September 2018

PLJ 2018 Cr.C. 770
[Lahore High Court, Multan Bench]

Present: Muhammad Qasim Khan, J.

MUHAMMAD KHALID, etc.--Petitioners

versus

STATE, etc.--Respondents

Crl. Misc. No. 190071-B of 2018, decided on 4.7.2018.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Pre-arrest bail--Pakistan Penal Code, (XLV of 1860),
Ss. 337-A1, 337-A3, 337-L2 --Confirmation--Attributed general role without any specific injury to victim--Previous family and civil litigation between parties exist--Joint owner of disputed house--Application S. 452, PPC will be seen at trial--Possibility of false implication as a result of widening net, cannot be ruled out--Pre-arrest bail confirmed. [Pp. 773 & 774] A

Criminal Procedure Code, 1898 (V of 1898)--

----Pre-arrest bail--Dismissal of--Nominated in FIR with specific role of inflicting fist blow on nose of daughter of complainant, which is corroborated by medical evidence--Bail dismissed. [P. 774] C

Standing Medical Board--

----Illaqa Magistrate had ordered constitution of District Standing Medical Board (DSMB), where complainant did not appear--Even prior to case injured persons were not informed about date of said Board--In order to settle situation, efforts were made--Comprehensive measures shall be included in notification--Standing Medical Board, Comprehensive measures for:

ILAQA MAGISTRATE:

(i) Application for the purposes of re-examination by DSMB or examination through Board against the decision of the DSMB shall be filed before the Magistrate by the aggrieved party;

(ii) After receiving the application the Magistrate will issue notice to the injured/complainant (as the case may be) and the Investigating Officer for their appearance;

(iii) The Magistrate shall not ordinarily adjourn the matter for more than one day;

(iv) The Magistrate shall pass the order after securing the attendance of the injured/complainant and the Investigating Officer. If after service the injured or the complainant do not appear he may proceed in their absence;

(v) If the Magistrate passes an order for re-examination through DSMB or the appellate board, he will provide three days’ time to the applicant for depositing the relevant fee for this purpose as notified by Government of Punjab, Health Department and he shall further clarify in the order that if the fee is not deposited within stipulated period, the order shall be deemed to have been recalled;

(vi) The Magistrate through the Investigating Officer shall get information about future dates when DSMB or the appellate Board is to assemble and shall direct the injured/I.O. or any other concerned to appear before the DSMN/Board on the said date. (According to the prevailing practice the DSMB assemble on first and last Wednesday of every month);

(vii) Copy of the order for re-examination through DSMB or the Board be sent to the DSMB and the Board as the case may be;

(viii) Copy of the order be also sent to DPO and S.P (Investigation) concerned for compliance.

DISTRICT STANDING MEDICAL BOARD/ APPELLATE BOARD.

(i) After receiving order of the Magistrate for re-examination of the injured, DSMB or the Board shall examine the injured on the date so fixed by the Magistrate;

(ii) If for any justifiable reason beyond the control of DSMB/Board the injured could not be examined on the date fixed, DSMB or the Board shall inform all concerned about the next date to be fixed and intimation shall be communicated to the Magistrate as well as DPO well in time;

(iii) If on the date fixed, without any justifiable explanation, the injured does not appear despite his service, the DSMB/Board may proceed against him and may close the proceedings;

(iv) If any justifiable reason is put-forth by the injured the one more opportunity may be provided to him;

(v) If service on the injured is not effected by the I.O./SHO then DSMB/Board shall bring this aspect to the notice of the Magistrate/DPO who shall inquire into the matter, fix responsibility and proceed against the delinquent on departmental side, as well as if the act is covered under any cognizable offence then may direct for registration of criminal case and report in this respect by the DPO shall be sent to the DSMN/Board/Magistrate concerned;

(vi) If the relevant doctor who had conducted first examination of the injured does not appear before the DSMB/Board along with record without any justification then his matter shall be referred to the Secretary Health for inquiry and if found negligent he will be proceeded against under the relevant laws;

(vii) If proceedings before the DSMB/Board are completed they shall inform the Ilaqa Magistrate and DPO in writing and copy of the report be issued to the Investigation Officer, attested copy whereof shall also be sent to the Ilaqa Magistrate concerned.

POLICE.

(i) When an order for re-examination of the injured through DSMB/Board is received in the office of DPO, he shall immediately direct the concerned officials for its compliance;

(ii) The DPO shall depute one focal person for keeping the computerized record about the orders received for re-examination of the injured through DSMB or the Board;

(iii) The focal person shall ensure compliance of the orders and complete record in this respect shall be maintained and report of service shall be conveyed to the Magistrate/DSMB/Board before or on the date fixed for re-examination;

(iv) The DPO shall ensure that the orders of the Magistrate shall not only be communicated to the injured, rather the same shall also be complied with by presence of the injured before the Board, as well as production of the record of police;

(v) In case the injured is not served by the SHO/IO, the SHO/IO, as the case may be, shall convey the report to the DPO, who shall verify the genuineness of the reasons advanced therein and if not satisfied with it he shall adopt legal measures against the delinquent officials and shall further adopt legal measures to ensure service on the injured. [Pp. 777, 778 & 779] D

Ch. Muhammad Ali, Advocate with Petitioners.

Ch. Anwaar-ul-Haq Pannu and Nosheen Ambar, Advocates for Complainant.

Mr. Muhammad Amjad Rafiq, Addl.A.G. and Usman Iqbal, D.P.G. for Respondents.

Mr. Muhammad Hamad Khan Rai, Asstt. A.G., Barrister Haaris Ramzan Legal Advisor, Primary & Secondary Health Care Deptt.

Date of hearing: 4.7.2018.

Order

Petitioners (Muhammad Khalid, Shafaqat Hussain and Muhammad Iftikhar) seek pre-arrest bail in case FIR No. 138/2018 dated 20.02.2018 under Sections 337-A(i), 337-(iii), 337-L(ii), PPC registered at Police Station Saddar Gujranwala.

2. This petition to the extent of Shafaqat Hussain (Petitioner No. 2) has already been dismissed due to non-prosecution vide order dated 21.05.2018. It has been observed that Shafqat Hussain (Petitioner No. 2) had also filed a separate pre-arrest bail application (Crl. Misc. No. 220756-B/2018) in the same case, and the same has also been dismissed vide a separate order of even date on the ground of misuse of concession.

3. As regards, Muhammad Khalid, he has been assigned a joint role along with Iftikhar Ahmad, Shafaqat Hussain, Ahmad and three unknown assailants that they entered the house of the complainant while carrying DANDAs, hurled abuses, extended threats, maltreated Mst. Samina Bibi and Fatima Bibi, all the accused inflicted fist, kick and Danda blows to Mst. Samina and dragged her outside the house. As shall be seen from the allegations leveled in the FIR the petitioner along with co-accused has been attributed general role without any specific injury by the petitioner to the victim. Previous family and civil litigation between the parties exists. Shafaqat Hussain co-accused of the petitioner is stated to be 50% owner of the disputed house and his wife is living therein, whereas, applicability of offence under Section 452, PPC will be seen at the trial after recording of evidence. As cumulative effect of above, considering the background of hostility between the parties, in the light of case “Meeran Bux versus The State and another” (PLD 1989 SC 347), possibility of petitioner’s false implication in this case as a result of widening the net cannot be ruled out. Consequently, this application to the extent of Muhammad Khalid (Petitioners No. 1) is allowed, interim pre-arrest bail granted to him is hereby confirmed subject to furnishing fresh bail bond in the sum of Rs. 100,000/- with one surety in the like amount to the satisfaction of learned trial Court.

5. Coming to the case of Muhammad Iftikhar (Petitioner No. 3), he is nominated in the FIR with a specific and distinguishable role of inflicting fist blow on the nose of Mst. Samina Bibi, injured daughter of the complainant. The role ascribed to Muhammad Iftikhar (Petitioner No. 3) attracts Section 337-A(iii), PPC, the same is supported by the ocular account and corroborated by medical evidence. Therefore, I see no justifiable reason to the grant of extra ordinary concession of pre-arrest bail to him. Consequently, bail application to the extent of Muhammad Iftikhar (Petitioner No. 3) is dismissed.

4. During the course of hearing, one of the ground agitated for confirmation of pre-arrest bail was that on a move by the petitioners, the Ilaqa Magistrate had order constitution of District Standing Medical Board, where the complainant/injured did not appear, therefore, an inference against the injured had to be drawn and benefit thereof must be extended to the petitioners. It has been observed that even prior to this case, in so many petitions grievances were raised by the respective parties that although on their move District Standing Medical Board was constituted but the injured were not informed about it and in some cases even the police officials admitted that they had not informed the injures about formation of the District Standing Medical Board or about the date fixed by the said board for re-examination. In order to settle this situation the AIG (Legal) was summoned, who submitted his detailed report with reference to SOP, a copy whereof is tagged below:

2018LHC1684_Page_3

As in the process of re-examination of the injured two departments i.e. police and the health wing are involved and from the above reproduced SOP it appeared that some more clarification was also required, therefore, this Court directed the Secretary Health and AIG (Legal) to collectively arrange a meeting with law officers of this Court, who had firsthand knowledge of the difficulties faced to this Court in such like matters and then draw a uniform and comprehensive strategy to remove such practical problems. Consequent upon Court orders, a meeting was held and ultimately a notification (SOPs for medicolegal cases) has been drafted and presented to this Court, as tagged below:

5. MLC is an evidence which is collected by the I.O. during course of investigation as under Section 156, Cr.P.C. the Ilaqa Magistrate can direct for investigation in a case, as investigation includes collection of evidence for the purposes of digging out truthfulness or falsehood of the allegations for commission of an offence, he can exercise this power for passing an order for re-examination of an injured through District Standing Medical Board (hereinafter shall be read as DSMB) or the Appellate Board (hereinafter shall be read as Board). However, the Magistrate shall not pass an order blindfolded, rather shall apply his judicious mind to the facts and circumstances of the case. It appears that for the same reason vide three tire policy notifications, the Government Punjab, Health Department, desired the Magistrate to pass an order on the application of an aggrieved person.

6. On perusal of the above referred notification, it has been observed by this Court that different clauses thereof may not have binding impact on the other relevant department/forum, as such, in order to tackle this situation, it is suggested that following comprehensive measures shall be included in the notification so as public it in a compact form:-