' CH. MUHAMMAD ARIF, J.---In this petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave to appeal is sought against judgment dated 29-3-2001 passed by the Punjab Service Tribunal, Lahore, hereinafter referred to as the Tribunal, in Service Appeal No,3039 of 2000 (disposed of jointly with Service Appeals Nos.3037, 3038 and 3040 of 2000) upholding the order of the Governor of the Punjab dated 29-9-2000, compulsorily retiring from service petitioner Dr. Mubashar Ahmad Mirza (and 3 others namely (1) Dr. Ghafoor Hussain, (2) Dr. Muhammad Nawaz and (3) Dr. Rustam Ali Bhatti).
2. The background in which this petition has arisen is clearly divisible into two groups: 1ST GROUP: 2-A 1st group relates to the registration of a case under section 302, P.P.C. Against the police officials of Police Station Pasrur, District Sialkot regarding the death of one Shakeel Ameen in the police custody on the night between 23-4-1997 and 24-4-1997.
2ND GROUP: 2-B The 2nd group relates to the commencement of departmental proceedings against petitioner Dr. Mubashar Ahmad Mirza (and 3 others) after the Director Health Services, Government Division, Gujranwala reporting that:--
(1) Performance of post-mortem examination on the dead body of Shakeel Ameen by a Medical Board consisting of the petitioner (and 3 others) indicating that the deceased had two head injuries caused by fire-arm vide Report No,57 of 1997 dated 24-4-1997;.....
(2) On the insistence of one Dr. Major Shehbaz, a brother of the deceased, himself a Pathologist, the members of the Medical Board wrote to the local police that post-mortem report dated 24-4-1997 was tentative and that the final report will be conveyed to them on the receipt of the reports of the Chemical Examiner and the Bacteriologist;.....
(3) A Special Medical Board consisting of (i) Surgeon Medico-legal, Punjab, Lahore, (ii) Medical Superintendent, Lady Willingdon Hospital, Lahore, (iii) Assistant Professor, Department. Of Forensic Medicine and Toxicology K.E. Medical College, Lahore, (iv) Senior Medical Officer, o/o Surgeon Medico-legal, Punjab, Lahore, (v) Professor of Surgery, East Surgical Ward, K.E.M.C./Mayo Hospital, Lahore and (vi) Pathologist, Mayo Hospital, Lahore was constituted and it unanimously opined that the death was caused due to blunt trauma to the head
(4) Dr. Amir Aziz, a member of Chief Minister's Inspection Team made adverse remarks on the post- mortem report dated 24-4-1997 to the effect that Histopathological Examination Report dated 23- 5-1397 had confirmed the police torture by stating that the injury to the head on the right side was ante-mortem and caused by a blunt weapon and the other injury on the left side of the head was postmortem, manoeuvred after death and that the initial Board had subsequently concurred with this finding. He submitted his report to the Chairman, Chief Minister Inspection Team with the recommendations of exemplary punishment to the police officials for committing a murder as also to the petitioner (and 3 others) who had attempted a cover up through their initial opinion given in the post-mortem report dated 24-4-1997...... And that:
(5) The Chief Minister as 'Authority' allowed departmental proceedings against the petitioner (and 3 others) and designated 'Principal, King Edward Medical College, Lahore' as 'Authorised Officer' who jointly charged the petitioner (and 3 others) as under:-- "that while posted as above you have conducted a wrong M.L.C. Of Mr. Shakeel Ameen s/o Muhammad Ameen."
3. After the petitioner (and 3 others) had been charged as above, the progress of departmental proceedings stands detailed in the impugned judgment dated 29-3-2001 of the Tribunal, as below:-- ' "However, on the recommendation of Hearing Officer Mr. Zahurul-Haq a de novo enquiry was ordered. This time Secretary, Local Government and Rural Development Department was designated as Authorised Officer who retained the same charge-sheet and appointed an Enquiry Committee consisting of the following doctors:--
1. Dr. Khalil-ur-Rehman, Professor of Medicine, Allama Iqbal Medical College, Lahore.
' CHAIRMAN OF THE ENQU IRY COMMITTEE
2. Dr. Muhammad Arshad Awan, Surgeon, Medico Legal, Punjab, Lahore.
' MEMBER OF THE ENQU IRY COMMITTEE ' "The Enquiry Committee submitted its report with the following conclusion:-- ' In the opinion of the Inquiry Committee, considering all the documentary evidence, interrogation of the accused as mentioned below, references from the Forensic Books, the post-mortem report under the remarks in Column VI is wrong.
' "The authorised Officer issued a notice to the appellants under Rule 7(a) of PCS (E&D) Rules, 1975 and after hearing them, recommended the imposition of major penalty of compulsory retirement from service. The Authority appointed Mian Muhammad Jamil, Member Judicial, Board of Revenue as Hearing Officer who issued notices to all the appellants for personal hearing. Dr. Nawaz appellant failed to appear before him while the others presented their version. The Hearing Officer submitted his report to the Authority who finally passed the impugned order dated 29-9-2000 imposing upon all the appellants major penalty of compulsory retirement from service. Aggrieved by this order, the appellants have filed separate appeals before the Punjab Service Tribunal."
4. Paras. 8 and 9 of the impugned judgment dated 29-3-2001 read thus:-- "8. The learned counsel for the appellants has laid much emphasis on his averment that firstly Medico Legal Report was not wrong at all because in a subsequent letter dated 27-6-1997 the appellants had, on the receipt of Bacteriologist Report corrected their opinion and secondly even if it was a 'wrong' report it was not based on any ill intention and therefore, was not punishable under PCS (E&D) Rules. These contentions are rather contradictory and are not borne out from the record.
If the initial Medico Legal Certificate was correct there was no need to correct it. The fact is that the initial opinion expressed in the Post-mortem Report No,57 of 1997 was patently wrong both by way of commission and omission. It clearly wrongly committed that both the injuries were caused by fire-arm and were ante-mortem. In fact injury No,2 was post-mortem and Injury No,1 which caused the death was the result of a blunt weapon. The act of omission was that the appellants gave their initial wrong opinion without calling it provisional. This act of commission and omission is not a minor one. When the appellants conducted the post-mortem, they knew that there were two versions as to how the deceased had died. Police had called it suicide and the heirs of the deceased a police torture. The issue was to be decided on the post-mortem report. They had sent skin parts and viscera to the laboratory but without waiting the laboratory reports gave the authoritative opinion which fully corroborated the police version. After having received this opinion, the investigation was to proceed on the premises that it was a case of suicide. The police was not to wait for any other opinion. In fact, it was the doctor brother of the deceased who agitated the matter and the appellants were made to admit that their opinion was provisional. One may ask as to what was the necessity of giving, this "provisional" opinion at all, particularly when even the necessary data for forming such an opinion was not there. There were two injuries one on each side of the head. If these were caused by fire-arm one should have been an entry and the other an exit wound and there should have been a track of the bullet and the two wounds were to be shown to have been communicating through the brain. But this data is missing in the post-mortem report prepared by the appellants. The appellants have still termed these injuries fire-arm injuries. Viewed in this context, their opinion cannot be called an innocent opinion devoid of any motive. If Dr. Amir Aziz is to be believed, the 'absurd' opinion was given in connivance with or under pressure of the police and resulted in the bail of the accused police officials. Be it as it may, the fact remains that the perverse opinion, which had to be subsequently corrected, did corroborate the police version.
"9. The appeals also suffer from a fatal lacuna. The learned counsel has not impleaded the Enquiry Officer, the Authorised Officer or even the Authority which are obviously necessary parties in the appeals.
5. Malik Qamar Afzal, learned Advocate Supreme Court appearing in support of this petition has taken us through the impugned judgment of the Tribunal and referred to pp. 38-41, 42-43 and 52- 58-A of the Paper Book being respectively, Medico Legal Certificate/M.L.C. Dated 24-4-1997; 'opinion regarding Post-mortem No,57 of 1997, dated 24-4-1997' in Letter No,2270/AIMH/97, dated Sialkot the 27-6-1997' and report dated 26-7-1997 by the Chairman, Chief Minister Inspection Team, Punjab, Lahore to contend that his client is entitled to exoneration in this cause for the reason that his subscribing to M.L.C. Dated 24-4-1997 was only a tentative opinion and that after the receipt of the reports from the Pathologist and the Chemical Examiner the final opinion, conveyed by the initial Board tallied with the opinion of the Provincial Medical Board. According to him, in the absence of any mala fides and/or personal motives being either alleged or proved, mere negligence of his client could not be made a ground for punishment under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. He concluded his arguments by submitting that his client's final opinion being in line with the opinion expressed in the report of the Chairman, Chief Minister Inspection Team, Punjab Lahore dated 26-7-1997, the imposition of the major penalty of compulsory 'retirement on his client cannot be sustained in law.
6. We are afraid the pleas being raised are totally off the mark. The Medico Legal Certificate dated 24-4-1997 prepared by the petitioner (and 3 others) did indicate that the dead body had two fire- arm injuries. It was soon after this that one Dr. Major Muhammad Shehbaz a brother of the deceased succeeded in persuading the petitioner (and 3 others) to write to the local police that their report dated 24-4-1997 is tentative and that final report will be submitted to them after the receipt of the report of the Chemical Examiner and the Bacteriologist. At this juncture the constitution of Special Medical Board consisting of as many as 6-senior officials for exhumation/re-postmortem of the dead body of deceased-Shakeel Ameen was gone ahead and it conducted re-post-mortem examination on 18-8-1997. The opinion of this Board to the effect that death was caused by blunt trauma to the head was sufficient to knock the bottom out of report dated 24-4-1997. It is not the case of the petitioner that the initial report dated 24-4-1997 did not support the case of the local police that the deceased had committed suicide with a revolver. Even the subsequent happenings in the case did not change the nature of things to any major extent. At no point of time between 24-4-1997 and 29-9-2000 the petitioner (and 3 others) succeeded in establishing before the appropriate fora that any human error was involved in their report dated 24-4-1997. Even the 'final opinion' goes a long way in squarely implicating the petitioner (and 3 others) in the most abominable charge against them to the effect that they were helping the local police in the criminal case. All concerned took due notice of the monstrosity of the occurrence and duly noticed the part played by the petitioner and others therein which, to say the least, is tantamount to adding fuel to the fire. The departmental proceedings do not suffer from any flaw whatsoever. The Enquiry Committee duly appreciated the documentary evidence on the record and, after interrogating the accused as also after making reference to textbooks on Forensic Science, correctly ruled that: "...The post-mortem report under the remarks in Column VI is wrong."
When confronted with this, the learned counsel pleaded that his client is about to retire and that removal of this stigma will go a long way in rehabilitating him in the society to make his life a bit comfortable. We are afraid the plea loses sight of the fact that the proportions of this cause comfortably contain many a situations within its wake to see to it that the actions complained of are not repeated in future by those who succeed the perpetrators thereof so that at least an austere beginning is made to clear the good name of the Medical Profession/the petitioner (and 3 others).
8. Be that as it may, no substantial question of law of public importance within the contemplation of clause (3) of Article 212 of the Constitution has been made out to justify grant of leave to appeal against judgment dated 29-3-2001 passed by the Tribunal in petitioner's Service Appeal No,3039 of 2000.
9. Resultantly, this petition is dismissed and leave refused.