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Criminal Appeal No.887 of 1980, decided on 4th March, 1984.

---S.218--Accused, a doctor, while posted as Medical officer in office of Police Surgeon allegedly abusing his official position by declaring injury as simple which in fact was grievous and so declared later on by members of Board constituted under orders of Court--Accused giving result of said injury on basis of visual examination without performing operation on injured whereas Medical Board declaring injury to be grievous after patient was operated upon--Record showing that accused kept injury under observation for a couple of days and on finding condition of injured as satisfactory declared injury as simple--Accused failed to detect true nature of injury because nick in peritoneum could not be seen by a naked eye and for that reason he had asked for supply of operation notes to him to find out nature of injury and did not stick to his earlier opinion and described injury as grievous when he appeared as a witness in case- Accused, held, could not be said to have given a dishonest report about nature of injury in question or that it was for any ulterior motive and mistake may be bona fide without any criminal intent--Material on record not sufficient to just conviction--Conviction set aside.

Munir Ahmad Bhatti and Rustam Khan for Appellant.

Sardar Muhammad Khurshid for the State.

Date of hearing: 8th February, 1984.

This appeal is directed against the order dated 30th August, 1980, passed by the Senior Special Judge, Anti-Corruption, Punjab, Lahore whereby he convicted Dr. Abdul Ghafoor Raza appellant under section 218, P.P.C. and sentenced him to undergo R.I. for two-years.

2. The prosecution case is that in the year 1977, while posted as Medical Officer, Office of the Police Surgeon, Lahore, the appellant conducted medico-legal examination of Talat Mahmood P.W. and by abusing his official position declared injury No.5 as simple which in fact, was grievous and was so declared latter on by the members of the Board constituted under the orders of the Court.

3. The prosecution examined seven witnesses in support of its case. Dr. Abdul Rashid Khan, Surgeon Medico-Legal, Punjab, Lahore stated that he had re-examined Talat Mahmood P.W. and noticed a big laparotomy scar on the right side of abdomen having caused a nick in the peritoneum which was dangerous to life. Dr. Rashid Ahmad Qureshi P.W.2 also examined Talat Mahmood P.W. as a member of the Board. He was also of the view that the injury in question was grievous in nature. Dr. Muhammad Ikram Qureshi, Medical Superintendent Services Hospital, Lahore P.W.3 also confirmed the testimony of the abovementioned P. Ws. and is signatory to the report Exh.P.W.2/D. Dr. Mrs. Balqis, P.W.4 Clinical Pathalogist, also described the said injury as grievous. Dr. Muhammad Afzal Farooqi P.W.5 stated that Talat Mahmood was operated on 27th November, 1977 by him and recorded the operation notes.

4. The appellant denied the prosecution allegations and filed a written statement explaining the position. He denied that the said report was for any mala fide reasons and that he had kept the injury under observation and after period of ten days he declared it to be simple in nature on finding the condition of the patient to be satisfactory. He stated that subsequently when he had examined the operation notes he himself had declared the injury to be grievous. The learend trial Court observed that there was sufficient evidence to establish that the appellant had been motivated by a desire to save the assailant of Talat Mahmood from the legal punishment or that he knew that he was likely thereby to- save him and relying upon the report of the Medical Board convicted and sentenced the appellant as stated above.

The learend counsel for the appellant has assalied the judgment that it is based on suppositions not supported by any evidence and that there is nothing to substantiate the mala fides of the appellant.

5. It is not denied that the appellant given the result of the said injury on the basis of visual examination and had not performed the operation of Talat Mahmood. The Medical Board had declared the injury to be grievous after the patient had been operated upon. The record shows that the appellant had kept the injury under observation for a couple of days and finding the condition of the patient to be satisfactory he had declared the injury in question to be simple. The appellant might have failed to detect the true nature of the injury because nick in the peritoneum could not be seen by a naked eye and it was for this reason that he had asked for the supply of operation notes to him to find out the nature of the injury and did not stick to his earlier opinion and described the injury to be grievous when he appeared as a witness in the case pertaining to the injuries of Talat Mahmood. It has been rightly argued by the learned counsel for the appellant that there is no basis for holding that the appellant had given a dishonest report about the nature of the injury in question or that it was or any ulterior motive. He had observed the injury with a naked eye and on finding the condition of the patient to be satisfactory he described it as simple. If the doctors are hauld up in this way, they to be on the safe side would stars opening even minor wounds, which I think would neither be proper nor in the interest of the patients. There is nothing on the record to indicate that the appellant was motivated for any reason to give any false description of the injury in question. It may be a bona fide mistake without any criminal intent.

Accordingly, I consider that there was no sufficient material justi fying the conviction of the appellant. Resultantly, I accept his appeal set aside his conviction and acquit him of the charge. He is present on bail and is discharged from the bail bonds.

M. Y. H. Appeal allowed.

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