2009 PLP 993 (MLD)

S. ALI HASSAN RIZVI, J.

In this writ petition filed by Muhammad Khalil Shah has challenged the validity of the report/opinion, dated 14-3-2009 (Annexure 'G' to the writ petition), as rendered by the Provincial Standing Medical Board (Camp-at-Faisalabad)/respondent No.1, on re-examination of injured Muhammad Hanif Shah/respondent No.3.

2. After hearing learned counsel for the parties and going through the record, I find that earlier by judgment, dated 12-3-2009 rendered by this Court in Writ Petition No.2770 of 2009 brought by Muhammad Hanif Shah/respondent No.3, order of the learned Additional Sessions Judge, dated 4-2-2009 whereby he had set aside the order, dated 26-1-2009 passed by the learned Magistrate Section 30, Tandlianwala, District Faisalabad, was upheld.

3. The penultimate para.11 of the said. judgment may be reproduced for facility of reference:-- "Be that as it may, directing re-examination of the injuries after about six months of the first examination was not much in quest of justice. The reason is that by that time, the injuries must have healed up and any opinion coming from the Medical Board would be more on a topsy-turvy view. That situation is bound to create misgivings. There is no dearth of cases where the medical opinion recorded by renowned doctors, was ignored by the Courts and direct evidence was believed in preference thereto on proper showings. The petitioner/complainant would he at liberty to prove his case on the basis of direct evidence in preference to the medical opinion if irksome in his calculation. As a result, I would uphold the conclusion drawn by the learned Additional Sessions Judge, Tandlianwala but for my own reasons as given above. The writ petition is dismissed. As the question involved was not free from difficulty, I leave the parties to bear their own costs."

4. Learned counsel for the petitioner was right in arguing that the examination of the injuries allegedly suffered by Muhammad Hanif Shah/ respondent No.3 by the Provincial Standing Medical Board (Camp-at-Faisalabad)/respondent No.1 despite the aforementioned order of this Court upholding the order, dated 4-2-2009 passed by learned Additional Sessions Judge, Tandlianwala was without lawful authority and of no legal consequence. Learned counsel for respondent No.3 attempted to argue that he had already challenged the order of this Court, dated 12-3-2009 passed in Writ Petition No.2770 of 2009 before the Hon'ble Supreme Court. However, no copy of the petition for Leave to Appeal or any order passed by the Hon'ble Supreme Court, was shown. Be that as it may, mere filing of petition for leave to appeal would not operate as a bar for this Court to decide the present writ petition on its own merits.

5. In the contempt' application, .which was alongside pending this very Court moved against the Chairman of the Provincial Standing Medical Board/respondent No. 1, Dr. Ghulam Shabbir had appeared and tendered his un-conditional apology explaining that neither the pendency of Writ Petition No.2770 of 2009 nor copy of order, dated 12-3-2009 rendered therein by this Court, was brought to their notice. The contempt application was filed as having been withdrawn.

6. In any case it is held that opinion/report of respondent No.1, dated 14-3-2009 in respect of the injuries allegedly suffered by Muhammad Hanif Shah/respondent No.3 having been rendered in disregard of the order, dated 4-2-2009 passed by the learned Additional Sessions Judge and the order, dated 12-3-2009 passed by this Court in Writ Petition No.2770 of 2009, the same is declared to be illegal, without lawfully authority and of no legal consequence.

7. The writ petition is allowed in these terms leaving the parties to bear their own costs. H.B.T./M-230/L Petition allowed.