2023 PLP 1396 (MLD)

SARDAR AHMED NAEEM, J.

Zahid Mehmood, petitioner seeks pre-arrest bail in case FIR No.1530/2021 dated 17.09.2021, under sections 419, 420, 506, 353, 186, P.P.C., registered at Police Station Millat Town, Faisalabad.

2. Allegations against the petitioner include fraud by way of impersonation, criminal intimidation, use of criminal force to deter public servants from discharge of their duties and obstructing public servants in discharge of public functions.

3. After hearing the learned counsel for the parties and perusing the record, it was noticed that the petitioner was nominated in a promptly lodged FIR. The contents of the crime report suggested that Anti-Quackery Monitoring Committee headed by its Chairman inspected a medical store working in the name and style of Qasim Medical Store, Faisalabad, owned/run by the petitioner, who pretending himself to be a doctor was playing havoc with the lives of innocent peoples. Allegedly, the petitioner had neither any license to run the medical store nor the required qualification, however, claimed to have moved the concerned quarter for the purposes of requisite licence. The petitioner also deterred/obstructed public servants from the discharge of their official duties and along with his lieutenants attempted to get back the medicines (case property) from the Anti-Quackery Monitoring Committee. In short, allegation against the petitioner is that of quackery.

4. This topic has engaged the attention of philanthropists through a long succession of ages.

5. According to Islamic bioethics life in its all forms enjoys a very high status in Islam. Human life is one of the most sacred creatures of GOD. Therefore, it must be appreciated, respected and protected. In Islam, life is sacred and one of the greatest gifts and blessings of GOD. Every moment of life has great value and is irreversible. According to Holy Quran, saving life is an obligation and the unwarranted taking life is a major crime. We also find in hadiths that even killing or destroying animals unjustifiably is very severely condemned. Dignity of man extends to his body and, therefore, there is no way to harm or treat with disrespect human body including one's own. Life is a trust of GOD and we must take care of it to our best. Our situation in this world is like a guest who is invited to a guest-house. Whatever there is in the guest-house was put by the host for the benefit of the guest. It seems more interesting when considering our body a guest-room for the spirit. So we must try to please GOD by preventing life and health, promoting quality of life and alleviating sufferings. There is paucity of scientific literature addressing problem of quackery and the magnitude of the issue is unknown. In the context of betterment of the situation, the problem of quackery merits closer attention and genuine efforts to tackle it.

6. The quackery prevailed in England, in the early part of the sixteenth century, to such a degree as to require the interference of parliament, will appear by the Preamble to a statute of Henry the 8th. Medical quackery in the United States dates to the earliest days of the colonies when medical practice was broadly defined and poorly regulated. In 1775, of the more than a 3000 individuals who claimed the title of a "doctor" fewer than 400 had formal training and certification from University Medical Schools. According to a study, there are around 1.5 million quacks in India i.e. number of quacks exceeds the number of qualified doctors.

7. According to estimates there are over 6,00,000/- quacks in Pakistan providing primary and basic health care to poor people in rural and urban areas of the country. They are not only posing as physicians who treat minor problems, such as coughs and colds but also claim to specialize in other diseases including piles, liver disorder, renal failure and cancer therapy. These specialist quacks are especially known also for treating infertility and impotence. Then we have the so-called healers providing care to patients with mental disorder around shrines and in graveyards. A large number of people are treated by these experts. Their practice has flourished over decades and one can find third and fourth generations of quacks providing services to the lower socio-economic classes.

8. The days of sorcery and witchcraft have long since passed away, but quackery still survives. It not only prevails in England, but what is of more importance to us that the demon of Empiricism still hovers over the land of pilgrims.

9. The quack considers any part of country as his hunting ground. Where ever you will go his footsteps may be traced by marks of devastation. He levies his tax upon the credulity of all classes of people from high echlon to the peasant who earns his bread by the sweat of his brow.

10. According to Oxford learner's dictionaries, malpractice is defined as a "careless, wrong or illegal behaviour while in a professional job". In other words, it is an unlawful, unprofessional and unethical behavior of a professional of a particular field.

11. The terms "quackery" is entirely different from "malpractice" with regards to its definition, implications and legal consequences. Quackery is defined as, "the promotion of fraudulent or ignorant medical practices". A "quack" is an individual who practices quackery. In other words, a quack is someone who is involved in medical malpractice without possessing required qualifications, professional authority and legal right to undertake such activities in first place.

12. Quackery is not only leading to avoidable deaths, it is also one of the leading causes of increasing morbidities in Pakistan. Be it delayed patient presentation to a professionally trained doctors, progression of existing disease or complications of the treatment provided by quack, the final outcome is that it is the patients and their families who bear the brunt of someone else's mistakes.

13. Every year thousands of people either lose their lives or suffer significant harm at the hands of quacks in Pakistan. Unfortunately, there are no reliable data sources and official figures on the number of people affected annually. However, the national newspapers and other media channels are full of such reports on almost daily basis. In spite of growing reports, the fact of the matter is that it is only a tip of the iceberg and the reality is much more painful than what is highlighted.

14. It is morally and ethically incorrect and socially unacceptable to perform an action which is beyond ones professional capabilities. By losing this insight and the sense of "patient care by a trained professional", the quacks have also deprived themselves of a sense of empathy and honesty. A lack of understanding of differences between a "qualified doctor" and a "quack" has also contributed in spreading of this problem. Often, patients and their cares do not question the treating person's qualification and competencies. This attitude of general public encourages malpractice and quackery.

15. The law of state acknowledges that quackery is illegal, yet there is no strong evidence of implementing this rule. The health system still needs improvement and as the state run hospital do not provide the care of required standards, this has led to flourishing of private health care sector. Majority of Pakistani population is poor meaning not everyone can afford private health care. There has also been lack of drive from the health professionals to actively tackle this situation by devising the practical strategies.

16. Most human being will do almost anything to prolong their existence or to relieve themselves from the suffering of the disease. Others will do nothing to exploit these desires by selling what they claim to be magical remedies or panacea for all diseases-even for the incurable loss. Quack is one of the several names used for practitioners or peddlers using supposedly ineffective medicines while it also relates to advertising by doctors.

17. Despite the increase in the number of medical universities and graduates from public and medical colleges, massive investments in campus building and hospitals, purchase of state-of-the art medical equipment and liver and bone marrow transplants being carried out in the country, the number of quacks has also increased and the public seems to repose faith in them and prefers to go to them rather than to a hospital. Peoples prefer quacks over qualified doctors and hospitals because they are cheap, easily available and have time to give attention to their patients. Being friendly, they customise their method of treatment as per the suitability, requirement and demand of their patients. They are very good in winning over the confidence of the patient to the extent that the patient or his family are willing to do whatever the quack advises them.

18. In a majority of the cases, patients suffering from common health problems benefit from treatment provided by quacks, which enhances their faith in them. In complicated cases where they usually fail, the quacks somehow manage to satisfy the patients and their families about the disease and treatment using brilliant communication skills and if the patient dies, they attribute it to GOD's will instead of medical negligence. It's amazing how successful quacks are at making money by treating through mumbo-jumbo/sub-standard, unregistered, poisonous and expired medicines and are still respected by the community.

19. It hardly comes as a surprise that quacks also maintain a referral system. If they see complications arising with the treatment of a patient, they either refer them to another quack colleague or a qualified surgeon.

20. In the present healthcare system, the regulatory bodies and organizations such as PMC, College of Physicians and Surgeons of Pakistan (CPSP) and Pakistan Medical Association (PMA) have not succeeded to affectively control the malpractice. The poor needy will continue to suffer, and the quacks will continue to cause death of their clients. The law will not be able to blame the quack and ignorant people will continue living with the belief that ALLAH has decided this for them. The fact is that these quacks have deep roots in our society. As long as the public is uneducated, quackery is here to stay alongwith our disorganized health care system.

21. The first step to eliminate quackery would be to make preventive healthcare available and accessible to every citizen of the country. Our basic health units and rural health units and hospital should be active and provide treatment to patients who otherwise are forced to go to tertiary and teaching hospital for the management of conditions such as cough, colds, diarrhoea, seasonal fever etc and, of course, highly qualified doctors are not needed to run Tehsil Headquarter Hospitals, Basic Health Units and Rural Health Centres.

22. The relevant regulatory bodies and licensing authorities have legal duty to lay down clear guidelines with regard to the professionals competencies in relation to qualifications.

23. It should be made very clear what is expected from a registered professional and what is considered as unprofessional and unethical so that in the event of a malpractice and quackery, appropriate legal action may be taken in line with the set standards. All such bodies should categorically prohibit quackery in all circumstances and recommend legal action against those who are found guilty.

24. Like registered doctors with Pakistan Medical Council (PMC), there should be up to date registers for other health professionals providing the details of their credentials, scope of practice and permitted professional duties.

25. In order to achieve these goals, a close collaboration between various licensing bodies is required. There is a desperate need that all health related institutions and governing bodies come up with a collective policy to stop quackery in Pakistan. It is understood that any policies and guidelines would become effective if they are implemented according to the required standards. The law enforcement agencies and the judicial system need to appreciate the gravity of quackery and its impact on people's lives in Pakistan. Quackery should be classed as a serious crime. The perpetrators should be brought to justice and be held responsible for compensation to the losses incurred by quackery.

26. It is collective responsibility of health professionals, health institutions, governing bodies, law enforcement agencies to take clear, urgent and practical steps to stop this crime against humanity.

27. Reverting to the merits of this case, suffice it to observe that the complainant or the PWs have no reason to falsely implicate the petitioner. They stood by their statements recorded under section 161, Cr.P.C. No ill-will or animosity was attributed to any of them. Deep analysis of the evidence is also forbidden at bail stage. It is also settled that no pre-arrest bail can be granted on the basis of pleas structured on parallel stories and bald assertions. The act of quackery is not only against society rather humanity, thus, bail matter in such like cases should be decided by the Court with dynamic approach. Above all, no mala fide lurking behind arrest of the petitioner was hinted at by his learned counsel, a sine qua non for pre-arrest bail. After collecting sufficient/convincing material, Investigating Agency confirmed involvement of the petitioner in this case, thus, the petitioner failed to make out a case for confirmation of ad-interim pre-arrest bail.

28. For the foregoing reasons, there is no merit in this petition which is hereby dismissed. Ad-interim pre-arrest bail earlier granted to the petitioner is recalled. JK/Z-1/L Bail recalled.