IN THE SUPREME COURT OF PAKIISY AJY
SENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SAY Y ED MAZAHAR ALl AKBAR NAQW
ONNO 577 OF 2021
(Against the order dated 20- 04.2021 of the
Lahore High Court, Rawalpindi Bench,
Rawalpindi passed in Crl.M.No.535
B12021)
Mst. Lubna Bibi 
Petitioner(s)
VERS
Azhar Javed Abbasi and another 
. . . Respondent(s)
For the petitioner(s): 
Syeda Hifza Bukhari, ASC
Syed Rifaqat Hussain Shah, AOR
For the State.. 
Mirza M. Usman, AddLP.a
Date of Hearing 11.11.2 02 1
ORDER
SA ED MAZAHAR ALl A.KBAR NAQVI, j.- Through this petition
under Article 185(3) of the Constitution of the Islamic Republic of
Pakistan, 1973, the petitioner seeks cancellation of bail granted to
the respondent in case FIR No.702120 dated 10.12.2020 under
Sections 337A(ii)1337A(iv)11471149 PPC registered at police Station
Murree, District Rawalpindi by the Lahore High Court, Rawalpindi
Bench, Rawalpindi in the interest of safe administration of criminal
justice.
2. As per the crime report, it is alleged that on 03.12.2020
at about 08:30 a.m. the respondent along with co-accused assaulted
the complainant party and caused injuries to Mst. Nazash Bibi,
Asim, Mst. Talat Bibi and Mst. Lubna Bibi (petitioner). The role
attributed to the petitioner is that he inflicted knuckle duster blow on
the nose of Asim injured flit.
-
CrLP.No.577of2021 
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3. At the very outset, it is contended by the learned
counsel for the petitioner that the order passed by the learned Single
Bench of the High Court is not sustainable in the eyes of law.
Contends that the respondent is ascribed the role of causing injury
which falls within the ambit of Section 337A(vi) PPC which falls
within the prohibitory clause and as such the bail granting order is
devoid of any legal sanctity. Further contends that the respondent
has been extended extra-ordinary relief which is not made out from
the material on record and as such the order passed by the High
Court is based upon artificial findings, which are perverse and
fanciful. Lastly contends that the report of the doctor who examined
the injury at the first instance has to be given preference over any
other opinion. In this regard, he placed reliance on the judgment
reported as Muhammad Ejaz Vs. The State and another (2021 SCMR
387).
4. We have heard the learned counsel for the petitioner
and perused the record with her assistance.
Primarily the concern of the learned counsel for the
petitioner is that the respondent has been extended the premium of
pre-arrest bail which is a rare commodity and it has to be extended
sparingly. Perusal of the record reveals that the injury ascribed to
the respondent falls within the purview of Section 33 7A(iv) PPC
which entails punishment upto 10 years, as such it falls within the
prohibitory clause of Section 497 Cr.P. C. The doctor who examined
the injured PWfound that there was no possibility of any fabrication
depending upon the report of the Radiologist. However, Medical
Board was constituted vide No.4 73/DSMB/ Y .No. 09/2020/DHQ
Hospital, Rawalpindi dated 01.02.2021. The said Medical Board
was constituted in pursuance of a notification issued by the
Government of Punjab bearing No.SO(H&D)6-1190 dated
12.02.1990. The said notification was circulated to all District
Magistrates in the Province. In continuation of the above said
notification, another notification was issued bearing No. SO(H&D)5-
5/2 002 was also issued. According to the said notification, a "Three
Tier Structure" for the conduction of medico legal work has been
 established, which reads as under:-
CrLP.No.577 of 2021 
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"a) FIRST TIER
The initial medico legal examination shall be carried out by
the Medical Officers/Women Medical Officers at the Rural
Health Centres, Tehsil Headquarters Hospitals, District
Headquarters Hospitals and at Teaching Hospitals.
b) SECOND TIER
The District Standing Medical Boards, comprising the
following, shall act as first appellate authority in all the 34
districts of Punjab:
Medical Superintendent, DHQ Hospital Chairman
District Officer Health 
Member
Surgeon 
Member
These Boards will conduct re-examination if the decision of
the first medico legal examiner is challenged and also for
examination of alleged cases of Police torture. For District
Lahore District Standing Medical Board will be established at
Government Mian Muhammad Munshi, DHQ Hospital-I.
C) THIRD TIER
The role of Surgeon Medico legal, the Punjab shall only be
Appellate and Supervisory. He shall be the Chairman of
Provincial Standing Medical Board, which shall be the final
appellate authority against the decisions of District Standing
Medical Boards. Other Members of the Provincial Standing
Medical Board (PSMB) will be the Associate/Assistant
Professor Forensic Medicine of the Regional Medical College
and the Medical Superintendent of one of the attached
Teaching Hospital. The Board can co-opt any other member
when required."
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 B/az 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
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wisdom of the members of the Board. In a similar situation, in the
judgment reported as Hussain Vs. The State (1968 P Cr. L J 167)
this Court laid down the following law:-
"The High Court has preferred the evidence of
Dr. Aftab Ahmad in view of his higher
qualifications, particularly, since he too had
examined the wounds through a magnifying
glass and did not find the two injuries, with
which we are now concerned, to be either clean
cut or sharp-edged injuries. The possibility of an
error being made by the doctor of the Rural
Dispensary as to the nature of the injuries
cannot be ruled out, for, it is no unlikely for an
injury caused by a blunt weapon on a bony
prominence to appear as a clean cut wound to
an inexperienced person who has not acquired
sufficient skill in carrying out postmortem
examination. In the circumstances, we are
unable to accept the contention of the learned
counsel that the opinion of the doctor at the
Rural Dispensary was wrongly not preferred
over that of the doctor who performed the post-
mortem examination by the High Court. The
post-mortem, it is true, was held on the 25th
September 1964, at 7 a. m. but this was not
such a long period after as to completely alter
the nature of the injury and transform an
incised wound into a contused wound."
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 ofjudicial system starts from the court offirst
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. We have minutely observed the report of the Medical Board
which is available at page (17) of the paper-book. 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
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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.
5. For what has been discussed above, we do not find any
merit in this petition which is accordingly dismissed and leave is
refused.
Islamabad, the 
11 II%Jovember, 2021
A pproved for reporting
Waqas Naseer/ *
