Miscarriage of justice

Miscarriage of justice

Synopsis

LHC says 90% of medical examiners in Punjab are unfit for conducting autopsy or medical examination

Miscarriage of justice
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The Lahore High Court has held that 90 per cent of medical examiners in Punjab are unfit for conducting the autopsy or medical examination of dead and injured persons as they lack required training and qualification, causing miscarriage of justice in criminal cases.

In his 13 page judgment, LHC’s Justice Ali Zia Bajwa regretted that 90 per cent of the medical staff did not know how to conduct medical examinations of the injured. The court expressed frustration that the chairman of the District Standing Medical Board paid a deaf ear to the situation.

“A system to carry out Medico legal examination, forensic analysis and autopsies is part of the right to fair trial as ensured under Article 10-A of the Constitution, hence, it should be impeccable and accurate. Medical examiners play a key role in medico legal system and criminal justice system. His competence, expertise and ability should be unquestionable, “ the court order read.

The judge maintained that where a medico legal system is comprising untrained, inexperienced and unqualified medical examiners, it is bound to result in miscarriage of justice.

In the province of Punjab, the minimum qualification threshold for appointing a medical examiner is four weeks of practical training course.

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According to a notification issued by Primary and Secondary Healthcare Department on May 18, 2018 one-month practical training of newly inducted Chief medical officers(CMOs) Medical officers(MOs) and woman medical officers (WMOs) shall be mandatory before start of Medicolegal work and it shall be in the concerned medical college teaching hospital to strengthen the gravity of initial Medico Legal Certificate(MLC) examiner.

The court said the report filed by additional secretary Health (Technical) Primary & Secondary Healthcare Department, containing statistical data, made shocking and damning revelations.

“It transpires that only 10.45 per cent medical examiners meet the minimum qualification threshold which is mandatory before start of medico legal work. Approximately 90 percent medical examiners are inexpert, untrained and know nothing about the practical aspects of examining an injured person, “ the judge opined.

Medical examiner who by virtue of Article 59 of Qanoon Sahadat Ordinance (evidence act), 1984 is an ‘expert’, his opinion can only be considered having some probative value if he has expertise and qualification for rendering such opinion. Now the vital question which crops up for determination is whether 90 per cent of medical examiners who admittedly are unqualified and unskilled can be termed as experts.

“ I have no hesitation to hold that the medical examiners who even do not meet the minimum qualification threshold, which otherwise is not adequate for carrying out such a sensitive job, cannot be called experts as envisaged under Article 59 QSO(evidence act), 1984.

Attending to another crucial aspect as whether a medico legal system where 90% medical examiners are not experts is not offensive to right to fair trial as ensured under Article 10-A of the Constitution, the court rules, “ Article 10-A covers all the aspects of a fair trial and in cases of homicide, suicide and hurt competence of medical examiner or of forensic expert is of utmost significance. Opinion of a medical examiner is not only relevant but also most pivotal in the criminal justice system and at times it plays a decisive role coupled with other evidence. Guarantee of fair trial under Article 10-A of the Constitution is a wishful expectation without a medico legal system consisting of true experts having adequate qualification and skills.

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The court held that a medico legal system with 90 per cent inexperienced and unqualified medical examiners surely is not in consonance with the right to fair trial as guaranteed under Article 10- A of the Constitution. It is not only alarming but also resulting in miscarriage of justice in hundreds of cases every day.

With a view to prevent such injustice, the court issued directions both to Primary & Secondary Health Care and Specialized Healthcare & Medical Education Departments to ensure that medical examiners should meet the minimum qualification threshold and no unqualified and inexperienced doctor shall be posted to perform such a crucial and sensitive job.

It is further directed that the minimum qualification threshold should be improved gradually as one-month practical training course seems inadequate and too short to perform such a sensitive and complex job.

“Every a medical examiner shall be bound to furnish his reasons in support of his opinion and for that purpose a space shall be provided in the Medico Legal Certificate, ” the court further ordered.

The court observed that the field of medico legal plays a vital role and provides great assistance for determining the guilt or innocence of an accused. Due to great significance and reliance of the criminal justice system on medico legal mechanisms, great responsibility is imposed on the medical experts performing such job. But with this significance comes the immense responsibilities on the medical examiners. Where a medico legal system is comprising of untrained, inexpert and unqualified medical examiners, it is bound to result in miscarriage of justice.

Elaborating the history of medical examination, the court said it is believed that the Romans around circa 600 B.C. promulgated legislation that required the corpses of women bearing children to be immediately opened. However absurd that may seem, there was wisdom & design behind this piece of legislation, which was an attempt.

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A citizen Muhammad Nazir has approached LHC against the order of Justice of peace wherein his petition seeking registration of a case was dismissed.

The petitioner vehemently argued that the accusations as leveled in the petition filed under section 22- A (6) Cr.P.C. disclose the commission of cognizable offence, which places a statutory duty upon the JOP to direct the concerned SHO to register the First Information Report (FIR).

He further submitted that the sole reason for dismissal of petition before JOP was that in the Medico-Legal Certificate (the “MLC”), the medical examiner had mentioned that there was a possibility of fabrication of injury No. 3, however, no reasons in support of such opinion were furnished by him.

In the end, the court ruled that since an alternate remedy of filing a private complaint is available to the petitioner, the instant petition is disposed of.

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