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Petitioner: MUBIN YAR KHAN VS Respondent: THE STATE
1988 P C r L J 1568
1988 P C r L J 1568
[Karachi]
Before Ajmal Mian, J
MUBIN YAR KHAN--Petitioner
versus
THE STATE and others--Respondents
Criminal Application No. 214 of 1987, decided on 8th March, 1988.
Criminal Procedure Code (V of 1888)--
---Ss. 561-A & 476--Penal Code (XLV of 1860), S.195--Quashing of proceedings--Sessions Judge initiating proceedings and taking cognizance of offence under S. 476, Cr.P.C. against accused for allegedly committing offence under S.195, Penal Code, by producing certificate from doctor of injury as grievous when it was simple in nature--Sessions Judge without affording an opportunity to doctor who issued certificate had initiated criminal proceedings against the petitioner--Medical Board examined accused after expiry of more than one year from the date of incident and possibility that condition of accused might have changed because of lapse of period or that doctor might have mistaken the injury as grievous while issuing certificate, therefore, not ruled out--Held, criminal proceedings could not have been initiated without providing an opportunity to doctor to explain the position and Sessions Judge without having any basis or material had presumed that accused had procured a false certificate from doctor--Proceedings quashed in circumstances.
Ahmed Siddiqui for Petitioner.
Zaheer Ahmed Qureshi for the State.
Date of hearing: 8th March 1988.
JUDGMENT
These proceedings are directed against order, dated 18-12-1986 whereby the learned Sessions Judge West, Karachi has initiated the proceedings and taken cognizance of the offence under section 476, Cr.P.C. against the present petitioner for allegedly committing offence under section 195, P.P.C. by producing a false certificate of Dr. Hassan Razzak of Abbasi Shaheed Hospital, Karachi certifying the injury as grievous though factually it was simple.
2. The brief facts leading to the filing of the above Quashment proceedings are that on 1-9-1985 the present petitioner lodged a complaint with the New Karachi Police Station against respondent No.2 Shakeel Ahmed under section 325, P.P.C causing injury and fracture on the left side of the cheek and face. He was referred to Abbasi Shaheed Hospital for medical report by the Police which issued a certificate on 9-9-1985 indicating the injury as grievous, It seems that respondent No.2, obtained a bail before arrest from the learned Sessions Judge, West, Karachi on 10-11-1985. The learned Sessions Judge while disposing of the above bail application ordered the constitution of a medical board for examining the petitioner. It seems that the medical board examined the petitioner on 6-10-1986 i.e after the expiry of more than year from the date of incident and submitted its report on 20-10-1986 certifying that the injury was simple and not grievous. Upon the receipt of the above medical report, the learned Sessions Judge passed the above impugned order of taking cognizance of the alleged offence under section 195, P.P.C read with section 109, P.P.C against present petitioner and against Dr. Hussan Razzak. The petitioner being aggrieved has filed the present quashment proceedings.
3. In support of the above proceedings Mr. Akhlaq Ahmed Siddiqui learned counsel for the petitioner has submitted that the impugned order for taking cognizance of the alleged offence against the present petitioner is not sustainable and is patently illegal as the petitioner cannot be penalized for issuing of a certificate by Dr. Hassan Razzak of Abbasi Shaheed Hospital certifying the injury as grievous.
On the other hand Mr. Zaheer Qureshi, learned counsel appearing for the State has submitted that the doctor as well as the petitioner will have ample opportunity to explain before the learned Sessions Judge during the trial of the case.
4. I have noticed that the learned Sessions Judge even without affording an opportunity to the doctor who issued the certificate has initiated the criminal proceedings. The medical board had examined the petitioner after the expiry of more than one year from the date of the incident and, therefore, the possibility that the condition of the petitioner might have changed because of the lapse of the above period cannot be ruled out and, secondly, it is also possible that Dr. Hassan Razzak might have, mistakenly taken the injury' as grievous while issuing the
certificate. In any case no criminal proceedings could have been initiated without providing an opportunity to the doctor concerned to explain his position. The learned Sessions Judge without having any basis and material presumed that the petitioner had procured the false certificate from Dr. Hassan Razzak. In my view, the proceedings initiated by .the learned Sessions Judge are without justification and are not sustainable in law.
5. I would allow the petition and quash the proceedings and the order.
M.Y.H./M-451/K Petition allowed.