MUHAMMAD WAHEED KHAN, J. Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned the order dated 12.11.2019 passed by learned Additional Sessions Judge/Ex-of ficio Justice of Peace, Liaqatpur District Rahim Yar Khan, whereby an application u/s 22(A)(6)
Cr.P.C filed by Noor Murtaza-respondent No.4 was allowed and a direction for registration of criminal case against the petitioner was issued.
2. Briefly , the facts of the case are that one Noor Murtaza-complainant/respondent No.4 took his niece (the patient), a new born baby girl to Childcare Center , Khanbela (owned and run by the petition er) immediately after her birth at T.H.Q Khanbela. Dr. Muhammad Yousaf-the petitioner administered her a drip. The complainant alleged that the patient was again taken to the petitioner , who had administered another drip due to which she lost her life.
Thereafter , feeling aggrieved with the malpractice/medical negligence of the petitioner , respondent No.4 approached the police and voiced his grievance through Rapt No.2/10 dated 16.09.2018 but, since the matter was exclusively determinable by the Punjab Healthcare Commission (hereinafter called as 'the Commission' ), so the same was referred to it, who after taking the cognizance, concluded that the petitioner had not been able to satisfy that the newly born child was not died due to injecting a drip by him and consequently , a fine of Rs.50,000/- was imposed upon him by the Chief Executive Of ficer, Public Healthcare Commission vide, order dated 22.05.2019.
3. In support of the instant petition, learned counsel for the petitioner submits that the impugned order has been passed by the learned Ex-of ficio Justice of Peace in a slipshod manner without adverting to the real facts of the case and, in fact, no cognizable offence was made out from the contents of the application. Further maintains that since the complaint was against the petitioner , who was a medical practitioner , so the matter exclusively comes in the exclusive domain of the Commission which, vide order dated 22.05.2019, while adjudicating upon the application filed by respondent No.4, held that the petitioner was guilty of malpractice, medical negligence and imposed a fine of Rs.50,000/- upon him so under the circumstances, learned Ex-of ficio Justice of Peace had no authority to pass the impugned order for registration of a criminal case against the petitioner . In support of his oral assertions, learned counsel while relying upon the judgments reported as Dr. Malik Muhammad Yaseen vs. Justice of Peace/Additional Sessions Judge Kabirwala and 4 others {2017 PCr.LJ (Note) 192} & Dr. Riaz Qadeer Khan Vs. Presiding Officer, District Consumer Court, Sargodha and others (PLD 2019 Lahore 429) submits that in the light of guidelines given by this Court in the above-cited cases , there was no occasion for the learned Ex-of ficio Justice of Peace to pass the impugned order which is liable to be set aside.
4. Conversely , the learned law officer, assisted by learned counsel for respondent No.4 controverted the arguments advanced by the learned counsel for the petitioner and submitted that respondent No.4 had no axe to grind against the petitioner and the impugned order suffers no legal infirmity , hence need not to be interfered; that jurisdiction of the Commission in no manner can be considered hurdle for initiation of criminal proceedings against the petitioner .
Further maintains that the way the niece of respondent No.4 was handled and administered a drip by the petitioner while dealing with the patient, his act squarely fell within the domain of a cognizable offence u/s 154 Cr.P.C, as such the officer in-charge of Police Station was bound to proceed against him and since the impugned order had been passed in accordance with law, hence needs not to be interfered by this Court. To fortify his contentions, learned counsel for respondent No.4 has relied upon the judgments reported as Naseem Akhtar and another Vs. Ex-of ficio Justice of Peace and others (PLD 2018 Lahore 903) & Dr. Taqqdees Naqash Vs. Senio r Superintendent of Police and others (2015 P Cr.LJ 1628).
5. I have heard learned counsel for the parties and have gone through the record.
6. In order to determine the legal positio n, I have gone through the provisions of the Punjab Public Healthcare Commission Act, 2010 (Act XVI of 2010) (hereinafter called as "the Act" ) preamble whereof says that:- "Whereas it is expedient to provide for establishment of the Punjab Healthcare Commission, to make provisions for the improvement of quality of healthcare services, to ban quackery in all its forms and manifestations and to provide for ancillary matters; Meaning thereby that the Act has been brought for improvement of quality of healthcare services and to ban quackery in all its forms and manifestations. Section 4 of the Act deals with the functions and powers of the Commission and its sub-section 2(c) and 2(e) read as under:
(2) Without prejudice to the generality of the provisions of sab-section (1), the Commission shall-
(a) ...............
(b) ..............
(c) monitor and regulate the quality and standards:
(d) .............
(e) enquire and investigate into maladmin istration, malpractice and failures in the provision of healthcare services and issue consequential advice and orders; So, from bare reading of the above-quoted provisions of the Act, there is no denial of the proposition that all the complaints against the medical practitioners exclusively come within the domain of the Commission.
Similarly , sub-section (7) of the said Section 4 provides as under: (7). Notwithstanding anything contained in any other law , the Commission may;
(a) on a complaint by any aggrieved person; or
(b) on a complaint by any aggrieved a healthcare service provider; and shall
(c) on a reference by the Government or the Provincial Assembly of the Punjab; or
(d) on a motion of the Supreme Court of Pakistan or the Lahore High Court made during the course of any proceedings before it, Undertake investigation into allegations of maladministration, malpractice or failures on the part of a healthcare service provider , or any employee of the healthcare service provider .
Section 19 of the Act highlights the medical negligence, which reads as under: Medical negligence.-- (1) Subject to sub-section (2), a healthcare service provider may be held guilty of medical negligence on one of the following two findings:-
(a) the healthcare establishment does not have the requisite human resource and equipment which it professes to have possessed; or
(b) he or any of his employee did not, in the given cases, exercise with reasonable competence the skill which he or his employee did possess.
(2) The recognized and known complications of a medical or surgical treatment are not considered as medical negligence.
7. Similarly , procedure of investigation has been given in Section 23 & 26 of the Act and the same are being reproduced herein for convenience of reference:-
23. Procedure of investigation.-(1) The commission shall prescribe the procedure for the conduct of investigation to be carried out by the Commission under this Act.
(2) An aggrieved person may, within sixty days from the date of knowledge of the cause of action, file a complaint against a healthcare service provider or healthcare establishment by submitting an application in writing supported by an affidavit of the aggrieved person.
(3) The Commission shall not entertain any anonymous or pseudonymous complaint against a healthcare service provider or healthcare establishment.
26. Violations by bodies corporate:- (1) Where any contravention of this Act is committed by a body corporate and it is proved to have been committed with the consent or connivance of or to be attributable to any director , manager , secretary or other officer or employee of the body corporate, or any person who purported to act in any such capacity , he as well as the body corporate shall be liable to pay fine for the violation.
(2) Where it appears to the Commission that the circumstances of a case warrant action under any other law, the Commission may refer such case to the concerned governmental authorities or law enforcement agencies for appropriate action under relevant laws. (Underline provided for emphasis)
So, Section 26 of the Act is important for decision of a complaint against a medical practitioner and hospitals etc, regarding medical negligence. While seized with such complaint, the Commission is fully empowered to refer the case to the concerned governmental authorities or law enforcement agencies for appropriate action under the relevant laws where it needs or warrants action under any other law .
8. In the light above discussion, I am in agreement with the dictum laid down by this Court in cases of Dr. Malik Muhammad Yaseen & Dr. Riaz Qadeer Khan (Supra) wherein it has been held that the local police has got no authority to lodge a criminal case or learn ed Ex-of ficio Justice of Peace to issue direction in this respect against the healthcare service provider , medical practitioner or the hospitals etc., on the application of aggrieved person.
However , the commission is fully empowered under Sub-section (2) of Section 26 to refer the matter to any law enforcement agencies for appropriate action under relevant laws, where circumstances of the case so warrant and in this regard I noted that the Inspector General of Police, Punjab, Lahore vide letter No.89877-99/OPS-1 11 dated 19.12.201 1 issued a direction regarding Health Care Commission Act and the registration of cases against doctors, in which all the Regional/District Heads of police had been communicated that the Health Care Commission is the only forum, wherein kith & kin of the deceased, who had died due to medical negligence of a medical practitioner , can approach and file an appropriate application in this regard and in the 2nd clause of that letter , it has been categorically stated that all such complaints received by the local police will be sent direct to the Punjab Health Care Commission for thorough probe into the matter and further necessary action will be taken in the light of recommendations made by the commission and no direct action in connection with the registration of criminal case will be taken.
9. So, in the light of supra discussion, I found that the Inspector General of Police, Punjab, Lahore, had rightly issued the above said letter to all the Regional Heads of the Police Department.
10. As far as the cases relied upon by learned counsel representing respondent No.4 i.e. Naseem Akhtar and another & Dr. Taqqdees Naqash (supra) are concerned, I have gone through the same and found that the provisions of Section 26 and 29 of the Act have not been discussed therein. Section 29 of the Act deals with the barring, immunity clause, which reads as under:-
(29) Immunity .- No suit, prosecution or other legal proceedings related to provision of healthcare services shall lie against a healthcare service provider except under this Act.
11. So, the afore-quoted provision of law explicitly bars any other proceedings against a healthcare service provider . Thus, no lacuna or ambiguity is left with the proposition that the complaints regarding medical negligence or otherwise come within the domain of the Act, therefore, I hold that direction issued by the learned Ex-of ficio Justice of Peace against the petitioner for registration of a criminal case was uncalled for, rather , against the law of land.
12. For what has been discussed above, the instant writ petition is hereby allowed, the impugned order dated 12.11.2019 passed by the learned Ex-officio Justice of Peace is set aside. Needless to mentain here that the aggrieved party , if so advised, may invoke the relevant provision of the Act against order dated 22.05.2019 passed by Chief Executive Of ficer, Public Healthcare Commission.