2012 Y L R 781
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
BIBI HANIFA ---Appellant
Versus
Dr. JAMILA GYNAECOLOGIST , CIVIL HOSPITAL PISHIN
and 4 others ---Respondents
Criminal Appeal No.195 of 2010, decided on 30th November, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 337- H---Criminal Procedure Code (V of 1898), S.417(2) ---Hurt by rash or negligent act ---
Leave to appeal against acquittal, refusal of ---Complainant had instituted private complaint after
an unexplained delay of nine months ---Lady Doctor who had actually conducted the operation of
the complainant had not been arrayed as an accused in the complaint ---Present accused had been
working under the said Lady Doctor during operation, which ha d been performed with the
consent of the husband of the complainant successfully---Presence of sponges in the abdomen of
complainant and their recovery therefrom was never brought into the picture either during inquiry proceedings or before the Trial Court ---Said sponges admittedly had been kept in the
abdomen of the complainant for a specific period for stopping bleeding, but complainant had left the hospital against medical advice without permission of the concerned Surgeon---Accused
respondents, therefor e, could not be held responsible for leaving the sponges in the abdomen of
the complainant ---Trial Court had acquitted the accused on cogent reasons, which were neither
perverse nor fanciful ---Petition for leave to appeal was dismissed in circum -stances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 417---Appeal against acquittal ---Principles ---Double presumption of innocence gained by
accused after acquittal cannot be lightly interfered, unless and until the judgment of acquittal is
shown to be per verse, ridiculous, arbitrary and shocking---Acquittal of accused cannot be
reversed only for the reason that Appellate Court on reappraisal of evidence forms another opinion than that of Trial Court, provided both the opinions were plausible in the circum -stances
of the case.
Imdad Shah for Appellant.
Kamran Murtaza for Respondents.
Abdul Aziz Khilji, A.A.- G. for the State.
Date of hearing: 22nd November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Instant appeal against acquittal of respondents
Dr. Jamila, Dr. Rasheed, Naseebullah and Asmatullah has been filed by appellant Bibi Hanifa
and during pendency of the appeal, learned counsel for the appellant requested for treatment of the memo of appeal t o be an application for leave to appeal against the acquittal judgment dated
5th July, 2010, passed by the Judicial Magistrate, Chaman in Judicial Complaint No.39 of 2010, which request was allowed.
2. Briefly stated facts of the case are that the applicant lodged a private complaint under
section 200 of the Cr.P.C. before the Sessions Judge, Pishin on 23rd August, 2008, which was
transferred to the court of Judicial Magistrate, Pishin for inquiry, who, after inquiry, submitted report to the Sessions Judge, Pishin vide Letter No.2 dated 28th September, 2009, however, the Case, subsequently, was transferred to the Judicial Magistrate, Chaman for trial of the private respondents under section 337- H of the P.P.C. It was alleged that the complainant, being mar ried
and pregnant, rushed to Civil Hospital, Pishin and got examined by respondent No.1, who advised her to be admitted in the hospital and sent to Labour Room. She was operated by respondent No.1, being a Gynaecologist, duly assisted by respondent No.2 as Anesthetist and
respondents Nos. 3 and 4 as Assistants and due to their negligent act, her baby died, while during the process of stitching, two sponges were left in her abdomen, due to which, she felt pain and, later on, got examined by Dr. Inamullah at BMC, where in X -Ray, it transpired that two sponges
were left in her abdomen, thus, the respondents committed an offence, punishable under sections 319, 320 and 515 of the P.P.C.
3. During trial, the respondents pleaded not guilty to the charge and, ther eafter,
complainant/applicant produced five witnesses in support of the accusation, viz, P.W.1 Bibi
Hanifa, P.W.2 Muhammad Hashim, P.W.3 Dr. Muhammad Ibrahim Sayyal, P.W.4 Dr. Abdul Haq and P.W.5 Dr. Inamullah.
4. We have heard Mr. Imdad Shah, learned co unsel for the applicant, Mr. Kamran Murtaza,
learned counsel for the private respondents. Mr. Abdul Aziz Khilji, A.A.- G., and also gone
through the evidence on record.
5. Learned counsel for the applicant contended that there was sufficient evidence on record
to connect the respondents with the commission of the alleged offence. In order to substantiate
his contention, he referred to the statements of the applicant, Dr. Muhammad Ibrahim Sayyal and Dr. Inamullah as well as Dr.Abdul Haq. According to learned counsel, due to negligent act of the respondents, the baby of the applicant died, which was an offence, punishable under sections 319, 320 and 337- H of the P.P.C. According to him, the above fact has also come on record
through the evidence of P.W.3 Dr. Muhammad Ibrahim Sayyal, P.W.4 Dr. Abdul Haq and P.W.5
Dr. Inamullah, who had, categorically, stated in their depositions before the trial Court regarding the presence of sponges in the abdomen of the applicant. The ocular testimony, furnished by the prosecution witnesses, is supported by the medical evidence. All this overwhelming evidence
was ignored and not appreciated according to the settled principle of criminal law and governing doctrines of justice. He prayed that appeal may be allowed and responde nts be convicted and
sentenced in accordance with law.
6. On the other hand, learned counsel for the private respondents as well as A.A. -G.,
vehemently opposed the arguments and supported the judgment of acquittal impugned herein. It
was contended that the trial Court, after proper appraisal of evidence and record, rightly found the respondents to be innocent of the charge and, thus, the impugned judgment does not call for any interference by this Court, particularly when double presumption of innocence is also attached to the order of an acquittal.
7. We have carefully considered the contentions, put forth by the learned counsel in the
light of available record. It may be noted that the applicant was operated on 20th November,
2007, while the complaint was instituted on 23rd August, 2008 after a delay of almost nine
months, which has neither been explained in the compliant, nor by the complainant in her Court
statement. It is also surprising to note that the operation was, actually, conducted by Dr.Sughra and the respondents were working under her supervision, as is evident from post operation notes dated 20th November, 2007, which clearly indicates that Dr. Sughra had participated in the operation, yet she had not been arrayed in the instant complaint by the applicant as an accused for the reason best known to her. The record also suggests that the applicant was brought to hospital in a very critical condition, as the baby was hand prolapsed and without major surgery, the baby could not be born, thus, wi th the consent of complainant's husband, the operation of the
applicant was carried out successfully, in result whereof, a baby was born, who was alive, but, later on, she died on account of natural death. There is nothing on record to show that the baby died due to the negligence on the part of the private respondents, particularly when the operation
was performed in compelling circumstances and that too with the permission and consent of the complainant's husband. Another important aspect of the case is that the sponges, which were,
allegedly, recovered from the abdomen of the applicant, had never been brought into picture, either during the course of inquiry proceedings, or before the trial Court, in order to substantiate the accusation levelled against the respondents.
8. Adverting to the contention of learned counsel for the applicant in respect of sponges,
allegedly, recovered from the abdomen of the applicant during the course of operation at Bolan
Medical College, it may be noted that the applicant had gone through a major surgery, when she was brought to Civil Hospital, Pishin in a critical condition and her baby was hand prolapsed, thus, presumption could easily be drawn that the said sponges had been kept intentionally in her abdomen in order to stop the blood for a certain period of time, which, according to the medical
jurisprudence, is left ordinarily in a body of human being and is called "pressure backing", which fact, during cross -examination, was admitted by Dr. Ibrahim and Dr. Inamullah, who,
categorically, stated that the said sponges are being kept in an abdomen of a human body for 48 to 72 hours in order to stop the bleeding; meaning thereby it could not endanger her life till the said period and on getting serious, the said sponges could have been taken out from her abdomen. In this regard, we have also noticed that it is a case of LAMA "leave against medical advice", as the applicant without permission of the concerned Surgeon had left Civil Hospital,
Pishin. Under such circumstances, the respondents could not be found responsible for leaving the
sponges in the abdomen of the applicant.
9. We are of the considered view that the trial Court, on proper appreciation of evidence,
recorded acquittal of the respondents through well -reasoned judgment. The reasons advanced by
the trial Court for recording acquittal of the respondents have not been found by us to be either
perverse or fanciful. The conclusion arrived at by the trial Court is such that any reasonable Court could have arrived at the same upon a fair assessment of evidence available on the record. In these circumstances, we have found no occasion for interference with the impugned judgment of acquittal. Needless to mention here that after acquittal, the respondents carry double presumption of innocence in their favour and the same could not be lightly interfered until and
unless it is shown that the judgment of the trial Court is perverse, ridiculous, arbitrary and shocking. The same could not be reversed only for the reasons that on reappraisal of evidence, the appellate Court could form another opinion than that of the trial Court, provided that both the opinions are plausible in the circumstances of the case.
For the reasons stated above, the application for leave to appeal
N.H.Q./162/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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