IFTIKHAR MUHAMMAD CHAUDHRY, J.-- Petitioners seek leave to appeal against order dated May, 7, 2001 whereby ICA No. 360 of 2001 filed by them has been dismissed and the order dated 16th April, 2001 passed by learned Single Judge of Lahore High Court in Criminal Original Petition No. 577- W/2000 has been maintained.
2. Precisely stating facts of the case are that Writ Petition No. 15600/1997 dated 12.6.1997 was filed by the respondent wherein it was contended that he had applied for Drug Selling License which has been withheld by District Health Officer/Drug Inspector, Rahimyar Khan on account of an order passed by Mr. Justice Ihsanul Haq Chaudhry (as he then was) in Writ Petition 16484/1996 wherein the license of Pharmax was challenged. Said order was reproduced in the petition, which reads asunder:-- "It is inter alia argued that through the impugned policy the citizens are being ousted from competing with respondent No. 3 which is- ultra vices of the Constitution. It is added that all the law, rules and regulations relating to the licenses have been set at naught by the policy adopted by respondents No. 1 and 2. It is added that not only a monopoly of respondent No. 3 has been illegally created but it has been authorized to issue license to others which is function of Provincial Government. It is submitted that ma/a fide is clear from the fact that on the date of so-called contract or agency, the respondent No. 3 was not even in existence.
2. In order to better appreciate the grievance of the petitioner, respondent No. 1 and 2 are directed to submit report and parawise comments within 10 days. Let preadmission notice also be issued to respondent No. 3.
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3. Notice for 3.10.1996. In the meanwhile, the respondent No. 1 and 2 are restrained from allocating any further space to respondent No. 3 and from establishing indoor sale points for medicine."
It was further alleged in writ petition that in view of above order CMA No. 74/1996 under section 151 CPC in Writ Petition No. 16484/1996 was filed praying therein that as he has incurred a considerable amount in constructing pharmacy building, furniture and fixture etc. Therefore, if the Drug Selling license is not issued to it by the District Health Officer petitioner will bound to suffer irreparable loss, therefore, directions were sought to District Health Officer for issuing Drug Selling License. In the meanwhile on an identical application presented by the aggrieved persons directions were issued by learned Judge of Lahore High Court to DHO Mandi Bahauddin/Gujrat to issue Drug Selling License under the Rules.
3. It seems that no order on the application of the respondent was passed, therefore, he filed Writ Petition No. 15600/1996. Subsequently CM No. 472 of 1998 was also filed which was disposed of by means of following order dated 17.4. 1998:- "It is argued that the District Health Officer is not issuing Drug Selling License illegally, ma/a fide and on the pretext that there is a stay order issued by this Court. It is added that earlier C.M. No. 2631/1996 was accepted by this Court vide order 13.10.1996, and District Health Officer and Drug Inspector were directed to issue Drug License under the Rules.
2. I have given may anxious consideration to the arguments and gone through the record. The denial seems to be mischievous. Be that as it may, the concerned District Health Officer, is directed to issue Drug License strictly in accordance with law and policy of the Government."
Later on it was alleged by the respondent that above order is not being complied with, as such a Criminal Original No. 1093W/1999 was filed which was disposed of on 17.2.2000. Relevant para therefrom is reproduced hereinbelow:- "2. The District Health Officer present in the Court submits that the application for the drug license of the petitioner has been rejected on the ground that the Medical Superintendent, Sheikh Zayed Hospital, Rahimyar Khan did not give a No Object Certificate for establishing a pharmacy in the premises of the said hospital and secondly the petitioner had failed to provide a qualified pharmacist to run the proposed drug store.
3. It appears that the application of the petitioner has been decided in accordance with law. No body is present either on behalf of the petitioner. This contempt petition is, accordingly, dismissed.
A perusal of the above order reveals that although the request of the respondent for issuance of license was rejected by despite that on 26.2.2000 another Criminal Original No. 295-W/2000 was filed without disclosing that in Criminal Original No. 1093-W/1999 the case has been finally decided, therefore, due to this reason learned High Court passed order dated 8th March, 2000 which is reproduced hereinbelow:-- "Learned Addl. Advocate-General states categorically that the order of this Court dated 17.4.1998 will be complied with positively during a period of one month from the receipt of this Court" order, whereafter a report regarding compliance thereof will also be submitted to this Court. In view of this, learned counsel does not press this application. The same is disposed of in the-above terms".
When petitioners came to know regarding this order they preferred Criminal Review Petition No. 40 of 2000 on 7.4.2000 which was decided vide order dated 11.4.2000 in the following terms:- "The petitioner, through this review petition, seeks review of order passed by this Court on 8.3.2000.
It is stated that earlier order dated 17.2.2000 shows that the order dated 17.4.1998 had been complied with. Regardless of above mentioned circumstances and the undertaking given by the learned Addl. A.G, I am not inclined to subscribe to this contention as neither any order was passed by this Court nor any undertaking was given by the learned Addl. A.G. It shows that learned Addl.
A.G. Stated that order of this Court had been complied with. While implementing order dated 17.4.1998. There is hardly any ground to review the order dated 8.3.2000. For the aforesaid reasons, this review petition is found to be without any merit and accordingly fails."
Surprisingly despite above order again on 3rd May, 2000 respondent filed Criminal Original No. 577- W/2000 without disclosing that vide order dated 27.2.2000 in Criminal Original No. 1093-W/1999 the matter had already been set at naught finally. However, this petition was contested and a learned Single Judge of Lahore High Court vide order dated 16.4.2001 once again directed the petitioner to comply with the order dated 17.4.1998 as also the order dated 8th March, 2000 within 15 days.
Petitioners preferred ICA against this order, which has been dismissed , vide impugned order dated 7.5.2001. As such instant petition has been filed.
4. Learned counsel for the petitioner contended that order dated 17th April, 1998 was complied with fully as this fact is indicative from the order dated 17.2.2000 -passed by learned Judge of Lahore High Court in Criminal Original No. 1093-W/1999. According to him as the respondent failed to produce no objection certificate for establishing a pharmacy in the premises of Sheikh Zayed Hospital, Rahimyar Khan, therefore, request so made by it was rejected. This fact was not disclosed by the respondent in subsequent applications inasmuch as the Law Officer was also not aware that the compliance of order dated 17.4.1998 has already taken place, therefore, under misconception he made a statement incorporated in order dated 8.3.2000 by learned Lahore High Court that this order will be complied with positively within a period of one month. Therefore, according to him after compliance of order dated 17.4.1998 learned High Court was not justified for issuing direction to the petitioners to comply with order once again. He was also of the opinion that respondent intentionally concealed important facts from the Court and purposely did not inform that request made by it for issuance of Drug Selling License has already been rejected as disclosed in order dated 17.2.2000. As such instead of issuing directions to the petitioners the Court may have initiated proceedings against the respondent for making false statement and concealing material facts from the Court.
5. On the other hand learned counsel for respondent admitted that in the order dated 17.2.2000 it is mentioned that the request of respondent for issuance of Drug Selling License has been declined but so far no order has been placed on record.
6. We have heard the learned counsel for the parties and have also gone through the relevant orders reproduced hereinabove on basis whereof we are inclined to grant leave interalia to examine as to whether after compliance of order dated 17.4.1998 learned Single Judge as well as learned ICA Bench of Lahore High Court have failed to take into consideration that successive criminal original applications for initiating proceedings for contempt of Court against the petitioners were liable to be dismissed being misconceived and baseless' and the respondent was not liable for criminal action for concealing important facts and making wrong statement before the Court.
Thus leave to appeal is granted.
CMA 753/2001:-- Pending proceedings operation of order dated 16.4.2001 passed in Criminal Original No. 577-W/2000 and order dated 7.5.2001 passed in ICA No. 360 of 2001 shall remain suspended.