MRS. RASHIDA ASAD, J.---Through this single order , I intend to dispose of the above captioned Criminal Miscellaneous Application filed by the applicants namely Dr. Professor Haleema Akthar Hashmi and Dr. Sheeraz- ur-Rehman to set aside the order dated 06.03.2019, passed by learned Ex-Of ficio Justice of Peace/1st Additional Sessions Judge, Malir Karachi and Crimin al Bail Applications filed by applicants/acc used Dr. Fariha, Dr. Shoaib, Dr. Professor Haleema Akthar Hashmi and Dr. Sheeraz-ur-Rehman, for confirmation of their interim pre-arrest bail, granted by this Court on 08.03.2019 and 1 1.03.2019 respectively .
2. The facts in brief for disposal of the instant matters are that complainant Tanveer Abbas lodged FIR No.78 at Police Station Steel Town, Karachi for offences under sections 326/319/34, P.P.C., alleging therein that on 14.02.2019 at about 12:30 p.m., he admitted his pregnant wife Mst. Afshan Tanveer (the patient) at Al-Hadeed Medical Complex for normal delivery . However , he was told by accused Dr. Fariha and Dr. Shoaib for immediate surgery in order to save the life of child. After 20 to 25 minutes accused Dr. Fariha and Dr. Shoaib congratulated him for the successful surgery and informed that both child and mother were healthy . On 15.02.2019 at 6:00 am, on complaint of severe pain, the Doctor on duty, administered an injection to the patient. Soon after, her abdomen started swelling and her condition becam e critical, which lasted till next morning. On 16.02.2019, during morning visit, the Doctor , after conducting ultrasou nd advised the complainant to arrange three paints of blood as there was a need of second surgery , to open the patient again and see what is causing severe pain. Complainant did not allow to perform the second operation and shifted his wife at Liaquat National Hospital (LNH), where she was diagnosed septic shock with multi-organ failure (heart, respiratory , renal, liver, brain, coagulation) due to wrong operation. Patient was jointly explored/operated by the OBS Gynae team at LNH and approximately 2700 ml purulent infected fluid was drained from peritoneal cavity . The patient did not come to senses after operation and remained in the hospital till her death i.e. 23.02.2019 at 11:30 am. After obtaining death certificate, the complainant on refusal to lodge the FIR by concerned police station, approached to the Ex-Of ficio Justice of Peace and on his direction his statement under section 154, Cr .P.C., was recorded.
3. Applicants/accused Dr. Fariha and Dr. Shoaib (Al-Hadeed Medical Centre) and Dr. Professor Haleema Akthar Hashmi and Dr .
Sheeraz-ur-Rehman (Liaquat National Hospital) have approached this Court for grant of pre-arrest bail. Interim pre- arrest bail was granted to them and now matters are fixed for confirmation or otherwise. The aforementioned applicants/accused have also filed Criminal Miscellaneous Applications praying therein for setting aside the order dated 06.03.2019 passed by learned Ex-Officio Justice of Peace and quash the FIR registered under sections 316/319/34, P.P.C., at Police Station Steel Town Karachi. The learned counsel for applicants/accused Dr. Fariha and Dr. Shoaib (Al-Hadeed Medical Cent re) requested for adjournment of Crimina l Miscellaneous Application No. 132/2019 in view of pendency of a petition before Division Bench of this Court.
4. Perusal shows that this Court stayed the operation of impugned order while passing the following order on 09.04.2019: "Learned Deputy P. G files comments on behalf of SHO, P.S Steel Town; taken on record. Syed Zulfiqar Ali Shah, advocate files V akalatnama on behalf of respondent No.4; taken on record.
By consent proceedings of FIR No.78 of 2019 are stayed and operation of the impugned order is suspended and matter is referred to Healthcare Commiss ion, who shall treat application under section 22-A, Cr.P.C. as complaint, which is available at page 53 of the file, fulfill all requisite formalities, including calling record of the relevant hospital, hearing the parties concerned, examining witnesses of the parties, if any, and shall decide the fate of the grievance of complainant. This exercise shall be completed within two months with compliance report. Office shall communicate this order and application to Chairman Healthcare Commission. T o come up after two months.
5. In compliance of aforesaid directions, the Director complaint of Sindh Healthcare Commission filed inquiry report on 28.05.2019, wherein the conclusion was arrived as under: "Decision SHCC Enquiry Panel- unanimously have decided that there was grave medical negligence on part of Dr. Shuaib and Dr. Samia who misrepresented as Consultant and deceiving the public at large in reality they were not as they hold MBBS degrees only and have no postgraduate qualification.
They were working ultra vires i.e. beyond their powers. They were not authorized to perform any Caesarean section or any surgery . You need at least a Post-graduation degree to perform such surgeries and sadly they were not even aware of this fact. Ignorance of law is no excuse.
There was no need of a Caesarean section in the first place they unnecessarily intervened. There was no sign of fetal distress or oligohydramnios etc or any indication or report found which lead to this conclusion. There was delay in proper diagnosis after post operative surgery complications and they didn't refer the patient in time and there was 36 hours delay . If proper diagn osis and timely efforts were made young woman life could be saved. She died due to incompetence, substandard care, insugicient staff, poor referral policy/ service by Al-Hadeed Hospital.
The patient reached Liaqat National Hospital in a critical condition and was managed appropriately and there no evidence of negligence found on part of the hospital.
SHCC imposes a penalty under section 28(1) of Sindh Health Commission Act (2013) of four hundred thousand rupees on Dr . Shuaib and his wife Dr . Samia.
This case is referred to PMDC to take stern action against Dr . Shuaib and Dr . Samia to cancel their licenses.
Also fines Dr. Fareeha liable to pay a fine fifty thousand rupees only and recomme nds her to get a proper training and pursue continuous professional development.
Dr. Zalma Majid who was called to perform the Caesarean section. She behaved like a rent surgeon she didn't bother to check if the decision was right or wrong and left the patient when spinal anaesthesia was already given.
The patient was prepared for a surgery and there was no other Surgeon to replace her .
She kept the patient in a limbo and left with a lame excuse that she was feeling dizzy and which is highly unprofessional and she is fined and liable to pay fifty thousand rupees.
Sindh Healthcare Commission orders the hospital senior management to rectify the above mentioned observations within two months time, meanwhile Al-Hadeed Medical Centre will remain sealed.
6. It will not be out of place to mention here that Sindh Healthcare Commission can investigate into allegations of maladministration, malpractice or failure on the part of healthcare service provider or its employee. Since complainant has claimed accusation of acting negligently on accused while imparting medical treatment to his deceased wife, hence the moot question in this regard is how the term medical negligence as defined in SINDH ACT NO. VII OF 2014. The term "medical negligence" is referred to in Section 19 of the Act of 2014. According to foregoing provision, a healthcare service provider can be held guilty of medical negligence in the following two forms:
(a) The healthcare establishment does not have the requisite human resource and equipments which it professes to have possessed; or
(b) He or any of his employee did not, in the given case, exercise with minimum service delivery standard prescribed by government competence the skill which he or his employee did possess.
7. From the findings of the Commission referred above and in accordance with the provision of Section 19, it reasonably evinces that the medical staff of Al-Hadeed Hospital, acted negligently while attending a patient as none of them, apparently , were competent to perform caesarian section of the patient.
8. Firstly I would take the bail applications of Dr. Shuaib and Dr. Fariha of Al-Hadeed Medical Centre. Tentative assessment of record shows that on 14.02.2019, complainant brought his wife at Al-Hadeed Centre, where Dr. Fariha examined the patient and consulted with Dr. Sarnia (wife of Dr. Shuaib) over phone, who advised for the caesarian section of the patient. It is prima-facie obvious from the findings of the Commission that accused Dr. Shuaib did not possess post-graduation degrees and knowingly well he perform ed caesarian section and other surgeries which were ultra-vires i.e. beyond his qualifications. Admittedly on 14.02.2019 at 12:30 p.m., Dr. Shuaib performed the caesarian section/ surgery , after which the condition of complainan t's wife became worse and she arrived at Liaquat National Hospital in very critical condition having failure of heart, respiratory , renal, liver, brain, coagulation. The Commission in the repor t has imposed penalties against Dr. Shuaib, Dr. Sarnia, Dr. Fariha and Dr. Zalma Majid and also referred the cases of Dr . Shuaib and Dr . Samia for cancellation of their licenses.
9. There is no cavil that criteria for the grant of pre arrest bail to accused of a non-bailable offence is quite different to that after arrest. In terms of recognized legal precincts to consider the grounds for bail before arrest the sine qua non is, that the competent Court while exercising its discretion has to look if there was any element of eminent mala fide flouting on the surface of matter/case, implication and the arrest of the accused is tainted with malice out of ulterior motives and inevitable, irresistible maltreatment resulting into humiliation and unjustified harassment.
There is abundant case law for the above proposition and the following case laws can be relied on:
(i) 2007 SCMR 1607 "Bail before arrest can be granted when the arrest of accused is eminent, with ulterior motive, mala fide or is due to false implication apparent on the face of the record".
(ii) 2004 SCMR 1375 "Criminal Procedure Code ('V of 1898)--S.498---Penal Code (V of 1860), Ss.420, 468 & 471---Constitution of Pakistan (1973), Art. 185(3)---Pre-arrest bail, grant of---Pre arrest bail granted to the accused by Sessions Judge was recalled by High Court---Accused instead of surrendering before police appeared before Supreme Court for pre-arrest hail---During investigation, the police had found the accused guilty of the offence and Challan had been filed in the Trial Court---V alidity---Prima _facie the allegations against the accused were of serious nature---Criteria for grant of pre-arrest bail to ari accused persons were quite different to that after arrest---High Court had exercised its discretionary jurisdiction after scanning the record---Order of recalling the bail was neither perverse nor capricious or arbitrary and the same did not call for interference by Supreme Court---Bail was declined to the accused---Leave to appeal was refused".
(iii) PLD 1998 SC 97
(b) Criminal Procedure Code (V of 1898)--5.498---Anticipatory bail---Conditions---Apprehension of arrest of an accused being for ulterior motive, i.e. that of humiliation and unjustified harassment, is a sine qua non for pre-arrest bail.
(iv) PLD 2009 SC 427
(b) Criminal Procedure Code (V of 1898)---S. 498---Constitution of Pakistan (1973), Art. 185 (3)---Bail before arrest, grant of---No court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest especially the condition regarding mala fides were proved--- Where no such finding existed in the bail granting order , on the contrary while talking about the disappearance of the accused for more than two years after his nomination as an accused, the High Court found that the said accused was in no condition to escape arrest or to abscond and it was the police which had not caused his arrest for such a long period of time which observation obliviously established absence of ulterior motives on the part of police---Supreme Court observed that it was on account of the admitted physical disability of co-accused that the Supreme Court exercised restraint in issuing a notice to him for recall of the bail allowed to him".
(v) 2009 SCMR 1 129
(b) Criminal Procedure Code (V of 1898)--S.498---Pre-arrest bail, grant of---Scope---Grant of pre-arrest bail essential required considerations of mala fide, ulterior motive or abuse of process of law".
10. Keeping in mind the above enunciated principles and parameters to deal with the application of pre-arrest bail, the record made available was scanned keenly with the assistance of the learned counsel of the parties and to find out the ground for confirmation of the bail by ruling out the possibility of implication of the applicant being mala fide for ulterior motives and element of unjustified harassment but these consideration s are conspicuously missing in the case of Dr . Shuaib.
11. For the foregoing reasons, I have come to the conclusion that Dr. Shuaib has failed to make out a case for pre- arrest bail, as he admittedly performed caesarian section, which was ultra vires i.e. beyond his qualifications.
Therefore, the interim pre-arrest bail granted to the applicant Dr. Shuaib vide order dated 08.03.2019 is hereby recalled.
12. As regards to the case of Dr. Fariha is concerned, the only allegation against her is that she admitted the patient and obtained advice of Dr. Sarnia over phone for caesarian section. Such allegation makes a room for further probe into her guilt, which can only be threshed out after recording of the evidence. It is well settled law that while deciding bail application, only tentative assessment is to be made and no deeper appreciation of material is permissible, therefore, she deserves confirmation of her pre-arrest bail. The interim pre-arrest bail granted to Dr. Fariha is hereby confirmed on the same terms and conditions. The Criminal Bail Application No. 338/2019 is accordingly , disposed of.
13. Now coming to the Criminal Miscellaneous Application No. 122/2019, it is observed that FIR has already been registered against the applicants and investigation is in progress. Moreover , this Court would refrain from rendering any finding on the merit of the case at this I stage, which may prejudice the case of the applicants in any manner whatsoever and considers that the legal and factual issues raised in the present Misc. Application can be taken by the applicants in the first instance before the Investigating Officer and even before framing of charge by the trial Court, if at all challan is submitted before the learned trial Court which has the power to discharge the applicants at any stage of the proceedings. The Honourable Supreme Court of Pakistan in the case titled Nasreen Bibi v.
Farrukh Shahzad and others (Criminal Appeal No.280 of 2013) decided on 04.02.2014 while dilating upon similar question of law has upheld its earlier view which reads as under: "During the hearing of this appeal a consensus has developed between the learned counsel for the appellant the learned counsel representing respondent No.1 and the learned Additional Advocate-General, Khyber Pakhtunkhwa to the effect that the impugned judgment passed by a leaped Judge-in-Chamber of the Peshawar High Court, Abbotabad Bench is not sustainable in law because the criminal case in hand was still at its investigation stage when the said judgment was passed and at the investigation stage of a criminal case the provisions of section 561- A, Cr.P.C. do not stand attracted. This consensus of opinion between the learned counsel for the parties and the learned Law Officer finds support from the cases Emperor v. Khwaja Nazir Ahmed (AIR (32) 1945 Privy Council 18), Shahnaz Begum v. The Hon'ble Judge s of the High Court of Sindh and Balochistan and another (PLD 1971 SC 677) and Nazir Ahmed and others v. Muhammad Shafi and another (PLD 1980 SC 6). In this view of the legal position this appeal is allowed and the impugned judgment passed by the learned Judge-in-Chamber of the Peshawar High Court, Abbotabad Bench on 27.08.2013 is set-aside.
14. It is further observed that the powe rs under section 561-A, Cr.P.C. are to be used sparingly and only in exceptional cases. In this respect, suffice it to make reference to the observations made by a Division Bench of this Court in the case reported as Ch. Pervez Elahi v. The Federation of Pakistan through Secretary , Ministry of Interior , Islamabad and 3 others (1995 MLD 615 ) wherein it is held as under: powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, read with section 561-A, Cr.P.C. can be invoked to quash the proceedings in exceptional cases where trial of an accused would amount to unnecessary harassment but the Court ought not to resort to said provision of law if on the basis of any allegation made by the prosecution, a prima facie case is made out against the accused.
The procedure laid down by Criminal Procedure Code, the authority vested in the Court under Article 199 of the Constitution and under such like other provisions of law, are meant to prevent harassment of an accused but within the premises to secure the ends of justice and not to defeat it. It is not the function of the High Court in such like proceedings to adjudge the innocence or guilt by minute scrutiny of evidence recorded by the investigating agency against the accused or by adjudging the credibility of the statements of the prosecution witnesses. The Court cannot sit as an investigator but the matter can be looked into to find out as to whether a prima facie case exists against the accused on the facts disclosed in the FIR and from the deposition of the prosecution witness. The difference between the determination is to know whether the proceeding is really intended to secure the ends of justice or factually an abuse of the process."
15. In another judgment reported as Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813 ), the apex Court has held as under:- "The general practice of learned High Court which is well entrenched seems to be that no proceedings should be quashed ordinarily in view of the powers as conferred upon it under section 561-A, Cr.P.C. unless the trial court exercises its power under section 249A, Cr.P.C. or section 265-K, Cr.P.C. However , in exceptional cases, the power as conferred upon High Court under section 561-A, Cr.P.C. could have been exercised. If any reference is required, the case titled State v. Asif Ali Zardari (1994 SCMR 798), Muhammad Khalid Mukhtar v. State (PLD 1997 SC 275) can be referred."
16. For what has been discussed above, no case for quashment is made. Therefo re, I am constrained to dismiss the Criminal Misc. Application No.122 of 2019 filed by applicants.
17. However , while dealing with the bail application filed by Dr. Professor Haleema Akhtar Hashmi and Dr. Sheeraz- ur-Rehman, their case calls for further inquiry as the Commission in its report has concluded that "The patient reached at Liaqat National Hospital in a critical condition and was managed appropriately and there is no evidence of negligence found on the part of the hospital" , therefore, a case of further inquiry is made out.
Interim pre-arrest bail granted to Dr. Professor Haleema Akhtar Hashmi and Dr. Sheeraz-ur-Rehman is hereby confirmed on the same terms and conditions. The Criminal Bail Application No. 339/2019 is accordingly disposed of.
18. While concluding with this order , it would be pertinent to mention here that there is mushroom growth of clinics and maternity homes in every nook and cranny of the cities/villages, which are being run by private sector and government, without proper facilities and qualified staff. It has also been noticed that in government setups the Doctors encouraged women to come to their private clinics for deliveries which mostly running without any proper diagnostic facilities. Therefore, the Commission is directed to take steps in all over Sindh to register the unregistered medical centres as per law and if any maternity home, childcare centre and medical centre is found to be run by unqualified person(s), stern action be taken against them 'as per law . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.