' MUSHIR ALAM, C J.---Petitioner, Homoeopath Doctor Amjad Iqbal Bhatti, has impugned the show- cause notice dated 14-6-2007 on the basis of which the impugned order dated 1-4-2009 has been' passed by the National Council for Homoeopathy (hereinafter abbreviated as NCH) whereby "it has been decided by National Council for Homoeopathy to cancel your (i.e Petitioner's) Registration as Registered Homoeopathic Medical Practitioner and remove your name from the Register. Of Practitioner under Section 28 of Act II of 1965 and you are restrained to practice homoeopathic System of Medicine, failing which legal proceedings for violation of section 37(1) and (3) of UAH Act II of 1965 will be initiated against you" (i.e Petitioner).
2. Facts leading to the controversy in hand appears to be that the petitioner placed an advertisement in various newspapers that led to issue of impugned show-cause notice dated 14- 6-2007 on the following allegations:--
(i) Use of title of Dr. Instead of using express "Homoeopathic Doctor".
(ii) Release of following advertisements in Daily Nawa-e-Waqt Rawalpindi/Islamabad on Tuesday 29-5-2007 without approval from the National Council for Homoeopathy and Advertisement Committee of Federal Ministry of Health:-
(a) Advertisement of Unrealistic, unscientific and unethical claim about treatment of various diseases.
(b) Advertisement of various Combinations prepared against the Principles of Homoeopathy without approval from the National Council for Homoeopathy and Advertisement Committee of Federal Ministry of Health."
' On the basis of above allegations, he was called upon to show cause as to why action under section 28 of Unani Ayurvedic and Homoeopathic Practitioners Act, 1965 (hereinafter abbreviated as "UAH Act 1965"), may not be taken against him and as to why his registration may not be cancelled on account of misconduct as noted above.
3. In reply dated 28-6-2007, petitioner denied having committed any offence/misconduct. He, however, stated that "under your good guidance he shall remain careful in future. It was further stated that inadvertently, the word "Homoeopathic" could not be printed prior to the word "Doctor" and requested that the show-cause notice be withdrawn. In reply, he also undertook "that in future, I will not publish the advertisement, without permission of advertisement committee of Federal Ministry of Health".
4. On 4-8-2007 the petitioner appeared before the committee and promised to provide an Affidavit within a week as committed in the reply to the show-cause notice. It seems that despite various reminders issued by the respondent to file an affidavit to the effect that the petitioner will practice Homoeopathy strictly in accordance with the provisions of UAH Act, 1965, Rules and Regulations and Code of Ethics approved by the Federal Government, the petitioner neither attended the hearing nor furnished the affidavit as committed, therefore, the National Council for Homoeopathy (herein after abbreviated NCH) as in its meeting held on 31 October and 1 November, 2008 decided to cancel the registration of petitioner as Registered Homoeopathic Medical Practitioner and remove his name from the Register of Practitioner under section 28 of Act, II of 1965.
4A. It was contended by Mr. Aftab Ahmed Khan, learned counsel for the petitioner that action cannot be sustained for the reasons that section 28 of UAH Act, 1965 applies to the convict and secondly after holding an inquiry if a person is found guilty of misconduct then his name could be removed from the Register and not otherwise, in the instant case, according to him no enquiry was held, therefore, impugned action is violative of law.
5. Mr. Nazar Akber, learned D.A.-G. Submits that the matter in issue could still be resolved, if the petitioner files an affidavit to the effect that he shall practice Homoeopathy strictly in accordance with the provisions of UAH Act, 1965, Rules and Regulations and Code of Ethics as approved by the Federal Government.
6. However, learned counsel for the petitioner on instructions declined such offer. According to him, petitioner has a good case on merits and insisted to get the judgment.
7. Mr. Nazar Akber, learned D.A.-G., contended that this is a case of admission of charges as contained in the impugned show-cause notice and no inquiry is called for the offence of representing oneself as a Doctor and making unethical claims of providing treatment of serious diseases, which claim and representation is against the professional ethics and is in breach of Code of Conduct as approved by the Government of Pakistan. According to learned D.A.-G. Under section 39(3) UAH Act 1965 misrepresentation of the nature entails punishment of two years on trial and such contravention is punishable not less than one year nor more than five years and also with fine which may extend to Rs,25,000. It was further contended by learned D.A.-G. That the NCH had taken a very lenient view in the matter as the petitioner while admitting the charges of misconduct extended assurance not to repeat the act and misconduct complained of. According to him, the petitioner has now changed his mind and fell out of commitment in before the competent authority to file an affidavit to abide by law and code of ethics.
8. According to learned D.A.-G., it is a case of admission no formal enquiry is necessary. According to learned D.A.-G., when the petitioner is adamant and refused to avail the concession extended by the respondent in good spirit in such case petitioner deserves no leniency and he should face, the consequences.
9. Mr. Nazar Akber, learned D.A.-G., has also drawn our attention to the fact that the petitioner is adamantly repeating the offence under section 39 and still continues to make misrepresentation to induce innocent persons to fall prey to his tall claims made in the advertisement and despite his undertaking and commitment in reply to the show-cause notice, he got published the advertisement in various newspapers including daily Ummat Karachi dated 5 July, 2010 and 2 August, 2010 misrepresenting himself to be Dr. Amjad Iqbal Bhatti, which carries unverified and tall representation of treating various ailments giving false hopes to common persons who fall in trap of scrupulous person and are deprived of hard earned money as well as health and at times it cost their lives. Learned D.A.-G. Vehemently urged that such adamant and defiant persons should be dealt with strictly.
10. We have heard the arguments advanced by learned counsel for the parties and perused the material available on record.
11. The charges, on the basis of which the impugned notice was issued, have been reproduced in the narrative above.
12. Under section 3 of the Act, 1965, two Councils, one National Council for Tibb and other National Council for Homoeopathy are contemplated. Each Council is responsible to regulate and discipline the profession and matter related to Tibb and Homoeopathy respectively. Each Council is a body corporate, has perpetual succession, a common seal and each Council could sue or be sued in their respective name. Every person who passes the qualifying examination in Homoeopathy from a recognized institution is registered and on registration he is entitled to practice Homoeopathic System of Medicine.
13. UAH Act, 1965 imposes certain restrictions on Homoeopathic practitioners including, inter alia; he cannot use or sell any drugs or medicines other than included in Homoeopathic Pharmacopoeia approved by the NCH and any violation thereof is punishable under Section 36 ibid; with imprisonment for a term which may extend to seven years or with fine which may extend to rupees one lac or with both. A person unless registered under the UAH Act, 1965 cannot practice or hold himself out directly or indirectly as practicing Homoeopathic system of medicine, any contravention thereof also entails punishment-extending up to one year or with fine or with both.
Another restriction imposed on the Homoeopathic Practitioners is that no person is authorized to add his name, title or description any letters or abbreviations which imply or are calculated to lead to the belief that he holds a degree, diploma, licence or certificate as his qualification to practice Homoeopathic system of medicine, unless he actually holds such degree, diploma, licence or certificate as may be recognized by any law in Pakistan and/or conferred and issued by a body or institution under the UAH Act, 1965. Per subsection (2) of section 39 thereof a Homoeopath is restrained from describing himself as a Doctor and he can use the expression "Homoeopathic Doctor" it is further mandated that both the words "Homoeopathic" and "Doctor" are used with equal prominence any contravention thereof also leads to conviction.
14. In order to examine the contentions of learned counsel for the petitioner that the Council has no jurisdiction to remove his name from register or list or otherwise it will be beneficial to Examine section 28 of the UAH Act, 1965 which reads as follows:2.- "28. Removal from Register etc.--The Council may direct that the name of any practitioner who has been convicted of a cognizable offence or who after due enquiry has been found guilty of misconduct shall be removed from the register, or the list, if the offence or misconduct in the opinion of the Council discloses moral turpitude such as to render him unfit to practice his profession: ' Provided however that no action shall be taken by the Council under this section unless the person convicted of the cognizable offence or found guilty of misconduct has been given a reasonable opportunity to show cause against the punishment proposed to be inflicted on him."
' On perusal of the above provision it emerges that name of any Homoeopath practitioner could be removed from the register, by the NCH provided (i) delinquent Homoeopath or person charged with allegation under the UAH Act, 1965 has been convicted of a cognizable offence or (ii) who after due enquiry has been found guilty of misconduct and (iii). Name of a delinquent Homoeopath or person charged with allegation under the UAH Act, 1965 could also be removed from the list, in case the alleged misconduct in the opinion of the NCH discloses moral turpitude such as to render him unfit to practice his profession. Actions under said provision, however, could only be taken after providing an opportunity to show cause against the proposed punishment or penalty, as the case may be. Though, the allegation made in the show-cause notice is founded on publication of advertisement in a news paper, which prima facie carries an impression that the petitioner has represented himself as a Doctor and not as "Homoeopathic Doctor" as is required under section 39 of the UAH Act, 1965 referred to above. The charges are very clear as to his misrepresentation.
Enquiry within the contemplation of the section 28 of the UAH Act, 1965 is held where a person is alleged to be found guilty of misconduct and disputes and challenges allegations contained in the show-cause Notice. Enquiry within the contemplation of section 28 ibid is inquisitorial in nature and person holding such trial or enquiry determines and defines the scope and extent of enquiry depending on the nature of misconduct. Issuance of show-cause notice is but part of the enquiry.
In cases where allegations of misconduct made in the show cause has been admitted and confessed by the person, it is up to the authority vested with power to make probe and investigation into the alleged misconduct, as may be deemed appropriate. In the instant case it is for the committee constituted by the NCH, to decide whether any further probe other than confronting the petitioner with the incriminating publication is required or otherwise. In case a person despite several opportunities fails to appear and defend his position before the authority conducting enquiry cannot be allowed to say that no enquiry was conducted, in case in hand, there is no reasons why adverse presumption could not be drawn by the Committee entrusted to conduct enquiry or NCH when petitioner by choice failed to appear and defend his position, moreso when the petitioner admitted to have got published incriminating advertisement without the permission of the 'Advertisement Committee of Ministry of Health', which act falls within the mischief of 'misconduct'. Contention of learned counsel for the petitioner that no inquiry was conducted in the matter, under the given facts and circumstances are absolutely without force and cannot be sustained.
15. Invariably in cases where a person admits guilt or misconduct, express remorse, tenders apology and assures not to repeat wrong or misconduct complained of the authority concerned and so also courts of law do take a lenient view of the matter but, in case charge or allegation is contested and is ultimately established, then such delinquent may lose sympathetic consideration or any leniency on the part of the authority or the Court.
16. It may be observed that the petitioner remained adamant as to the concession extended out by the Committee and NCH his resilience from the commitment made before the Committee/NCH to file an affidavit to the effect that he shall abide by the UAH Act, 1965 and Code of Ethics shows his adamancy. Even the concession extended in Court by the learned D.A.-G. On instructions of the NCH was not availed of.
17. From the record and material placed on record it is evident that petitioner is still holding out to be a Doctor in various advertisements placed by him in various news papers subsequent to the filing of instant petition, which act constitutes an independent offence and should be dealt with by NCH strictly in accordance with section 39(2) and other provisions of the UAH Act, 1965.
18, It may further he observed that where there is adamancy and recurrence of the misconduct and repeated violation of Code of Ethics it aggravates the wrong, under such situation, the NCH and Federal Government should take strict view of the matter and in addition to holding an inquiry where circumstances so warrant, at the same time, may also initiate criminal prosecution in terms of Chapter II of the Ordinance, 1969 and file a complaint as required under section 41 of the Act 1965 before the competent court of law.
19. It is expected that the NCH and the competent authority in the Federal Government would act promptly on the recommendations of the Council whenever any such contravention comes to their notice and scrupulous Homeopathic Practitioner who make false representation to the general public and play with the lives of innocent persons may be dealt with strictly in accordance with law.
In consequence, we do not find any merit in this petition, which is accordingly dismissed along with the listed application.