2023 PLP 1752 (YLR)

MALIK SHAHZAD AHMAD KHAN, J.

This judgment shall dispose of Intra-Court Appeal No. 12256 of 2023, filed by Muhammad Sarwar (appellant) against impugned order dated 23.01.2023, passed by learned Magistrate 1st Class Gujrat, whereby the application moved by the petitioner/complainant for re-examination of the victim of this case namely Mst. Aalia Sarwar by the District Standing Medical Board was dismissed, as well as, against order under appeal dated 08.02.2023, passed by learned Single Judge in Chamber of this Court, whereby the constitutional petition filed by the appellant i.e., Writ Petition No.8581 of 2023, against the abovementioned order was also dismissed.

2. Arguments heard. Record perused.

3. As per brief facts of the present case, Muhammad Sarwar petitioner/ complainant lodged FIR No.726/2022, dated 24.11.2022, under section 375-A, P.P.C., Police Station Kunjah, District Gujrat with the allegation that on the intervening night of 21/22-11-2022, his daughter namely Mst. Aalia Sarwar went out of her house to answer the call of nature but on her way, she was abducted by the accused mentioned in the FIR who took her to an under-construction house of accused Zaka Ullah (respondent No.7), where the accused namely Yawar and Murad committed rape with her turn by turn, hence the abovementioned FIR. The alleged victim namely Mst. Aalia Sarwar was medically examined by the Medical Officer of Major Shabbir Sharif Hospital, Kunja, District Gujrat. In the relevant column of the medico legal report of the alleged victim regarding rupture of the hymen, the Medial Officer has mentioned that there was no rupture of hymen. It was case of the appellant that in fact rape was committed with his daughter namely Mst. Aalia Sarwar by the abovementioned accused persons and the Medial Officer has not issued correct medico legal report of the said victim, therefore, Mst. Aalia Sarwar may be re-examined by the District Standing Medical Board. We have noted that impugned order of the concerned Magistrate and order under appeal of the learned single Judge in Chamber of this Court were passed mainly on the ground that the appellant moved the application for re-examination of the victim by the District Standing Medical Board with a considerable delay but it is by now well settled that merely delay in filing an application for conducting medical examination is not sufficient to dismiss the application filed for the abovementioned purpose. Reliance in this respect is placed upon the judgments reported as "Mansab Ali v. Asghar Ali Faheem Bhatti Additional Sessions Judge Nankana Sahib and 3 others" (PLD 2007 Lahore 176) and "Ghulam Fareed v. Additional Sessions Juke D.G. Khan and 4 others" (2010 PCr.LJ 4). Moreover, re-examination of the alleged victim by the District Standing Medical Board shall be beneficial for the just decision of the case.

4. Keeping in view all the aforementioned facts, this Intra-Court Appeal is allowed and impugned order dated 23.01.2023, passed by learned Magistrate lst Class, Gujrat, as well as, order under appeal dated 08.02.2023, passed by the learned Single Judge in Chamber of this Court are hereby set-aside. Resultantly, the application moved by the appellant/complainant for re-examination of victim namely Mst. Aalia Sarwar is hereby accepted and the Medical Superintendent, District Headquarter Hospital, Gujrat is directed to get medically examined Mst. Aalia Sarwar from the District Standing Medical Board and hand over the report of the Medical Board to the police within a period of two weeks from the date of receipt of attested copy of this order. It is, however, clarified that consequences of late medical examination of the alleged victim by the Medical Board shall be determined by the learned trial Court after recording of evidence and the case shall be decided strictly in accordance with the law without being influenced by any observation made in this order. SA/M-54/L Appeal allowed.