P L D 1957 (W (PLP)

QADEELZUDDIN AHMAD, J.

The facts of this petition are that the petitioner intended to proceed to Hejaz for Haj Pilgrimage and was granted by the Ministry :of Foreign Affairs the permission to do so. A reservation card was issued to him by the Haji Booking Officer. He went to the Manager, Pakistan International Air Lines for purchasing an air ticket for flying to Hejaz, and placed before the manager the international certificates of inoculation against cholera and of vaccination against small pox : the latter bore No. 3963 was dated 6th July 19.55, and was issued by the Public Health Department, Karachi, Municipal Corporation. The Manager directed the petitioner to obtain the authentication of the Health Officer, Haji Camp, Karachi, on the certificate. The Petitioner, therefore, approached the Health Officer for his authentication who refused to authenticate them on the ground that the certificate of inoculation against cholera, which is valid for six months only, had expired and was therefore invalid ; and the certificate of vaccination against smallpox which is valid for three years and which in this case two years old only, and had been duly counter-signed by the Health Officer, Karachi Municipal Corporation, who at the time of authentication, was on the approved list of doctors, had to be disregarded in terms of an order dated 30th April 1957 received from the Government. The order is addressed to Executive Officer Port Haj Committee on behalf of Director General Health, and runs as follows :-- " I have the honour to say that in view of the occurrence of a number of smallpox cases in Karachi and in view of our special commitment during the current Haj season, it has been decided that the health certificates of vaccination and inoculation against smallpox and cholera of pilgrims arriving in Karachi should be counter-signed only at the Haji Camp, Karachi, and nowhere else. The special measures relate to the current Haj season only." The Petitioner conceded that the certificate of inoculation against cholera was invalid and showed his readiness to be re-inoculated, but he questioned the validity of the Govern ment's order regarding the certificate of vaccination, and it appears from the affidavit of Mehdi Hassan Toor, Sanitary Superintendent Haji Camp, Karachi that he refused to be re vaccinated unless the Health Officer gave him in writing that re-vaccination was required under orders of the Government so that he might be able to contest the validity of the Government's order in a Court of law. The Health Officer gave him the writing asked for, and according to the affidavits of the Health Officer, Sanitary Superintendent Haji Camp Karachi and the vaccinator, he was there and then re inoculated by the Sanitary Superintendent and re-vaccinated by the vaccinator. According to the affidavit of the Sanitary Superintendent he made the necessary endorsement and Dr. Ghaus (the Health Officer) counter-signed" it. It is not known on that paper the endorsement was made and counter signed. It was represented to me by the Counsel of the Director General Health and the Health Officer that this was done on a separate slip of paper. I wanted to see the form but it was not available with the officers who were present in Court. The petitioner filed the present petition for a writ of mandamus praying that the Health Officer be directed to authenticate the International Certificates of vaccination so that the Petitioner may be in a position to proceed for Haj and also praying that the said order of the Government be annulled. It was not disclosed in the petition that the petitioner had been re-vaccinated. An application was also made praying that interim orders be issued restraining the respondents namely the Director General Health, the Health Officer, their agents, servants and persons claiming through or under them from implementing and giving effect to the orders for re-vaccination. The main petition and the application came before me on the 10th of June 1957, and I wanted the counsel of the petitioner to show to me the law according to which the authorities were bound to authenticate the vaccination certificate. He wanted time to be able to do so. On the 13th of June 1957, another counsel, namely Mr. Nasiruddin also appeared for the petitioner and submitted a further affidavit to clarify the basis of the petitioner's attack on the stand taken by the authorities. It is stated in the additional affidavit that, according to the advice received by the petitioner, the. International Sanitary Regulation No. 2 has been acted upon by the Government of Pakistan although it has not been made a law and that it is no duty of the Director General Health and Health Officer to vaccinate the Petitioner because the Petitioner holds an International Certificate of Vaccination. It was represented by the counsel of the petitioner that the Petitioner had to fly to Hejaz on the 17th of June 1957, and as such orders as prayed for were urgently needed at an early date. I therefore fixed the hear ing for the 19th of June 1957. The respondents submitted a counter-affidavit supported by enclosures and two affidavits, and Mr. Fazeel advocate appeared for them. The stand taken by them is that the Petitioner has already been re-inoculated and re-vaccinated and that there is no impediment in his way for proceeding on the pilgrimage ; that the International Sanitary Regulation pertaining to the control of pilgrim traffic has been abrogated ; that the Government has issued instructions regarding re-vaccination under Rule 38 of the Pakistan Aircraft (Public Health) Rules, 1950, framed under section 8-A of the Indian Aircraft Act, 1934 (XXII of 1934) as adapted for Pakistan under the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947 ; that in view of the occurrence of a number of smallpox cases in Karachi and in view of the carelessness shown by the doctors who were placed on the approved list for authenticating certificates, the Government posted a special Health Officer at Haji Camp with the instructions that all intending pilgrims should be vaccinated against smallpox irrespective of the fact that they had already been vaccinated or not ; that the authority of the Municipal Health Officer has been impliedly cancelled by the Government instructions rendering invalid the certificate authenticated by him ;that no legal right of the petitioner has been infringed that the petitioner has suppressed facts for seeking relief from the Court and that for these reasons his petition should be dismissed with costs. There is no doubt that a petitioner who wants a relief in exercise of the extraordinary jurisdiction of a writ under Article 170 of the Constitution disentitles himself to obtain relief if he makes misrepresentations or suppresses material facts. I therefore inquired from Mr. Nasiruddin as to why his client did not disclose in the petition that he had been re-vaccinated. His reply was that re-vaccination was immaterial in view of the fact that a proper certificate of re-vaccination was not issued. He however made inquiries from his client who was present in Court and said that he was re-vaccinated after he had filed the writ petition. I do not believe that he was re-vaccinated after filing the writ petition and believe the statement contained in the affidavits of the Health Officer, the Sanitary Superintendent Haji Camp and the Vaccinator that he was re-vaccinated on 5th June 1957, before the date of the presentation of the writ petition which is 8th June 1957. It appears to me that while the petitioner questioned at the Haji Camp the validity of the Health Officer's demand to re-vaccinate him, he also realised the weakness of his situation in view of the possibility of his losing the chance of performing his Haj this year and agreed to be re-vaccinated on condition that it was given to him in writing that re-vaccination was required under the orders of the Government. In other words he agreed to submit himself to re-vaccination under protest. The writing was given and he was re-vaccinated but the officers maintained their stand by not authenticating the International Certificate of Vaccination. The Dep6ty Director General Health and the Health Officer who were present in Court, offered to authenticate it and did authenticate it before me. Under these circumstances I cannot hold that re-vaccination was a material circumstance for the maintainability or otherwise of the present writ petition. The next preliminary objection of the respondents is that the petitioner has not disclosed as to what right of the petitioner has been infringed. This objection presumes that the respondents have a right to make it a condition of the discharge of their duties that the persons concerned shall submit their bodies whenever a demand is made of them to be pocked with needles or scratched with the sharp edge of a knife or the end of a pointed instrument so that if they protest or question the legality of the demand of the respondents, the reply will be but let us know what right of yours has been infringed ? It is futile to answer this question, and the attention of the respondents is invited to chapter XVI of the P. P. C., bearing the heading " of Offences Affecting the Human Body ". The petitioner had made it plain that he disputed their right to re-vaccinate him and the only proper answer to the question raised by him is to show how his objection to get re-vaccinated is erroneous. On the objection of the petitioner, the Health Officer had given to him this writing. "The certificate of Mr. 1Vtazharul Qayum Hazir issued by the Municipal Corporation 'dated 6th July 1955, (No. 3963) is valid for travel to all other countries except for Hidjaz. The instructions issued to me are that all persons going to Haj should be re-vaccinated whether they are previously vaccinated or not. Since this certificate has been issued about two years ago, re-vaccination will be necessary for proceeding to Haj." This writing shows that the age of the certificate of vaccination is immaterial. Even if it was granted one day before, it was of no value, although admittedly in law such a certificate is valid for three years. Mr. Fazeel has explained that cases of smallpox were occurring in the city and it was the responsibility of the Government to see that the infection was not carried to Hejaz where hundreds of thousands of Hajis were to collect from all parts of the world, and that it was necessary to take precautionary steps against carelessly issued certificates. He said that there were reports against the doctor who had authenticated the certificate of the petitioner, although he was one of those who were included in the approved list of the Government, and that an explanation had been called from him. These explanations of the respondents are besides the point at issue. Nobody will deny for a moment that the object of taking precautionary measures is laudable. It may be true that the doctor who authenticated the certificate of the petitioner was not free from blame on account of his acts and deeds, but I may mention that he is still admittedly authorised to authenticate similar certificates for travellers to western countries. Moreover the certificates authenticated by this doctor alone have not been discarded for the certificates of all doctors whose names were included in the approved list maintained by the Government have been discarded. It may be conceded for the sake of argument although with obvious reserva tions, that no doctor in the town was found to be reliable, except the one who was posted at the Haji Camp, but it is also imaginable that complaints and reports may be received against the one trusted doctor and the certificates authen ticated by him may become of doubtful veracity. Then, what will be the result ? One result will be that the doctors will question the correctness of their evaluation made by the authorities and the other result will be that the Hajis will have to get, themselves vaccinated as many times as a set of doctors or any particular doctor is declared untrust worthy: There can be no end to this process except in one manner, and it is that the rule of law should be res pected and enforced with an even hand. The argument of untrustworthiness alone of those who were approved by the Government to authenticate certificates is not the answer to the petitioner's objection, unless the legality of the action is also shown. The Health Officer was able to do nothing better to satisfy the petitioner than give in writing that he was carrying out Government orders. A copy of the order issued by the Director General Health has been produced in Court and has been reproduced above. There is no reference to any rule or section of law in it. It is not necessary for the validity of an order that the source of legal authority should be mentioned in it, but it is a good rule of prudence that the law which is the source of authority should be mentioned, so that at least those who issue order, may themselves not forget the limits of their powers and the public may not have to ask questions about them. A com parison of the writing given by the Health Officer with the order issued by the Director General Health shows that the Director General Health's order is meant for the pilgrims " arriving in Karachi " for going to Hejaz, the Health Officer's writing refers to " all persons going to Hejaz." The petitioner's address as given in the petition is of Karachi, but no question seems to have been raised as to whether he had come or not come from a place outside Karachi because the Health Officer was not making any such dis tinction, and the petitioner was not shown the order of the Director General Health. The main question in this petition is the validity of the order issued by the Director General Health. The case of the respondents, as stated above, is that he could issue it under rule 38 framed under the Aircraft Act, 1934. The rule is as follows :- " No person shall be permitted by the Health Officer to embark on an aircraft with a view to proceeding by air to the Hedjaz on pilgrimage unless such person produces two medical certificates signed by persons who in the opinion of the Health Officer conducting the medical examination under rule 33, are duly qualified to grant such certificates, one showing that such person has been inoculated against cholera not more than six months and not less than six days prior to the date of medical inspection, and the other showing that such person has been vaccinated against smallpox not more than three years and not less than fourteen days prior to the date of medical inspections: Provided that the Health Officer making the inspection may dispense with the certificate of vaccination if in his opinion the person has marks of a previous attack of small pox." This is a statutory rule and according to it the certi ficates of inoculation and vaccination should be signed by persons "who in the opinion of the Health Officer . . . . . are duly qualified to grant such certificates". If the Director General Health had paid attention to this rule, he might not have issued the orders which he did issue, because it is the opinion of the Health Officer alone which counts in this regard. If the Health Officer had paid attention to this rule, he might not have relied on Government orders, and might have exercised his own discretion and come to the conclusion that in his opinion the person who signed the certificate was not duly qualified. Strictly speaking, I am not called upon to decide whether in exercise of his own discretion, the Health Officer could validly reject the certificate of vaccination in the circums tances of the case; but Mr. Fazeel has argued that the Health Officer personally rejected it, and that there were sufficient reasons against the person who had signed the certificate to conclude that he was not reliable and that as such the rejection should be taken to be in exercise of the discretion of the Health Officer himself, and there fore valid in law. I cannot accept this contention because it is erroneous on facts to state that the Health Officer exercised his own discretion. He merely carried out orders. By way of clarification I may, however, add that from the point of view of his own discretion also, the position of the Health Officer is not unassailable, because firstly rule 38 does not vest purely subjective discretion in the Health Officer and restricts it to the consideration of the 'qualifica tion' of the person who signs the certificate ; and secondly the discretion is not vested in any Health Officer but only in the Health Officer of the aerodrome conddcting medical examination under rule

33. Rule 33 is as follows :- " All persons leaving Pakistan by air for a place outside Pakistan shall be medically examined by the Health Officer of the aerodrome." I need not dilate on these questions and considerations because. as already stated, I have held that the Health Officer only acted under the orders of others in this case. The requirements of the Haj Pilgrimage of this year are now over. The authorities may study the rules and, if necessary, get them modified for the future years, rather than transgress them. In conclusion, I accept the writ petition and hold that the order of the Director General Health No. F. 23-1/57-P. H. dated 30/4/57 is illegal and of no effect, and the insistence of the respondent No. 2 namely Health Officer, Haji Camp on re-vaccinating the petitioner was without legal sanction. I need not issue any directions, because the certificate of vaccination of the petitioner was, authenticated in Court. The respondents shall pay the costs of the petitioner. A. H. Petition accepted.