TARIQ SALEEM SHEIKH, J. Respondent No. 9 lodged FIR No.16/2021 dated 10.01.2021 under sections 365, 337-F(vi) and 34, P.P.C. at Police Station Kot Momin, District Sargodha, against Petitioner's son Muhammad Hasham Makhdoom and three others. During investigation the police added sections 367, 392, 420, 468, 471 add 109, P.P.C. in the said FIR.
2. On 29.5.2021 the police arrested Hasham and on 05.06.2021 he was admitted to the District Jail, Sargodha, as an under-trial prisoner. He applied for post-arrest bail in the Sessions Court but his plea was rejected. Subsequently, he filed Criminal Misc. No.43759/B/2021 in this Court which was also dismissed.
3. During his confinement Hasham complained of severe backache and numbness of left leg. He was given conservative treatment at the Jail Hospital but his condition did not improve. Dr. Muhammad Adnan Haider (Orthopedic Surgeon) and Dr. Asif Iqbal Rana (Consultant Neurosurgeon) from the DHQ Teaching Hospital, Sargodha, examined him in the Jail Hospital and advised medication. On 12.07.2021 his MRI was done which showed disc bulges C5-C6. On 20.07.2021 Hasham again complained of severe pain in the right shoulder and left leg and numbness whereupon Dr. Mohsin Abbas, Neurosurgeon, came from the DHQ Hospital and examined him. Later, on the advice of Dr. Rana, he was shifted to the DHQ Hospital. On 27.08.2021 he was referred to the Lahore General Hospital (LGH) for further investigation, treatment and management. At present he is admitted in Unit-II of the Punjab Institute of Neurological Sciences
(PINS) of LGH.
4. In November 2021, Respondent No.9 (the Complainant of FIR No.16/2021) made an application to Respondent No.2 (Secretary, Specialized Healthcare and Medical Education Department, Government of the Punjab) to constitute a special medical board for examination of Hasham alleging that he was malingering. He further prayed that he should be sent back to the District Jail, Sargodha. Respondent No.2, vide letter dated 10.11.2021, directed Respondent No.3 (Executive Director, PINS) to examine the matter. Consequent thereupon Respondent No.3 constituted a three- member special medical board (the "Special Board") comprising (i) Dr. Khalid Mahmood, Professor of Neurosurgery Unit-I, PINS; (ii) Dr. Mohsin Zaheer, Professor of Neurology Department; and (iii) Dr. Hafiz Salman Shahid, AMS, PINS. The board examined Hasham and concluded as follows in its report dated 02.12.2021: "Considering the given facts and lack of objective element explaining his illness, the board is of the opinion that there is strong element of malingering and he has no active neurological or neurosurgical illness demanding admission in tertiary care hospital. He may be referred back to Sargodha Civil Hospital and subsequently to jail if local hospital decides so."
5. On 6.12.2021 the Petitioner made an application to Respondent No.2 for constitution of another medical board for re-examination of Hasham. Respondent No.2 did not respond and, according to the learned counsel, it is still pending.
6. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner lays challenge to formation of the Special Board mentioned in paragraph-4, above, and prays that its report dated 2.12.2021 be declared null and void. In the alternative, he prays for constitution of a new board for re-examination of Hasham.
Submissions
7. The counsel for the Petitioner, Ch. Ishtiaq Ahmad Khan, Advocate, contended that, firstly, Respondent No.2 had no jurisdiction to entertain the application of Respondent No.9 and address letter dated 10.11.2021 and the subsequent constitution of the Special Board by Respondent No.3 was without lawful authority. Secondly, report dated 2.12.2021 was biased. Respondent No.9 was a political heavyweight and had influenced the Special Board. Thirdly, the said report was self- contradictory. On the one hand, the Special Board noted that Hasham's MRI showed that there was a small disc with some impression on thecal sac and, on the other hand, opined that he was malingering and had no active neurological or neurosurgical illness. Lastly, the Special Board neither considered Hasham's medical history nor said a word about the opinions of the consultants of the DHQ Teaching Hospital, Sargodha, who had treated him earlier.
8. Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General, contended that Respondent No.3 had formed the Special Board in accordance with law and the Petitioner's objection thereto was misconceived.
9. Advocate Muhammad Akram Qureshi, counsel for Respondents Nos.3, 4 and 6, defended not only the constitution of the Special Board but also its report dated 02.12.2021. He contended that the members of Special Board were senior doctors of excellent repute. There was no evidence that they were biased or Respondent No.9 had influenced them. It was a sordid attempt on the part of the Petitioner to malign them. The counsel submitted that the Special Board's opinion was based on the true and correct assessm ent of Hasham's health condition on the date of his examination.
10. Advocate Waseem Mumtaz Malik, counsel for Respondent No.9, challenged the locus standi of the Petitioner to file this petition. He contended that he was not an "aggrieved person" within the meaning of Article 199 of the Constitution so this petition was not maintainable. On facts he adopted the arguments of Mr. Qureshi.
Discussion
11. The High Court's power of judicial review under Article 199 of the Constitution is an original jurisdiction conferred by the Constitution. This power is, however, subject to the Constitution and inter alia the condition that no other adequate remedy is provided by law. Further, in respect of the matters mentioned in clauses (i) and (ii) of Article 199(1)(a) the High Court must be moved by an aggrieved party while any person may approach it for an order under clauses (i) and (ii) of Article 199(1)(b). As for the matters falling within the ambit of Article 199(1)(c), it can exercise jurisdiction only on the application of an aggrieved person. It is important to note that Article 199 has used two expressions: "aggrieved party" and "aggrieved person". The rule of interpretation is that when the legislature uses two different terms, the intention is to convey distinct meanings.
12. James L.J. defined the term "person aggrieved" in ex parte Sidebotham, (1880) 14 Ch.D. 458, which is widely accepted. He wrote: "A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something, or wrongfully affected his title to something." On the other hand, he added, "in order to be an 'aggrieved party', it would be imperative for a party to show that any of his proprietary or personal rights, as recognized by the laws of the country, has been invaded or denied to him. 'Right' and 'remedy' are no doubt complementary concepts because right without remedy would be meaningless just as it would be inconceivable to think of a remedy without a corresponding right."[1]
13. The Hon'ble Supreme Court of Pakistan has defined the expression "aggrieved person" occurring in Article 199(1) of the Constitution in almost the same way as mentioned above. In Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52) it held that an "aggrieved person" denotes a "person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to. It is also the requirement that the person invoking the constitutional jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental right guaranteed under the Constitution has been violated resulting in legal loss." As regards the expression "aggrieved party", Justice Fazal Karim writes: "The word 'party' seems to assume that the action in question has arisen out of some previous proceeding, administrative or judicial, to which the judicial review petitioner was or might have been a party. The word 'party' can therefore assume importance in cases in which there had been proceedings under the relevant statute to which the applicant under Article 199 was not a party, as it did in Haji Adam v. Settlement and Rehabilitation Commissioner, PLD 1968 Kar. 245. But the word 'party' as used in Article 199, clause (1)(b) means one who is competent to maintain an action (Anjuman Arslan v. Abdur Rashid, PLD 1973 Lah. 500, 511); and a person not a party to the proceeding under the relevant statute can seek relief under Article 199, if he shows that the decision is directed against him or his property in the sense that the enforcement of the decision would involve special, immediate and in its effect a direct injury to his interest. [Tariq Transport Company case, PLD 1958 SC (Pak) 437]."[2]
14. An accused is not stripped off his fundamental rights on his arrest. Article 4 of the Constitution mandates that it is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan, to enjoy the protection of law and to be treated in accordance with law. Thus, "a person, merely because he is lodged in prison, does not cease to be a 'person'. He has therefore as much right to be dealt with in accordance with law as any other person and to have that right to be dealt with in accordance with law as any other person and to have that right enforced by judicial review."[3] In Regina v. Deputy Governor Parkhurst Prison and others, (1991) 3 All ER 733, the House of Lords held: "Availability of judicial review as a means of questioning the legality of action purportedly taken in pursuance of the prison rules is a beneficial and necessary jurisdiction which cannot properly be circumscribed by considerations of policy or expediency in relation to prison administration."
15. Law has developed along the same lines in Pakistan. In Begum Shamim Afridi v. The Province of Punjab and another (PLD 1974 Lahore 120) a Division Bench of this Court held that prisoners are to be treated like human beings and the High Court is competent to examine the question of legality of blindfolding and handcuffing of prisoners in the exercise of its judicial review jurisdiction.
16. This constitutional petition has not been filed by the prisoner himself. It is by his father. Let's now consider the objection of Respondent No.9 that he has no locus standi.
17. The right to life, guaranteed by Article 9 of the Constitution, is the most fundamental of all human rights. In Shehla Zia and others v. WAPDA (PLD 1974 SC 693) the Hon'ble Supreme Court of Pakistan explained that it covers all facets of human existence. "The word 'life' has not been defined by the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally." It is important to note that Article 14 of the Constitution independently declares dignity of man inviolable. Anyway, the right to live with dignity must include the right to have a family and a healthy one and, wherever required, a right to healthcare. Erin Daly and James R. May posit that the right to health under grids other rights because without health other rights become illusory.[4]
18. The Petitioner's right to life and dignity guaranteed under Articles 9 and 14 as mentioned above are linked with that of Hasham, his son, who is under arrest. He also has a direct and substantial interest in his health and welfare. I seek strength from this reasoning from Province of East Pakistan and another v. Hiralal Agarwala (PLD 1970 SC 399) in which the Hon'ble Supreme Court upheld the order of the High Court quashing conviction of a person on the petition of his son. The facts of that case were that Durga Prasad Agarwala was convicted by the Magistrate under section 6 of the East Pakistan Control of Essential Commodities Act, 1956, and sentenced to two years' rigorous imprisonment and a fine of Rs.800/- and, in default, three months further rigorous imprisonment. The convict's son, Hiralal Agarwala, moved a petition under Article 98 of the 1962 Constitution in the High. Court of East Pakistan for its quashing on the ground that the Magistrate lacked jurisdiction. The High Court agreed whereupon the Province moved the Supreme Court for special leave to appeal. The apex Court dismissed that petition holding as under: "In this petition for special leave to appeal by the province of East Pakistan, the learned counsel for the petitioner' has not disputed the fact that the trial Magistrate was not vested with powers of a Special Magistrate and was, therefore, incompetent to hold the trial. He has, however, contended that the petition under Article 98 by the convict's son was not maintainable because he was not an 'aggrieved person', under the aforesaid Article. The argument, which seems to narrow the meaning and definition of the term 'aggrieved person', as judicially interpreted, is fallacious on the face of it.
With his father incarcerated in prison, under a wholly illegal order, it is difficult to appreciate that his son, who was naturally afflicted by this tragedy, with an inherent legal right and interest to avert it, was not an aggrieved person within the meaning of Article 98. A writ of certiorari for quashment of the proceedings, which were without jurisdiction, was quite competent, but even otherwise, the application could be treated as one for a writ of habeas corpus for the freedom of the convict, whose illegal confinement and detention could be challenged by any person under Article 98 aforesaid."
19. This is not all. On 6.12.2021 the Petitioner made an application to Respondent No.2 for constitution of a new medical board for re-examination of Hasham which has not been decided. Public functionaries are obligated to dispose of the applications/representations made to them by the people within a reasonable time. Since this has not been done in the instant case, the Petitioner has a cause of action.
20. In view of above, in my opinion, the Petitioner is not only an "aggrieved person" but also an "aggrieved party" within the meaning of Article 199 of the Constitution. Hence, this petition is maintainable and the objection of Respondent No. 9 is overruled.
Legal provisions for treatment of under-trial prisoners
21. The Prison Rules, 1978, contain detailed provisions for the superintendence and management of prisoners. For our present purposes Rules 197, 397 and 981 are relevant. Rule 197 stipulates that if a prisoner is required to be taken to a hospital outside the jail premises for any reason, unless it is for treatment as an out-patient only or for X-ray examination, the Jail Superintendent shall seek permission from the Government through the Inspector General. However, in cases of emergency, the Superintendent is authorized to anticipate the sanction but he must make an immediate report to that effect to the Inspector General. If the prisoner is required to be removed to a hospital in another station, he must obtain the orders of the Inspector General in advance who is required to make an immediate report to the Government in anticipation of its sanction. Rule 197 further states that in all cases in which a prisoner is removed to a hospital for surgery or other procedure he should be taken there as close as possible to the time fixed for the operation and then he should be brought back to the prison hospital as soon as this can be conveniently done. Rule 397 enjoins that when an under-trial prisoner is seriously ill, the Superintendent shall report the matter to the court concerned which shall consider the possibility of his release on bail. Rule 981 mandates that the Senior Medical Officer shall visit the Jail Hospital every day. It also requires him to examine the prisoner who complains of sickness and, where necessary, issue direction for his admission to the said hospital. If at any time he is of the opinion that any prisoner is malingering, he shall immediately report that fact to the Superintendent.
22. The Prison Rules, 1978, do not prescribe any procedure for constitution of a medical board for examination/re-examination of the prisoners. This matter has been left to the doctors because they are the best judge and know when it is required. However, situations may arise where the prisoner or the complainant party may want it to be constituted for various reasons.
23. Article 10 of the Constitution mandates that every person who is arrested or detained in custody shall be produced before a magistrate within 24 hours (excluding the time necessary for journey from the place of arrest to the court of the nearest magistrate). It further states that no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Section 167, Cr.P.C. 'enjoins that if investigation of the case is not completed within 24 hours and the police require further detention of the arrested person, the officer in-charge of the police station should transmit him to the nearest magistrate who may remand him to police custody for a term not exceeding 15 days in the whole. Section 344, Cr.P.C. relates to postponement of proceedings by the courts during trial of a case. When sections 167 and 344, Cr.P.C. are put in juxtaposition it appears that the former contemplates remand during investigation while the latter deals with remand after initiation of proceedings in court. Indeed, judicial proceedings cannot commence until a report under section 173, Cr.P.C. or a complaint is placed before the court. Dilating on the scheme of law in Asif Kamal v. The Judge Accountability Court, Multan and others (2020 PCr.LJ 1 Lahore) a Division Bench of this Court observed: "The rationale underlying both these provisions [sections 167 and 344, Cr.P.C.] is that the continued detention of the prisoner in jail during the investigation or trial is legal and valid only under the authority of the court/Magistrate before whom the accused is to be produced or before whom he is being tried. An under-trial prisoner remains in custody by reason of such order of remand passed by the concerned court and such remand is by a warrant addressed to the authority who is to hold him in custody. The remand orders are invariably addressed to the Superintendent of Jail where the under-trials are detained till their production before the court on the date fixed for that purpose. The prison where the under-trial prisoner is detained is thus a prison identified by the competent court either in terms of section 167, Cr.P.C. or section 344, Cr.P.C."
24. In addition to the above, a few more provisions are relevant to the discourse. Section 3 of the Prisons Act, 1900, stipulates that the officer in-charge of a prison shall receive and detain all persons duly committed to his custody under the said Act or otherwise by any court according to the terms of the writ, warrant or order until he is discharged or removed in due course of law.
Section 4 of the Act requires the officer in-charge of the prison to return writs etc. after execution or discharge. Rule 14 of the Prisons Rules, 1978, mandates that no person shall be admitted to any prison except under a lawful warrant or order of commitment issued by a competent court addressed to the Superintendent of Prisons.
25. A close reading of the above provisions leaves no doubt that it is the magistrate/court which regulates the custody of a prisoner. Therefore, it is just and proper that all requests/ complaints regarding his examination or re-examination by a medical board should be made to it.
26. 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 alia, 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)5-5/2002 dated 19.11.2004; vii) Letter No. SO(H&D)5-5/2002 dated 1.12.2004 viii) Letter No. SO(H&D)7-1/2018 dated 17.9.2018; ix) Letter No. SO(H&D)7-2/19(MLC) dated 8.1.2020; x) 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.[5]
27. 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.
28. 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."
29. The learned counsel for the Petitioner argued that the above regime would apply mutatis mutandis to the situation mentioned in paragraph-22. This argument deserves a short shrift. The object of medico-legal process is to provide independent medical evaluation and expert testimony in legal cases, civil and criminal. It helps in determining the medical condition of a person or the cause, timing and manner of death of a person or the injuries caused to him. The instructions/SOPs referred above are exclusively for such work. Importantly, the headnote of the 2015 Instructions issued by the Surgeon Medico-Legal Punjab contains an express stipulation that they are "required to be followed in all cases of hurt, intoxication, determination of age, sexual offences, postmortem examination and exhumation."
The case on hand
30. As discussed above, Rule 197 mandates that if the prisoner is required to be removed to a hospital in another station, the Jail Superintendent cannot do it on his own. He must obtain permission from the Inspector General in advance and the latter is required to make an immediate report to the Government in anticipation of its sanction. In the present case, Rule 197 was flagrantly violated. The Jail Superintendent shifted Hasham to the Lahore General Hospital on a letter of the Medical Superintendent, DHQ Teaching Hospital, Sargodha (Re: Letter No. 12799/DHQ dated 27.8.2021). He did not obtain any order from the Inspector General as required and, it appears, he has not applied even for post-facto approval to date. The learned counsel for the Petitioner has not been able to refer any material which may suggest that there was such medical emergency that non-compliance with the above provision should be condoned. This requires immediate probe.
Accordingly, the Inspector General Prisons is directed to hold an inquiry and submit his report to this Court through the Deputy Registrar (Judicial) within 30 days from the date of receipt of a certified copy of this judgment. He is also directed to take appropriate steps to ensure that no such thing happens in any prison in the province in future.
31. The application of Respondent No.9 before Respondent No.2 was incompetent. He ought to have approached the trial court if he had any grievance. Resultantly, all the proceedings conducted in pursuance of the said application, including the constitution of Special Board and its report dated 2.12.2021, are declared to be without lawful authority. On the same touchstone, it is held, the Petitioner's application dated 6.12.2021 is also not maintainable.
32. Respondent No.9 has a serious complaint. He cannot be left without a remedy. He may make a fresh application for examination of Hasham before the trial court which shall decide it in accordance with law and take such actions as it may deem fit.
33. This petition is disposed of in the above terms.
Objection overruled.
1. Fazal Karim, Judicial Review of Public Actions, Second Edition, vol. 3, p. 1479.
2. ibid, p. 1474.
3. ibid, p. 1476
4. Dignity Under Law: A Global Handbook, Dignity Rights International (2021).
5. Muhammad Khalid and others v. The State and others (2018 YLR 2433) and Mazhar Ali v. The State and others (2020 PCr.LJ 1571).