'SALAHUDDIN PANHWAR, J.---Through instant CMA, Plaintiffs seek restraining order against the Defendants from taking any action against them, according to Plaintiffs they are working as dentists, (providing services of scaling, filling and extraction of loose teeth so also from artificial fixing the teeth of poor people).
2. Precisely, relevant facts as set out in the plaint are that plaintiffs are members of the Dental Practitioner Society Registered Pakistan at Karachi to which thousands of dentist(s) are affiliated throughout the entire Province of Sindh; the plaintiffs have been working in the field of dentistry since decades as unregistered dentists and are extending service to the population of the Sindh province by way of scaling, filling and extraction of loose teeth and artificial fixing the teeth of poor people as there is great shortage of qualified registered dental surgeon(s) in the country as well in Province of Sindh; Plaintiffs were/are working as '..Itist(s). It is further claimed that Defendants Nos. 1 to 3 along with their staff have started campaigns against the plaintiffs whereby they are causing humiliation and harassm ent and even have lodged FIRs and sealed the clinics of the plaintiffs; that there are approximately 75 thousand unqualified, dental practitioners and dentists, who are running their clinics on the basis of their previous training and experiences and have made the profession as their only livelihood for the last six decades; that the appropriate and necessary amendments can be introduced in section 3 of Pakistan Medical and Dental Ordinance, 1982; whereby the plaintiffs can be conferred, granted of/issued diplomas, licenses, certificates or other documents stating or employing that the holder, grantee or recipient, therefore is qualified to adopt medical and dental practice as profession; that due to the above mala fide acts on the part of the defendants, the plaintiffs suffered mental and physical torture as well as loss of property (ceasing the clinics), and also the plaintiffs lost reputation in society. Due to the various FIRs which, have been lodged against the plaintiffs, by the defendants. Furthermore the plaintiffs had suffered loss to their health as well as financial position etc. Due to the harsh attitude of the defendants, therefore, the defendants are liable to pay the damages to the plaintiff(s) to the tune of Rs.3,00,00,000/- (Rupees Three Crore only) as described hereunder:-- a. Mental & Physical torture :Rs.1,38,00,000/- b. Loss of reputation Rs.1,38,00,000/- c. Other expenditure Rs . 24 , 00 , 000/- In this background, plaintiffs have prayed as under:-- ,'... .... To pass an order in favour of the plaintiffs and against the defendants in the following manners: a. To declare that the plaintiff mentally suffered as received heavy loss due to mala fide acts of the defendant, is entitled for relief claimed and recover the damages of Rs.3,00,00,000/- (Rupees Three Crore only) from the defendants (severally and jointly). a. In the meanwhile the defendants may be directed not to take any adverse action (harassment, threats for dire consequences) against the plaintiffs and also should restrain sealing of their places of business/profession. b. Direct to the defendants Nos. 1 to 3 to make/introduce such amendments in section 3 of Pakistan Medical and Dental Council Ordinance 1982, where by the rights of plaintiffs to work as scaling, filling, extraction of loose teeth, polishing of the teeth, and artificial fixing of teeth of the poor people:. c. Direct to the defendants Nos. 1 to 3 to lay down a comprehensive policy in this regard, and shall be made a part of Health and Dental Care Institution Ordinance/Rules Regulating or Prohibiting such Profession. d. Pass any other order/orders relief and directions as deem appropriate with the facts and circumstances of the case.
3. While reiterating the above contentions, learned counsel for the plaintiffs has contended that under Article 18 of the Constitution of Pakistan, Plaintiffs are legally entitled to have their trade and defendants cannot disturb their business without any substance. He placed news clippings as well notice under Ordinance No.XXVI of 1982 (Medical Degree Act Ordinance No. LXV of 1962). The Allopathic System (Prevention of Misuse). According to plaintiffs they are providing services to the poor peoples and there is paucity of doctors in our country; defendants have illegally lodged FIRs against the plaintiffs under Sections 269,419, 34 P.P.C. And in similar circumstances other dentists against the crackdown of KPK government approached the Peshawar High Court by filing Constitutional Petition, such petition was disposed off, therefore, this Court may also grant such same relief.
4. In contra, learned State Counsel contends that this suit is not maintainable under the law; defendants are acting within the permissible limits of Land law and due to this illegal practice of plaintiffs, there are serious threats to the lives of the citizens and that this is the main source of spreading of Hepatitis B and C.
5. While consideration of contention raised by learned counsel for the respective parties. It is matter of record that plaintiffs are neither qualified dentists nor are registered with PMDC but they, in specific words, admit to have been working/practicing since last six decades. They even admit that while working/practicing so they are only scaling, filling, extraction of loose teeth and artificial fixing of teeth of poor people. The undisputed position, being so, leaves nothing to doubt that such acts of the plaintiffs are in patent negation to the well settled principle of law that 'things should be done in the manner and procedure, provided by the law alone or not at all. The scanning of the record reveals that they (plaintiffs) have not submitted any document to prove that they have got any degree from any legal institution authorizing them to do the said admitted work (claimed as services). Manifestly, the admitted works/services cannot be termed as a 'simple thing' but in all senses this shall fall within meaning of a 'medical treatment', howsoever low and simple it may be.
A medical treatment, regardless of its simplicity, cannot be permitted to be done/conducted by an 'unqualified' person. At this juncture, the term 'qualified' needs to be referred which in literal sense is:-- 'officially recognized as being trained to perform a particular job, certified'
' Since admittedly, the plaintiffs are not holding any authorization or certificate from a legally authorized institution. There can be no denial to the fact that 'Scaling, filling, extraction of loose teeth and artificial fixing of teeth' are the 'medical terms' and none of them can be undertaken/done without operating inside the 'mouth' (undeniably a vital organ of the body) which would require special skill (qualified hands) so also properly sterilization. The term 'sterilization'.
Means:- 'Sterilization or sterilisation' is a term referring to any process that eliminates (removes) or kills all forms of life, including transmissible agents (such as fungi, bacteria, viruses, spore forms, etc.) present in a specified region, such as a surface, a volume of fluid, meditation, or in a compound such as ...
' Hence, the plea of 'serving poor' cannot be allowed, on the cost of harm/ injury to a living body.
Besides, inter alia, there is a big issue of hepatitis B and C in our country and authorities have failed to control the same due to improper sterilization. If someone is allowed on this plea that they are just providing basic treatment not required big surgery that would amount to give license for spreading such type of diseases, under that circumstances authorities would not be able to control the same. Needless to add that not only the Laws of the land but even the Constitution in clear terms, per Article-4 says that:-- ' Article-4, Rights of individuals to be dealt with in accordance with law, etc.---(1) To enjoy the protection of law, and to be treated in accordance with law, is the inalienable right of every - citizen, wherever he may be, and of every other person for the time being within Pakistan,
(2) in particular--
(a) no action, detrimental to the life, liberty, body, reputation or property of any person, shall be taken except in accordance with law'; ' The Article 4 not only restricts all authorities, including the State but also the souls there-under, to ensure that no action, detrimental to the life, liberty, body, reputation or property of any person, is taken. This means that no act/omission, likely to cause even slightest harm to life and body, can be permitted under any plea regardless of its being under name of social service' or a 'help of poor.
6. The plaintiffs, seeking exception to requirement of 'qualification', on the sole ground of 'working for decades' to earn livelihood. This ground cannot legally sustain particularly in view of the Article- 8 of the Constitution which, even, declares any LAW, or any CUSTOM or USAGE, having the force of law (even), shall, to the extent of its inconsistency with the rights (known as Fundamental Rights), as 'VOID'. There can be no denial to the legal position that law demands proper authorization and qualification from competent legal forum to let one work/act as 'dentist' which, undisputedly, the plaintiffs don't possess.
7. Further, registration of a society is meant to regularize the affairs of members and it, by any stretch of imagination, shall be used as a license/certificate to do a job which, otherwise, cannot be performed without such license/certificate. It is not the 'experience' which can qualify one to dress himself up with a 'status' which, otherwise, cannot be held without proper and legal 'degree'. The defendants have claimed to be taking efforts against the plaintiffs or other alike persons who are found working and posing as 'dentist' by opening the shops etc. Who, otherwise, legally can't. Let me make it, quite clear that any 'loss or suffering' in result of any 'legal and lawful' action cannot be made a base to file a suit for recovery of damages because to sustain a us for 'damages' the act, complained and consequences thereof, must first be proved to be 'wrongful or unlawful'.
8. With regard to plea of decision of Peshawar High Court in similar matter, it would suffice to say that plaintiff has not appended .Memo of that petition, hence it is not manifest that in that petition were asking for same relief. However, order dated 20.06.2012 of the Peshawar High Court, disposing of the W.P. No.1347 of 2012, is referred to by the learned counsel for the plaintiffs. Per said order the petition was disposed of in the following manner:--- "Petitioners are indigenously trained dental makers and fixtures although they have no academic and professional qualification nor they are certified by any professional qualification nor they are certified by any institute duly recognized by law to practice such a profession and why the authorities/respondents have sealed their premises and all their facilities, however, at the same time they have been advised to file appeal within a fortnight, which shall be decided strictly in accordance with law.
2. Accordingly, this petition is disposed of with directions to the respondents to entertain appeal of the petitioners notwithstanding the expiry of the limitation period and that must be decided on merits and according to law and rules on the subject. In the meanwhile, the Provincial Government directed to lay down a comprehensive policy in this regard and shall be made part of the Health and Dental Care Institutions Ordinance/Rules regulating or prohibiting such profession. If need be and deemed appropriate, even the Government may go for legislation."
(Underlining has been supplied for emphasis)
9. It would suffice to say that even while disposing the said petition, the High Court Peshawar, no where, held such status of the petitioners to be 'legal' rather were advised to approach the forum of appeal which, in all senses, means that-action of sealing was not declared illegal but petitioners were advised to establish legality or illegality of such action before 'appellate forum' of acting (sealing) authority, which is the creation of same Rules and Law, under which complained action of sealing of shop was done. The direction for formulating a law or even preparation of a 'Bill' cannot qualify the status of 'law' which shall require the assent of President if it pertains to 'Federation', as per Article 75(3) of Constitution while in Provincial matters it shall require the assent of 'Governor', per Article 116(4) of the Constitution. The plaintiffs have not approached with a complaint of any irregularity or illegality on part of the defendants but are seeking declaration of their action of sealing their place of working as 'dentist or dental' which, the plaintiffs, at no where, claimed to be legal. Hence, this plea of the plaintiffs is also devoid of any substance.
10. There is no cavil to the proposition of law that Article 18 provides guarantee to trade but not in blanket manner and requirement is legal trade. Here, plaintiffs have failed to establish their case that they are in legal trade, hence, defendants are very much in their jurisdiction to take action against such practitioners working in the field of dentistry or other fields of medicine. This is a high responsibility of health department as well concerned authorities to take action against those who are working contrary to the rules and regulations. This cannot be termed to be a 'simple trade' nor could it be treated just like opening of shop etc. In fact, admission of the plaintiffs doing certain 'medical treatments' is nothing but an act which, may result into causing serious harms to the lives of the people.
11. In view of above discussion, I am of the clear view that the plaintiffs have entirely failed in making out a prima facie case, hence injunction application merits no consideration. Since, the above discussion has also brought me to the legal consequences that even suit of the plaintiffs is not maintainable under the law, thus it cannot be legally allowed to continue on the file of this Court because the provision of Order VII Rule 11, C.P.C. Insists to reject a legally barred plaint in its inception. Accordingly, instant plaint is hereby rejected..