2001 P Cr. L J 1709
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 192 & 197‑‑‑Fabrication of false evidence and issuance of false certificate by doctors ‑‑‑Detenu, in the present case, in his statement made on oath before High Court complained of physical torture at the hands of police and he was directed by the High Court to be medically examined by the Deputy Medico‑legal Surgeon‑‑‑Medical Officer in the office of the Medico legal Surgeon examined the detenu and his medical report was duly verified by the Deputy Surgeon Medico‑legal, according to which no recent mark of physical violence was seen on the body of the detenu at the time of his examination ‑‑‑Detenu was, then, got medically examined by the High Court by the Medical Board constituted by Medical Superintendent of the Hospital which found many injuries on the person of the detenu‑‑‑High Court in view of the conflicting medical reports and to resolve the controversy directed the detenu to be again examined by the Medical Board to be constituted by the Additional Secretary Health, Government of the Province of the Doctors of known integrity and skill in their profession, which also depicted injurig on the person of the detenu‑‑‑Charge was consequently framed against the .Doctors to which they pleaded not guilty and they were tried accordingly‑‑ Defence plea that the injuries on the person of the detenu had been fabricated after his examination by the accused was negated by the duration of the injuries given by the First Medical Board which corresponded with the time of physical violence alleged by the detenu‑‑‑Medical examination of the detenu had been conducted only by the two Doctors, that is, a Medical Officer and the other Deputy Surgeon Medico‑legal, in deviation from the standing instructions issued by the Health Department which was not understandable‑‑‑Injuries on the person of the detenu, thus, were present, but the accused Doctors had tried to deceive the Court by fabricating a false certificate and committed the offences under Ss.192 & 197, P.P.C. punishable under S.193, P.P.C.‑‑‑Accused (Doctors) who belonged to a noble profession had committed most heinous, unsocial and immoral offence which was not ,expected of them and they deserved no leniency‑‑‑Accused Medical Officer was consequently convicted under Ss.192 & 197, P.P.C. and sentenced to five years' R.I. on each count with fine directing the sentences to run concurrently‑‑‑Accused Deputy Surgeon Medico‑legal was convicted under S.197, P.P.C. and sentenced to suffer five years' R.I. with fine.
Ch. Aurangzeb and Mian Muhammad Jamil for the Accused.
Muhammad Hanif Khatana, Addl. A.‑G./S.P.P. for the State.
Khalid Naveed Dar: Amicus curiae.
STATE VS M. AFZAL2001 P Cr. L J 1709[Lahore]Before Khawaja Muhammad Sharif, JTHE STATE‑‑‑PetitionerversusM. AFZAL and others‑‑‑RespondentsCriminal Miscellaneous No.2619/M of 2000, heard on 05/01/2001.
ORDER
Facts of the case are that Mushtaq Hussain filed a petition under section 491, Cr.P.C. for the recovery of Nadeem Iqbal, his nephew, from the illegal custody of respondents S.H.O. Police Station Sambrial and Rai Munir Ahmad, A.S.‑I. of the said police station alleging therein that Nadeem Iqbal was taken into custody by Rai Munir Ahmad S.‑I. on 9‑12‑2000 at 12 noon alongwith 4/5 subordinate police officials. It was stated in the petition that Mushtaq Hussain when approached respondent No.2 Rai Munir Ahmad, S.‑I. he demanded Rs.40;000 for the release of Nadeem Iqbal though no case was registered against him.
2. The habeas petition came up for hearing on 12‑12‑2000 when a bailiff was deputed to recover Nadeem Iqbal from the custody of police officials‑respondents and to produce him before this Court on 13‑12‑2000 with further direction to the petitioner to deposit Rs.1,000 as security. The bailiff raided Police Station Sambrial, recovered Nadeem Iqbal, the detenu and produced him before this Court on 13‑12‑2000. According to report of the bailiff, Nadeem Iqbal the detenu was found confined in the lock‑up of Police Station Sambrial. On inquiry, Nadeem Iqbal told the bailiff that he was taken into custody by Rai Munir Ahmad, S.‑I. on 9‑12‑2000 at 12 noon from the petrol pump and was not produced before any Magistrate by the police. Nadeem Iqbal also complained of physical torture and showed marks of violence. The bailiff also reported that Nadeem Iqbal was not nominated in the F.I.R. in which he was alleged to have been arrested, in the Roznamcha of police station, there was no mention of arrest of Nadeem Iqbal, police file of case F.I.R. No.370 of 2000 was not shown to the bailiff on the pretext that Rai Munir Ahmad, S.‑I. had gone out from police station and the bailiff also checked the Roznamcha as to departure of Rai Munir Ahmad, S.‑I. in connection with investigation of any case but there was none and since the arrest of Nadeem lqbal was not shown in the record of police station, the bailiff took him into custody, handed him over to Mushtaq Hussain, his real paternal‑uncle with direction to produce Nadeem Iqbal before this Court on 13‑12‑2000.
3. On 13‑12‑2000 statement of Nadeem Iqbal was recorded on oath in which he too complained of physical torture at the hands of police, so I directed the bailiff to produce Nadeem Iqbal before the Deputy Medico‑legal Surgeon, Punjab, Lahore for his medical examination. Allegedly, the medical examination on the body of Nadeem Iqbal was conducted by Dr. A Muhammad Afzal, Medical Officer, Office of the Medicco‑legal Surgeon, Punjab, Lahore, which was duly verified by Dr. Nadeem Afzal Ashrafi, Surgeon Medico‑legal Punjab, Lahore. According to report submitted by Dr. Muhammad Afzal and verified by Dr. Nadeem Afzal, Ashrafi, Exh.P.A. there was no recent mark of physical violence seen on the body of Nadeem Iqbal at the time of his examination. When the case was taken up in later part of the day after receipt of the report Exh.P.A. learned counsel for Mushtaq Hussain, petitioner in habeas petition vehemently contended that there were marks of violence on the body of Nadeem Iqbal and in fact Dr. Muhammad Afzal did not bother to get the clothes of Nadeem Iqbal removed to give a correct opinion. In the interest of justice, I directed the bailiff to produce Nadeem Iqbal before the Medical Superintendent, Mayo Hospital, Lahore with the direction to M.S. to constitute a board of doctors to examine the person of Nadeem Iqbal and then to submit report to this Court.
4. On 14‑12‑2000, report . of the Medical Board consisting of Dr. Sadaqat Ali Khan, Associate Professor of Surgeory, Dr.‑ Abdul Hameed Rana, Additional Medical Superintendent; Mayo Hospital, Lahore, Dr. Saeed Ahmad, Assistant Professor of Forensic Medicine and Toxicology Department, K.E.M. College, Lahore and Dr. Muhammad Naeem, Assistant Professor of Neurology, Mayo Hospital, Lahore, was submitted according to which the following injuries were found on the person of Nadeem Iqbal:‑‑
(1)Bruise reddish blue in colour present on 'front of left thigh 24 c.m. above left knee measuring 5 x 9 c.m.
(2)Bruise reddish blue in colour measuring 4.5 c.m. x 11 c.m. present on the front left thigh lower part 9 c.m. above the left knee.
(3)Bruise 4.5 x 8 c.m. reddish blue in colour present on the front of outer aspect of right thigh 24 c.m. above right knee.
(4)Bruise reddish blue in colour measuring 5.5 x 13 c.m. present on the left buttock extending to upper back left thigh.
Opinion
The injuries Nos. l‑5 described above are caused by blunt means and are of variable duration ranging from 2‑5 days and fall under section 337‑L(ii), of Qisas and Diyat Law.
5. In view of the glaring difference of opinion between the report Exh.P.A. submitted by Dr. Muhammad Afzal and Dr. Nadeem Afzal Ashrafi and that of Board constituted by Medical Superintendent, Mayo Hospital, Lahore, Exh.P.B., both the doctors Muhammad Afzal and Nadeem Afzal Ashrafi were directed to appear before this Court and to explain their position.
6. The matter was then taken up on 15‑12‑2000 when both the respondents were directed to file their written reply. On the same day. Mr. Khalid Naveed Dar, Advocate was appointed as amicus curiae to assist the Court. Mr. Muhammad Hanif Khatana, learned Additional Advocate‑General was also asked to be of assistance. On 18‑12‑2000, after hearing both the respondents and in keeping with the conflicting reports so as to resolve the controversy, Secretary Health, Government of Punjab was summoned to appear. In response to Court's direction, Dr. ljaz Bhatti, Additional Secretary, Health appeared. He was directed to take Nadeem Iqbal with him and to get him medically examined from doctors of known integrity and skill in their profession. The case was adjourned to 20‑12‑2000 for submission of the report by the Board to be constituted by the Additional Secretary Health, Government of Punjab. On the adjourned dated that is, 20‑12‑2000 Dr. Muhammad Akram, Under Secretary, Health Department Government of Punjab placed on record the report Exhs.P.B. and P.B./1 which depicts the following injuries on the person of Nadeem Iqbal.
Injuries
(1) A faint contusion brownish in colour with linear scabbed abrasion in an area 16 x 18 c.m. situated on lower part of front of left thigh just above the knee joint.
(2)A faint contusion brownish in colour in an area 12 x 13 c.m. on right lower front of thigh just above the knee joint.
(3)A faint contusion yellowish in colour in an area 20 x 30 c.m. on the outer aspect of left buttock.
(4)A faint contusign bluish brown in colour in an area 7 x 11 c.m. on the centre of right buttock.
Comments
"Injuries stated above are caused by blunt means. The exact time between infliction of injuries and examination on the basis of colour change is only a rough estimate being influenced by a large number of factors, however, the approximate range falls within 7‑14 days."
7. In view of the above circumstances, Dr. Muhammad Afzal and Dr. Nadeem Afzal Ashrafi were given notice as to why they should not be proceeded under sections 192, 193, 197, 201, 219 and 466 read with section 109, P.P.C. On the next date of hearing i.e. 21‑12‑2000 copies of the M.L.Rs. of both the Boards alongwith the statement of the detenu Nadeem Iqbal were handed over to the accused with the direction that on the next date of hearing charge will be framed and evidence recorded. Upon this, Mr. Muhammad Hanif Khatana, learned Additional Advocate‑General/S.P.P submitted that for prosecution of the respondents, sanction from the Provincial Government is necessary as required under section 197, Cr.P.C. I need not dialate upon this objection because section 197, Cr.P.C. has been declared to be repugnant to the Injunction of Islam in the case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate PLD 1992 SC 72.
8. Charge was framed on 2‑1‑2000 to which the respondents pleader not guilty. Thereafter, the learned Special Public Prosecutor produced Nadeem Iqbal the alleged detenu as P.W.1, Dr. Sadaqat Ali Khan, Associate Professor of Surgery, Mayo Hospital, Lahore as P.W.2, Dr. Muhammad Athar, Chief Chemical Examiner, Government of Punjab as P.W.3, and Tanveer Rehmat Bailiff, Lahore High Court. Lahore as P.W.4, then statements of accused were recorded under section 342, Cr.P.C. in which they claimed false implication because of enmity with Dr. Saeed Malik, a Member of the Board, constituted by Medical Superintendent, Mayo Hospital, Lahore. Both the accused did not opt to get their statements recorded under section 340(2), Cr.P.C. Accused produced Dr. Muhammad Arshad Awan, Surgeon, Medico‑legal, Punjab as D.W.1. in their defence and Dr. Muhammad Akram, Under Secretary, Office of the Secretary Health, Government of Punjab, Civil Secretariat, Lahore as D.W.2.
9. After having gone through the entire prosecution evidence and the defence produced by the accused, learned counsel for both the accused submit that there are material discrepancies in the statement of detenu namely Nadeem Iqbal, that he is in the habit of manufacturing injuries on his person himself; Dr. Sadaqat Ali Khan, Chairman of the Board constituted by the Medical Superintendent, Mayo Hospital, Lahore does not know anything about medico‑legal cases and that he was unable to reply some specific questions and that the injuries mentioned by the two Medical Boards were in fact self‑suffered by Nadeem Iqbal detenu because when he was student of school he himself inflicted injuries on his wrist with blade. Further, submits that both the accused have issued the M.L.R. Exh.P.A. not with any bad intention. Actually, there was no injury on the person of Nadeem lqbal when he was medically examined by the accused. Adds that colour of bruises given by the doctors of two Boards in alien to the Medical Jurisprudence. Learned counsel lastly submit that in fact the prosecution has failed to prove its case against the accused.
10. On the other hand, learned S. P. P. submits that under subsection (1) clause (c) of section 195, Cr.P.C. no offence under sections 219 and 466, P.P.C. is made out. He, however, submits that the prosecution has proved its case against the respondents‑accused. Elaborating his submissions, he submits that so far as Dr. Muhammad Afzal, Medical Officer, Office of the Surgeon Medico‑legal, Punjab, is concerned, he has committed offence under sections 192 and 197, P.P.C. but as far as Dr. Nadeem Afzal Ashrafi, Deputy Surgeon Medico‑legal, Punjab, he has committed the offence under section 197, P.P.C. only.
11. Mr. Khalid Naveed Dar, Advocate, appearing as a amicus curie also supports the submissions made. by the learned S. P. P.
12. I have heard learned counsel for both the sides and have gone through the entire prosecution evidence brought on record. In the instant case, Nadeem Iqbal, the detenu, was produced before this Court on 12‑12‑2000 by the bailiff. The bailiff had submitted a detailed report mentioning the injuries on the person of Nadeem Iqbal. After going through the report of the bailiff and myself seeing Nadeem Iqbal who was not even in a position to walk or stand, the bailiff was directed to produce Nadeem Iqbal before the Medico‑legal Surgeon, Punjab, Lahore for his medical examination. As per report Exh.P.A. and the evidence come on record, the respondents conducted medical examination on the person of Nadeem Iqbal at 10‑27 a.m. on same day, that is, 13‑12‑2000. The report was signed by both the respondents doctors. Both the accused doctors in their report Exh.P.A. stated that there was no recent mark of physical violence seen on the body of Nadeem Iqbal at the time of his examination. On receipt of the report Exh.P.A., learned counsel for Mushtaq Hussain, petitioner and the detenu Nadeem insisted that Nadeem was actually put to physical torture by 8 the police and the report Exh.P.A. was incorrect, so in order to reach the truth, the bailiff was directed to produce the detenu Nadeem Iqbal before the Medical Superintendent, Mayo Hospital, Lahore with the direction to Medical Superintendent to constitute a Board of doctors. The Medical Board so constituted under the orders of Medical Superintendent, Mayo Hospital consisted of Dr. Sadaqat Ali Khan, Associate Professor of Surgery, Dr. Abdul Hameed Rana, Additional Medical Superintendent, Mayo Hospital, Lahore, Dr. Saeed Ahmad, Assistant Professor of Forensic Medicine and Toxicology, K.E.M.C., Lahore and Dr. Muhammad Naeem, Assistant Professor of Neurology, Mayo Hospital, Lahore. The Board after examining Nadeem Iqbal found five injuries on his person and was of the opinion:
"The injuries Nos. l‑5 described above were caused by blunt means and are of variable duration ranging from 2‑5 days and fall under section 337‑L(ii) of Qisas and Diyat Law. No neurological deficit is found at this stage."
On receipt of this report, marks P.B. and P.B./1, both the accused were summoned to explain their position. They appeared and stated that the members of the Board constituted by Medical Superintendent, Mayo Hospital, Lahore even do not know the "ABC" of medico‑legal cases and so was stand of the accused in their statements recorded under section 342, Cr.P.C.
13. As both the accused belong to a noble profession, I thought it fit to resolve the controversy that another independent Board of doctors should give its opinion. Accordingly, Secretary Health, Government of Punjab was summoned. In response to Court's call, Dr. Ijaz Bhatti, Additional Secretary entered appearance because the Secretary was not available. All the matter was brought to the notice of the Additional Secretary and he was directed to constitute a Board of doctors of professional skill The Board constituted under the direction of the Secretary Health was headed by Dr. Muhammad Athar, Chief Chemical Examiner, Government of Punjab, Lahore having 31 years experience to his credit in the profession. All toe four Members of Board were of the unanimous opinion that there were signs of physical torture on the person of Nadeem Iqbal and the duration of the injuries was given as 7‑14 days approximately. It is important to note here that the duration of the injuries given by the first Board and the second Board coincide with the time given by the detenu Nadeem lqbal and the reports submitted by the bailiff, Exhs.P.D. and P.E. Both the doctors who were members and Chairmen of the respective Boards namely, Dr. Sadaqat Ali Khan (P.W.1) and Dr. Muhammad Athar (P.W.2) were put to lengthy cross examination by learned counsel for Dr. Muhammad Afzal, Medical Officer while the counsel for Dr. Nadeem Ashrafi did not opt to cross‑examine the prosecution witnesses, but nothing tangible came on record to create any dent in the prosecution case. Dr. Nadeem Afzal Ashrafi, according to detenu, Nadeem Iqbal had not examined him but it was Dr. Muhammad Afzal who examined him but Dr. Nadeem Ashrafi has signed the report Exh.P.A. Bbth the accused admitted in their statements under section 342, Cr.P.C. that they medically examined Nadeem Iqbal. Both the accused did not opt to make statements on oath under section 340(2), Cr.P.C.
14. Learned counsel for the accused have laid much stress on the colour changing,of bruises, that is, reddish, redish‑blue, brown, bluish yellow and green etc. They had also produced Dr. Muhammad Arshad Awan, Surgeon Medico‑legal, Punjab as D.W.1 who admitted in his cross‑examination that according to Siddique Hussain's Medical Jurisprudence which was shown to him by the learned S.P.P. that colour changing of injuries with the passage of time are those as stated by the members of the two Boards. Even according to Modi's Medical Jurisprudence the colour changing of bruises and abrasions are, of similar nature which have been mentioned by the doctors who were the members of the two Boards. It has also come on record that variation taken place in the colour of bruises depending upon the colour of the examinee, thickness of the skin, age, sex, size and site of injuries. The statement of D.W.1 is of no help to the accused D.W.2 is an officer from the Health Department who has produced the record relating to medical examination of Nadeem Iqbal. He during the cross‑examination admitted that he could not tell as to who was the author of notes written in red ink at the back of photo copy of mark "A". It also does not bear the signature or date. Those are only rough notes.
15. Apart from all above, there are standing instructions issued by the Government of Punjab in the Health Department that in medico‑legal cases where police is involved as a party should not be conducted by a single doctor but will be examined by a standing medical board, the members of which should be the Medico‑legal Surgeon, Senior Assistant Professor of Forensic Medicine and the District Health Officer, concerned but in the case in hand, the medical examination of Nadeem Iqbal detenu was conducted only by two doctors, that is Dr. Muhammad Afzal, a Medical Officer and the other Deputy Surgeon medico‑legal, Punjab. The deviation from the standing instructions issued by the Health Department is not understandable though D.W.1 Dr. Arshad Awan, Surgeon Medico‑legal submitted in his statement that he was not present in the office but was very much available in Lahore. Though this is not a consideration for arriving at a conclusion but it shows the disregard which both the accused have shown to the instructions issued by the competent Authority which they were bound to follow.
16. The mainstay of defence was that the injuries on the person of Nadeem Iqbal were fabricated within 24 hours before his appearance before the 1st Special Medical Board constituted under the orders of Medical Superintendent, Mayo Hospital, Lahore and were not present when the detenu was examined by them. This stance of the defence was negated by the duration of the injuries on the person of Nadeem Iqbal given by the 1st Board which gave the variable duration of the injuries ranging 2‑5 days having colour reddish blue and bluish brown. According to the books on medical jurisprudence written by Dr. Siddique Hussain, Modi, Parikh, Taylor and Jhala the colour of bruise on thicker skin like buttock and deep bruise on upper thighs as in present case can never never become reddish blue or bluish brown within 24 hours. The bruises are formed by effusion of blood in tissues due to violence by blunt weapons like sticks, rods and clubs etc. and if skin is thin, it appears in less time like on eyelids, leoblue etc. whereas when the skin is thick like buttock area it may take 1‑2 days to appear and the age of bruise cane be judged from colour changes depending upon certain variables. On the first day, its colour will be reddish, next three days, blue bluish black, and bluish brown, within 5‑6 days it will become greenish and within 7‑12 days it will be yellowish and after 14‑15 days, skin will regain normal colour. These colour changes commence at periphery and extend towards centre and during these changes, size of bruises increase. Thicker contusions give swelling when occur over area over bones and joints. Similarly, deep bruises take long time to become visible. Like case in hand blows to upper thighs may produce a deep bruises which will appear some days later and not within 24 hours. It is thus, crystal clear that if Nadeem Iqbal had fabricated these injuries, as alleged by the accused, within 24 hours, intervening period between the first examination and the Board examination, same would nor have been redish‑blue or bluish‑brown colour at the time of examination of detenu by the first Board. D. W.1 in his cross‑examination had no answer that colour of bruise on thicker skin like buttock of a young healthy person becomes bluish‑brown and redish‑blue within 24 hours.
17. According to Exhs.P.B. and P.B./1 of first Board which conducted the medical examination on the person of Nadeem Iqbal on 14‑12‑2000 at 10 a.m., two days after his recovery, found five blunt injuries with duration of 2‑5 days, whereas the second Board who re‑examined the detenu on 18‑12‑2000 at 1 p.m., six days after his recovery, gave the duration of E injuries from 7‑14 days which correspond with the time of physical violence alleged by the detenu, that‑is from 9‑12‑2000 to 11‑12‑2000.
18. As to mention of 5 injuries in Exh.P.B. and four injuries in Exhs.P.C. and P.C./1, injuries 1 and 2 mentioned in report Exh.P.B. during the healing process which makes the size bigger, as opined by Dr. Siddique in his book on "Medical Jurisprudence" these two injuries on left thigh were converted into injury No.1 as mentioned in Exh.P.C. Similar is the position of injuries 2 and 3 on right thigh mentioned, in report Exh.P.B. which too finds mention as injury No.2 in report Exh.P.C. So, it is established and proved beyond any doubt that injuries on the person of the detenu namely Nadeem Iqbal were there but the accused persons tried to deceive Court by E fabricating a false certificate and committed the offences under sections 192 and 197, RP.C. punishable under section 193, P.P.C.
19. I have no means to differ with the opinion of learned S.P.P. and the learned amicus curiae that Court shall take cognizance of any offence described in clause (c) of subsection (1) of section 195, Cr.P.C. that is, offences under sections 463 and 466, P.P.C. only when such offences are alleged to have been committed by a party to any proceedings in any Court in respect of a document produced and the present accused were admittedly not a party to Criminal Miscellaneous No.2003/H of 2000 but the word "party" does not appear in subsection (1) clause (b) of section 195, Cr.P.C. so the accused persons who had committed offence under sections 192, 197, P.P.C. punishable under section 193, P.P.C. under the said clause though may not be a party in proceedings yet they can be tried. Therefore, the charges under 'sections 219 and 466, P.P.C. are dropped. Now charges sections‑192 and 197, P.P.C. punishable under section 193, Cr.P.C. remain in the field.
20. I cannot abstain myself from observing that the accused belonging to a noble profession have committed most heinous, social and immoral offence which was not expected of them and no lenient view could be taken.
21. The irresistible conclusion, thus, is that the prosecution has proved the case against accused under section 192 read with section 197, P.P.C. Accordingly Dr. Muhammad Afzal, Medical Officer is convicted under section 192, P.P.C. and sentenced to five years' R.I. with a fine of Rs.20,000, in default six months' S.I., the fine if recovered; Rs.10,000 shall be paid to Nadeem Iqbal, detenu. He is also convicted under section 197, Cr.P.C. and sentenced to five years' R.I. with a fine of Rs.20,000, in default six months' S.I. and the fine, if recovered, Rs.10,000 shall be paid to Nadeem Iqbal, detenu. Both the sentences shall run concurrently.
22. As far as Dr. Nadeem Afzal Ashrafi,.Deputy Surgeon Medico‑legal is concerned he is convicted under section 197, P.P.C. and .sentenced to five years' R.I. with a fine of Rs.20,000, in default six months' S.I. and the fine if recovered, Rs.10,000 shall be paid to Nadeem Iqbal, detenu.
23. Before parting with this judgment, I am really thankful to Mr. Muhammad Hanif Khatana, learned Additional Advocate‑General, Punjab, who was very fair during the proceedings and rendered immense assistance. Similarly, I appreciate the assistance rendered by Mr. Khalid Naveed Dar, Advocate as amicus curiae. He had been attending the proceedings regularly and shared much in arriving at the conclusion, stated above.
N.H.Q./S‑229/LAccused convicted.STATE VS M. AFZAL
2001 P Cr. L J 1709
[Lahore]
Before Khawaja Muhammad Sharif, J
THE STATE‑‑‑Petitioner
versus
M. AFZAL and others‑‑‑Respondents
Criminal Miscellaneous No.2619/M of 2000, heard on 05/01/2001.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 192 & 197‑‑‑Fabrication of false evidence and issuance of false certificate by doctors ‑‑‑Detenu, in the present case, in his statement made on oath before High Court complained of physical torture at the hands of police and he was directed by the High Court to be medically examined by the Deputy Medico‑legal Surgeon‑‑‑Medical Officer in the office of the Medico legal Surgeon examined the detenu and his medical report was duly verified by the Deputy Surgeon Medico‑legal, according to which no recent mark of physical violence was seen on the body of the detenu at the time of his examination ‑‑‑Detenu was, then, got medically examined by the High Court by the Medical Board constituted by Medical Superintendent of the Hospital which found many injuries on the person of the detenu‑‑‑High Court in view of the conflicting medical reports and to resolve the controversy directed the detenu to be again examined by the Medical Board to be constituted by the Additional Secretary Health, Government of the Province of the Doctors of known integrity and skill in their profession, which also depicted injurig on the person of the detenu‑‑‑Charge was consequently framed against the .Doctors to which they pleaded not guilty and they were tried accordingly‑‑ Defence plea that the injuries on the person of the detenu had been fabricated after his examination by the accused was negated by the duration of the injuries given by the First Medical Board which corresponded with the time of physical violence alleged by the detenu‑‑‑Medical examination of the detenu had been conducted only by the two Doctors, that is, a Medical Officer and the other Deputy Surgeon Medico‑legal, in deviation from the standing instructions issued by the Health Department which was not understandable‑‑‑Injuries on the person of the detenu, thus, were present, but the accused Doctors had tried to deceive the Court by fabricating a false certificate and committed the offences under Ss.192 & 197, P.P.C. punishable under S.193, P.P.C.‑‑‑Accused (Doctors) who belonged to a noble profession had committed most heinous, unsocial and immoral offence which was not ,expected of them and they deserved no leniency‑‑‑Accused Medical Officer was consequently convicted under Ss.192 & 197, P.P.C. and sentenced to five years' R.I. on each count with fine directing the sentences to run concurrently‑‑‑Accused Deputy Surgeon Medico‑legal was convicted under S.197, P.P.C. and sentenced to suffer five years' R.I. with fine.
Ch. Aurangzeb and Mian Muhammad Jamil for the Accused.
Muhammad Hanif Khatana, Addl. A.‑G./S.P.P. for the State.
Khalid Naveed Dar: Amicus curiae.
ORDER
Facts of the case are that Mushtaq Hussain filed a petition under section 491, Cr.P.C. for the recovery of Nadeem Iqbal, his nephew, from the illegal custody of respondents S.H.O. Police Station Sambrial and Rai Munir Ahmad, A.S.‑I. of the said police station alleging therein that Nadeem Iqbal was taken into custody by Rai Munir Ahmad S.‑I. on 9‑12‑2000 at 12 noon alongwith 4/5 subordinate police officials. It was stated in the petition that Mushtaq Hussain when approached respondent No.2 Rai Munir Ahmad, S.‑I. he demanded Rs.40;000 for the release of Nadeem Iqbal though no case was registered against him.
2. The habeas petition came up for hearing on 12‑12‑2000 when a bailiff was deputed to recover Nadeem Iqbal from the custody of police officials‑respondents and to produce him before this Court on 13‑12‑2000 with further direction to the petitioner to deposit Rs.1,000 as security. The bailiff raided Police Station Sambrial, recovered Nadeem Iqbal, the detenu and produced him before this Court on 13‑12‑2000. According to report of the bailiff, Nadeem Iqbal the detenu was found confined in the lock‑up of Police Station Sambrial. On inquiry, Nadeem Iqbal told the bailiff that he was taken into custody by Rai Munir Ahmad, S.‑I. on 9‑12‑2000 at 12 noon from the petrol pump and was not produced before any Magistrate by the police. Nadeem Iqbal also complained of physical torture and showed marks of violence. The bailiff also reported that Nadeem Iqbal was not nominated in the F.I.R. in which he was alleged to have been arrested, in the Roznamcha of police station, there was no mention of arrest of Nadeem Iqbal, police file of case F.I.R. No.370 of 2000 was not shown to the bailiff on the pretext that Rai Munir Ahmad, S.‑I. had gone out from police station and the bailiff also checked the Roznamcha as to departure of Rai Munir Ahmad, S.‑I. in connection with investigation of any case but there was none and since the arrest of Nadeem lqbal was not shown in the record of police station, the bailiff took him into custody, handed him over to Mushtaq Hussain, his real paternal‑uncle with direction to produce Nadeem Iqbal before this Court on 13‑12‑2000.
3. On 13‑12‑2000 statement of Nadeem Iqbal was recorded on oath in which he too complained of physical torture at the hands of police, so I directed the bailiff to produce Nadeem Iqbal before the Deputy Medico‑legal Surgeon, Punjab, Lahore for his medical examination. Allegedly, the medical examination on the body of Nadeem Iqbal was conducted by Dr. A Muhammad Afzal, Medical Officer, Office of the Medicco‑legal Surgeon, Punjab, Lahore, which was duly verified by Dr. Nadeem Afzal Ashrafi, Surgeon Medico‑legal Punjab, Lahore. According to report submitted by Dr. Muhammad Afzal and verified by Dr. Nadeem Afzal, Ashrafi, Exh.P.A. there was no recent mark of physical violence seen on the body of Nadeem Iqbal at the time of his examination. When the case was taken up in later part of the day after receipt of the report Exh.P.A. learned counsel for Mushtaq Hussain, petitioner in habeas petition vehemently contended that there were marks of violence on the body of Nadeem Iqbal and in fact Dr. Muhammad Afzal did not bother to get the clothes of Nadeem Iqbal removed to give a correct opinion. In the interest of justice, I directed the bailiff to produce Nadeem Iqbal before the Medical Superintendent, Mayo Hospital, Lahore with the direction to M.S. to constitute a board of doctors to examine the person of Nadeem Iqbal and then to submit report to this Court.
4. On 14‑12‑2000, report . of the Medical Board consisting of Dr. Sadaqat Ali Khan, Associate Professor of Surgeory, Dr.‑ Abdul Hameed Rana, Additional Medical Superintendent; Mayo Hospital, Lahore, Dr. Saeed Ahmad, Assistant Professor of Forensic Medicine and Toxicology Department, K.E.M. College, Lahore and Dr. Muhammad Naeem, Assistant Professor of Neurology, Mayo Hospital, Lahore, was submitted according to which the following injuries were found on the person of Nadeem Iqbal:‑‑
(1)Bruise reddish blue in colour present on 'front of left thigh 24 c.m. above left knee measuring 5 x 9 c.m.
(2)Bruise reddish blue in colour measuring 4.5 c.m. x 11 c.m. present on the front left thigh lower part 9 c.m. above the left knee.
(3)Bruise 4.5 x 8 c.m. reddish blue in colour present on the front of outer aspect of right thigh 24 c.m. above right knee.
(4)Bruise reddish blue in colour measuring 5.5 x 13 c.m. present on the left buttock extending to upper back left thigh.
Opinion
The injuries Nos. l‑5 described above are caused by blunt means and are of variable duration ranging from 2‑5 days and fall under section 337‑L(ii), of Qisas and Diyat Law.
5. In view of the glaring difference of opinion between the report Exh.P.A. submitted by Dr. Muhammad Afzal and Dr. Nadeem Afzal Ashrafi and that of Board constituted by Medical Superintendent, Mayo Hospital, Lahore, Exh.P.B., both the doctors Muhammad Afzal and Nadeem Afzal Ashrafi were directed to appear before this Court and to explain their position.
6. The matter was then taken up on 15‑12‑2000 when both the respondents were directed to file their written reply. On the same day. Mr. Khalid Naveed Dar, Advocate was appointed as amicus curiae to assist the Court. Mr. Muhammad Hanif Khatana, learned Additional Advocate‑General was also asked to be of assistance. On 18‑12‑2000, after hearing both the respondents and in keeping with the conflicting reports so as to resolve the controversy, Secretary Health, Government of Punjab was summoned to appear. In response to Court's direction, Dr. ljaz Bhatti, Additional Secretary, Health appeared. He was directed to take Nadeem Iqbal with him and to get him medically examined from doctors of known integrity and skill in their profession. The case was adjourned to 20‑12‑2000 for submission of the report by the Board to be constituted by the Additional Secretary Health, Government of Punjab. On the adjourned dated that is, 20‑12‑2000 Dr. Muhammad Akram, Under Secretary, Health Department Government of Punjab placed on record the report Exhs.P.B. and P.B./1 which depicts the following injuries on the person of Nadeem Iqbal.
Injuries
(1) A faint contusion brownish in colour with linear scabbed abrasion in an area 16 x 18 c.m. situated on lower part of front of left thigh just above the knee joint.
(2)A faint contusion brownish in colour in an area 12 x 13 c.m. on right lower front of thigh just above the knee joint.
(3)A faint contusion yellowish in colour in an area 20 x 30 c.m. on the outer aspect of left buttock.
(4)A faint contusign bluish brown in colour in an area 7 x 11 c.m. on the centre of right buttock.
Comments
"Injuries stated above are caused by blunt means. The exact time between infliction of injuries and examination on the basis of colour change is only a rough estimate being influenced by a large number of factors, however, the approximate range falls within 7‑14 days."
7. In view of the above circumstances, Dr. Muhammad Afzal and Dr. Nadeem Afzal Ashrafi were given notice as to why they should not be proceeded under sections 192, 193, 197, 201, 219 and 466 read with section 109, P.P.C. On the next date of hearing i.e. 21‑12‑2000 copies of the M.L.Rs. of both the Boards alongwith the statement of the detenu Nadeem Iqbal were handed over to the accused with the direction that on the next date of hearing charge will be framed and evidence recorded. Upon this, Mr. Muhammad Hanif Khatana, learned Additional Advocate‑General/S.P.P submitted that for prosecution of the respondents, sanction from the Provincial Government is necessary as required under section 197, Cr.P.C. I need not dialate upon this objection because section 197, Cr.P.C. has been declared to be repugnant to the Injunction of Islam in the case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate PLD 1992 SC 72.
8. Charge was framed on 2‑1‑2000 to which the respondents pleader not guilty. Thereafter, the learned Special Public Prosecutor produced Nadeem Iqbal the alleged detenu as P.W.1, Dr. Sadaqat Ali Khan, Associate Professor of Surgery, Mayo Hospital, Lahore as P.W.2, Dr. Muhammad Athar, Chief Chemical Examiner, Government of Punjab as P.W.3, and Tanveer Rehmat Bailiff, Lahore High Court. Lahore as P.W.4, then statements of accused were recorded under section 342, Cr.P.C. in which they claimed false implication because of enmity with Dr. Saeed Malik, a Member of the Board, constituted by Medical Superintendent, Mayo Hospital, Lahore. Both the accused did not opt to get their statements recorded under section 340(2), Cr.P.C. Accused produced Dr. Muhammad Arshad Awan, Surgeon, Medico‑legal, Punjab as D.W.1. in their defence and Dr. Muhammad Akram, Under Secretary, Office of the Secretary Health, Government of Punjab, Civil Secretariat, Lahore as D.W.2.
9. After having gone through the entire prosecution evidence and the defence produced by the accused, learned counsel for both the accused submit that there are material discrepancies in the statement of detenu namely Nadeem Iqbal, that he is in the habit of manufacturing injuries on his person himself; Dr. Sadaqat Ali Khan, Chairman of the Board constituted by the Medical Superintendent, Mayo Hospital, Lahore does not know anything about medico‑legal cases and that he was unable to reply some specific questions and that the injuries mentioned by the two Medical Boards were in fact self‑suffered by Nadeem Iqbal detenu because when he was student of school he himself inflicted injuries on his wrist with blade. Further, submits that both the accused have issued the M.L.R. Exh.P.A. not with any bad intention. Actually, there was no injury on the person of Nadeem lqbal when he was medically examined by the accused. Adds that colour of bruises given by the doctors of two Boards in alien to the Medical Jurisprudence. Learned counsel lastly submit that in fact the prosecution has failed to prove its case against the accused.
10. On the other hand, learned S. P. P. submits that under subsection (1) clause (c) of section 195, Cr.P.C. no offence under sections 219 and 466, P.P.C. is made out. He, however, submits that the prosecution has proved its case against the respondents‑accused. Elaborating his submissions, he submits that so far as Dr. Muhammad Afzal, Medical Officer, Office of the Surgeon Medico‑legal, Punjab, is concerned, he has committed offence under sections 192 and 197, P.P.C. but as far as Dr. Nadeem Afzal Ashrafi, Deputy Surgeon Medico‑legal, Punjab, he has committed the offence under section 197, P.P.C. only.
11. Mr. Khalid Naveed Dar, Advocate, appearing as a amicus curie also supports the submissions made. by the learned S. P. P.
12. I have heard learned counsel for both the sides and have gone through the entire prosecution evidence brought on record. In the instant case, Nadeem Iqbal, the detenu, was produced before this Court on 12‑12‑2000 by the bailiff. The bailiff had submitted a detailed report mentioning the injuries on the person of Nadeem Iqbal. After going through the report of the bailiff and myself seeing Nadeem Iqbal who was not even in a position to walk or stand, the bailiff was directed to produce Nadeem Iqbal before the Medico‑legal Surgeon, Punjab, Lahore for his medical examination. As per report Exh.P.A. and the evidence come on record, the respondents conducted medical examination on the person of Nadeem Iqbal at 10‑27 a.m. on same day, that is, 13‑12‑2000. The report was signed by both the respondents doctors. Both the accused doctors in their report Exh.P.A. stated that there was no recent mark of physical violence seen on the body of Nadeem Iqbal at the time of his examination. On receipt of the report Exh.P.A., learned counsel for Mushtaq Hussain, petitioner and the detenu Nadeem insisted that Nadeem was actually put to physical torture by 8 the police and the report Exh.P.A. was incorrect, so in order to reach the truth, the bailiff was directed to produce the detenu Nadeem Iqbal before the Medical Superintendent, Mayo Hospital, Lahore with the direction to Medical Superintendent to constitute a Board of doctors. The Medical Board so constituted under the orders of Medical Superintendent, Mayo Hospital consisted of Dr. Sadaqat Ali Khan, Associate Professor of Surgery, Dr. Abdul Hameed Rana, Additional Medical Superintendent, Mayo Hospital, Lahore, Dr. Saeed Ahmad, Assistant Professor of Forensic Medicine and Toxicology, K.E.M.C., Lahore and Dr. Muhammad Naeem, Assistant Professor of Neurology, Mayo Hospital, Lahore. The Board after examining Nadeem Iqbal found five injuries on his person and was of the opinion:
"The injuries Nos. l‑5 described above were caused by blunt means and are of variable duration ranging from 2‑5 days and fall under section 337‑L(ii) of Qisas and Diyat Law. No neurological deficit is found at this stage."
On receipt of this report, marks P.B. and P.B./1, both the accused were summoned to explain their position. They appeared and stated that the members of the Board constituted by Medical Superintendent, Mayo Hospital, Lahore even do not know the "ABC" of medico‑legal cases and so was stand of the accused in their statements recorded under section 342, Cr.P.C.
13. As both the accused belong to a noble profession, I thought it fit to resolve the controversy that another independent Board of doctors should give its opinion. Accordingly, Secretary Health, Government of Punjab was summoned. In response to Court's call, Dr. Ijaz Bhatti, Additional Secretary entered appearance because the Secretary was not available. All the matter was brought to the notice of the Additional Secretary and he was directed to constitute a Board of doctors of professional skill The Board constituted under the direction of the Secretary Health was headed by Dr. Muhammad Athar, Chief Chemical Examiner, Government of Punjab, Lahore having 31 years experience to his credit in the profession. All toe four Members of Board were of the unanimous opinion that there were signs of physical torture on the person of Nadeem Iqbal and the duration of the injuries was given as 7‑14 days approximately. It is important to note here that the duration of the injuries given by the first Board and the second Board coincide with the time given by the detenu Nadeem lqbal and the reports submitted by the bailiff, Exhs.P.D. and P.E. Both the doctors who were members and Chairmen of the respective Boards namely, Dr. Sadaqat Ali Khan (P.W.1) and Dr. Muhammad Athar (P.W.2) were put to lengthy cross examination by learned counsel for Dr. Muhammad Afzal, Medical Officer while the counsel for Dr. Nadeem Ashrafi did not opt to cross‑examine the prosecution witnesses, but nothing tangible came on record to create any dent in the prosecution case. Dr. Nadeem Afzal Ashrafi, according to detenu, Nadeem Iqbal had not examined him but it was Dr. Muhammad Afzal who examined him but Dr. Nadeem Ashrafi has signed the report Exh.P.A. Bbth the accused admitted in their statements under section 342, Cr.P.C. that they medically examined Nadeem Iqbal. Both the accused did not opt to make statements on oath under section 340(2), Cr.P.C.
14. Learned counsel for the accused have laid much stress on the colour changing,of bruises, that is, reddish, redish‑blue, brown, bluish yellow and green etc. They had also produced Dr. Muhammad Arshad Awan, Surgeon Medico‑legal, Punjab as D.W.1 who admitted in his cross‑examination that according to Siddique Hussain's Medical Jurisprudence which was shown to him by the learned S.P.P. that colour changing of injuries with the passage of time are those as stated by the members of the two Boards. Even according to Modi's Medical Jurisprudence the colour changing of bruises and abrasions are, of similar nature which have been mentioned by the doctors who were the members of the two Boards. It has also come on record that variation taken place in the colour of bruises depending upon the colour of the examinee, thickness of the skin, age, sex, size and site of injuries. The statement of D.W.1 is of no help to the accused D.W.2 is an officer from the Health Department who has produced the record relating to medical examination of Nadeem Iqbal. He during the cross‑examination admitted that he could not tell as to who was the author of notes written in red ink at the back of photo copy of mark "A". It also does not bear the signature or date. Those are only rough notes.
15. Apart from all above, there are standing instructions issued by the Government of Punjab in the Health Department that in medico‑legal cases where police is involved as a party should not be conducted by a single doctor but will be examined by a standing medical board, the members of which should be the Medico‑legal Surgeon, Senior Assistant Professor of Forensic Medicine and the District Health Officer, concerned but in the case in hand, the medical examination of Nadeem Iqbal detenu was conducted only by two doctors, that is Dr. Muhammad Afzal, a Medical Officer and the other Deputy Surgeon medico‑legal, Punjab. The deviation from the standing instructions issued by the Health Department is not understandable though D.W.1 Dr. Arshad Awan, Surgeon Medico‑legal submitted in his statement that he was not present in the office but was very much available in Lahore. Though this is not a consideration for arriving at a conclusion but it shows the disregard which both the accused have shown to the instructions issued by the competent Authority which they were bound to follow.
16. The mainstay of defence was that the injuries on the person of Nadeem Iqbal were fabricated within 24 hours before his appearance before the 1st Special Medical Board constituted under the orders of Medical Superintendent, Mayo Hospital, Lahore and were not present when the detenu was examined by them. This stance of the defence was negated by the duration of the injuries on the person of Nadeem Iqbal given by the 1st Board which gave the variable duration of the injuries ranging 2‑5 days having colour reddish blue and bluish brown. According to the books on medical jurisprudence written by Dr. Siddique Hussain, Modi, Parikh, Taylor and Jhala the colour of bruise on thicker skin like buttock and deep bruise on upper thighs as in present case can never never become reddish blue or bluish brown within 24 hours. The bruises are formed by effusion of blood in tissues due to violence by blunt weapons like sticks, rods and clubs etc. and if skin is thin, it appears in less time like on eyelids, leoblue etc. whereas when the skin is thick like buttock area it may take 1‑2 days to appear and the age of bruise cane be judged from colour changes depending upon certain variables. On the first day, its colour will be reddish, next three days, blue bluish black, and bluish brown, within 5‑6 days it will become greenish and within 7‑12 days it will be yellowish and after 14‑15 days, skin will regain normal colour. These colour changes commence at periphery and extend towards centre and during these changes, size of bruises increase. Thicker contusions give swelling when occur over area over bones and joints. Similarly, deep bruises take long time to become visible. Like case in hand blows to upper thighs may produce a deep bruises which will appear some days later and not within 24 hours. It is thus, crystal clear that if Nadeem Iqbal had fabricated these injuries, as alleged by the accused, within 24 hours, intervening period between the first examination and the Board examination, same would nor have been redish‑blue or bluish‑brown colour at the time of examination of detenu by the first Board. D. W.1 in his cross‑examination had no answer that colour of bruise on thicker skin like buttock of a young healthy person becomes bluish‑brown and redish‑blue within 24 hours.
17. According to Exhs.P.B. and P.B./1 of first Board which conducted the medical examination on the person of Nadeem Iqbal on 14‑12‑2000 at 10 a.m., two days after his recovery, found five blunt injuries with duration of 2‑5 days, whereas the second Board who re‑examined the detenu on 18‑12‑2000 at 1 p.m., six days after his recovery, gave the duration of E injuries from 7‑14 days which correspond with the time of physical violence alleged by the detenu, that‑is from 9‑12‑2000 to 11‑12‑2000.
18. As to mention of 5 injuries in Exh.P.B. and four injuries in Exhs.P.C. and P.C./1, injuries 1 and 2 mentioned in report Exh.P.B. during the healing process which makes the size bigger, as opined by Dr. Siddique in his book on "Medical Jurisprudence" these two injuries on left thigh were converted into injury No.1 as mentioned in Exh.P.C. Similar is the position of injuries 2 and 3 on right thigh mentioned, in report Exh.P.B. which too finds mention as injury No.2 in report Exh.P.C. So, it is established and proved beyond any doubt that injuries on the person of the detenu namely Nadeem Iqbal were there but the accused persons tried to deceive Court by E fabricating a false certificate and committed the offences under sections 192 and 197, RP.C. punishable under section 193, P.P.C.
19. I have no means to differ with the opinion of learned S.P.P. and the learned amicus curiae that Court shall take cognizance of any offence described in clause (c) of subsection (1) of section 195, Cr.P.C. that is, offences under sections 463 and 466, P.P.C. only when such offences are alleged to have been committed by a party to any proceedings in any Court in respect of a document produced and the present accused were admittedly not a party to Criminal Miscellaneous No.2003/H of 2000 but the word "party" does not appear in subsection (1) clause (b) of section 195, Cr.P.C. so the accused persons who had committed offence under sections 192, 197, P.P.C. punishable under section 193, P.P.C. under the said clause though may not be a party in proceedings yet they can be tried. Therefore, the charges under 'sections 219 and 466, P.P.C. are dropped. Now charges sections‑192 and 197, P.P.C. punishable under section 193, Cr.P.C. remain in the field.
20. I cannot abstain myself from observing that the accused belonging to a noble profession have committed most heinous, social and immoral offence which was not expected of them and no lenient view could be taken.
21. The irresistible conclusion, thus, is that the prosecution has proved the case against accused under section 192 read with section 197, P.P.C. Accordingly Dr. Muhammad Afzal, Medical Officer is convicted under section 192, P.P.C. and sentenced to five years' R.I. with a fine of Rs.20,000, in default six months' S.I., the fine if recovered; Rs.10,000 shall be paid to Nadeem Iqbal, detenu. He is also convicted under section 197, Cr.P.C. and sentenced to five years' R.I. with a fine of Rs.20,000, in default six months' S.I. and the fine, if recovered, Rs.10,000 shall be paid to Nadeem Iqbal, detenu. Both the sentences shall run concurrently.
22. As far as Dr. Nadeem Afzal Ashrafi,.Deputy Surgeon Medico‑legal is concerned he is convicted under section 197, P.P.C. and .sentenced to five years' R.I. with a fine of Rs.20,000, in default six months' S.I. and the fine if recovered, Rs.10,000 shall be paid to Nadeem Iqbal, detenu.
23. Before parting with this judgment, I am really thankful to Mr. Muhammad Hanif Khatana, learned Additional Advocate‑General, Punjab, who was very fair during the proceedings and rendered immense assistance. Similarly, I appreciate the assistance rendered by Mr. Khalid Naveed Dar, Advocate as amicus curiae. He had been attending the proceedings regularly and shared much in arriving at the conclusion, stated above.
N.H.Q./S‑229/LAccused convicted.
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