اختلاف کرتے ھوے قرار دیا ھے کہ اگر ابتدائی طبی ملاحظہ کرکے MLC جاری کرنے والے ڈاکٹر اور میڈیکل بورڈ کی رائے میں اختلاف ھو تو میڈیکل بورڈ کی رائے کو فوقیت حاصل ھو گی۔

 سپریم کورٹ کے دو ججز پر مشتمل بنچ نے حالیہ فیصلہ میں سپریم کورٹ کے دو ججز پر مشتمل بنچ کے فیصلہ

2021 SCMR 387

سے اختلاف کرتے ھوے قرار دیا ھے کہ اگر ابتدائی طبی ملاحظہ کرکے MLC جاری کرنے والے ڈاکٹر اور میڈیکل بورڈ کی رائے میں اختلاف ھو تو میڈیکل بورڈ کی رائے کو فوقیت حاصل ھو گی۔

The hierarchy of the medical examination as notified by the Health Department clearly reflects that against the opinion of the initial medical officer, the Medical Board will be constituted. Prior to the constitution of the said Medical Board, a judicial order has to be passed by the magisterial Court. According to the Medical Board, as mentioned above, the injured PW was re-examined by four doctors including Medical Superintendent, fully equipped with knowledge and expertise and also better in experience than the earlier expert who examined the injured PW soon after the occurrence. The argument of the learned counsel by relying upon the judgment Muhammad Ejaz Vs. The State and another (2021 SCMR 387) that preference has to be given to the earlier examination because of the reason that medical officer being the first expert to examine the injury, his finding has to be preferred over the Medical Board. We respectfully differ with the finding because of the reason that the expert's opinion dependents upon so many factors including, physical examination, qualification, experience and finally collective wisdom of the members of the Board.

Otherwise, logically speaking, if the argument of the learned counsel that the opinion of the first medical officer has to be given precedence over the other, it does not appeal to reason because the hierarchy of the system will fall to ground. It is not out of context to express that hierarchy of judicial system starts from the court of first instance upto the Supreme Court. The findings of the highest court has to prevail over the others, and even are binding under Article 189 of the Constitution. If the finding of the hierarchy of first instance is to be given precedence, that would frustrate the whole system.

In the report of the Medical Board, which comprised of four senior doctors having superior qualification and experience, it has been observed that "after having gone through examination the Board is of unanimous opinion that regarding injury No. 1, the possibility of fabrication cannot be ruled out". It is established law that when there is conflict in opinions of the medical experts, the expert having better qualification, insight, experience, and more particularly the joint consensus of the members richly equipped has more weightage, hence it has to be given precedence over the first examination conducted by a junior doctor, especially when members of Board while examining in the Board are four in number, whereas the first doctor who examined the injury at the first instance was only a single member assigned the duty to examine the injured person.

Criminal Petition No 577 of 2021
Mst. Lubna Bibi VERS Azhar Javed Abbasi and another