MUHAMMAD WAHEED KHAN, J.---Through this constitutional petition under Article 199 of The Constitution of the Islamic Republic of Pakistan 1973, the petitioner has challenged the vires of order dated 16.04.2021 passed by learned Magistrate Section-30, Mianwali/ Respondent No.1 wherein the direction for re-examination of the injured Khizar Hayat (respondent No.2) was ordered through Second Medical Board.
2. Precisely , the facts of the case are that Khizar Hayat (respondent No.2) got registered a case FIR No.8/21 on 14.01.2021 under sections 337-A(iii), 337-L(2) and 34, P.P.C. with Police Station Wan Bachran, District Mianwali on the basis of Medico Legal Certificate (MLC) duly issued by the Medical Officer DHQ Hospital, Mianwali. During the medical examination of respondent No.2 the Medical Officer noted three injuries at his person and later on Injury No.1 was declared as Shajjah-i-Hashimah which comes within the definition of section 337-A(iii) and Injuries Nos.2 and 3 were declared to be attracting the provisions of aection 337-L(2), P.P.C. The injuries were stated to be caused with blunt weapon and in the relevant column of MLC, possibility of fabricat ion if any: Yes/No the word "No" is mentioned. Thereafter the said respondent was re-examined by the District Standing Medical Board on 19.03.2021 on the direction of learned Magistrate Ist Class, District Mianwali/respondent No.1 in which the District Standing Medical Board agreed with the opinion rendered by the first Medical examiner qua the availability of injury at the person of (respondent No.2) and the nature thereof, however , regarding injury No.1 (Shajjah-i-Hashimah) it is opined as under:- "However , possibility of fabrication cannot be ruled out."
3. Feeling dis-satisfied with the observations given by the District Standing Medi cal Board, Mianwali respondent No.2 approached the learned Judicial Magistrate, Mianwali wherein through the "impugned order" the M.S DHQ hospital, Rawalpindi was ordered for re-examination of the injured by re-constituting the "second Medical Board".
4. I have heard the learned counsel for the parties and perused the available record and noted that through the impugned order the learned Magistrate has not ordered for constitution of the Provincial Medical Board rather he ordered M.S DHQ Hospital, Rawalpindi to reconstitute District Standing Medical Board (DSMB) for examination of the injured. This order of the learned Magistrate is not sustainable in the eye of law due to the reasons: (i) that the offence was allegedly committed within the territorial limits of Police Station Wan Bachran, District Mianwali whereas the learned Magistrate had ordered the M.S DHQ Hospital, Rawalpindi for constitution of Medical Board, hence I found that by doing so the learned Magistrate has issued a direction to the forum which falls outside his territorial jurisdiction, and (ii) there was no point to reconstitute the second Medical Board as earlier the injured had already been re-examined by the Medical Board. Even otherwise, declaring the injury by Medical Board as "possibility of fabrication cannot be ruled out was also of not much significance. As there is no denial with the proposition that the first medical examin ation was protected by statutory presu mption of being genuine under Article 129(e) of The Qanun-e-Shahadat Order , 1984 (QSO) as well as under Article 150 of The Constitution of the Islamic Republic of Pakistan, 1973 (The Constitution).
Article 129 of Qanun-e-Shahadat Order reads as under:
129. Court may presume existence of certain facts.-- "(a) ........................
(b) .........................
(c) ........................
(d) .......................
(e) that judicial and of ficial acts have been regularly performed." and Article 150 of the Constitution described that:
150. Full faith and credit for public acts, etc "Full faith and credit shall be given throu ghout Pakistan to public acts and records, and judicial proceedings of every Province."
5. So in presence of above provisions of law, I found that such formidable statutory protection cannot be summarily dismantled on whims of either party of a criminal case and unless and until very strong grounds are available in a case qua the mala fide attributed to a Medical Officer who had initially medically examined the injured/victim, no direction can be given for the constitution of Medical Board. On perusal of the available record, I noted that neither at the first time when the learned Magis trate ordered for re-examination of the victim through constitution of the District Standing Medical Board (DSMB) nor at the second time when again the learned Magistrate ordered for re- examination of the injured while constitut ing a "second Medical Board", any plausible explanation has been come forth which prompted the learned Magist rate twice to constitute the Medical Board. Even otherwise, issuing the direction for constitution of the Medical Board for second time is alien to the Criminal Justice System prevailing in the country . Reliance in this regard is placed on the judgment rendered by august Supreme Court of Pakistan in case of Muhammad Ejaz v. The State and another (2021 SCMR 387), an earlier pronouncement of this Court in case of Saif Ullah Saleem Arshad v. The State and 2 others (2014 PCr.LJ 850) and in the case of The Federation of Pakistan through Secretary , Establishment Division, Government of Pakistan Rawalpindi v.
Saeed Ahmad Khan and others (PLD 1974 Supreme Court 151).
6. There is yet another aspect of the case that neither the Medico Legal Certificate (MLC) nor the report issued by the Medical Board on re-examination of the injured is per se admissible in evidence as the same had not been protected under section 510 of The Code of Criminal D Procedure, 1898 and in either case the Medical Officer or for that matter a member of the Medical Board has to appear before the learned trial court as a witness to verify the contents of the MLC/proceedings of the District Standing Medical Board. Even otherwise, I have perused the interim order sheets of the learned Judicial Magistrate, the impugned order and noted that the learned Magistrate has not afforded an opportunity of hearing to the petitioner/accused and also noted that although the learned Assistant District Public Prosecutor (ADPP) representing the State was shown to be present, but as a silent spectator to the proceedings.
7. For the foregoing reasons, I found that while passing the impugned order the learned Magistrate had swayed beyond its realm. Resultantly , by allowing the instant petition the order dated 16.04.2021 passed by learned