Akhtar Zaman Malghani, J.--The petitioners have challenged validity of letter dated 22nd September, 2008 issued by Respondent No, 3 whereby they were directed to close their private laboratories, in the instant petition claiming following relief:-- A. Declaring that the petitioners are qualified and trained medical Doctors and have every right to open, establish and run their private clinical laboratories and the act on the part of Respondent No, 3 in issuing the letter dated 22.9.2008 under the directives of the Respondent No,
1. For closure of the clinical laboratories of the petitioners is illegal, unlawful in excess and mis-exercise of the authority vested in them and is contrary to the earlier decisions taken by them thus, is of no legal consequences.
B. After having declaimed so, the respondents may be directed to allow the petitioners to run their clinical laboratories till the proposed amendment is not finalized.
OR Directing the respondents to provisionally register the laboratories of the petitioners till such time the amendment is finalized.
C. Further directing the respondents to take up the matter with the concerned quarters for finalization of the proposed amendment bill which has been withheld by authorities without any rhymes and reasons since the year 2007.
D. Permanently restraining the respondents from interfering in the smooth running of the clinical laboratories of the petitioners, which are being run on legally and lawfully on the basis of qualifications and experiences they possess.
E. Any other relief, which this Hon'ble Court deems fit and appropriate may also be awarded with cost of the petition in favour of the petitioner, in the interest of justice".
2. We have heard learned counsel for the petitioners as well as learned Advocate General. Learned counsel for the petitioners vehemently contended that the act of respondents in depriving the petitioners from running their laboratories by means of letter dated 22nd September, 2008 was not only illegal and improper but also in violation 'to the provisions of Balochistan Clinical Regulatory Authority Rules, 2005 and advice of Pakistan Medical and Dental Council. He further contended that the petitioners were trained qualified doctors in their respective subjects having experience of 15 to 20 years, on the basis whereof they had been running their clinical laboratories and on account of their experience the committee recommended for amendments in the rules enabling the petitioners to run laboratories which amendments were under process as such; the respondents' direction to close the laboratories without waiting for amendment was illegal and without jurisdiction. He next argued that under Rule 4 (6) of Balochistan Clinical Laboratory Regulatory Authority Rules, 2005 only non-medical persons have been banned to operate clinical laboratories and the petitioners being qualified doctors were eligible to run their laboratories, therefore; there was no occasion for the respondents to have closed their laboratories and such action on the part of respondents was in derogation of Rule 4 (6).. He also argued that condition imposed in the law that only pathologist would be authorized to supervise the laboratories, was in violation of fundamental rights guaranteed by the Constitution.
3. On the other hand learned Advocate General vehemently contended that though pathology is taught in MBBS but it does not imply that MBBS doctor can open clinical laboratories and perform pathologist tests. He further argued that on account of mushroom growth of laboratories in the province and being run by the un-qualified persons there was need for regulating such laboratories through process of law which the government was competent to regulate as provided under Article 18 of the Constitution. He next argued that under the law all the laboratories functioning prior to promulgation of Ordinance and Rules made there under were required to get them registered within the grace period but petitioners failed to register their laboratories, as such; respondents were justified and lawfully competent to direct for close of their laboratories.
4. We have carefully considered the contentions put forth by the parties' learned counsel. It may be observed that in recent years, there has been sudden spurt in the number of pathological laboratories and clinics in the province in general and capital Quetta in particular. There was no separate effective law to control and regulate the activities of those laboratories. Taking advantage of the situation most of those laboratories were fleecing the innocent patients. Many of them were functioning without proper infra structure, equipment's and trained pathologist as well as working under unhygienic condition. It was also noticed by this Court in number of petitions that many of those laboratories not carrying out the examination in proper way leading to wrong diagnoses. In fact running of laboratories by unqualified person tantamounts to play with lives of patients. Plight of a patient can very well be imagined who gets himself treated for a disease only to be informed later on that he was never suffering from that disease.
5. It was high time and need of the day to regulate functioning of those laboratories through process of law, as such; in number of petitions this Court suggested to the government to promulgate law in this behalf The government also realized to take steps and prescribe norms and standards for laboratories and make provisions for their registration compulsory so as to save the people from the unhealthy business practice playing with the lives which the government was competent to regulate under Article 18 of the Constitution of Islamic Republic of Pakistan.
6. The provisions of Article 18 proclaim that every citizen of Pakistan is entitled to enter upon any lawful profession or occupation, and to conduct any lawful trade or business subject to qualifications, if any, as may be prescribed by law and the State may, by law (a) regulate any trade, or profession bra licensing system, or (b) regulate any trade, commerce or industry in the interest of free competition, or (c) carry on, itself or grant to a Provincial Government, or a corporation controlled by any such Government, of any trade, business, industry or service, exclusively or partially.
7. It may be seen from above that this right is not an absolute light but is liable to certain restrictions. Proviso (a) of Article-18 of the Constitution confers upon a Federal or Provincial Government to regulate any trade, profession through a licensing system. Proviso (b) of the said Article granted power to the Government to regulate trade, commerce or industry in the interest of free competition. Governments have been given power under Proviso (c) of the said Article, to carry on any trade, business industry or service, by excluding completely or partially persons to enter into it if trade, business, industry or service is owned or controlled by it. The power to regulate necessarily includes even a power to prohibit. It implies a power to foster, to protect, control and restoration. Fundamental Right in Article 18 of the Constitution of Pakistan pertaining to freedom of trade is also subject to such qualifications as may be prescribed by law which is a clog on the said fundamental right. If the Constitution gives to the Legislature the power to regulate a trade by a licensing system it must follow that the power to prohibit vests in the Legislature insofar as the trade under such system may only be carried by the licensed persons, corporations. Not only Article 18 subjects the Fundamental Right therein to such qualification as may be prescribed by law, there is a specific authority to regulate any trade or profession by licensing system. While examining vires of a statute it has to be presumed that the Legislature will not flout a constitutional provision and all efforts shall have to be made to learn in favour of constitutionality to save it rather than to destroy it.
8. Under Article 18 person without having a qualification can run a business or trade or transport but freedom of profession does not mean the freedom to enter upon any profession or occupation without having the requisite qualifications. Regulations of the professions of medicine, dentistry, law and other like professions which involve the safety and health of the general public are carried on in most of the countries and this paragraph provides that such qualifications may be prescribed by laws. In the case of trade or business the State in requiring technical qualifications, may lay down rules and regulations necessary to secure the confidence of the public in such business when it is a business for the utility of the public and it is essential that it should have the confidence of the public.
In order to determine reasonableness of restriction, likely imposed to the nature of business and conditions prevailing in the trade, it is obvious that these factors must differ from trade to trade and no hard and fast rules concerning of trades can be laid down. In other words pursuit of any lawful trade or business may be made subject to such conditions as may be deemed essential by the legislature to the safety, health, peace and moral of the community.
Likewise creation of moral rights in favour of person or body of persons to carry on any business prima-facie affects the freedom of trade. But it cannot be said that in no circumstance the exclusion of competition so as to create a moral monopoly is justified. The nature of business will be a important element in determining the legality of exclusion of the competition in a particular case.
In the instant case as already observed feeling necessity of regulating business of clinical laboratories through process of law in the larger interest of general public the government of Baluchistan promulgated Balochistan Clinical Laboratories Regulatory Authority Ordinance, 2001 to establish an authority, with the aim and objective to undertake all measures to ensure safety, protection and promotion of human life through a comprehensive and quality clinical laboratory service. Section 17 of the Ordinance, 2001 empowers the authority to make rules with the approval of government to carry out the purpose of Ordinance, in pursuance whereof Rules called 'Balochistan Clinical Laboratory Regulatory Rules, 2005 were made and under Rule 13 existing laboratories were allowed six months grace period for registration and to obtain a valid licence from the authority. Under sub-rule (1) of Rule 4 all the laboratories are required to be supervised by pathologist with necessary postgraduate qualification which restriction could not be said to be un- reasonable as they have to carry out test of or on human body or its excreta for the purpose of diagnosing any disease or otherwise which test essentially requires the person doing it must have expertise in such field. The petitioners may have expertise in their respective fields but merely because during their study in MBBS the petitioners were taught elementries of pathology would not expertise them in the subject nor on the basis thereof they could be allowed to practice in the said filed.
It may further be observed that the Ordinance, 2001 and rules made there-under do not put any clog on the running of clinical laboratories by the petitioners but only lays down condition that the said laboratories should be supervised by a pathologist who should be physically present during routine- working hours, provided that their laboratories fulfill other prerequisite as provided under Rules 5, 6, 7, 8, 9 and 11 of Rules 2005. The petitioners have not applied for registration dining the grace period of six months and were running their laboratories without registration and having valid licences, therefore; the respondents have rightly and lawfully issued letter dated 22nd September, 2008 directing petitioners to close their laboratories which were being un-authorizedly run. The petitioners are neither entitled to the relief claimed for nor petition is maintainable merely because some committee recommended for amendments in the law which did not find favour with government, as on the basis thereof no legal vested right created in favour of petitioners. The rules providing supervision of laboratories by recognized Pathologist are neither discriminatory nor affected fundamental rights guaranteed by Constitution as legislature is competent to impose conditions as may be essential to the safety, health peace and moral of the 'community.
In view of what have been discussed above, we find not merits in the instant petition, which is dismissed accordingly.