I intend to decide the following writ petitions by one consolidated order having similar facts and law:--
(1) W.P.No, 415 of 2002.
(2) W.P.No,413 of 2002.
2. The brief facts out of which the above writ petitions arise are that the petitioners have sufficient experience of Allopathic Medical. Branch and are doing their business within the ambit of permission granted by the competent authority under the provisions of Allopathic System (Prevention of Misuse) Ordinance, 1962, as is evident from Annexure-A attaches with the writ petitions. The Respondent No,3 raided the clinics of the petitioners on 3-1-2002 and 4-1-2002 respectively and sealed the medicines and clinics of the petitioners vide order dated 3-1-2002 and 4-1-2002 respectively.The petitioners being aggrieved filed these writ petitions.
3. Learned counsel of the petitioners submits that respondent had sealed the medicines and clinics of the petitioners under the provisions of Drugs Act, 1976 whereas the petitioners are permitted under the special law i,e, Allopathic System (Prevention of Misuse) Ordinance, 1962. Therefore, respondent No,3 has no authority to take action against the petitioners under the general law on the well-known principle that special law exclude the general law.In support of his contention he relied upon Kamal Shrif Rana v. Province of Punjab (PLD 1985 Lahore 135). He further submits that action of respondent No,3 is in violation of the mandatory provisions of section 18(i) as, the respondent could not seal the premises beyond four weeks. In support of his contention he relied upon Tahir Nawaz and others v. Shamshad Ali and others (1988 PCr.LJ 1328).He further urges that respondents exceeded jurisdiction under the Drugs Act by sealing petitioners' clinics which are owned by them and are used for clinical purposes only. The petitioners are not running medical stores for selling the drugs. The petitioners are doing their lawful business under the permission of the competent authority under the provisions of Allopathic System (Prevention of Misuse)
Ordinance 1962 and rules framed thereunder.He further submits that in similar circumstances the respondents were directed to deseal the shop and the petitioner was also permitted to practice medicine if he was otherwise allowed under the law in Writ Petition No,22669 of 1997.
4. The representative of respondents raised a preliminary objection that petitioner Mirza Javed Iqbal is a dispenser whose job is to dispense medicine to the patients according to the prescription of qualified registered medical practitioner. The contents of the certificate issued by the competent authority to him under the provisions of Allopathic System (Prevention of Misuse) Ordinance, 1962 clearly reveals that it does not authorize the petitioner to practise western medical science.He further urges that petitioner Mirza Javed lqbal is not a qualified Tabeeb and cannot practise allopathic system of medical practice. He has no sufficient experience and knowledge as is envisaged under section 6 of the aforesaid Ordinance. He further urges that petitioner violated provisions of Drugs Act, 1976 and Allopathic System (Prevention of Misuse) Ordinance, 1962 as the petitioner is unqualified, unregistered, illegal medical practitioner and is not authorized to do medical practice. His qualification is not recognised by any University of Pakistan. He is not recognised and registered with Medical and Dental Council. Even if the petitioner secured a permit or qualified doctor under the provisions of aforesaid Ordinance even then he is not allowed to store drugs for use of his patients unless he is registered under Pakistan Medical and Dental Council.
Respondent No,3 is authorised by the competent authority to take action against the petitioners vide Notification dated 16-11-2001. Similarly petitioner Muhammad. Safdar Shahzad is an unqualified unregistered and illegal practitioner in allopathic system of medicine. The certificate of qualification on the basis of which the petitioner is claiming to be allopathic medical practitioner is not a recognised certificate/qualification from any University in Pakistan as well as from the Pakistan Medical and Dental Council. The petitioner has not been granted any permit by the competent authority under section 6 of Allopathic System (Prevention of Misuse) Ordinance, 1962.
The petitioner failed to produce warranties or any licence.
5. I have given my anxious consideration to the contentions of the learned counsel of the petitioners and the representative of the respondents and perused the record myself.
6. It is pertinent to mention here that respondent No,3 is duty bound to send the reports to the Provincial Quality Control Board for necessary action as is envisaged by section 11(5)(b). Therefore, the reports of respondent No,3 are of interim nature coupled with the fact that petitioner Mirza Javed Iqbal is not authorised to practise western medical science. 'Similarly certificate attached by Muhammad Safdar Shahzad along with his writ petition is stated to have not been issued by any University as the Pakistan Medical Practitioners' College is not recognised by any University. This fact brings the case of the petitioner Muhammad Safdar Shahzad in the area of disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction. It is pertinent to mention here that sections 11(5)(b), 19(b) and 22(30(c) of the Drugs Act, 1976 and Rule 4 of the Punjab Drug Rules, 1988 provide that before any action is taken by the Drugs Inspector he shall seek instructions from the Provincial Quality Control Board. As mentioned above, the impugned' orders are not final orders. The judgment relied upon by the learned counsel of the petitioners Tahir Nawaz's case supra (1988 PCr.LJ 1328) arose out of the order passed by the Drug Court. Therefore, the same is not applicable in the present case.
Similarly unreported judgment relied by the learned counsel of the petitioners in Writ Petition.No,22669 of 1997 was disposed of for the reasons recorded in Writ Petition No,3705 of 2000 in which the desealing order was passed on the undertaking of the petitioner that he shall not practise on allopathic side whereas the present petitioners did not give any undertaking. Therefore, said unreported judgment is also not applicable in the present case. Since the petitioners have alternative remedy before the Provincial Quality Control Board, therefore, writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in Muhammad Ismail's case (PLD 1996 SC 246). However, in the interest of justice and fair play Chairman Provincial Quality Control Board is directed to pass an appropriate order strictly in accordance with law within 15 days after receiving the order of this Court or send the same to the competent authority who is also directed to pass an appropriate order strictly in accordance with law within 15 days after receiving the order of this Court. He is further directed to submit report to the Deputy Registrar
(Judi) of this Court within the stipulated period. The petitioners are directed to appear before Chairman Provincial Quality Control Board on 16-2-2002 who is directed to pass an appropriate order strictly in accordance with law after providing proper hearing to the, petitioners within 15 days till 4-3-2002. In case the competent authority fails to pass final order within the prescribed period then the respondents are directed to deseal the clinics of the petitioners forthwith.
With these observations these writ petitions are disposed of.