P L D 2010 Karachi 134 (PLP)

MUNIB AKHTAR, J.

The appellant comes to this Court, being aggrieved by the acquittal of respondent Nos.1 to 4 by the IInd Additional Sessions Judge, Sukkur, who by means of his order dated 13-12-2006, acquitted the said respondents under section 265-K, Cr.P.C. from a complaint that had been instituted by the appellant against them. The acquittal came about in the following circumstances.

2. On or about 18-11-2004, the wife of the appellant. Mst. Badshahzadi, was admitted to Civil Hospital, Sukkur, complaining of abdominal pain. At the relevant time, the respondents Nos.1 to 4, who are doctors, were posted, and working at, the Civil Hospital. Eleven days later, on 29-11-2004, Mst. Badshahzadi passed away while still in hospital. The appellant believed that his wife had died as a result of the negligence of the respondents Nos.1 to 4 (herein after "the respondent Doctors"). He instituted a departmental complaint against them with the Department of Health, Government of Sindh, and also initiated criminal proceedings against them by filing an F.I.R., which was registered under the orders of the Ist Additional Sessions Judge, Sukkur. The police, after completion of the investigation, submitted its final report under section 173, Cr.P.C. to the effect that the F.I.R. be cancelled as no case had been made out against the respondent Doctors, and this was approved by the Judicial Magistrate, Sukkur, by means of his order dated 9-2-2005. The departmental inquiry initiated at the complaint of the appellant also did not find any negligence on the part of the respondent Doctors. The appellant then filed a direct complaint against the respondent doctors on or about 11-2-2005. He was examined on oath, and examined six witnesses in support of his complaint. By 'order dated 24-2-2006, the learned IInd Additional Sessions Judge, Sukkur directed the issuance of process to the respondent Doctors. After appearing before the learned trial Court, the respondent Doctors moved an application under section 265-K, Cr.P.C. which, as noted above, was allowed by the impugned order dated 13-12-2006. It is pertinent to note that at no stage did the appellate institute any civil proceedings against any of the respondent Doctors.

3. Learned counsel appearing on behalf of the appellant submitted firstly that the learned trial Court ought not to have entertained and decided the application under section 265-K at such an early stage of the proceedings. He referred to The State v. Raja Abdul Rehman 2005 SCMR 1544, Hafeez Ahmed v. The State and another 2008 PCr.LJ 161 Farman Ali v. Tandi Bakht 2008 MLD 1690. In reply on this point, learned counsel appearing on behalf of the respondent Doctors, submitted that section 265-K expressly permitted the Court to acquit an accused "at any stage of the case", and the law was well settled that these words were, in an appropriate case, to be applied as they stood, i.e., the application could be moved even at the preliminary or beginning stages of the case. He placed reliance on State v. Ashiq Ali Bhutto 1993 SCMR 523, Zahoor ud Din v. Khushi Muhammad 1998 SCMR 1840 and Muhammad Sharif v. The State PLD 1999 SC 1063.

4. In my view, the point raised by learned counsel for the appellant is without merit in the facts and circumstances of the present case. Even in the cases relied upon by him, it is expressly recognized that the Court does have the power to acquit the accused at any stage on an application under section 265-K (or the corresponding provision, section 249-A, applicable to trials by Magistrates). Thus, in Abdul Rehman, the Supreme Court expressly noted this point at pg. 1553, as did this Court in Hafeez Ahmed at pg.

164. The cases merely caution that it may not be appropriate in all cases to exercise this power at the initial or preliminary stage. In Hafeez Ahmed, an F.I.R. had been registered, the charge was framed, and the prosecution witnesses were ready to give evidence. At this stage, an application under section 249-A was moved, and allowed by the Magistrate. Thus, there was no prosecution evidence at all before the Court. In Abdul Rehman's case also, the proceedings had been initiated on the basis of an F.I.R., The prosecution evidence had been concluded. At that stage, one of the co-accused moved an application under section 249-A (it was in fact, the third of three successive applications of that nature) which was allowed. The Supreme Court noted that in allowing the application, the prosecution case against the other co-accused could be adversely affected. In the present case of course, the proceedings were by way of complaint, in which the appellant had examined himself and six other witnesses. Thus, essentially the entire prosecution case was before the learned trial Court. All of the co-accused had moved the application under section 265-K. Furthermore, the police had also already thoroughly investigated the matter earlier on the basis of the F.I.R. lodged by the appellant. Thus, the material facts and circumstances of the present case are quite different from those in the cases relied upon by learned counsel for the appellant. The third case, Farman Ali v. Tandi Bakht, was a complaint case. However, in that case, it is not clear whether the complaint was dismissed under section 203, Cr.P.C. or disposed off under section 265-K, in fact, the Court noted that an application could be moved under the latter provision at the appropriate time. In my view therefore, in the facts and circumstances of the present case, it was not improper or illegal for the learned trial Court to have considered the respondent Doctor's application under section 265-K.

5. I turn now to consider the question whether (as contended by the appellant) the trial Court erred in law and on the facts in having allowed the application for acquittal. As noted above, the case put forward by the appellant was that the death of his wife was the result of negligence on the part of the respondent Doctors. The appellant's contention was, and is, that the respondents have committed an offence under section 319, P.P.C. read with section 34 common intention thereof. Section 319 prescribes the punishment for the offence of qatl-i-khata laid out in section 318, and it is therefore necessary, in the first instance, to examine the provisions of the latter section in order to properly appreciate the scope, nature and extent of the offence defined therein. It is only then that it will be possible to determine whether the learned trial Court has (as the Appellant contends) erred in concluding under section 265-K that there was no probability of the respondent Doctors being convicted of an offence under section 318.

6. Section 318, P.P.C. provides as follows:-- "Whoever, without any intention to cause death of or cause harm to, a person causes death of such person, either by mistake of, act or by mistake of fact, is said to commit Qatl-i-khata." It will be seen that an essential element of section 318 is that there should not be any intention to cause the death of the deceased. The Supreme Court has observed in Sajid v. The State 2000 SCMR 167 that the language of section 318 is broad enough to include death caused by any rash or negligent act" of the accused. Now previously, the Pakistan Penal Code had included section 304A which had provided as follows:-- "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." Thus section 304 A had punished death caused by any "rash or negligent act" which did not amount to "culpable homicide". This latter phrase had previously been defined in section 299 which had (as it then stood) provided as follows: "Whoever causes death by doing an act with the intention of a causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." Insofar as is presently relevant, section 299 had defined "culpable homicide" as the intentional causing of death, and inasmuch as section 304-A, applied to a rash or negligent act not amounting to culpable homicide, the offence under the latter provision provided that death be caused without having any intention of doing so. The point was expressly noted by the Federal Court in Rab Nawaz v. The Crown PLD 1955 FC 63, where Akram. J., observed as follows (at pg.67); "Section 304-A of the Penal Code is expressly restricted in its application to "rash or negligent act not amounting to culpable homicide". Cases therefore, where there is intention to cause death or knowledge that death would be the likely result of the act, i.e., offences of culpable homicide punishable under section 302 or section 304 of the Penal Code, would be outside the range of section 304A. Under section 304A all that is necessary is that there must be negligence or rashness providing a direct cause of death." It follows from the foregoing that to the extent that section 318 (qatl-i-khata) includes death caused by a rash or negligent act, it is in all material respects the same as the previous section 304A. In order therefore, to understand the scope, nature and extent of the offence of Qatl-i-khata resulting from a rash or negligent act, one can usefully consider the case law that has explained and determined the scope, extent and nature of the offence under section 304A.

7. The crucial elements of the offence both under the previous section 304 A and (as presently relevant) section 318 are rashness and/or negligence. In Jamal v. The State 1977 PCr.LJ 818, this Court while considering section 304A, had cited with approval the following observations of Straight, J., in Regina v. Idu Beg (1881) 3 All 776, 779-80: "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without the intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care to guard against injury either to the public generally or to an individual in particular which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted." In other words, in order for an offence to be made out under section 318 in the present case, it would be necessary to prove that the respondent Doctors were so negligent in the discharge of their professional duties that their conduct amounted to either criminal rashness (i.e., recklessness or indifference to the consequences of their conduct) or to criminal negligence (i.e., to a gross and culpable neglect or failure to exercise all the reasonable and proper care towards Mst. Badshahzadi as was their imperative duty to have adopted).

8. The Supreme Court of India has, in two recent decisions, examined the nature and scope of section 304A (which continues to be a part of the Indian Penal Code) in the specific context of doctors acting in the discharge of their professional obligations. In Dr. Suresh Gupta v. Government of NCT Delhi and another AIR 2004 SC 4091, it was held as follows:-- "

20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako [1994] 3 All ER 79 relied upon on behalf of the doctor elucidates the said legal position and contains following observations; Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State." 21": Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man cannot be termed as 'criminal'. It can be termed 'criminal' only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found to have arisen from gross ignorance or gross negligence. Where a patient's death results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable. .................

23. For every mishap or death during medical treatment, the medical man cannot be proceeded against for punishment. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing great disservice to the community at large because if the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all best treatment to their patients. This would lead to shaking the mutual confidence between the doctor and patient. Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.

25. Between civil and criminal liability of a doctor causing death of his patient the Court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. [emphasis in original].

26. To convict, therefore, doctor, the prosecution has to come with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The courts have, therefore, always insisted in the case of alleged c criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.'

9. The second decision is reported as Jacob Matthew v. State of Punjab and another AIR 2005 SC 3180. It is pertinent to note that when Jacob Matthew first came up for hearing, reliance was placed on behalf of the doctor and Dr. Suresh Gupta. However, the bench hearing the matter doubted the correctness of the view taken in the 2004 decision and accordingly a larger bench was constituted to hear the appeal in Jacob Matthew. The larger bench expressly upheld and reaffirmed the principles laid down in Dr. Suresh Gupta, it was also noted that the Indian Supreme Court had in its earlier decisions approved the observations of Straight; J., in Idu Beg (the 1881 Allahabad High Court decision cited with approval by this court as noted above). The Supreme Court considered the issue of medical negligence at length, both in terms of civil and criminal liability and, after citing extensively from the case law and relevant treatises, observed, inter alia, as follows in para 49: "The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. The word 'gross' has not been used in section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in section 304A of the IPC has to be read as qualified by the word 'grossly'. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent."

10. It follows from the foregoing analysis that the offence of Qatl-i -khata under section 318, insofar as death is caused by a rash or negligent act, and in the specific context of doctors accused of professional negligence, is committed only if it is proved that the accused acted with 'gross negligence' (in the sense as explained above) or with reckless disregard or indifference to the consequences of the act which caused the death. Thus, the standard of professional negligence in civil law (which is of course, a well recognized tort) differs from criminal negligence in two ways. Firstly, and more generally, the standard of proof in all civil litigation is the simply the balance of probabilities, whereas in criminal prosecution, the offence has to be proved beyond reasonable doubt. This is a fundamental and well recognized distinction; see, e.g., the recent decision of this Court reported as Province of Sindh and another v. Shams ul Hasan and others 2009 MLD 1093, 1096. Secondly, the degree of negligence must be much higher for it to constitute a criminal offence, i.e. it must amount to 'gross negligence'. A negligent act may attract tortious (or civil) liability and yet fall short of the level or degree required for it to constitute a criminal offence. As noted above, the appellant did not at any stage institute civil proceedings against the respondent Doctors. Had he done so, their liability (if any) would have been determined on the civil law standard applicable to professionals (here doctors) professing to possess, and practising, a skill in a particular profession (here the medical profession). The position in criminal law is quite different. The level or degree of negligence is substantially higher, i.e., it must amount to gross negligence or recklessness. The Courts have advisedly refrained from attempting to give an exhaustive meaning to the expression 'gross negligence'. In my view, Idu Beg and the two decisions of the Supreme Court of India correctly identify the elements that constitute 'gross negligence' in the context of professional negligence by doctors, and these elements must be proved beyond reasonable doubt for the offence under the (previous) section 304A or the (present) section 318 to be made out.

11. As noted above, the appellant examined himself and six witnesses in support of his complaint. In substance, the complaint, and thus the alleged negligence of the respondent Doctors, rested on two grounds. The appellant claimed firstly that despite repeated requests by him, the doctors refused to allow him to purchase and provide medicines from his own sources. Secondly, it was alleged that at the time of the death of Mst. Badshahzadi, she was being provided oxygen, and the oxygen cylinder was found to be empty. Learned counsel for the appellant submitted that the statements of all the witnesses were consistent and corroborated the complaint in regard to these matters. The witnesses had visited the hospital and had seen the state of Mst. Badshahzadi with their own eyes. These grounds constituted negligence within the meaning of sections 318/319 (read with section 34). Thus, the learned trial Court erred in concluding that there was no probability of respondent Doctors being convicted of an offence under the aforesaid provisions. In reply, learned counsel for the respondent Doctors submitted that the deceased was given full and proper treatment at the hospital. He submitted that none of the witnesses produced by the appellant was a doctor or in any manner skilled in the medical profession. The witnesses were respectively, a neighbour, two friends, the appellant's brother and brother in law, and the wife of the appellant's brother. In other words, they were simply well wishers, who were not there throughout the 11 days that Mst. Badshahzadi remained hospitalized, but were only infrequent visitors from time to time. He submitted that in fact, as the medical record showed, the deceased suffered from abdominal tuberculosis, and she had been brought to the hospital at the terminal stage of her illness. Her death was thus something that was beyond any care or treatment that could have been provided to her, although learned counsel emphasized that all due and proper care and treatment were provided to her by the hospital and the respondent Doctors. The learned APG adopted the submissions of the learned counsel for the respondent Doctors. He submitted that the learned trial Court had rightly allowed the application under section 265-K. He reiterated that no medical or expert evidence had at all been produced by the appellant to support his complaint, and in this context referred to Article 59 of the Qanun-e-Shandat Order, 1984 (opinion of experts).

12. In my view, the learned trial Court gave full, proper and careful consideration 'to the matter and correctly came to the conclusion that the application under section 265-K ought to be allowed. Once the proper meaning and scope of section 318 are kept in mind in the context of death caused by a rash or negligent act (as explained above), it is clear that there was no probability of the respondent Doctors being convicted in respect of an offence under that section. The conduct complained against them did not amount to 'gross negligence' or recklessness as would constitute a criminal offence. No medical evidence has at all been adduced and in a case of alleged professional negligence, especially in the field of medicine, that would be a primary and indispensable requirement. In any case, the fact that the appellant wished to purchase and provide medicines from his own sources, while the hospital required that only officially procured medicines be used does not in any manner amount to 'gross negligence' or recklessness; it may not even amount to the tort of negligence in terms of any civil liability. As regards the allegation of the oxygen cylinder being empty, that is simply the view expressed by the appellant and his witnesses, none of whom, as noted above, are experts who could form any relevant opinion in this regard. Even in terms of the witnesses' own statements, the oxygen cylinder was found to be empty at the time of Mst. Badshahzadi's death. Clearly, being the well wishers of the appellant and the deceased, they would be in a perturbed state of mind at that time. Furthermore, the witnesses were not full time attendants at the hospital. They were infrequent visitors who appear to have visited the deceased either at the time of her admission to the hospital and/or at the time of her death. They cannot therefore, be regarded as having full, direct and personal knowledge of the treatment that was provided to the deceased during her 11 day's stay at the hospital. Even if they had been full time attendants, or constant and daily visitors, their view and understanding would be the limited one of a layman, which would, even at best, be of very restricted utility. It would certainly be insufficient to establish that there had been any 'gross negligence' or recklessness on the part of the respondent Doctors. Furthermore, nothing at all was adduced or was available that would in any manner suggest that section 34 was applicable in the facts and circumstances of the present case. That section pertains to a criminal act done by several persons in furtherance of their common intention, and in such a situation makes each such person liable for the criminal act. The prerequisites for the application of section 34 are well established, and were recently laid out by the Supreme Court in Shoukat Ali v. The State PLD 2007 SC

93. One of the essential elements is a pre-arranged plan or a pre-concert or prior meeting of minds. Nothing was produced by the appellant or his witnesses as would establish or even remotely suggest any pre-arranged plan or concert or prior meeting of minds in the present situation. Thus, there was no probability of the conviction of any of the respondent Doctors for gross negligence (or all of them on the basis of a common intention), and the learned trial Court was right in allowing the application under section 265-K.

13. It is pertinent also to refer in some detail to the facts in Jacob Matthew, the 2005 decision of the Supreme Court of India referred to above. In that case, the relevant facts were stated to be as follows (at page 3185): "Ashok Kumar Sharma, the respondent No.2 herein filed a First Information Report under section 304 A read with section 34 of the Indian Penal Code...The gist of the information is that on 15-2-1995, the informant's father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22-2-1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant's elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr. Allen Joseph came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in between, 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead." Part of the defence put by the doctor was that the deceased was in fact suffering terminally from cancer, and although all due proper care was taken of the patient, his condition was such that death was inevitable or, as the Supreme Court put it, "what was ordained to happen, did happen". The F.I.R. alleged carelessness on the part of the medical staff, in particular, due to the non availability of an oxygen cylinder and use of an empty cylinder. After a police investigation, the matter was submitted to the Magistrate, who framed a charge against the two doctors concerned under section 304A. The doctor filed an application under section 482 of the (Indian) Code of Criminal Procedure, 1973 (which corresponds to section 561-A, Cr.P.C.) for quashment of the F.I.R. before the Punjab High Court. The High Court dismissed the application, taking the view that the pleas raised by the doctors were available to them to be urged in defence at the trial and, therefore, a case for quashing the F.I.R. was not made out. The doctors appealed to the Indian Supreme Court, which after the elaborate examination of criminal and civil negligence in the context of the medical profession (as noted above) concluded as follows: "

54. Reverting back to facts of the case before us we are satisfied that all the averments made in the complaint even if held to be proved do not make out a case of criminal rashness or negligence on the part of the accused appellant It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat It is a case of non-availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may be liable in civil law (or may not be-we express no opinion thereon) but the accused appellant cannot be proceeded against under Section 304-A, I. P. C.... " Accordingly, the appeal was allowed and the F.I.R. was quashed. It will be seen that the facts in Jacob Matthew were strikingly similar to the facts of the case at hand. In both, a terminally ill patient was admitted to hospital and died there. In both, at the time of death, one of alleged negligent acts was the non-provision of proper oxygen facility, i.e.; an empty oxygen cylinder. It is to be noted that proceedings in Jacob Matthew were initiated by an F.I.R. which was sought to be quashed. At the relevant time, all that was before the Court was the result of the police investigation and the charges framed by the trial Court. Even then, the Supreme Court held that no case of gross negligence could possibly be made out. In the present case, the complaint and statement of the appellant and his witnesses had been recorded. Essentially the entire prosecution case (without even being subjected to the rigors of cross examination) was before the Court. Even then, the appellant could not make out a case of gross negligence.

14. In my view, there was no probability of the respondent Doctors being convicted of the offence under section 318,P.P.C. read with section 34, and the respondent Doctors were rightly acquitted under section 265-K. Nothing has been shown nor urged in this appeal that would establish that a conclusion to the contrary was warranted. Accordingly, this appeal fails, and is hereby dismissed. NHQ/M-13/K Appeal dismissed.