"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public." - Lord Steyn[1] TARIQ SALEEM SHEIKH, J. Respondent No.5 lodged FIR No.25/2021 dated 15.1.2021 under sections 324, 148, 149, P.P.C. at Police Station Kot Momin, District Sargodha, against Petitioner's father Mukhtar Ahmad and four others accusing them of a murderous assault on Muhammad Yousaf. The victim remained under treatment at the DHQ Hospital, Sargodha, for five days and passed away on 20.1.2021 whereafter the police added section 302, P.P.C. in the FIR. Mukhar Ahmad disputed the facts narrated by Respondent No.5 in the FIR and on 25.1.2021 lodged a cross-version alleging that the other side was the aggressor and claimed that Petitioner Maratab Ali also sustained a firearm injury at the hands of Muhammad Yousaf who was armed with .30 bore pistol. He produced the Petitioner's MLC No.05/2021 dated 15.1.2021 issued by the Tehsil Headquarters Hospital, Kot Momin, showing two injuries regarding which the Medical officer had opined that they were caused by firearm. Respondent No.5 challenged that MLC before the Area Magistrate who ordered the Petitioner's re-examination by the District Standing Medical Board (DSMB). The said direction was upheld by this Court in Writ Petition No.13986/2021. The DSMB assembled on 17.3.2021 and gave an opinion that the injuries were not by firearm. The Petitioner moved the Magistrate for making a reference to the Provincial Standing Medical Board (PSMB). The Magistrate declined his request vide Order dated 12.4.2021 which he has now assailed before this Court through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution").
2. The learned counsel for the Petitioner contends that Respondent No.5 is a political heavyweight and has influenced the DSMB. Therefore, it is necessary that the Petitioner should be got re- examined by the PSMB. He further contends that the DSMB's opinion is contrary to the settled principles of medical jurisprudence and forensic medicine and likely to prejudice the trial.
3. The learned Assistant Advocate General has vehemently opposed this petition. He contends that the DSMB consisted of reputed senior doctors and there is no evidence that any of them had bias against the Petitioner. He submits that they have given good 'reasons for their opinion and the Petitioner's objections thereto are chimerical.
4. The learned counsel for Respondent No.5 has adopted the arguments advanced by the learned Law Officer and adds that the incident is more than 13 months old. It would be futile to make a reference to the PSMB at this stage.
The law and jurisprudence
5. The role of medical science in the administration of justice cannot be over-emphasized.
According to Schultz, "... the service of legal medicine is to the courts, and that it is not particularly concerned with the prosecution or plaintiff on the one hand or of the defendant on the other. The service of legal medicine ... is non-partisan and impartial, just as the court is non-partisan and impartial.[2] Medical science helps in the decision of civil as well as criminal cases. Duncan says that it is useful "... to defend injured innocence against the shafts of groundless suspicion or malevolent calumny -- to detect atrocious guilt though concealed with the deepest art -- or to deal with the distribution of material justice, where the person, property, or life, of an individual are at stake."[3] Bertrand Russell writes that "science has changed the face of administration of justice.
It has spanned the skies of evidence, measured the truthfulness of witnesses and wrested from the criminals many hidden realities."[4]
6. In Pakistan, so far as criminal cases are concerned, Chapter 25 of the Police Rules, contains elaborate provisions for handling "police cases" as they are generally called. Rule 25.19(1) stipulates that in such cases the person required to be examined shall be produced before the highest medical authority available on the medical staff of the district. The 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 shall be sent there rather than a rural dispensary. Rule 25.19(2) prohibits the Medical Officers of the Irrigation Department from undertaking any medico-legal work but, in an emergency, the officer in-charge of District Board Dispensary may be called. Further, the Medical Officers should not go to the place of occurrence themselves except when there is real urgency and the injured person cannot be taken to the nearest dispensary or hospital. Rule 25.19(3) enjoins that the police officers cannot compel an injured person to submit for medical examination and he has a right to be examined privately at his own expense. The 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 and poisoning admitted by them for treatment. Rule 25.22 ordains that no medical officer shall examine a living woman involving those parts of her body which would violate her modesty unless she consents to such examination and a magistrate has permitted it through a written order. Rule 25.36 prescribes the procedure for postmortem. The legislature has enacted the Injured Persons (Medical Aid) Act, 2004, to facilitate medical aid and treatment of the injured persons before completion of medico-legal formalities as there existed misconception about law and procedure in this regard.
5.
7. The Health Department, Government of the Punjab, has issued various instructions/SOPs from time to time for smooth conduct of the medico-legal work. These, inter alga, include: i) Notification No. SO(H&D)6-82/89 dated 29.9.1989; ii) Letter No SO(H&D)6-1/90 dated 12.2.1990; iii) Letter No. SO(H&D)6-1/90 dated 8.2.1992; iv) Letter No. SO(H&D)6-1/90 dated 17.10.2001; v) Letter No SO(H&D)5-5/2002 dated 28.10.2002; vi) Notification No SO(H&D)5-512002 dated 19.11.2004; vii) Letter No. SO(H&D)7-1/2018 dated 17.9.2018; viii) Letter No. SO(H&D)7-2/19(MLC) dated 8.1.2020; ix) Letter No. SO(H&D)7-2/2019 (MLC) dated 13.10.2020.
Some of the above instructions were issued to implement the directions of this Court.[6]
8. Notification No. SO(H&D)5-5/2002 dated 28.10.2002 provides for a three-tier structure for conducting medico-legal work which is as follows: First tier The initial medico-legal examination is carried out by the Medical Officers/Woman Medical Officers at the Rural Health Centres, Tehsil Headquarters Hospitals, District Headquarters Hospitals and at the Teaching Hospitals.
Second tier There is a District Standing Medical Board (DSMB) in every district of the Province headed by the Medical Superintendents, DHQ Hospital, and having the District Health Officer and the Surgeon as members. These Boards conduct re-examination if the decision of the first medico-legal examiner is challenged. They also examine the alleged cases of police torture.
Third tier The Provincial Standing. Medical Board (PSMB) is the final Appellate Authority against the decisions of the DSMBs. The Surgeon Medico-Legal is its Chairman and other members include Associate/Assistant Professor Forensic Medicine of the Regional Medical College and the Medical Superintendent of one of the attached Teaching Hospitals. The PSMB can co-opt any other member when required.
The Surgeon Medico-Legal Punjab also has supervisory jurisdiction.
9. In exercise of his supervisory powers, the Surgeon Medico-Legal Punjab has issued instructions to further streamline the work. These are called "Instructions Regarding the Conduct of Medico-Legal and Postmortem Examination, 2015," and are required to be followed in all cases of hurt, intoxication, determination of age, sexual offences, postmortem examination and exhumation.
10. It is important to note that the Health Department's letter dated 12.2.1990 stipulated that DSMB shall re-examine an injured person only on the order of a magistrate or a court made within three weeks of the first examination. However, letter dated 8.2.1992 said that re-examination order could be made even after three weeks. In this view of the matter, in Muhammad Rizwan v. The State and others (2017 MLD 1828) this Court held that there wasn't absolute bar or restriction I'm constitution for DSMB even after the above-mentioned timeline.
11. The opinion of an expert is admissible, under Article 59 of the Qanun-e-Shahadat, 1984 (the "QSO"), which reads as under:
59. Opinions of experts.-- When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in question as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.
12. The court usually takes into account the credentials of the expert witness, including his education, training, experience (nature and scope of practice), memberships, publications and affiliations while considering the question of his reliability.[7] In any case, his opinion is not binding.
The court forms its own judgment after going through the reasons and the material referred by him in support thereof. In State of Himachal Pradesh v. Jai Lal and others, (1999) 7 SCC 280, the Supreme Court of India held: "An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. "
13. The opinion of a medical examiner is also admissible under Article 59 of the QSO. However, it is of an advisory character like that of any other expert. It does not go in evidence automatically. He is examined as a witness and has to face cross-examination.[8] In State of Haryana v. Bhagirath and others (AIR 1999 SC 2005) the Supreme Court of India held: "The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."
14. The latest instructions issued by the Health Department vide letter dated 13.10.2020 emphasize that where the Medical Officer is of the opinion that any or all the injuries of the person examined by him are fake he must record reasons therefor in unambiguous terms on the basis of the principles of medical jurisprudence. It is not sufficient to merely write "Yes" or "No" in the column which asks whether there exists possibility of fabrication. Albeit this particular instruction is only for the Medical Officer of the First Tier, it must be followed by the DSMB and the PSMB not only for the purposes of Article 59 of the QSO but also to ensure fair trial, the right guaranteed under Article 10A of the Constitution. Even otherwise, it is well settled that the public functionaries should record reasons for their decisions even when the law does not impose a specific duty because fairness requires it. In Mrs. Karen Louise Oakley v. South Cambridgeshire District Council, [2017] ,YWCA Civ 71, Lord Justice Elias observed: "There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision- making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual's interest in understanding - and perhaps thereby more readily accepting why a decision affecting him has been made."
He further said: "There are certain categories of case where the courts have required reasons to be given at common law, although the jurisprudence is relatively under-developed, perhaps because statutory requirements are so common. Apart from cases where fairness requires it, or a particular decision is aberrant, the duty has also been imposed where the failure to give reasons may frustrate a right of appeal, because without reasons a party will not know whether there is an appealable ground or not ... and where a party has a legitimate expectation that reasons will be given."
The case on hand
15. On 15.1.2021 at 9:00 a.m., Dr. Syed Ali Haziq examined the Petitioner at the THQ Hospital, Kot Momin, and as per MLC No. 5/21, noted the following injuries on his body:
(i) A lacerated wound, circular of 1 x 1 cm on front of upper 1/3rd of left thigh a no blackening and burning. Margins are inverted and burnt going into.
(ii) A lacerated wound circular of 1 x 1 cm on back of left thigh, 2 cm lower to buttock ford.
The Initial Medical Examiner opined that the above-mentioned injuries were caused by firearm and there was no possibility of their fabrication.
16. On 17.3.2021 the DSMB re-examined the Petitioner on the orders of the Magistrate 1st Class, Kot Momin, and noted as under: History of assault by firearm weapon pistol .30 bore from distance of 2-25 feet from front.
Clothes examination: Brown colour shalwar qameez. A small hole present on left side of shalwar upper part margins not burnt fibers projecting out. A small hole is present on the back stained with blood. Fibers projecting out margins not burnt. A small torn area is present front middle and lower part of shirt not blood stained, margins not burnt. Shalwar is stained with blood. Fibers projecting out. A small torn area is present on back and middle lower part of shirt. Fibers projecting out margins not burnt.
Injury No.1: A healed scar 3/4 x 1/2 cm front and upper part of left thigh.
Injury No.2: A healed scar 1 x 44 cm back and inner side of left thigh upper part. Advised x-ray left thigh, appellant for any foreign body or metallic dust.
The DSMB also examined the Petitioner's clothes, X-rays and report of the radiologist and made the following observations: No fracture seen. No metallic foreign body or metallic dust seen. Entry and exit wounds are of the same size which is unusual. Injuries involve only muscles. There is no fracture, metallic body or metallic dust on X-rays. There is no neuro vascular damage between the entry and exit wounds. Clothes are not in favour of firearm entry and exit wounds.
Keeping the above factors in view, the DSMB gave a unanimous opinion that the Petitioner's injuries were not caused by any firearm.
17. In our country litigants frequently accuse public authorities of malice and ill-will. Therefore, it is imperative that the courts examine every case with due care. A mere allegation that an action has been taken wrongly is not sufficient to establish that it is mala fide.[9] It must be specific. In other words, mala fides must be pleaded with particularity.[10] Vague and general allegations are not acceptable.[11] In the present case the Petitioner has alleged that Respondent No.5 exerted political pressure on the DSMB to procure the impugned report but has not furnished any details.
The allegation is, therefore, rejected being vague and unsubstantiated.
18. Now I turn to the facts. The DSMB's opinion is deficient in material particulars. Firstly, it has mentioned that the Petitioner's clothes which he wore at the time of the incident do not "relate" to the use of firearm but has not explained how. Secondly, there is no suggestion that the Petitioner's injuries are fabricated. The DSMB has not stated what type of weapon could have been possibly employed if it was not firearm.
19. The learned counsel for the Petitioner has referred the Parikh's Textbook of Medical Jurisprudence Forensic Medicine and Toxicology (Sixth Edition) which states that-
(i) As the range increases, tattooing from the powder becomes more sparse until no trace of powder makes can be found and this is normally beyond a yard;
(ii) In a distant range shot, the entry wound may be slightly smaller than or of the same size as the exit wound.
The learned counsel has also pointed out that is not necessary that every fire shot should fracture a bone or cause neuro vascular damage. Inasmuch as I am inclined to refer the case to the PSMB, I would not comment on these aspects lest it may prejudice either party. However, I do observe that they need to be looked into.
20. As adumbrated, this is a case of two versions: one set out in the FIR by Respondent No.5 and the other by the Petitioner's side. In view of what has been discussed above, a reference to the PSMB is necessary to dig out the truth which is the basic object of every inquiry and trial. Respondent No.5 has contended that it is too late in the day to allow reference to the PSMB. I think that this Court should not express any opinion in this regard also and leave the decision to it.
21. In the result, this petition is accepted and re-examination of the Petitioner by the PSMB is ordered.
1. Attorney-General's Reference (No.3 of 1999), [2001] 2 AC 91, 118.
2. Schultz, Oscar T., The Role of Medical Science in the Administration of Justice", Journal of Criminal Law and Criminology (1931-1951), vol. 23, No.5, Northwestern University School of Law, 1933, pp. 736-69, https://doi.org/10.2307/1136119
3. Lectures on Medical Jurisprudence and Forensic Medicine, 1801, p.
177. Cited by Modi in A Textbook of Medical Jurisprudence and Toxicology, 24th Edition, p.4.
[4]https://www.lawyersclubindia.com/articles/role-of-medical-science-in-criminal-law-3483.asp
5. Preamble of the Injured Persons (Medical Aid) Act, 2004.
6. Muhammad Khalid etc. v. The State etc. (2018 YLR 2433); Mazhar Ali v. The State and others (2020 PCr.LI 1571)
[7]Fredrick W. Cheney, Donald A.K, Clinical Anesthesia, Barash PG, editor London: J.B. Lippincott Company, 1989, p.
35. Also see: https://ncbi.nlm.nih.gov/pmc/articles/pmc3190527/
8. Malay Kumar Ganguly v. Sulcianar Mukherjee and others (AIR 2010 SC 1162).
9. The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151); and Mian Iftikhar-ud- Din and Arif Iftikhar v. Muhammad Sarfraz and another (PLD 1961 (WP) Lah. 842).
[10]Mian Iftikhar-ud-Din and another v. Muhammad Satfraz and another (PLD 1961 SC 585); Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14); The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151); Capt.
Dr. Nabi Ahmad v. The Ministry of Defence, Military Land and Cantonment Department, Rawalpindi and 3 others (1985 SCMR 1649); Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853); Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678); and Said Zaman Khan and others v. Federation of Pakistan through Secretary Ministry of Defence and others (2017 SCMR 1249).
11. The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151); Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853) and Dr. Muneebul-Rehman Haroon and others v. Government of Jammu and Kashmir State and others (AIR 1984 SC 1585).