2022 P Cr (PLP)

SAFDAR SALEEM SHAHID, J.

The instant petition is directed against the order dated 17.06.2021, whereby Ex-Officio Justice of Peace, Rojhan, while disposing of the application under sections 22-A/22-B, Cr.P.C. directed the SHO concerned to record version of the complainant/respondent No.4 as required under section 154, Cr.P.C. and proceed further strictly in accordance with law.

2. The allegation levelled by the complainant/respondent No.4 through his application was that his daughter namely Sonari Mai aged three years had died due to the negligence of the petitioner.

3. Arguments heard. Record perused.

4. The Punjab Healthcare Commission Act, 2010 says that if there is any negligence on the part of any person relating to the health, will be dealt with under this Act. In the interrogatory of this Act under section 1, it is clearly mentioned that it shall apply to all healthcare establishments, public or private hospitals, non-profit organizations, charitable hospitals, trust hospitals, semi-government and autonomous healthcare organizations. Under section 19(b) of the Act, "medical negligence" means a case where a patient sustains injury or dies as a result of improper treatment in a healthcare establishment and, in case of death, determined on the basis of medical autopsy report. Therefore, this Act bars to prosecute any person on the allegation of negligence.

5. The complainant/respondent No.4 has used the word 'negligence' in his application under sections 22-A/22-B, Cr.P.C. and the learned Justice of Peace, without keeping in view the wisdom of the statute, i.e. the Punjab Healthcare Commission Act, 2010, has wrongly passed the impugned order.

6. It was mentioned in the application that after treatment by the petitioner, daughter of the complainant/respondent No.4, also remained under treatment in Shaikh Zayad Hospital, Rahimyar Khan, for so many days and thereafter she died. Daughter of the petitioner was a serious patient of brain tumor and negligence, if any, on the part of the petitioner cannot be prima facie fixed by the police through investigation and for that the complainant has approach to the concerned forum in view of the enactment of the Punjab Healthcare Commission Act, 2010. Therefore, the order passed by the learned Ex-Officio Justice of Peace is against the law.

7. In the instant case complainant also filed an application before the Deputy Commissioner, which was marked to the Chief Executive Officer, District Health Authority, Rajanpur, where the inquiry remained pending, but on 05.04.2021 the complainant withdrew his complaint by stating that it was based on misunderstanding. However, the learned Ex-Officio Justice of Peace also failed to consider this aspect of the case.

8. In view of the law laid down in the case of Shifa International Hospitals Ltd. Through Chairman and C.E.O. v. Pakistan Medical and Dental Council (PMDC) and 3 others (2011 CLC 463), special enactment always prevail over the general law and in presence of the special law to deal with the negligence of the practitioners being available, without exhausting the remedy, no criminal proceedings could be initiated. Once it was held by the Pakistan Medical and Dental Council that practitioner was guilty of negligence and professional misconduct, criminal law as well as civil law could be set into motion against them by forwarding a complaint to the Council for proper legal action under the law without being prejudiced by any observation made by the police or the Court.

9. For what has been discussed above, the instant petition is allowed and the order dated 17.06.2021 passed by the Ex-Officio Justice of Peace is set aside. The complainant, however, can file his complaint before the appropriate forum under the Act, if so advised. SA/R-13/L Petition allowed.