Decision for medical examination of magistrate is administrative order

Allowing or dismissing application for re-medical examination of injured by Magistrate is executive order.

According to latest Citation, P L D 2020 Lahore 77, allowing or dismissing application of medical examination of injured by Magistrate is an executive order which is not revision able. The detail judgment is as under

P L D 2020 Lahore 77

Before Muhammad Qasim Khan and Muhammad Tariq Abbasi, JJ

AHMAD KHAN—Petitioner

Versus

ADDITIONAL SESSIONS, JUDGE, TALAGANG and 4 others—Respondents

Writ Petiton No.2531 of 2018, decided on 19th February, 2019.

(a) Criminal Procedure Code (V of 1898)—

—-S. 36—Ordinary powers of Magistrate—Scope—Judicial and administrative orders—Scope—Magistrate, under Criminal Procedure Code, 1898 is entrusted with diverse duties and in discharging the same he does not always conduct judicial proceedings or is always amenable to the revisional jurisdiction—Some of powers and duties of the Magistrate under Cr.P.C. 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 the question whether the order is judicial or administrative because at some times the Magistrate perform duties by applying judicial mind but these proceedings are administrative in nature and some time orders are judicial orders.

(b) Criminal Procedure Code (V of 1898)—

—-S. 36—Ordinary powers of Magistrate—Judicial order by Magistrate—Conditions.

Following are the “traits of a judicial order” of Magistrate.

(1) There must be power to hear and determine a controversy;

(2) 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;

(3) It must involve the doctrine of res-judicata which has been held not to apply to the exercise of administrative powers;

(4) It must touch the doctrine of functus officio which has been held not to apply to prevent the exercise of administrative powers;

(5) 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be binding and conclusive in so far as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself.

Bahadur and another v. The State and another PLD 1985 SC 62 rel.

(c) Criminal Procedure Code (V of 1898)—

—-S. 36—Ordinary powers of Magistrate—Administrative order by Magistrate.

Following are the traits of an “administrative order” of Magistrate.

(1) 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 service;

(2) An administrative order is potentially open to attack for any material error of law or fact in either direct or collateral proceedings;

(3) It cannot constitute res-judicata;

(4) It may always be rescinded by the body making it.

Bahadur and another v. The State and another PLD 1985 SC 62 rel.

(d) Criminal Procedure Code (V of 1898)—

—-Ss. 36, 435 & 439A—Ordinary powers of Magistrate—Revisional jurisdiction—Order of constitution of Medical Board for re-examination of injured—Administrative order—Scope—Petitioner’s application for constitution of Medical Board for re-examination of injured persons was dismissed by Magistrate—Sessions Judge dismissed the revision petition on the ground that the order passed by Magistrate was an administrative order hence, it was not amenable to revisional jurisdiction—Validity—Order dismissing the application for re-examination of injured was an administrative order for the reason that while passing such order no lis was pending before the Magistrate; that he was not functioning as criminal court; that he was not obligated to hear the parties before making such an order; that no conclusive decision was given and that no finality or irrevocability was attached to it—Order passed by Magistrate missed the necessary characteristics of being a judicial order—Revisional jurisdiction was not available to the Sessions Judge against the said order—Writ petition was dismissed.

Mehmood Ali v. Khadim Hussain alias Bagh Ali and 3 others 2010 YLR 2772; Muhammad Shafi v. Munir Ahmad and another 2010 PCr.LJ 1799; Muhammad Iqbal v. Additional Sessions Judge, Khanewal and another 2004 MLD 1401; Mansab Ali v. Asghar Ali Faheem Bhatti and 3 others PLD 2007 Lah. 176; Muhammad Anwar v. Dr. Ghulam Murtaza PLD 1998 Lah. 223; Muhammad Razwan v. The State and others 2017 MLD 1828 and Nasreen Bibi v. Nazeer Ahmad and another 2001 MLD 1459 rel.

Muhammad Aslam and others v. The State (Writ Petition No.3780 of 2010) distinguished.

Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588 ref.

(e) Criminal Procedure Code (V of 1898)—

—-Ss. 36, 435 & 439A—Ordinary powers of Magistrate—Revisional jurisdiction—Medical re-examination of injured—Administrative order—Scope—Order of Magistrate allowing or dismissing an application for medical re-examination of the injured is an executive order—Such order is not amenable to revisional jurisdiction.

Saad Bin Safdar for Petitioner.

Zaheer Ahmed Malik for Respondents.

Qaisar Abbas Shah, Assistant Advocate-General.

Ansar Nawaz Mirza as Amicus Curiae.

ORDER

The facts relevant for the decision of instant writ petition are that Mehr Bhari/respondent No.3 got lodged an FIR No.67/2018 dated 01.09.2018 against Ahmad Khan (petitioner) and others, for offences under sections 337- F(i), 337-F(ii), 337-L(2), 34 P.P.C. at Police Station Lawa, Tehsil Talagang, alleging that she as well as her daughter Sharifan Khatoon were inflicted injuries by the accused persons with their respective weapons. Sharifan Khatoon and Mehr Bhari were medically examined on 22.7.2018 through MLC No.318/2018 and MLC No.319/2018, respectively. The petitioner was of the view that injuries were self inflicted, as such, he filed an application before the learned Judicial Magistrate Section 30-Talagang, for constitution of Medical Board for re-examination of both the injured, the said application was dismissed vide order dated 12.09.2018, where-after, a criminal revision filed by the petitioner also met the same fate vide order dated 17.09.2018 passed by learned Additional Sessions Judge, Talagang, by observing that the order of learned Judicial Magistrate dismissing application for constitution of medical board, is administrative order and thus not revisable under section 435 Cr.P.C. In support of his observations the learned Additional Sessions Judge placed reliance on “Mehmood Ali v. Khadim Hussain alias Bagh Ali and 3 others” (2010 YLR 2772) and “Muhammad Shafi v. Munir Ahmad and another” (2010 PCr.LJ 1799).

The above two orders have been assailed through the instant writ petition and the learned counsel for the petitioner while arguing the case referred the case “Muhammad Iqbal v. Additional Sessions Judge, Khanewal and another” (2004 MLD 1401) and contended that in this cited judgment, it has been held that criminal revision filed against an order of Magistrate refusing to constitute a Medical Board, is revisable. Since on the same question of law divergent views of this court were available, therefore, pursuant to the order dated 25.10.2018 the learned Single Bench referred the matter to the Hon’ble Chief Justice, as a result whereof, the same was ordered to be listed before the Division Bench, hence, this order.
We have heard the arguments of learned counsel for the private parties, the learned law officer as well as the learned amicus curiae and also examined the case law cited from respective sides. The gist of cases, wherein, under specific facts and circumstances the orders passed by the Magistrate have been held to be judicial orders, is given below:-
“Muhammad Iqbal v. Additional Sessions Judge, Khanewal and another” (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.

“Mansab Ali v. Asghar Ali Faheem Bhatti and 3 others” (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.

iii. “Muhammad Anwar v. Dr. Ghulam Murtaza” (PLD 1998 Lah. 223).

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.

“Muhammad Rizwan v. The State and others” (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:-

“Mehmood Ali v. Khadim Hussain alias Bagh Ali and 3 others” (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.

“Muhammad Shafi v. Munir Ahmed and another” (2010 PCr.LJ 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.

iii. “Nasreen Bibi v. Nazeer Ahmad and another” (2001 MLD 1459).

In this case, when police applied for remand of an accused, the Magistrate converted offence from 354 P.P.C. to 354-A P.P.C., 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

After going through the above case law, there remains no doubt that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same, does not always function as a court, conducts judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the 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 the question because at some times the 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 the guiding principles have been settled by the superior courts in this respect.
After careful study of case law on the subject, especially the case “BAHADUR AND ANOTHER v. THE STATE AND ANOTHER” (PLD 1985 Supreme Court 62) 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.

So far as the case “Muhammad Aslam, and others v. The State” (Writ Petition No.3780 of 2010) authored by one of us, is concerned, I have gone through the entire judgment and observe that the same was based on a judgment reported as “Ghulam Sarwar and another v. The State” (1984 PCr.LJ 2588), wherein, with reference to physical remand order, certain guidelines were setforth, including that the Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned and the Sessions Judge could examine the same under section 439-A Cr.P.C. From perusal of this judgment, it appears that as liberty of the citizen is an important consideration under the law, during investigation delivering custody of the accused to the police, the Magistrates have to be more conscious and it was directed in the judgment that copy of physical remand order be sent to the Sessions Judge and under section 439-A Cr.P.C. read with section 435 Cr.P.C. when record of any proceedings is available before the Sessions Judge, he could examine its legality and propriety, etc. Therefore, the case referred by the learned counsel for the petitioner has arisen out of specific facts and circumstances, thus, has no binding impact on the facts of the case in hand.
For what has been discussed above, we are convinced that an order of Judicial Magistrate allowing or dismissing an application for medical re-examination of the injured being an executive order, is not amenable to revisional jurisdiction. Thus, the order dated 17.09.2018 passed by the learned Additional Sessions Judge, Talagang dismissing the criminal revision filed against the order of the Judicial Magistrate dated 12.09.2018 dismissing application for constitution of medical board, is held to be based on perfect application of law. The instant writ petition is dismissed.
Apart from above legal position, it is observed that the alleged occurrence took place on 01.09.2018, both the injured persons were medically examined on 22.07.2018 and now almost seven months have passed, the injuries sustained by the victims are covered under sections 337-F(i), 337F(ii) and 337-L(2) P.P.C., after such long with all probability the wounds must have healed up, therefore, it would be a futile effort to get them medically re-examined at this belated stage. However, during the trial the doctor who had medically examined these victims must be appearing before the learned trial court, where the accused party would have ample opportunity to cross-examine him on the above aspects.

SA/A-69/L Petition dismisse