2023 P Cr (PLP)

ALI ZIA BAJWA, J.

This Constitutional Petition has been preferred against the impugned order dated 20-09-2021, passed by learned Ex-officio Justice of Peace ('JOP'), Mailsi, whereby petition filed under section 22-A(6), Cr.P.C. ('Code'), with a prayer for issuance of direction for registration of criminal case, was dismissed.

2. Assailing the dismissal order of learned Ex-Officio Justice of Peace, learned counsel for the petitioner vehemently argues that the accusations as levelled in the petition filed under section 22-A(6), Cr.P.C. disclose the commission of cognizable offence, which places a statutory duty upon the JOP to direct the concerned SHO to register the First Information Report ('FIR'). He further submits that the sole reason for dismissal of petition before JOP was that in the Medico-Legal Certificate (the "MLC"), the medical examiner had mentioned that there was a possibility of fabrication of injury No. 3, however, no reasons in support of such opinion were furnished by him. Further contends that as the conclusion arrived at by the medical examiner qua possibility of fabrication of injury was without furnishing the cogent reasons, same is of no legal value and no reliance should have been placed on it by JOP. Finally prays that impugned order should be set aside and concerned SHO be directed to register FIR on the complaint of petitioner.

3. Conversely, learned AAG has refuted all the contentions raised by learned counsel for petitioner side with vehemence and defended the order passed by the learned Ex-Officio Justice of Peace by submitting that no cognizable offence was made out. Further submits that the guidelines as laid down by the constitutional Courts in various verdicts were followed to a tee by the JOP, therefore, writ petition having no merits should be dismissed.

4. Perusal of the order provides that the learned Ex-Officio Justice of Peace sent the matter to District Complaint Officer, Vehari for inquiry, where both the parties joined the inquiry. The report of District Complaint Officer provides that the allegations were found false. Further, while passing the impugned order JOP relied upon the MLC and stated that since the possibility of fabrication of injury No.3 was mentioned as "Yes", no cognizable offence is made out.

5. When confronted that there is an efficacious alternate remedy available to the petitioner by way of filing direct complaint, learned counsel for the petitioner does not press this petition in order to avail that alternate remedy. However, he submits that petitioner shall be gratified if a direction is issued to the learned trial court to decide the private complaint of the petitioner, if filed, on its own merits without getting prejudiced from the impugned order. Learned trial court is directed to entertain and decide the private/direct complaint of the petitioner qua the occurrence in question, if filed, strictly on its own merits after assessing the evidence through application of independent judicious mind.

6. Before parting with the judgment an important matter of public importance caught the eye of this Court. Medico-legal or Forensic medicine or legal medicine are deeply connected with criminal justice system and plays a pivotal role in dispensation of justice in criminal cases. Terms 'medico legal' or 'forensic medicine' or 'legal medicine' are used interchangeably and considered to be the field of study and accumulation of materials that deals with the application of medical knowledge to the administration of justice.1 Medical legal is "a subject that deals with application of principles of medical knowledge to purposes of law and furthering of justice".2 Forensic Medicine is the branch of medicine that establishes or interprets evidence using scientific or technical facts, such as ballistics. -Also termed medical jurisprudence.3 Medical examiners play a crucial role in criminal justice system therefore their competence, training and skills are of utmost importance to ensure right to fair trial. The term medico legal relates to both medical and law. When medical test or examination is conducted to be used in legal proceedings it is called medico legal. Medico legal is the application of medical knowledge to the legal arena for dispensation of justice in criminal justice system. It provides the elementary legal guidelines which should be followed by a medical examiner while conducting autopsies, examining the injuries and determining the cause of death.

7. A system to carry out Medico legal examination, forensic analysis and autopsies is part of right to fair trial as ensured under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 ('Constitution'), hence it should be impeccable and unerring. Medical examiner plays a key role in medico legal system and criminal justice system. His competence, expertise and ability should be unquestionable. The phrase" Medical Examiner" has been used in several contexts. Medical examiner is a trained forensic pathologist who works within the framework of a medical-legal investigative facility.4

8. In order to demonstrate the significance of Medical Jurisprudence, one must traverse through the history and origin of when and how Medical Science first became part of the Criminal Justice System. Before doing so, it must be observed that Medical practitioners and their governing bodies seem to have forgotten how close to the roots of our Criminal Justice to their area of expertise is, for intercommunication between the two disciplines, which make up medicolegal can be traced as far back as the Code of Hammurabi5 dating all the way back to 2200 B.C.6 Based on that, an inference can be drawn that Medical Science and Law have been intertwined since the dawn of time, so to speak.

9. Some of the earliest records, dating all the way back to Ancient Egypt in circa 17 B.C., reveal that Stab Wounds were differentiated from other Wounds while Egyptians had through knowledge of Poisons.7 Cyril H. Wecht writes that there is evidence that priests made determinations regarding the cause of death and whether it was natural or not. Persians had seven different categories of Wounds, ranging from Simple to Mortal.8 It is believed that the Romans around circa 600 B.C. promulgated legislation that required the corpses of women bearing children to be immediately opened. However absurd that may seem, there was wisdom and design behind this piece of legislation, which was an attempt to save the "unborn child".9 Medical Jurisprudence even helped in determining that the cause of death of Great Roman General Gaius Julius Ceasar, who had been assassinated by stabbing. It was determined that out of 23 stab wounds, only one of the Stab Wounds was in fact fatal which resulted in his death.10 The Greeks, like their counterparts in the Romans, utilized their knowledge and various medical techniques as a means to decipher the kind of poison which was used. Although scribes remain silent as to whether Medical Knowledge was used in establishing claims in a Court of Law, thus no concrete assertion can be made in that regard. Although other scribes allude to assertions that the Greek physician, Hippocrates of Kos and his companions used to ponder over, what we now term as Medico-Legal Questions.11 Dr. Edward Bulkley, an east India company's surgeon, is considered the pioneer of modern medico legal. The surgeons Edward Bulkley and Samuel Browne on August 16, 1693, issued the earliest medical certificate in India after examining Mr John Nicks. The first wound certificate was issued by Dr Edward Bulkley on August 9, 1695 (Friday). Lieutenant Seaton in a drunken brawl at midnight drew his sword and wounded through the arm of a Portuguese soldier who was on guard at the Choultry. Dr Edward Bulkley was ordered to view the wound. The wound certificate given by him stated that the wound was not dangerous. The first recorded medicolegal autopsy was performed in India by Dr Edward Bulkley on the afternoon of August 28, 1693 (Monday). When Mr. James Wheeler, Member of Council, Sea Customer and Chief Justice of Choultry in Chennai, died on August 28, 1693. Dr Samuel Browne accepted in writing that due to his fateful mistake pearl was powdered in a stone mortar wherein arsenic had been beaten before. The mixture was given to Mr. Wheeler as physic who showed the symptom of poison before death. Dr Samuel Browne and his servant were committed to custody. Dr Edward Bulkley, the surgeon of the hospital who was asked to conduct an autopsy on the body of Mr. Wheeler.12 As a result of autopsy report issued by Bulkley transpired that it was not arsenic poisoning as suspected and Browne was acquitted.

10. Field of medico legal plays a vital role and provides great assistance for determining the guilt or innocence of an accused. Due to great significance and reliance of criminal justice system on medico legal mechanism, great responsibility is imposed on the medical experts performing such job. But with this significance comes the immense responsibilities on the medical examiners. Where a medico legal system is comprising of untrained, inexpert and unqualified medical examiners, it is bound to result in miscarriage of justice.

11. In province of Punjab minimum qualification threshold for appointing a medical examiner is four weeks practical training course. According to notification issued by Primary and Secondary Healthcare Department Notification No. SO(H&D) 7-1/2018 dated 18.05.2018, one-month practical training of newly inducted CMOs/MOs/WMOs shall be mandatory before start of Medicolegal work and it shall be in the concerned medical college teaching hospital to strengthen the gravity of initial MLC examiner. The report filed by Additional Secretary Health (Technical) Primary and Secondary Healthcare Department, containing statistical data, made shocking and damning revelations. Relevant extract of the report has been reproduced hereinafter:

3. Details of Trained/Untrained HR The detail of trained personnel for conducting medico-legal work in P&SH Department is as follows: Trained HR of Primary and Secondary Healthcare Department for Medico Legal Work MOs WMOs Total HR Trained staff (04 weeks) % of trained staff Trained less than 04 weeks % of trained less than 04 weeks Trained DMLOs 1617 1234 2851 298 10.45 793 27.81 36 Similarly, the detail of trained personnel for conducting medico-legal work at SHC&ME Department is as follows: Trained HR of Specialized Healthcare and Medical Education Department for Medico-Legal Work Total No. of Officers 04 weeks training % of trained staff Trained for less than 04 weeks % of trained less than 04 weeks Possessing additional qualification 400 86 21.75 123 27.81 25

12. It transpires that only 10.45% medical examiners meet the minimum qualification threshold which is mandatory before start of medico legal work. Approximately 90% medical examiners are inexpert, untrained and knows nothing about the practical aspects of examining an injured. Medical examiner who by virtue of Article 59 of QSO, 1984 is an 'expert', his opinion can only be considered having some probative value if he has expertise and qualification for rendering such opinion. It was held in Muhammad Sultan13. "The provisions of the Qanun-e-Shahadat Order, 1984 including Article 59 thereof make it clear that the opinion of a witness is only relevant and carries some probative value if he is an expert in the fields specified in the said Article. Furthermore, even for the purpose of giving an opinion, the witness has firstly to establish the expertise vested in him either on account of academic qualification or experience or otherwise. Without such foundation, an opinion cannot by itself, be taken as having evidentiary value for proving a fact in issue." Now the vital question which crops up for determination is whether 90% medical examiners who admittedly are unqualified and unskilled can be termed as experts. Article 59, QSO, 1984 defines an expert, which is reproduced herein below: "Art. 59 - Opinion of experts. When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand-writing or finger impressions, (or as to authenticity and integrity of electronic documents made by or through an information system) the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions (or as to the functioning, specifications, programming and operations of information systems, are relevant facts). Such persons are called experts." Term expert witness has been defined in Black's Law Dictionary as following: "A witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue."14 According to Word and Phrases the term expert witness has been described as below: "To qualify as an "expert witness", it must appear that by study, practice, experience or observation as to the particular subject he has acquired a knowledge beyond that of ordinary witnesses."15 According to English Dictionary by Oxford an expert witness is defined infra: "A person whose level of specialized knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings."16 According to Collins dictionary an expert witness is stated as under: "In a court case, an expert witness is someone such as a doctor or other professional who testifies about and gives opinion on subjects and issues that have been raised in the particular court case."17 In Sohbat Ali18 concept of an expert witness was expounded as under: "The expert witness is one who has devoted time and study to a special branch of learning and thus is specially skilled on the points on which he is asked to state his opinion. His evidence on such points is admissible to enable the. Court to come to a satisfactory conclusion." Idea of an expert witness was elaborated in Jai Lal19 by the Supreme Court of India "An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice or observation; and he must have a special knowledge of the subject." "Therefore in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject." In Wilson20 criterion of an expert witness has been laid down in following terms: "Testimony is admissible as testimony of "expert witness" if trial court is satisfied that expert has in some way or other gained such experience in the matter as to entitle his evidence to credit" The task of the expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge to form his own independent judgment by application of those criteria to the facts provided in evidence.21 According to former Chief Justice M. Monir "So that a witness may be competent to depose as an expert, he must be shown to have made a special study of the subject or acquired a special experience therein. In such cases, the question is: "is he peritus? Is he skilled? Has he adequate knowledge?"22 Considering all the definitions and concept of an 'expert witness' above, I have no hesitation to hold that the medical examiners who even do not meet the minimum qualification threshold, which otherwise is not adequate for carrying out such sensitive job, cannot be called experts as envisaged under Article 59 QSO, 1984.

13. Now attending to another crucial aspect which needs consideration is whether a medico legal system where 90% medical examiners are not experts is not offensive to right to fair trial as ensured under Article 10-A of the Constitution. Article 10-A covers all the aspects of a fair trial and in cases of homicide, suicide and hurt competence of medical examiner or of forensic expert is of utmost significance. Opinion of a medical examiner is not only relevant but also most pivotal in criminal justice system and at times it plays a decisive role coupled with other evidence. Guarantee of fair trial under Article 10-A of the Constitution is a wishful expectation without a medico legal system comprising of true experts having adequate qualification and skills. A medico legal system with 90% inexpert and unqualified medical examiners surely is not in consonance with the right to fair trial as guaranteed under Article 10-A of the Constitution.

14. Specimen of Medico legal certificate (MLC) to be issued by the first medical examiner also has a column in it mentioning as under: Possibility of fabrication if any Yes/No Practice which prevails among the medical examiners is to tick on or circle around YES or NO without furnishing any cogent reasons for rendering such opinion. Rendering such opinion without offering convincing reasons/justification is not in accordance with the settled norms of justice. On 08-04-2008 instructions were issued by Surgeon Medicolegal, Punjab to all the chairmen of District standing Medical Boards (DSMB), Punjab that the practice of writing "possibility of fabrication/manipulation cannot be ruled out" is wrong and unjustified in the absence of substantial grounds/supporting evidence and should be stopped immediately. It is pertinent to mention that Chairmen of DSMB turned a deaf ear to such instructions. Subsequently revised Standard Operating Procedures were issued on 13-10-2020. According to the revised SOPs for medico-legal cases bearing No. S.O (H&D) 7-2/2019-(MLC) dated 13th October 2020, the Medical Officer/Women Medical Officer, after physical examination of an injured person, while issuing the Medico-legal Certification, holding the possibility of fabrication of any injury as "Yes", he/she must record reasons in an unambiguous term (s) on the basis of principles of Medical Jurisprudence. In case of more than one injury, the Medical Officer/Women Medical Officer shall mention regarding which injury, there exists possibility of fabrication. Unfortunately, these SOPs also had never been followed for the reasons best known to medical examiners. In Jai Lal supra, Supreme Court of India held in Paras Nos. 18 and 19 respectively that: "The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions" "This Court in the case of Hazi Mohammed Ikramul Haque v. State of West Bengal - AIR 1959 SC 488 concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons."

15. No probative and evidentiary value can be attached to an opinion rendered by the medical examiner without furnishing cogent reasons in support of his opinion. Medical examiners are under a bounden duty to furnish reasons in support of their opinion in order to make it having evidentiary sanctity in court of law. Opinion of an expert should be buttressed by the reasons or it shall lose its sanctity. A proposed amended specimen of Medico Legal Certificate (MLC) has also been placed on the record with a space for furnishing reasons in support of opinion rendered by the medical examiners. It has been stated before the Court by the officials of health department that such amended MLC shall be used by the medical examiners sooner than later.

16. What has been discussed above is not only alarming but also resulting in miscarriage of justice in hundreds of cases every day. This court is persuaded to issue some directions for prompt implementation in order to prevent such injustice. Both, Primary and Secondary Health Care and Specialized Healthcare and Medical Education Departments shall ensure that medical examiners should meet the minimum qualification threshold and no unqualified and inexperienced doctor shall be posted to perform such crucial and sensitive job. Minimum qualification threshold should be improved gradually as one-month practical training course seems inadequate and too short to perform such a sensitive and complex job. Every medical examiner shall be bound to furnish his reasons in support of his opinion and for that purpose a space shall be provided in the Medico Legal Certificate.

17. To sum up, with above observations/directions this Constitutional Petition stands disposed of. JK/M-61/L Order accordingly.