The petitioner, Taufique Ahmad, has moved this constitutional petition (W.P.No.2115 of 1987) praying therein that the proceedings arising out of F.I.R. No.147 dated 3-5-1987 (Annexure'H') registered at Police Station Civil Lines, Sialkot, may be declared without lawful authority and of no legal consequence. There is another writ petition (W.P. No. 2018 of 1987) by the same petitioner praying that respondents may be directed not to cause any harassment to him and further not to interfere with his working as Dispenser in the Clinic. It is also prayed that the false and mala fide case already registered against him may be quashed and that the respondents may be directed to act strictly in accordance with law. I propose to dispose of both the above-referred writ petitions together by my one judgment as in both the cases common questions of law and facts are involved.
2. The case of the petitioner, in brief, is that he is a qualified Dispenser and B.Pharmacist and as such had been working with Dr. Muhammad Ashraf for the last about 14 years and he, therefore, has a lot of experience. In the year 1984, one Shafique Ahmad, real brother of the petitioner, got a licence for opening a multi-test clinic under NRI Scheme of Hospital Industry. After getting the licence the petitioner's brother opened the multi-test clinic known as 'Al-Siddique Multi Test Clinic and Al-Siddique General Hospital' Hakim Khadim Ali Road, Opposite Allama Iqbal College, Sialkot.
The petitioner's brother employed a number of qualified M.B.,B.S. Doctors in his clinic as well as in the Hospital and consequently the petitioner left his service with Dr. Muhammad Ashraf and was employed in the clinic of his brother as Dispenser to work with the Doctors employed in the clinic by his brother. After a short span of time the above-referred clinic attracted a large number of patients from all over the city and thus his brother had a flourishing business. This fact created business rivalry with other Doctors in the city. In fact, the petitioner was responsible for the success in the business so started by his brother.
The business of the petitioner's brother flourished so much that his father also opened a Medical Store known as 'Sohail Drug House' at Abbot Road, Sialkot under a regular licence. The petitioner worked as a qualified Dispenser in the abovesaid drug store as well. This resulted into further professional rivalry amongst the medical practitioners of the city. Ultimately, the Doctors arrayed against the petitioner and got hold of one Muhammad Afzal and through him an application was moved before Deputy Commissioner, Sialkot and then a case was got registered against the petitioner under section 420/419, P. P. C . Under the allegation that he was posing as a Doctor and also as a Specialist. Thorough investigation in the case was conducted by the Investigating Agency and ultimately abovesaid was found false and was cancelled on 2-11-1986 vide the copies of the F.I.R. And cancellation report attached with W.P. No.2018 of 1987 as Annexures 'D' and 'E'. The professional opponents of the petitioner did not stop the matter, here. They further took steps for the cancellation of the licence for running the drug store, referred to above, in the name of the petitioner's father and consequently the drug store licence was cancelled and which act of cancellation was challenged before the civil Court by filing a Civil suit. The petitioner has obtained ad interim order thereby restoring the drug store licence in the name of the petitioner's father. It may be pointed out that the interim order passed by the Civil Court was challenged before the District Judge by filing an appeal. However, the interim stay order was confirmed by him vide Annexure 'F'.
3. Apart from the above, another criminal case was got registered under section 419/420/466/109/471, P.P.C. Against the petitioner under the direct order of the District Magistrate, Sialkot. As a consequence of the aforesaid registration of the case a lot of harassment was caused to the petitioner. The petitioner was admitted to bail in the said case. Respondent No.3, learned City Magistrate, Sialkot, raided the clinic under the instructions of the Deputy Commissioner, Sialkot and the petitioner was apprehended and was taken to the court-room of the District Magistrate. The petitioner lodged a protest and stated that he was a qualified Dispenser and was a B.Pharmacist and that he has committed no offence. Further, that several Doctors were working in the clinic owned and possessed by his brother. However, the learned Magistrate did not pay any heed to it.
The petitioner was later on handed over to ASI, Police Station Civil Lines with the specific direction that he should proceed against the petitioner. The petitioner stated that the learned Magistrate directed the ASI that he should see to it that the petitioner is first arrested and then a case be registered against him so that he may not be able to approach the court for the purposes of bail before arrest. Further direction was issued that the clinic of the petitioner's brother be immediately closed. The petitioner placed in the situation referred to above filed writ petition No.2018 of 1987 seeking legal protection from the High Court against the excesses being committed by the respondents against him. In the above-referred writ petition the respondents were directed to submit a report with parawise comments and consequently the requisite report as well as the comments have been submitted in the case. The petitioner was also allowed pre-arrest bail vide Criminal Miscellaneous No.1424/B-1987. The petitioner, in the background of the case as mentioned above, has prayed that the F.I.R. No.147 dated 3-5-1987 registered under section 420, P.P.C. At Police Station Civil Lines, Sialkot at the behest of the City Magistrate, Sialkot may be quashed being without Lawful authority and of no legal consequence.
4. W.P. No.2115/1987 was admitted on 13-5-1987 and consequently, the learned Additional Advocate-General, Punjab, has appeared before the Court to contest the proceedings. Earlier, the connected writ petition bearing No. 2018 of 1987 was filed and in this writ petition respondent S.H.O.
Police Station Civil Lines, Sialkot has submitted detailed comments on 18-5-1987.
5. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate- General, Punjab at considerable length. It is forcefully submitted by the learned counsel for the petitioner that even if the facts as disclosed in the F.I.R. (Annexure 'H') are conceded to be correct, no offence whatsoever is constituted. The learned counsel submitted that the contents of F.I.R.
Annexure 'H' are short and simple wherein it is mentioned that the complainant Magistrate raided the premises of the petitioner on 29-4-1987 in the company of two police constables namely, Sattar Ahmad and Abdul Ghafoor, under the instructions of the Deputy Commissioner, and found the petitioner while sitting on a chair in the hospital at Hakim Khadim Ali Road, busy in checking a person. On enquiry the petitioner told the raiding Magistrate that he was Taufique Ahmad and that he was a Dispenser by profession. The report further discloses that the petitioner was checking the patients while posing as a qualified doctor. This is all the allegation levelled against the petitioner in the F.I.R. No. 147 (Annexure 'H'). The learned counsel urged that it is clear from the mere narration of the facts in the F.I.R. That the petitioner disclosed to the raiding party that he was a qualified Dispenser and the mere fact that as a qualified dispenser the petitioner was checking certain patient did not at all constitute the commission of any offence. The learned counsel maintained that the only evidence produced in the case is that of the raiding Magistrate, namely, City Magistrate, Sialkot and two constables, namely, Sattar Ahmad and Abdul Ghafoor who have deposed that the petitioner was sitting on a chair and was examining a patient in the clinic. The learned counsel stated that the evidence of the above-referred three persons even if admitted to be true will not at all attract the provisions of section 420, P.P.C. Inasmuch as there is no allegation of cheating and fraud in the case. On the own showing of the prosecution, the learned counsel stated, the petitioner told the raiding party that he was a qualified dispenser and he also produced before them a certificate to that effect. Learned counsel submitted that no patient or for that matter any Doctor from the city of Sialkot was. Produced to prove that the petitioner was posing and in fact was working as such in the clinic owned and possessed by his brother. The learned counsel has placed heavy reliance on Hussain Bakhsh and 3 others v. Noor Muhammad and another 1983 P Cr. L J 1585, Muhammad Shafi v. The State 1985 PCr.LJ 540, Syed Fayyaz Hussain Hamdani (Advocate) v. The State 1982 P Cr. L J 726, Ghulam Muhammad Sadruddeen etc. v. The State PLD 1987 Kar. 304, Mian Munir Ahmad v. The State 1985 SCMR 257, Syed Arshad Ali and another v. Navid Raza and two others 1984 P Cr. L J 585, Subedar Malik Sher Muhammad v. The State 1986 P Cr. L J 1510, Loung Khan and 2 others v. Muhammad Jumman and 2 others 1982 P Cr. L J 1039 and Husina Bano v. State 1983 P Cr. L J 132 in support of his contentions. In these cases the proceedings were quashed on the ground that no offences were made out under the given facts and circumstances. The learned counsel lastly submitted that there is absolutely no evidence against the petitioner to connect him with the commission of the crime. He is being victimized at the behest of some Doctors including Dr. Muhammad Ashraf who is Mayor of the Municipal Corporation, Sialkot and that all have made a party to proceed against the petitioner with an ulterior motive to destroy his flourishing business in the medical field.
6. Mian Nusrat Ullah, learned Additional Advocate-General, has raised a preliminary objection that the challan in the case has been submitted before the trial Court and as such the petitioner has a remedy under section 249-A, Cr.P.C. The learned counsel stated that this petition being incompetent may be dismissed and that the petitioner should first avail of the remedy available to him under section 249-A, Cr.P.C. The learned Additional Advocate-General maintained that it is the function of the trial Court to record the evidence and then to come to some conclusion one way or the other. He further submitted that proceedings being taken against the petitioner should not be stifled at this stage. However, the learned Additional Advocate-General did not say anything about Annexure 'A', copy of the certificate issued by the West Pakistan State Medical Faculty showing that the petitioner has passed the examination for dispensers. Similarly, Annexure 'A/1' is a certificate issued by Punjab Pharmachy Council, Lahore, showing that the petitioner was a Dispenser and has been registered as such. Annexure'A/2' is Licence issued by the Government of Pakistan, Ministry of Commerce, Office of the Chief Controller of Imports and Exports. All these documents produced and relied upon by the petitioner go unchallenged by the State on the status of the petitioner as a Dispenser and B. Pharmacist.
7. After hearing the learned counsel for the parties at great length and perusing the record very minutely, I am of the view that on the face of it, the facts narrated in the F.I.R. Annexure 'H' do not attract the provisions contained in section 420, P.P.C. The net result of the short statement made by the respondent Magistrate constituting the F.I.R. Is that when the raid was conducted at the premises of AI-Siddique Multi-Test Clinic and Al-Siddique General Hospital, the petitioner was examining certain patient in the clinic and on questioning he disclosed that he was Dispenser by profession. The mere fact that the petitioner was sitting on a chair and was examining certain patient in the clinic will not necessarily show that he was posing himself as a qualified Doctor. It is conceded by the respondent that the petitioner's brother had opened the clinic known as AI- Siddique Multi Test Clinic and A1-Siddique General Hospital wherein several qualified M.B.,B. S. Doctors have been employed to treat the patients and the petitioner was working therein as Dispenser with the Doctors so employed. Thus, in the presence of so many Doctors some of whom are specialists, there was absolutely no occasion for the petitioner to show himself to be an M . B. , B . S. Doctor with an intention to cheat. Anyway the petitioner being a real brother of the owner of Ali- Siddique Multi Test Clinic and AI-Siddique General Hospital and as such the prosecution version cannot be believed that in such a situation there was any necessity for the petitioner to pose himself as a qualified Doctor. The petitioner has placed on record some medical certificates issued by Dr. Muhammad Khan Salimi, M.B.,B.S. Dr. Muhammad Zahir, M.B.,B.S. And Dr. Sohail Aslam M.B.B.S. Vide Annexures 'B', 'C' and 'D' showing that the petitioner being a dispenser is working under them as their assistant. This authentic evidence of Doctors working in the clinic and the Hospital wholly belies the stand of the prosecution that the petitioner was posing there in the clinic as a qualified Doctor. This is very reliable and plausible evidence produced by the petitioner which has not at all been rebutted by the learned Additional Advocate-General, nor anything against these medical certificates has been said by the learned Law officer. Thus, for all practical purposes these medical certificates stand admitted and proved. Further, I find that earlier too the case registered against the petitioner under section 420/419 on 4-2-1986 vide Annexure 'D' was found false after thorough investigation conducted by the police vide Annexure 'E'. After cancellation of the above referred case I do not find any lawful justification with the police to register a fresh case mainly on the same offence under section 420, P.P.C. On 3-5-1987, vide Annexure 'H'. Firstly, the same police after thorough investigation and after recording evidence came to the conclusion that the case against the petitioner is false and as such the same was cancelled on 2-11-1986. On the said set of allegations another case under section 420, P.P.C. Cannot be constituted against the petitioner. As against the Magistrate and two police constables, three qualified doctors have submitted their certificates which certificates have not at all been challenged neither by the learned Additional Advocate-General nor by the Investigating Agency which certificates show that the petitioner was a qualified Dispenser and as such was working in the clinic and hospital under their direct supervision. Thus, in view of this overwhelming evidence, the feeble and insignificant evidence of the prosecution in the shape of the statements of the raiding Magistrate and two constables, evaporates into insignificance. Additionally, in the connected writ petition bearing No. 2018 of 1987 a comprehensive report with parawise comments was submitted by the S. H .O., Police Station Civil Lines, Sialkot in which comments it has been admitted that the petitioner is a qualified Dispenser from the West Pakistan State Medical Faculty and B. Pharmacist registered on 12-10-1972. It is further conceded in the comments that the petitioner's brother, Shafique Ahmad, has opened a Multi-Test Clinic with the name and style of Al-Siddique Multi-Test Clinic and Al-Siddique General Hospital. The certificates appended with the writ petition were also taken into consideration by the police. Rather the S.H.O. Stated on the basis of the certificates that the petitioner was working with them as their Assistant and Dispenser. In paragraph No. 7 of the comments it has been admitted that earlier a case under section 420/419, P.P.C. Was registered at Police Station City Sialkot which was got registered under the instructions of the Deputy Commissioner, respondent No. 2 and that case ultimately was proved false and was cancelled vide order dated 2-11-1986 of the Ilaqa Magistrate. For all practical purposes, the contentions of the petitioner have been admitted to be correct by the S.H.O. While submitting the comments in the connected writ petition bearing No. 2018 of 1987.
8. The rule laid down in the authorities referred by the learned counsel for the petitioner is clearly applicable to the facts and circumstances of the instant case. Respectfully following the principles laid down in the said authorities, I am of the view that there is ample justification to quash the proceedings arising out of F.I.R. No. 147, dated 3-5-1987, registered at Police Station Civil Line, Sialkot.
The learned Additional Advocate-General has submitted that the petitioner is at liberty to move the learned trial Court under section 249-A, Cr.P.C. For his acquittal. I am afraid, in view of the special facts and circumstances of the instant case, where respondent No. 3 Saeed Ahmad, Magistrate 1st Class, who is the colleague of the learned trial Magistrate and the special background of the case, showing personal interest of the Deputy Commissioner, in the registration of the previous case against the petitioner and the animosity of the Doctors particularly that of Dr. Muhammad Ashraf, Mayor of the Municipal Corporation of Sialkot, no useful purpose shall be served if proceedings are allowed to continue and, therefore, I think ends of justice require that the proceedings of this case be quashed by accepting this petition.
9. The upshot of the above discussion is that the facts as narrated in the F.I.R. No. 147, dated 3-5- 1987 (Annexure 'H') do not at all constitute the commission of any offence whatsoever under section 420, P.P.C. This is a case of no evidence on the face of it. Even if the facts mentioned in Annexure 'H' are admitted to be correct, no offence appears to have been committed by the petitioner under the provisions of section 420, P.P.C. Admittedly, it is established on record that the petitioner is a qualified Dispenser and B. Pharmacist and as such he was justified to work as a Dispenser in the Multi-Test Clinic and General Hospital as well as in the Drug Store of his father. In my considered view, the petitioner has committed no offence whatsoever. Accordingly, I quash the proceedings arising out of F. I. R. I No. 147, dated 3-5-1987 registered at Police Station Civil Lines, Sialkot (Annexure 'H'). This petition is accepted leaving the parties to bear their own costs.