2009 PCrLJ 1281
Magistrate had allowed reexamination of the injured witness on the application of accused, which order had been set aside by Sessions Court in revision on the ground that medical Board could not be constituted after 21 day s of the first medical examination of the injuries, as the injuries would have healed up in 5 to 7 days. Notification of the Government of Punjab, Health Department No.SO(H&D)6-1/90, dated 12-2-1990 had ordained that the order for constitution of medical Board to re-examine the injuries must be passed within three weeks---Another notification No.SO(H&D)6-1-/90, dated 8-2-1992 had clarified that if re-examination order was passed by the District, Magistrate in judicial capacity even after three weeks of the first examination , the same would supersede the Notification, dated 12-2-1990---Magistrate had ordered re-examination of the injured after. a period of six months of his first examination , which was not much in quest of justice at such a belated stage---Even Sessions Court did not appear to be aware of the notification dated 8-2-1992---By the time re-examination of the injured was directed the injuries must have healed up and any opinion of the medical Board would be more on a topsy-turvy view which could create misgivings---Conclusion drawn by the Sessions Court was consequently upheld by High Court for its own reasons---Constitutional petition was dismissed accordingly.
*2004 MLD 1401*
Application for constitution of medical Board to re-examine injuries on the person of the injured as according to accused medical certificates with regard to injuries on person of injured were obtained by prosecution through fraud---Said application was dismissed by Judicial/Ilaqa Magistrate on ground that after 26 day s of medical examination of injured, medical Board could not be constituted for re-examination ---Additional Sessions Judge accepting revision of accused., set aside order of Judicial Magistrate holding that only medical expert could give opinion regarding nature of injuries.
*1999 PCRLJ 2055*
Medical re-examination of the injured prosecution witness on the application of accused by medical Board was conducted after the expiry of more than 21 day s of his first medical examination ---medical Board could only be constituted for the purpose of re-examination within 21 day s of the first examination as per decision of Secretary, Health Department of Provincial Government and in view of this legal and factual position the aforesaid re-examination of the injured witness was cancelled on the application of his father---District Magistrate, thereafter recalled this order and directed prosecution of the father of the injured witness under S.193, P.P.C. by means of the impugned order.Re-examination of the injured witness had been cancelled strictly in accordance with law and there was no question of concealment of facts on the part of the petitioner (father of the injured witness) and proceedings against him under S.193, P.P.C. were not warranted by law---Impugned order passed by District Magistrate was, consequently, declared to be illegal and void--Constitutional petition was allowed accordingly.
*2013 YLR 499*
*2015 PCRLJ 166*
Medical Board declared the accused as 22-23 years of age which had not been challenged by him and he had never demanded Re-examination by creating doubts on opinion of Medical Board---Accused was not a child when occurrence took place within the meaning of S. 2(b) of the Juvenile Justice System Ordinance, 2000 and findings of the Trial Court were justified and did not call for any interference.
Ss. 7 & 2(b)---Determination of age---Ossification test---Accused moved an application seeking declaration to be a juvenile at the time of commission of crime which was dismissed by the Trial Court after an inquiry and ossification test conducted by the Medical Board---Contention of the accused was that he was less than the age of eighteen years at the time of commission of crime---Validity---Accused applied for a declaration of his being a juvenile and he himself suggested the ossification test through a Medical Board and the same had been termed by him as a mandatory step within the meaning of S. 7 of the Juvenile Justice System Ordinance, 2000---Medical Board declared the accused as 22-23 years of age which had not been challenged by him and he had never demanded Re-examination by creating doubts on opinion of Medical Board---Accused was not a child when occurrence took place within the meaning of S. 2(b) of the Juvenile Justice System Ordinance, 2000 and findings of the Trial Court were justified and did not call for any interference---Revision was dismissed.
*PLJ 2019 Lahore 271 (DB)*
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Qasim Khan and Muhammad Tariq Abbasi, JJ.
AHMAD KHAN--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, TALAGANG and 4 others--Respondents
W.P. No. 2531 of 2018, decided on 19.2.2019.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 435--Standing Medical Board--Revisional Jurisdiction--An Executive order--Petitioner filed an application before learned Judicial Magistrate, for constitution of Medical Board for re-examination of injured, said application was dismissed, where-after, a criminal revision filed by petitioner also met same fate vide order passed by learned Additional Sessions Judge-Dismissing application for constitution of medical board, is administrative order and thus not revisable under Section 435, Cr.P.C.--An order of Judicial Magistrate allowing or dismissing an application for medical re-examination of injured being an executive order, is not amenable to revisional jurisdiction-both injured persons were medically examined almost seven months ago, injuries sustained by victims are covered under Sections 337-F(i), 337F(ii) and 337-L(ii), PPC, after such long with all probability wounds must have healed up, therefore, it would be a futile effort to get them medically re-examined at this belated stage.
*2010 YLR 2772; 2010 PCrLJ 1799; PLD 2007 Lahore 176; PLJ 1997 Lahore 1568; 2017 MLD 1828; 2010 YLR 2772; 2010 PCrLJ 1799; PLJ 2001 Cr.C (Lahore) 355; 1984 PCrLJ 2588; PLD 1985 SC 62; 2004 MLD 1401, ref.*
Powers of Magistrate--
----Under Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging same, does not always function as a Court, conducts judicial proceedings or is amenable to revisional jurisdiction--Some of his powers and duties under Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata--Mere name or designation of a Magistrate is not decisive of question because at some times Magistrates perform their duties by applying their judicial minds but these proceedings are administrative in nature and some time their orders are judicial orders and guiding principles have been settled by superior Courts in this respect.
Executive Order--
----Re-examination of injured persons--Revisional jurisdiction--An order of Judicial Magistrate allowing or dismissing an application for medical re-examination of injured being an executive order, is not amenable to revisional jurisdiction--Petition was dismissed.
*2004 MLD 1401*
This is a case wherein, application for constitution of Medical Board to re-examine the injured moved after 26 days of the medical examination, was dismissed on the ground that after such long time medical board could not be constituted for re-examination; a revision filed against said order was allowed by Additional Sessions Judge. The revisional order was assailed before this Court on the ground that order passed by Ilaqa Magistrate being an executive order, no revision could be filed, but this argument was rejected and writ petition was dismissed.
*PLD 2007 Lahore 176*
In this case application for exhumation of grave was dismissed by the Judicial Magistrate, where-against a revision was filed, which was allowed by remanding the case. In post remand proceedings, the said application was accepted by the Judicial Magistrate, which order was again challenged in criminal revision and the same was dismissed by learned Additional Sessions Judge, where-after, a writ petition filed before this Court, was also dismissed. This matter was about exhumation of graveyard and proceedings were carried out under section 176 Cr.P.C., thus the facts of the said case are clearly distinguishable from the facts of the instant case.
*PLJ 1997 Lahore 1568*
This is a case wherein, the matter was directly brought to the High Court through writ petition and in the light of relevant notifications it was held that District Medical Board can only examine such cases on judicial orders of District Magistrate, but no parameters or differences between the judicial or executive orders were discussed.
*2017 MLD 1828*
In this case, application for medical examination of the injured had been turned down by the Magistrate and the criminal revision filed against said order was dismissed by Additional Sessions Judge on the ground of maintainability, however, both the above orders were set-aside by this Court, but the question whether the order of Magistrate is judicial or an executive order and whether criminal revision is maintainable or not, was not discussed in this case and only the question of limitation for moving an application for re-examination of injured, was discussed.
Following are that cases wherein, the orders passed by the Courts have been declared to be executive orders:--
*2010 YLR 2772*
In the cited case, application for re-examination of the injured was dismissed by Judicial Magistrate and criminal revision filed before Additional Sessions Judge had been turned down, where-after, writ petition was filed before this Court on the ground that order passed by the Ilaqa Magistrate is executive order and could not be assailed through revision petition. The writ petition was dismissed but no reasons for it being a judicial order were discussed and the writ petition was decided on the ground that learned counsel for the petitioner could not establish that the order of Magistrate is executive order. It appears that the said writ petition was dismissed in limine, as neither the state was represented nor any counsel for other respondents has been marked present.
*2010 P.Cr.L.J. 1799*
This is a case wherein the Magistrate had allowed the injury sustained by the complainant to be verified by the Medical Board. The said order was however, set-aside by Sessions Court while allowing a criminal revision. Ultimately this Court while accepting Criminal Miscellaneous application, set-aside the order of the Sessions Court by holding that the order of Magistrate being an administrative order could not be challenged through a revision petition.
*PLJ 2001 Cr.C (Lahore) 355*
In this case, when police applied for remand of an accused, the Magistrate converted offence from 354 PPC to 354-A PPC, which order was challenged in criminal revision which was allowed by Additional Sessions Judge and the order of the Magistrate was set-aside. This Court however, while allowing Criminal Miscellaneous application quashed the order of Additional Sessions Judge, by holding that revision against the said order of the Magistrate was not maintainable and that power of revision could be exercised only when a proceeding is pending before any inferior criminal Court.
*PLD 1985 Supreme Court 62* after going through the judgment and the definitions provided in Black’s Law Dictionary VIth Edn, we can further summarize the situation in the manner that while drawing bifurcation between the two orders, whether the same are judicial or administrative in nature, the Court must keep in mind the following conditions:--
Traits of Judicial Order.
(i) There must be power to hear and determine a controversy;
(ii) There must be power to make a binding decision (sometime subject to appeal) which may affect the person or property or other rights of the parties involved in the dispute;
(iii) It must involve the doctrine of res-judicata which has been held not to apply to the exercise of administrative powers;
(iv) It must touch the doctrine of functus officio which has been held not to apply to prevent the exercise of administrative powers;
(v) It must be binding and conclusive in so far as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself.
Traits of Administrative Order.
(i) Administrative functions consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services;
(ii) An administrative order is potentially open to attach for any material error of law or fact in either direct or collateral proceedings;
(iii) It cannot constitute res-judicata;
(iv) It may always be rescinded by the body making it.
Now, when we gauge the impugned order dismissing the application for re-examination of an injured, on the touchstone of above criterion, there remains no ambiguity that it definitely falls in the second category i.e. administrative order, for the reason that while passing such an order by the Court, definitely no lis was pending before the learned Judicial Magistrate, he was not functioning as criminal Court, it was not obligatory for the said Magistrate to hear the parties before making such an order, there was no conclusive decision given and, no finality or irrevocability was attached to it. As such, the order passed by the Ilaqa Magistrate was clearly missing the necessary characteristics of being a judicial order, as a consequence whereof; against the same order the revisional jurisdiction was not available to the learned Additional Sessions Judge.
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