ALI MUHAMMAD BALOCH, J.- The respondent No. 2 Asif Ali Zardari is facing trial in murder case in the Court of Sessions Judge, Karachi-South. An application was moved on behalf of the accused on 16-2-1997 in which it was prayed that Medical Board consisting of senior most Neurologist and Neuro Surgeon of Civil Hospital be constituted, who should undertake the medical e rami nation of the accused. Another application dated 24-2-1997 was moved in which it was requested that an Orthopaedic Surgeon and a Physiotherapist may also be included in the said Board. It was contended that the accused was suffering from some ailment which threatened is lower limbs.
2. Mr. Muhammad Saleh Panhwar, the learned District Attorney on behalf of the prosecution had conceded to the grant of that application. The learned trial Court observed in his order dated 18-3- 1997 while granting the prayer of the accused as under:- 'I am of the view that a Board be constituted which should consist of the Neurologist, Neuro- Surgeon and Orthopaedic Surgeon, who should be the senior most doctors of Civil Hospital, Karachi, and the board be headed by the Medical Superintendent Civil Hospital Karachi for examining the U.T.P. For the purpose at the cost of the accused.
3. After passing such an order, the trial Court ordered that a copy of the order be sent to the Health Secretary, Government of Sindh for expediting the constitution of the Medical Board under intimation to the Court.
4. It appears from the facts that the Health Secretary Mr; Shafiq Qureshi in compliance to the order of the Court constituted a Medical Board and that Board (hereinafter referred to as the First Board) actually met on 25-3-1997 when it examined the U.T.P. And prepared a report. However, the report of the Board did not reach the Court and, therefore, the Court issued a notice for contempt to the Secretary Health, who instead of submitting the report of the First Board before the Court, constituted another Medical Board, which was not in accordance with the directions of the Court. In response to the notice of contempt, the Secretary Health appeared in person before the Court and on 24-4-1997 an order w as passed by the trial Court. The relevant portion of that order is reproduced as under:- 'Contemned Dr. Shafiq Qureshi, Health Secretary, present in person and has filed reply to the notice.
Order thereon. For arguments with a specific direction that he would produce the medical report of the first Medical Board contend under the orders of this Court."
5. It appears that the Staler is aggrieved by this part of the order and has filed this revision with the prayer that the order dated 24-4-1997 be revised, and it . Be held that the report of the First Board was invalid and cannot be used-for any purpose.
6. I have heard the learned Advocate General, who referred to the provisions of Section 299(c) and argued that it contains the definition of "authorised Medical Officer" which includes a medical board authorised by the Provincial Government. The learned A.G. Meant by this argument that the First board in this case which was formed under orders of the trial Court, was unauthorised, mid hence , its report was invalid and, therefore, it could not be produced in Court.
7. I do not agree with the argument of the learned Advocate General as it is not comet on factual side that the First Medical Board was constituted by the trial Court. In fact the Court had suggested designations of experts looking to the prayer of the accused and had ordered that the senior most doctors in those designated fields serving in the Civil Hospital should be the members of the Board.
Secondly, it was the Secretary Health who had actually constituted the First Medical Board and given the names of doctors looking to the order of Court and the positions of the doctors in the related field. Therefore, the argument of foe learned counsel was of no avail. Even otherwise Section 299(c) gave the definition of foe words used in Chapter XVI of P.P.C, and it did not come in the way of foe trial Court in directing the constitution if a Medical Board comprising of designated specialists. Provision of Section 299(c) in no way curtailed the powers of Courts in directing the examination of the prisoners.; through the specialist doctor, looking to foe nature of the ailment of the prisoners.
8. Second argument of the learned A.G. Was that under Section 94 of Cr.P.C foe Court was not authorised to call for foe medical report from the Secretary Health, in respect of the First Medical Board, as the Court had not specified "necessity or desirable reasons foe catting such report. This argument of fol learned A.G. Also does not appear to be correct as the Court had already applied its fond and wane to the conclusion that for the examination of the accused formation of a Board was necessary and the prosecution had also conceded to it. After such formation of the Board it is but natural that the report be sent to foe Court for examination, otherwise it will be treated as if the Court had to undertake another exercise to find out foe necessity and reasons for calling such report in Court. Not only this, but provisions of Section 94 do not apply in the present case.
9. The next ground of the learned A.G. Was that since a second Board constitute by the Health Secretary, there was no necessity of calling for the report of the First Board. It was also argued by the learned A.G. That since one of foe members of the First Board had reported to the Health Secretary that he was influenced by the accused directly or indirectly, therefore, the report of the First Board was not valid. However, the learned counsel for the respondent No. 2 pointed out that the so called member of the First Board was Dr. Bashir Ahmad Shaikh' who was only a convenor of the Board, and was not one of the experts and had nothing to do, with the opinion of the experts and could not be called a member of the Board. Besides, such allegation by him was for malafide reasons, as he had personal grudge against the accused. Be that as it may, the question, whether the report of the First Board is valid or invalid, should be relied on or not. Will be seen by the trial Court itself, which had ordered for such report. If such report is kept back from the trial Court. I am afraid it will amount to interference in the proceedings of the Court. Formation of the Second Board for the examination of U.T.P. Should also have been with the permission of the trial Court if the Government wanted to keep back the report of the First Board, which in fact they could not do.
There is nothing on the record, whether the trial Court was approached with the request for formation of the Second Board. It is therefore, open to the trial Court, whether it requires the report of the Second Board or not.
10. Under these circumstances. I do not find if any provision of law has been violated by the trial Court in calling for the report of the First Board to come on its record, for consideration nor any prejudice appears to have been caused to the prosecution, which in fact had conceded for calling such report. The order of calling for the report, passed by trial Court, to me. Does not entitle the prosecution to come in Revision against it. As it will be only fair to allow the report to reach the Court which was called for by the Court and it may be open to both the parties to support or object to the said report on valid grounds. Under these circumstances, I find no merit in this Revision, which is dismissed in limine.
M.A. No. 699/97 is also dismissed.