Medical Jurisprudence

Reason which prevailed the Magistrateto decline the application moved by the petitioner for re-medico legal examination was that the application was to be moved within twenty-one days

Held: So far as the ground taken by the learned Magistrate to the effect that the application was to be moved within twenty-one days was concerned; in this regard two letters issued by Government of the Punjab, Health Department, Lahore, were relevant; both bearing (the same) NO.SO(H&D)6-1/90, first was dated 12-2-1990 ('letter dated 12-2-1990') ; while the second was dated 8-2-1992 ('letter dated 8-2-1992')

In the letter dated 12-2-1990 the maximum period for medical re-examination was fixed as three weeks which stood enhanced to indefinite period vide letter dated 8-2-1992

However, the said indefinite period should be reasonable according to the discretion of the District Magistrate keeping in view the fact that the injuries on the person of injured to be medically re-examined were healed with the passage of time

High Court directed concerned Medical Superintendent, District Headquarter Hospital, to ensure a meeting of District Standing Medical Board earliest for re-medico legal examination of injured / complainant of subject FIR

Constitutional petition was allowed accordingly.

Reasons which prevailed the Magistrate to decline the application moved by the petitioner for re-medico legal examination was that application was not carrying specific allegation regarding fabrication of injury

Validity

Perusal of description given by the Medical Officer of MLC-under-consideration revealed that the victim/lady was having a sole injury on the back of her left hand and the Medical Officer observed the availability of swelling without contusion, abrasion or laceration at the given seat of injury

Description of the injury given by the medical Officer, prima facie, required re-medico legal examination as according to the contents of crime report the injury was caused with a forceful blow of iron rod, a heavy blunt object, but surprisingly injured was not having any contusion, abrasion or laceration on or around the given seat of injury

High Court directed concerned Medical Superintendent, District Headquarter Hospital, to ensure a meeting of District Standing Medical Board earliest for re-medico legal examination of injured / complainant of subject FIR

Constitutional petition was allowed accordingly.

If ligature mark is not round the neck, eyes are closed, ribs are not fractured and hands are not clenched then the case is of suicide

Such a report raises a very high probability of asphyxia death and killing by hanging, which under all probabilities is deemed to be a suicide/unnatural death and not homicide at all.

Contention of the petitioner / accused was that injuries had been declared as "jurh-ghayr-jaifah-mutalahimah" attracting offence under S.337 F(iii), P.P.C. and S.324 P.P.C was not applicable in the case as fire shots hit on legs

Validity

If injury had been caused below knee, then applicability of S.324 P.P.C required further probe/inquiry within the purview of subsection (2) of S.497 Cr.P.C., however, if injury had been caused above knee on the leg at thigh, then situation was otherwise, because femoral artery, which was major blood vessel, was located in thigh starting from groin coming to the back of knee and it supplied oxygen-rich blood to the lower parts of the body; so, femoral artery if damaged could cause lower limb ischemia leading to amputation of limb, compartment syndrome as well as death due to severe blood loss from a major artery in the leg

Therefore, if firearm injury had been caused above knee at thigh of leg, then S.324 P.P.C was prima facie applicable/attracted in the case, hence, contention of the petitioner / accused did not hold water

Punishment of offence under S.324 P.P.C fell within the ambit of prohibitory clause of S.497 Cr.P.C

Bail was refused, in circumstances.

When a person is alive and death occurs due to drowning, referred to as ante-mortem drowning, it means the individual inhaled water while their mouth and nose were submerged

During this process, diatoms present in the water enter the lungs and, through blood circulation, reach the liver or other organs as blood continues to flow in the arteries and veins

In such cases, both the diatoms in the control water sample and those in the deceased's liver test positive

On the other hand, if the individual was already dead before entering the water, the lungs may contain diatoms, but the liver will not test positive for diatoms because blood circulation ceases after death

In this scenario, diatoms in the control water sample test positive, whereas those in the deceased's liver test negative as explained by Modi in A Textbook of Medical Jurisprudence and Toxicology, 27th Edn., p. 606-7.

Fire shot from a distance of 5 feet cannot cause burning on wound.

Distinguishing characteristics and marks on the dead body of deceased caused due to death by hanging and death by strangulation listed.

Accused was charged for firing upon the complainant's son and his companion, due to which the son died and his companion became injured

Accused was medically examined by the Medical Officer, who conducted autopsy on the dead body of the deceased and stated that in case of both the deceased as well as injured, there was no blackening and cheering marks etc

According to medical jurisprudence, charring marks, with pistol's fire, could be caused from a distance of six inches

In the present case, no charring marks or blackening was observed by the Medical Officer, which belied the stance of prosecution

As per prosecution version, if the accused had fired from a close distance at the deceased as well as inflicted injury to himself, then in that eventuality, Medical Officer must have noticed blackening and charring marks, which was not the case in the present case

Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Concept of 'rigor mortis' and factors affecting the same explained.

During cross-examination, Medical witness stated that due to warm infections, the child had scratches on his anal canal and during cross-examination further stated that in expert opinion no sodomy was committed and it was only an attempt

Witness stated during cross-examination that there were no injuries on the knees of the victim and no injuries on his person

Section 377, P.P.C., provided that the offences would be completed when the carnal intercourse was taken place

Law provided that for constituting an offence under said section and to establish the carnal intercourse, the penetration was a condition precedent, therefore, the explanation provided in S. 377, P.P.C., stated that "penetration was sufficient to constitute the carnal intercourse

Victim was silent about penetration, while the opinion rendered by the Medical witness was not conclusive

Medical jurisprudence provided a complete procedure for examining the victim of sodomy

Medical opinion rendered by a Medical witness was not in line with the procedure contemplated in the medical jurisprudence, therefore, it was instructed to produce the relevant procedure for medical examination of the victim of sodomy as provided in the Medical Jurisprudence

In the present case, Medico Legal Report stated about the tenderness of anal region which under the medical jurisprudence could be caused due to constipation or in case of irregular bowel habits

Doctor had also failed to use the Proctoscopy instrument in order to obtain the anal swab and did not notice any abrasion or injury on the anal region of the alleged victim

Statement of victim was silent about penetration, thus without obtaining the anal swab of the victim and in the absence of positive report with regard to semen-stained clothes of the victim and the accused and without getting blood group of accused in order to match the semen stains found on the victims clothes, on mere tenderness of the anal region no conclusive opinion could be rendered as to whether sodomy had been committed or not

Sample was taken from the shalwar of the accused but no report of Forensic Expert was produced before the court, which created a reasonable doubt in the prosecution case

Accused was also of 11/12 years, and the victim was of 8/9 years and there were no such injuries on the person of the victim

Said aspect of the case also caused reasonable doubt in the prosecution

Appellant had failed to point out any defect in the impugned Judgment, therefore, the appeal against acquittal being devoid of merits was accordingly dismissed in limine.

Special needs/problems/expenditures of autistic child elaborated.

"Gas Chromatography-Mass Spectro-metry method", explained.

Medical protocol has taken a total shift from its original view and now as per accepted medical protocols, virginity test is no longer considered to be relevant in cases of rape or sexual abuse

Virginity test has no scientific or medical basis

International obligations cast a responsibility on Government of Pakistan to ensure that all necessary steps are taken to prevent discrimination and specifically to prevent carrying out virginity testing

Globally it is accepted that virginity testing does not establish offence of rape or sexual abuse nor past sexual conduct has any relevance in medico-legal examination, which aims to collect evidence on the charge of sexual violence.

Burning/blackening, though a predominant factor to determine distance inter se the assailant and the victim, nonetheless, was not a conclusive indicator; it depended upon factors more than one, such as, quality of munition and process of combustion that may possibly vary the impact of combusted gun powder

Smudging shot may cause deceptive appearance as well, therefore, in the absence of other qualifying evidence, hypothesis of inter se distance could not be constructed with empirical exactitude on the presence of burning alone.

DNA, explained.

Definition.

Appearances of deceased due to Asphyxia explained.

Definition.

Neck anatomy, explained.

Blackening appears on dead body in case deceased has received injuries at a distance of 4 feet.

Development of each kind is subject to variation, thus, determination of age through odontology is prone to an error of two to three years.

Term ossification stands for developmental process of bone formation whereby their shape and size is changed with passing age in childhood and adolescence

Symptoms are helpful for determining age until ossification is completed, however, owing to variations in climatic conditions, dietetic values, hereditary differences and other factors, it is not possible to formulate a uniform standard for determination of the age of union of epiphysis in different regions of the sub-continent

Determination of age through ossification is, therefore, vulnerable to variation of 2 to 3 years.

Dead body lying in water putrefied slowly because, exclusion of air; protection from cloths if any; low temperature of water as compared to atmospheric temperature.

No one on a simple post mortem can conclude that someone died due to fear of signs of violence which apparently brought on a cardio pulmonary.

Blackening on entrance wound would show that fire shot was made from near range under three feet.

Definition and explanation.

"Bipolar disorder" which was also known as 'manic-depressive illness', was a brain disorder that would cause unusual shifts of mind, energy, activity levels and the ability to carry out day-to-day tasks

Bipolar disorder was of four types and all of them involved clear changes in mind, energy and activity levels

Person suffering from Bipolar disorder, could not be declared a person of unsound mind; it was mental disease, which could be characterized by periods of depression and periods of elevated mood

Petition of accused claiming that he was of unsound mind being devoid of any force, was dismissed, in circumstances.

Asphyxial death due to strangulation would invariably leave its symptoms on hyoid bone detectable even at skeletonized stage.

Possibility of a forensic analysis of dead body could not entirely eliminate even at stages subsequent to skeletonization.

Poisonous contents even in decomposed viscera; arsenic were possibly detectable not only in hair but also in soil where dead body was buried.

Clinical or academic post-mortem was one in which medical practitioners perform a post-mortem with the consent of relatives to know the extent of the illness for which the deceased was treated

Requisition from legal authority was not necessary.

Medico-legal or forensic post-mortem was performed on the requisition of a legal authority responsible for the investigation of sudden, suspicious, obscure, unnatural, litigious or criminal death

Legal authority was usually a police officer

Post-mortem was performed to know the cause of death

Consent of relatives was not necessary.

Where a man was incapable of producing a child and the sperm was obtained from a third person that could not be called a case of surrogacy for the simple reasons that the child did not belong to the father

Issue of surrogacy arose when the woman was hired for carrying a child for a couple for some monetary or other consideration

Surrogate mother was paid certain amounts for carrying out the child for nine months and then producing child for another woman

For all practical purposes the surrogate mother gave her womb on rent.

Where the husband was not in a position to produce a child or there was some problem in the sperm of the husband and the sperm was obtained from a third person, in that case the child would belong to the person, from whom the sperm had been obtained

Child would not belong to the husband who had arranged the sperm from a third person

Even if the egg belonged to the wife of the person who had arranged the sperm from a third person, for all practical purposes the child would belong to the person from whom the sperm had been obtained

Such an arrangement would be illegal and against the injunction of Holy Qur'an and Sunnah

Shariat petition was disposed of accordingly.

Child produced through In Vitro Fertilization (IVF) procedure by using sperm of the husband, eggs of the wife, and placing the embryo in the womb of the wife

Where the sperm had been obtained from husband and the egg from the wife and the same had been fertilized in the test tube through medical process and the embryo was then placed in the womb of the wife, in that case the child would belong to the actual husband and wife

Such process could not be considered as illegal or against the injunctions of Holy Qur'an and Sunnah

Child in such a case by all means would be legal and legitimate

Shariat petition was disposed of accordingly.

Producing a child through a surrogate mother [Per Riaz Ahmad Khan, C.J.]: Where a woman was arranged as a surrogate mother against a monetary consideration or some other reasons, the whole procedure as well as the resulting birth of the child would be illegal and against the Injunctions of Holy Qur'an and Sunnah

Children born through surrogacy were not produced by a couple through the bond of Nikah

Object of producing children through surrogacy was to satisfy the desire of a woman who may not wish to marry a man or go through the pains of delivery or was infertile

Homosexual couples could also have such desires

Paternity and maternity of child would become irrelevant in case of surrogacy

Only if a baby was born through mechanical/medical process where the sperm belonged to the husband and the egg to the wife and the child was born through the wife, in that case the procedure would be legal and lawful

In all other cases surrogacy procedure would be unlawful and against the Injunctions of Holy Qur'an and Sunnah

His Lordship observed that surrogacy procedure was not only based on exploitation rather the whole concept was illogical, cruel and absurd; that if a woman was asked to carry a child for an unknown couple and then go through the pains of delivery and deliver a child for another couple, it would be beyond human understanding that the woman, who carried the child for nine months, would not develop emotional feelings for the child to whom she gave birth; that in such a case the woman became only a machine not having any feelings, emotions or love, and that surrogacy also disturbed the settled principles of inheritance given by the Holy Qur'an

[Per Allama Dr. Fida Muhammad Khan, J]

Use of a third party in the process of pregnancy was prohibited, whether the subject was liquid sperm or egg or embryo or a third party, and whether it was involved by way of lease or donation

Shariat petition was disposed of accordingly.

Federal Shariat Court held that whole procedure of surrogacy as well as the resulting birth of the child was illegal and against the Injunctions of Holy Qur'an, and directed that suitable amendment should be made in S.2 of the Contract Act, 1872 and it may be specifically provided that any agreement regarding surrogacy would not be enforceable by law as the same would contain unlawful proposals and unlawful considerations; that the Penal Code, 1860 should also be amended and suitable section of law be added regarding definition of surrogacy; that surrogacy should be declared as an offence punishable with imprisonment as well as fine, that further amendment be made in the Penal Code, 1860 that the couple who arranged a surrogate mother would be liable to punishment along with surrogate and the doctor who carried on the surrogacy procedure; that the Penal Code, 1860 should provide punishable for the doctor who maintain a sperm bank or egg bank for future use, which should include imprisonment and fine, and that it must also be provided that any doctor involved in the procedure of surrogacy should lose his license

Shariat petition was disposed of accordingly.

Such (rapid) destruction of entire body of a human being was not possible within a month because some visceras made of tough tissues and full skeleton of human body remained intact

In the present case, only scattered pieces of bones were recovered and not full skeleton of human body, which by itself was unbelievable, being against the well-established and universally recognized juristic view on the subject

Recovery of pieces of bones after one month was entirely doubtful

Supreme Court set aside convictions and death sentences awarded to accused persons and acquitted them of the charge.

Meaning.

Asphyxia means 'without' and 'sphyxis' means 'squeeze', which is a condition in which there is severely deficient supply of oxygen to body, that arises from abnormal breathing

Asphyxiation is defined as hypoxia or anoxia that is caused when respiratory function is hampered by interference with mechanics of breathing.

Strangulation is a form of asphyxia (lack of oxygen) characterized by closure of blood vessels or air passages of neck as result of external pressure on the neck

Rudimentary knowledge of neck anatomy is critical in order to understand adequately the clinical features of strangled victim

General clinical sequence of victim, who is being strangled, is one of severe pain followed by unconsciousness, which is followed by brain death

Victim loses consciousness by any one or all of the following: blocking of carotid arteries (depriving brain of oxygen); blocking of jugular veins (preventing deoxygenated blood from exiting brain); and, closing off airway, causing victim to be unable to breathe

Visible injuries to neck include scratches, abrasion and scrapes

Said injuries may be from victim's own fingernails as defensive manoeuvre, but the same commonly are combination of lesions caused by both victim's and assailant's fingernails

Lesion location varies depending on whether victim or assailant has used one or two hands, and whether the assailant has strangled the victim from the front or back

Three types of fingernail markings may occur, singly or in combination: impression; scratch; or claw marks

Chin abrasions are also common in victims of manual strangulation as victim lowers the chin in an instinctive effort to protect neck and in so doing , scrapes the chin against the assailant's hands.

Illustrated.

Usually in case of suicidal death, weapon is firmly clutched in working hand of deceased with index finger fixed curved tight on trigger due to cadaveric spasm

In committing suicide, fire shot is made contact with body surface that could cause entry wound at the size of width of barrel of weapon.

Ossification test is though based upon guess forming opinion after examination of X-rays of wrist joints but it can hardly be variative of one year and not beyond that.

Signs and consequences of strangulation on the victim.

'DNA', or 'Deoxyribonucleic acid', meaning and scope.

Blackening was found, if a fire-arm like shot-gun was discharged from a distance of not more than 3 feet.

Stages enumerated.

Blackening by smoke and unburnt gun powder surrounding firearm injuries would not only depend on the distance from which shot was fired but also on the kind and quantity of gun powder used in the cartridge, and on the length of barrel and size of barrel diameter at muzzle end.

Rigor mortis had been completed in the dead body, therefore, time between death and post mortem might be 14 hours.