1994 P Cr (PLP)

Mr. Maqbool Ilahi Malik, Advocate-General has entered appearance to state that case under sections 302/109, 148/149, P.P.C. initially registered under sections 324/109, 148/149, P.P.C. at Police Station Mission, District Jhang vide F.I.R. No.186, dated 30-12-1991, had been cancelled on 7-5-1992 and the instant petition was instituted here at least five months thereafter.

2. The petition was filed by Allah Yar petitioner claiming that his cousin Allah Bakhsh had been given severe beating by the accused in the case and at his instance the case was registered under sections 324/109, 148/149, P.P.C. and on his demise on 31-12-1991 section 302, P.P.C. was added to the First Information Report. Medical Superintendent, D.H.Q. Hospital, Jhang, Dr. Farooq Ahmed, Casualty Medical Officer, District Headquarters Hospital, Jhang, Amir son of Haji Abdullah and War, arrayed as respondents Nos.5, 6 10 and 13 respectively, were liable to action for being responsible for destroying the evidence in relation to the offences committed by the accused named in the F.I.R. including respondents Nos.10 and 13 and that the Superintendent of Police, Jhang and Station House Officer, Police Station Mission, Tehsil and District Jhang, arrayed as respondents Nos.8 and 9 respectively, are liable to be asked to take into custody all the accused in the case, described at Serial Nos.10 to 18 of the array of the parties here. He had further prayed for the issuance of a direction to the District Magistrate, Jhang for the constitution of a special medical board with a view to having the dead body of Allah Bakhsh exhumed and for the conduct of repost-mortem examination, by it.

3. The Secretary to Government of the Punjab, Health Department, Lahore constituted a Standing Special Medical Board, SSMB for short, vide letter No. SO(H&D)6-1/90, dated 5-1-1993. In response to District Magistrate, Jhang Memorandum No. 461/RBM, dated 14-4-1992, the Board was authorised, on 9-1-1993, after this petition had been admitted to regular hearing, to carry out re-post-mortem examination after exhumation of dead body of Allah Bakhsh deceased. The board consisted of Dr. Khalid Saifullah Khan, Surgeon Medico-legal, Punjab, Lahore, Dr. Muzaffar Hafeez Ahmad, Medical Superintendent, Lady Willingdon Hospital, Lahore and Dr. Shahid Haneef, Assistant Professor, Forensic Medicine, Post-Graduate Medical Institute, Lahore. The result of the re-post-mortem examination has been made available and the same has been perused. Para. 4 of the report by SSMB reads as under:-- "(4) The board found the following deficiencies on paper scrutiny:-- (4-i) In medico-legal examination report No.1929/91, dated 29-12-1991, in respect of Mr. Allah Bakhsh son of Pehalwan (Annexure 5):-- (a) Clinical findings i.e. blood pressure, pulse, temperature, condition of pupils, respiration, examination of the nervous as well as locomotor systems etc. were not recorded. (b) Reasons for keeping the injuries under observations were not recorded. (c) Admitted him in the hospital without indicating reasons for this as the papers i.e. medico-legal examination report as well as the chart are silent. (d) Examination was not conducted in accordance with Qisas and Diyat Ordinance, 1991. (e) There is no mention of X-ray advised. (f) Parameters to declare the duration of injury as 36 hours, were not recorded. (g) Fee charged from a private case not recorded in violation of para. 33 of the "instructions for conducting post-mortem and medico-legal examinations" circulated by the Government vide No.SO(H&D)6-5/80, dated 27-10-1980. (4-ii) In post-mortem examination Report No.96/91/FA, dated 31-12-1991, (Annexure `4'):-- (a) Did not send carbon copy of the report to the Medical Superintendent, for scrutiny in violation of Para.35 of the "instructions for conducting post-mortem and medico-legal examinations" circulated by the Government vide No. SO(H&D)6-5/80, dated 27-10-1980. (b) Did not send whole heart for examination to the Bacteriologist, Government of the Punjab. Only pieces were sent, thus destroying important evidence. (c) Did not mention the preservative used for sending the pieces of heart to the Bacteriologist to Government of the Punjab, Lahore. (d) Lebelled "Cardiac standstill" as the cause of death without giving reasons thereof. (e) No X-ray examination was done in the D.H.Q. Hospital, Jhang, during his life or after his death. (4-iii) No history of the case had been written in bed head ticket of Mr. Allah Bakhsh son of Pehalwan. Similarly no clinical findings, Laboratory investigations and Radiological examination had been recorded. Also, there is nothing on record as to the resuscitative measures carried out before death." A copy of the report, dated 30-1-1993 has also been sent to the Secretary to the Government of the Punjab, Health Department. It has been stated by the learned Advocate-General that in view of the report of the SSMB the persons found to be at fault shall be proceeded with, departmentally, in accordance with law.

4. The learned counsel for the petitioner felt satisfied with the repost?-mortem examination and the indication of lapses on the part of the doctors concerned. However, be half-heartedly argued that instead of effecting the arrest of the accused in the case of the respondent-Superintendent of Police, Jhang and Station House Officer, Police Station Mission have obtained orders for the cancellation of case F.I.R. No.186, dated 30-12-1991. According to him, the cancellation of the case can be taken notice of by this Court and the order in that regard can be set aside in that it has not been based on correct investigation of the case. When asked to argue how this petition can be considered to cover the cause relating to the cancellation of the case as well, it was submitted that the petitioner came to know about the cancellation of the case only on the last date, i.e. 27-2-1993 and, therefore, he has been instructed to argue that point as well. I am afraid the contention is devoid of any merit. The case was cancelled on 7-5-1992 and it was open to the petitioner to file a private complaint against the accused persons. No direction for holding fresh investigation and submission of challan in case F.I.R. No.186, dated 30-12-1991 can be issued. The petitioner may, if so advised, file a private complaint under section 190 of the Code of Criminal Procedure, 1898. With the above observation this petition stands disposed of. There shall be no order as to costs. N.H.Q./A-577/L????????? Order accordingly.