Instructions regarding post-mortem examination.
PART-IV, Exhumation.
PART-V, Collection, preservation and Dispatch of material to chemical examiner Laboratory .
PART-VI, Medico Legal Re-Examination PART-VII, Attendance of the Medical Examiner in the Court of Law PART-VIII, Laws related to medical examinations The law to protect rights of injured persons the Injured Persons (Medical Aid) Act, 2004 As per Part-I(3) of the instructions' regarding the conduct of Medico Legal and postmortem examination, issued in 2015, the Medico Legal/Postmortem Register/Medicolegal certificate/post-mortem report should be, issued only on the notified proformas, which has been prescribed by the Government of the Punjab and is maintained in the form of a proper register , duly page marked and certified by the controlling authority in a proper binding using tough card board. Only one Medico Legal and one Post mortem register should be used by all the Doctors of the same Health Facility . All the Doctors should place their signatures on their name stamp and must draw the findings on Pictorial Diagram also. All the columns should be filled in clearly and must be easily legible to everyone. The entries should not be made hurriedly . No column should be left blank. Any particular column, if in-applicable, should be crossed.
According to Part-I (12) of ibid instructions, Medico Legal examination should be detailed, Searching and thorough.
All the Positive as well as important negative findings/ observations should be recorded at the time of examination and report should be issued as soon as possible, though, in certain cases the injuries might be kept under observation for a certain period of time for investigations/specialist's opinion/treatment notes etc., whereas as per Part-I (13), the injuries kept under observation should be declared within three Weeks . It is the duty of the initial Medico legal examiner to collect the relevant repo rts, which are required to declare the KUO injuries within time-frame notified by the Government i.e. within three weeks. According to Part-II(5) if nature of injury is not clear and requires further investigations/ expert opinion of specialist/re-examination of the injured person, the injury may be kept under observation for some time to obtain such reports. Any way the Medico legal Report should be finalized as early as possible. According to the Government Notification No.SO (H&D)5-5/2002, dated 28.10.2004, no case should be left pending without valid reason for more than 21 days. Any investigations advised/exper t's opinions requested should be clearly mentioned in the report. As per Part-II(6), the Medico Legal certif icate should be issued by the First Examining Doctor who has seen and treated the injured in the first place and must not declare any KUO injuries which have been interfered with surgically unless treatment notes are received from concerned Hospital. Part-II (9) of ibid instructions depicts that manner of causation of injuries should be given as homicidal, accidental, self-inflicted or manipulated.
As per Part VI(2), re-examinations are carried out on judicial orders from the court. According to Part-VI (6), appeal against the decision of the District Standing Medical Boards lies with Provincial Standing Medical Board, Punjab headed by the Surgeon Medico Legal, Punjab. For this purpose, the Courts has to write to the Health Department, Government of the Punjab directing Surgeon Medico Legal, Punjab for doing the needful. In addition, Honorable Lahore High Court, Lahore can also pass an order for re-examination by the Special/Standing Medical Board, Punj ab, Lahore Part VI (10) deals with the cases where the Standing Medical Boards differ from the initial medico legal report should be highlighted and should be reported to Surgeon Medico Legal Punjab/EDO Health for consideration/initiation of disciplinary action wherever there is fabrication/foul play. According to Part VI (12) if the examinee does not offer before the DSMB/PSMB in spite of calling for three times consecutively , it indicates mala fides intention of the examinee. No further chance may be given to the examinee for appearance/re-examination and case may be decided on the basis of document/evidence/witness.
8. It will be important to point out that as per 1st Notification No.SO (H&D) 6-1/90 dated 12.02.1990 issued by the Government of the Punjab Health Department regarding constitution of Special Medical Board for re- examination/re-postmortem, it has been directed that "whenever required, the Judicial officers may be advised to approach the relevant Boards. However , such orders may be passed within three weeks of the first examination.
The opinion of the respective Boards shall be final. The Board shall only examine such cases on the judicial orders of the District Magistrate" . Furthermore, in case of a complaint by an aggrieved person and in order to eliminate/weed out the possibility of false implication of the adversaries in criminal cases got registered on the basis of self-inflicted injuries by applying different manipulative modes after procuri ng the MLC with the connivance of the police and the Medical Officer with mala fide intentions by the unscrupulous /inimical elements in the society , the Government of the Punjab has established through a Notification No.SO(H&D)5-5/2002 dated 05.02.2003, a "Three Tier structure" for conducting medico-legal work, which are reproduced as under:-
(a) FIRST TIER The Initial Medico legal examination shall be carried out by the Medical Officers/W omen Medical Officers at the Rural Health Centers, Tehsil Headquarters Hospitals, District Headquarters Hospitals and at Teaching Hospitals.
SECOND TIER The District Standing Medical Boards, comprising the following, shall act as First Appellate Authority in all the 34 Districts of Punjab: Medical Superintendent, DHQ HospitalChairman District Of ficer Health Member Surgeon Member These Boards will conduct re-examination if the decision of the first medico legal examiner is challenged and also for examination of alleged cases of police torture . For District Lahore District Standing Medical Board will be established at Government Mian Muhammad Munshi, DHQ, Hospital.
(C) THIRD TIER The role of Surgeon medico legal, the Punjab shall only be Appellate and Supervisory . He shall be the Chairman of Provincial Standing Medical Board, which shall be the final Appellate Authority against the decisions of District Standing Medical Boards. Other members of the Provincial Standing Medical Board (PSMB) will be the Associate/Assistant Professor Forensic Medicine of the Regional Medical College and the Medical Superintendent of one of the attached Teaching Hospital. The Board can co-opt any other member when required.
Furthermore, in case law reported as "Muhammad Rizwan v. The State and others" (2017 MLD 1828 ), an elaborate discussion over the procedure to be adopted under three tiers structure has been made.
9. Although the above instructions permit the DSMB/ PSMB that in case an examinee does not offer himself before it in-spite of calling for three times consecutively , the Board may conclude that the non-appearance is an outcome of mala-fide intention of the examinee. This inference, however , should preferably be drawn when there is some evidence with the Board that despite he/she had duly been served upon or had been intimated about the date fixed for his/her re-medical examination, the examinee has avoided to appear before it. Since the Board is constituted on the order of a Court, therefore, the police is under obligation to effect service upon the examinee in the same manner as if the police is making the compliance of order of the Court. If the board is of the opinion that there is a deliberate non-compliance of its order by the employee/of ficer, deputed for effecting service upon the examinee, such employee can be proceeded against as if he has defied the order issued by a lawful authority . In order to weed out the possibility of fabrication or procurement of MLC based on the self- suffered injuries, while undertaking a meaningful exercise with an objective approach, the police officer deputed to effect service upon the examinee is bound to submit his report about the compliance or otherwise of the order regard ing effecting of requisite service within the stipulated period of time. The Board shall make such report an integral part of its record.
10. It may be Rertinent to mention here that during pendency of this bail petition, keeping in view the above inquisitive observations made in paragraph No.4, comments/reports from the District Police Officer, Rajanpur , Chief Executive Officer (Health), Rajanpur , Secretary (Health) Govt. of the Punjab, Lahore and Surgeon Medico Legal Punjab, Lahore were requisitioned, which have been made part of the record. Furthermore, in pursuance of order of this court dated 08.10.2019, on the aforesaid point, a joint meeting was convened under the supervision of District and Sessions Judge, Rajanpur and a report submitted in this regard has also been made part of the record.
11. After, above elaborate discussion, it is observed that admittedly , the co-accused namely Shahid Hussain and Asad are real sons of the petitioner . Their pre-arrest bail was confirmed by learned Addl. Sessions Judge, Jampur vide its order dated 21.12.2018. Moreover , the complainant/injured despite his service, deliberately did not appear before the District Standing Medical Board, which is indicated through a letter issued by the Medical Superintendent, Chairman DSMB, DHQ Hospital Rajanpur , bearing No.6793/DHQ(H) Rajanpur dated 6.11.2019, therefore, her re-examination could not be done. The deliberate and evasive attitude of the examinee amounts to cover up the alleged fabrication of injury . In view of above factors, when the realities of prosecution's case are not clear and transparent, the possibility of the petitioner's false implication by way of fabrication of injuries and by levelling exaggerated allegations with mala fide intention and ulterior motive of the complainant while throwing a widened net to his extent cannot be ruled out, which render the case of the petitioner to be one of further inquiry .
Resultantly , the instant bail petition is allowed and ad-interim pre-arrest bail already granted to the petitioner , vide order dated 06.08.2019, is hereby confirmed , subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000/- (Rupees one hundred thousand only), with one surety , in the like amount to the satisfaction of learned trial Court.
12. Before parting with this order , I feel it appropriate to issue following directions:-
(a) The Medical Officer/W oman Medical Officer, after physical examination of an injured person, while issuing the Medico Legal Certificate, holding the poss ibility of fabrication of any injury as "Yes", he/she must record reasons in unambiguous terms on the basis of principles of Medical Jurisprudence. In case of more than one injury , the Medical Of ficer/W omen Medical Of ficer shall mention regarding which injury , there exists possibility of fabrication.
(b) In case the supervisory Medical Authority finds that Medical Officer/W omen Medical Officer motivated by ill-will, based on extraneous consideration, had recorded a wrong opinion, the relevant Board shall recommend the initiation of departmental proceedings against him/her regarding his/her misconduct.
(c) Since it is the duty of the Investigating Officer to find out the truth of the matter under investigation, his object is to discover actual facts of the case and to arrest the real offender or offenders and not to commit himself prematurely to any view of the facts far and against any person, therefore, in appro priate cases where he suspects that the injuries are self-suf fered, in order to further strengthen his opinion, besides an aggrieved party , I.0 can invoke the jurisdiction of a Magistrate to exercise his power for reconstitution of the District Standing Medical Board or the Provincial Standing Medical Board as the case may be.
13. Copy of the judgment be sent to the Secretary Health, Government of the Punjab, Lahore, Medico Legal Surgeon, Punjab, Lahore, I.G Police (Punjab) and Prosecutor General Punjab to bring the existing S.O.Ps, if any, given in case law reported as "Muhammad Khalid and others v. State and others (2018 YLR 2433), in conformity with the observation made herein the judgment.