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Before Riaz Ahmad, J
DR. KHALID SAIFULLAH KHAN AND 2 -OTHERS-Petitioners
versus
MALIK KHIZAR HAYAT AND 4 others Respondents
Criminal Miscellaneous No. 613/M of 1984, herd on 23rd January, 1985
. -- Ss. 561-A & 439-Penal Code (XLV of 1860), Ss. 193, 199 & 21.8Quashing of proceedings-Murder - Provincial Government constituting a Board of Doctors (consisting of petitioners) to probe into allegations of misconduct levelled against two doctors who allegedly gave a false post-mortem report-Board after- examining relevant material submitting a report to Provincial Secretary (Health) against said two doctors-Eye-witnesses ,in main murder case of deceased, whose, post-mortem report was disputed, declining to support prosecution case and consequently accused in that case were acquitted Doctors against whom criminal case was registered, on basis of report of Board, for giving false post-mortem report, in any an application against Board of Doctors (petitioners)-Trial , Court while acquitting accused in murder case, directing that members of Board of Doctors (petitioners) be proceeded against under Ss. 193, 199 &. 218, P. P. C. Petitioners (Members of said Board) moving quashment petition before High Court-Additional Session Judge (trial Court) called and examined by High Court-No occasion arose to consider post-mortem report in any manner whatsoever as eye-witnesses had declined to support prosecution and accused were acquitted on that account and even report of petitioners (as Board of Enquiry), the basis of trial of petitioners was not placed before trial Court-Approach of trial Court while passing order of trial of petitioners found to be absolutely perverse-Provisions of Ss. 193, 199 & 218, P. P. C. were not attracted-Provincial Government, held, had all powers to constitute Board of Enquiry to make a probe into conduct of doctors-Report by Board of Enquiry not to be considered as fabrication of false evidence within meaning of S. 193, P. P. C. as same was meant for Provincial Government and not for Court of law-Prosecution launched against petitioners by orders of trial Court found to be abuse of process of Court-Proceedings against petitioners ordered to be quashed in circumstances.
Ss. 561-A & 439---Penal Code (XLV of 1860), Ss. 193, 199 & 218Quashing of proceedings - Murder-Provincial Government constituting a Board of Doctors to probe into allegations of misconduct levelled against two doctors who allegedly gave a false post-mortem report-Board submitting a report to Provincial Government against said two doctors--Eye-witnesses in main murder case declining . to support prosecution case, consequently accused in said murder case was acquitted-Trial Court while acquitting accused in murder case ordering for trial of members of Board of Doctors for fabricating false evidence - Provisions of Ss. 193, 199 & 218 not attracted Approach of trial Court passing order of trial of members of Board of Doctors, held, was absolutely perverse-Judicial Officers, were expected to act judicially and to apply their mind before taking any action in any proceeding-Trial Court lost all sense of proportion and propriety before passing said order-Trial Court when called and examined by High Court making a false statement-High Court while quashing proceedings against Board of Doctors ordering for placing of copy of judgment of quashing order before Chief Justice for taking proper action against trial Court.
-- Ss. 561-A & 131-Penal Code (XLV of 1860), Ss. 193, 199 & 218Quashing of proceedings-Order of trial Court directing for trial of petitioners under Ss. 193, 199 & 218 found to be entirely perverse while trial Court losing all sense of proportion and propriety in passing said order- High handedness, arbitrariness and judicial tyranny, held, had to be curbed sternly.
Dr. Khalid Ranjha, Hasnal Ahmad and Muhammad Akbar Tarar for Petitioners.
Muhammad Saeed Ansari for the Complainant.
Khalil Ramday for the State.
Dates of hearing : 5th December, 1984, 21st and 23rd January, 1985.
Vide short order dated 23.1-1985, this petition was accepted and the criminal proceedings pending against the petitioners in the Court of Mr. Muhammad Jahangir Goraya, Magistrate 1st Class, Gujrat under the provisions of sections 193, 199 and 118, P. P. C. were quashed. Vide this order I propose to give the detailed reasons in support of the aforesaid judgment. The petition under section 561-A read with section 439, Cr. P. C. was filed by the petitioner in the following circumstances;---
Petitioner No. 1 is Surgeon, Medico-legal, Punjab, Lahore, petitioner No. 2 is Assistant Director (Medical), Health Directorate, Punjab, Lahore, while the petitioner No. 3 is District Health Officer, Jhelum. On 27-7-1982, within the jurisdiction of Police Station Sarai Alamgir, a fight took place in which one Khushi Muhammad alias Rehmat Khan, received injuries, he was kept in the hospital till 21-8-1982 on which day he was discharged. Khushi Muhammad was also a patient of Tuberculosis and thus he was again admitted in Mayo Hospital, . Lahore, where he was treated for about 13 days and was discharged. Dr. Muhammad Rashid Javaid, Incharge Tehsil Headquarter Hospital, Kharian again admitted Khushi Muhammad in the hospital on 3-10-1982 for the treatment of Asthma and after some days Khushi Muham,nad was discharged. After about a month, Khushi Muhammad got himself again admitted in the Kharian Hospital on 14-11-1982 from where he was sent to Mayo Hospital, Lahore, where he was admitted on 21-11-1982. On 3rd of December, 1982, Khushi Muhammad suffered a heart attack and died in the Mayo Hospital, Lahore.
3. 1t is alleged that the heirs of Khushi Muhammad deceased exploited the death of Khushi Muhammad to rope in their enemies, with a view to involve them in a murder case, in spite of the natural death of Khushi Muhammad. It is alleged, that the complainant side used their influence and with the help of Dr. Muhammad Rashid Javaid, Medical Offt er, Kharian and Dr. Abdur Rashid Khan, Medical Superintendent, Azia Bbatti Shaheed Hospital, Gujrat, a report was obtained to the effect, that Khushi Muhammad deceased, had in fact died as a result of injuries sustained in the fight which took place on 27-7-1 482. Allegedly the complainant side in collusion with the aforesaid Doctors converted a case of natural death into that of a murder.
4. Aggrieved by such conduct of the doctors one Khan Anwar Khan, Chairman Union Council, Baghnagar apprised the Secretary Health to the Government of Punjab, about the facts narrated above. The Secretary Health referred the complaint to petitioner No. 1 to examine the same. The petitioner No. 1 suggested for constitution of a Board, to make a probe into the allegations. Accordingly the Government of Punjab, constituted a Board of Enquiry comprising the three petitioners to be chaired by the petitioner No. 1. The Board was directed to submit the detailed report to the Health Department, about the conduct of the doctors. The Board of Enquiry examined the relevant material and submitted a detailed report to the Secretary Health, to the Government of Punjab, in brief the Board made following recommendations:
"(i) That the deceased Khushi Muhammad alias Rehmat Khan, was admitted in Tehsil Headquarter Hospital, Kharian on 27-7-1982, in a clandestine manner to give advantage to him.
(ii) Dr. Muhammad Rashid Javaid, Medical Officer Incharge Tehsil Headquarter Hospital, Kharian, could not satisfy the Enquiry Board as to how he labelled the deceased as having suffered from "collectively grievous" injuries. The rationale of declaring the result on 17-7-1982 when the patient was admitted on 22-7-1982 remained unexplained.
(iii) Dr. Muhammad Rashid Javaid, Medical Officer Incharge, Tehsil Headquarter Hospital, Kharran could not prove from the record of deceased Khushi Muhammad alias Rehmat Khan's reference to combined Military Hospital, Kharian and Mayo Hospital, Lahore. The record appears to have been manipulated.
(iv) Dr. Muhammad Rashid . Javaid, Medical Officer Incbarge, Tehsil Headquarter Hospital, Kharian, had sent the post-mortem report and other papers to the Chemical Examiner for detection of poison but did not send these reports to the Bacteriologist to the Government of the Punjab, where these were really required. He further delayed the declaration of cause of death by giving wrong address on the letter sent to the Bacteriologist who had to write at the given address which was Medical Officer, Tehsil Headquarter Hospital, Gujrat and not Tehsil Headquarter Hospital, Kharian.
(v) Dr. Muhammad Rashid Javaid, Medical Officer Incharge, Tehsil Headquarter Hospital, Kharian, could not prove the authority under which he had referred the case to Dr. Abdur Rashid Khan, Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat asking his expert' opinion.
(vi) Dr. Muhammad Rashid Javaid, Medical Officer Incharga, Tehsil Headquarter Hospital, Kharian, accepted Rs. 3,000 as illegal gratification from Anwar Khan through Mr. Muhammad Akram, Dispenser, for showing favour to the complainant side.
(vii) Dr. Abdur Rashid Khan, Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat, relied on Exhs. 28, 29/1, 29/2(a), 2 ,/2(b) 29/3, 29/4, 30, 31 in support of his opinion bearing No. ;96/MS, dated the 21st March, 1983. These references, in fact, proved the stand of the complainant. The opinion of the Radiologist, Mayo Hospital, Lahore, the Bacteriologist to the Government of the Punjab, Lahore, the Professor of Surgery, Allama Iqbal Medical College, Lahore, the Professor of Medicine, Allama 1qbal Medical College, Lahore and a seasoned Medical Superintendent (who bad been engaged in Medico-legal work for good many years and had been teaching Forensic Medicine to the students of Punjab Medical College, for over five years) are relevant. All the five experts are unanimous in their opinion, that the deceased Khushi Muhammad alias Rehmat Khan died of right branch block and congestive cardiac failure and the injuries were not the cause of his death.
(viii) Accordingly the Board holds Dr. Muhammad Rashid Javaid, Medical Officer lncharge, Tehsil Headquarter Hospital, Kharian and Dr. Abdur Rashid Khan, Medical Superintendent, Aziz Bbatti Shaheed Hospital, Gujrat, guilty of inefficiency and criminal misconduct."
The Board after arriving at the above findings made following recommendations :
"Both the doctors i.e. Dr. Muhammad Rashid Javaid, Medical Officer Incharge, Tehsil Headquarter Hospital, Kharian and Dr. Abdur Rashid Khan, Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat, should be transferred from their present place of posting and debarred from Medico-legal and post-mortem work with immediate effect and action initiated for inefficiency and misconduct.
(ii) Mr. Muhammad Akram, Dispenser, who is working as Dispenser for the last 13 years at Tehsil Headquarter Hospital, Kbarian, should be transferred to a place where no Medico-legal post-mortem work is done."
5. On the receipt of this report both the doctors namely Abdur Rashid Khan and Muhammad Rashid Javaid were called upon by the Government of Punjab for personal hearing. These doctors submitted an application in writing in which the allegation of personal animosity and bias were levelled against the Board. The Government of Punjab referred the report of the Board of Enquiry, as well as the aforesaid application moved by the two doctors, containing the counter-version, to the Anti-Corruption Establishment for holding further Enquiry. The Anti-Corruption Establishment after holding the enquiry registered a case under sections 420, 468 and 471 against the aforesaid two doctors vide F. I. R. No. 11, dated 2-6-1984.
6. In the meanwhile, the murder case in respect of Khushi Muhammad deceased became ripe for hearing in the Court of the respondent No. 1, Additional Sessions Judge, Gujrat. The eye-witnesses declined to support the prosecution case and thus after recording their short statements, the accused were acquitted. The two doctors namely Abdur Rashid Khan and Muhammad Rashid Javaid moved an application containing their counterversion to the report of the Board of Doctors before the District Magistrate, Gujrat, who referred the same to the respondent No. 1, the Additional Sessions Judge, Gujrat, for disposal. It is surprising that the Additional Sessions Judge after acquitting the accused in the main murder case proceeded to entertain the aforesaid application referred to him by the District Magistrate. The Additional Sessions Judge proceed to record the statement of doctors as Court witnesses in the said case and simultaneous with the recording of the acquittal, the learned Additional Sessions Judge directed that the petitioner be proceeded against for the commission of offence under sections 193, 199 and 218 of the P. P. C. In the first instance, the learned Additional Sessions Judge kept the case with him, but soon thereafter he passed another order, observing that the offences were not triable by him and thus after issuing bailable warrants against the petitioners, the case was sent to the Court of Mr. Muhammad Jahangir Goraya, Magistrate, 1st Class, Gujrat for holding the trial of the petitioners. As stated above the petitioner moved this petition seeking quashment of the aforesaid criminal proceedings. In course of the hearing by this application, Dr. Abdur Rashid Khan. Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat, entered appearance and prayed for being impleaded as a party. His application was allowed and he was also heard at length through his counsel. I have heard the learned counsel appearing for the parties at length. After careful consideration of the circumstances of the case, I also called upon the respondent No. 1 to submit parawise comments on the application moved by the petitioner. In addition thereto, I also summoned the respondent No. 1 in Court to examine him: In response to the following questions put by the Court, the following answers were given :
Q. Was the post-mortem report placed before you as legal evidence in the case
A. No.
Q. Was the opinion of the Board of Doctors placed before you
A. Alongwith the application received by me through the District Magistrate, Gujrat a rough copy of the aforesaid opinion was also received and I had perused the same.
Q. Did the opinion of the Board of Doctors constitute a post-mortern report
A. The opinion of the ,Board of Doctors constitute the post-mortem report.
7. The crucial questions which arises in this case is, as to whether the petitioners while acting as a Board of Enquiry constituted by the Government of the Punjab, to make a probe into the complaint against the two doctors, had committed an offences under sections 193, 199 and 218 of the P. P. C., by fabricating another post-mortem report. The answer to this question is definitely in negative. The provisions of these sections are reproduced hereunder 193, 199 and 218, P. P. C. :
"193.-Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates f else evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine ;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
199.-Whoever, in any declaration made or subscribed by him, which declaration an), Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to t e object for which tile declaration is made or used, shall be punished in the same manner if he gave false evidence.
218.-Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in manner which he knows to b-- incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.
The perusal of the above provisions, clearly establish, that none of these, provisions are attracted to the circumstances of the case."
8. The approach of the learned Additional Sessions Judge, while passing the impugned order in this case is absolutely perverse. The judicial O1'ficer are expected to act judicially and to apply their mind before taking any action in a , proceeding. Unfortunately, the respondent No. 1 lost all sense of proportion and propriety before passing the impugned order for holding the trial of the petitioners for fabricating a post-mottem report. The examination of the respondent No. 1 and the perusal of record by me. clearly reveals. that what to talk of the fabrication of any post-mortem report by the petitioners. no occasion arose during the trial to examine the original post-mortem report as prepared by the doctors Abdur Rashid Khan and Muhammad Rashid Javaid. The record shows that on the date of bearing, the eye-witnesses tiled affidavits declining to support the prosecution case, whereupon the Public Prosecutor gave up all the prosecution witnesses, and the respondent No. 1 after recording short statement of the eye-witnesses acquitted all the accused persons. No occasion arose to consider the post-mortem report in any manner what so ever. It was further shocking to observe; that even the report of the petitioners as Board of Enquiry the basis of the trial of the petitioners was not placed before the learned Additional Sessions Judge, when examined by me, in answer to a question, he state l in Court, that a rough report was received by him alongwith the application of the two doctors, which was referred to him by the District Magistrate. I have perused the record, the assertion of the Additional Sessions Judge, is not borne out from the record of the case. Neither the original nor a rough copy of the report of the Board of Enquiry is existing on the record. To satisfy myself, further enquiry was made from the Court of the respondent No. 3 as well as from the Court of respondent No. 1 as to whether the rough copy or any other copy of the report of the Board of Enquiry was lying in the said Court. It was reported that no such papers relating to this case were lying in either of the Court.
9. It is high time for this Court to take proper steps to control this subordinate judiciary, so that it acts in accordance with law and within the limits prescribed by law. High handedness, arbitrariness and the Judicial G tyranny has to be curbed sternly. The respondent No. 1 ought to have noticed that a Board of Enquiry was constituted by the Government of Punjab, and it had to act in accordance with its charter, to make a probe into the conduct of doctors. The Government of Punjab, had all the power to do so and hence the report by the Board of Enquiry can hardly be considered as f fabrication of false evidence .within the meaning of section 193, P. P. C. Such report was meant for the Government of Punjab and not for a Court of Law. Its object was only to examine the conduct of the doctors. The prosecution launched against the petitioner by the orders of the respondent, No. 1 is abuse of the process of the Court, because in an indirect manner, the Board of Enquiry cannot be harassed for having performed its duties. A copy of this order shall be placed before the Chief Justice for such action as he may deem fit.
H. A. K. Proceedings quashed.
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