P L D 2023 Peshawar 178 (PLP)

SHAKEEL AHMAD, J.

In this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner seeks issuance of writ of mandamus declaring that act of the respondents Nos. 3 to 6 by not admitting his daughter and other patients, who are suffering from cancer is illegal, without lawful authority and void ab initio. He also seeks issuance of direction to the said respondents to consider every patient of cancer irrespective of severity of disease and age.

2. Briefly stated facts of the case of the petitioner is that the daughter of the petitioner, who is aged about 13 years, is suffering from cancer, she was taken to Suaukat Khanum Memorial Cancer Hospital at Hayatabad, Peshawar, but she was refused admission and medical treatment by the hospital management merely on the ground that she/patient does not fulfil the admission criteria of the hospital. The petitioner made hectic efforts to get her admitted in the hospital for medical treatment, but all his efforts in this respect proved to be a wild goose chase, which necessitated to file the instant petition.

3. We have heard arguments of the learned counsel for the petitioner at length patiently and sympathetically.

4. Before highlighting the issue that confronted the Court in the present case, the relevant provisions of Sub-Article (1) of Article 199 of the Constitution, we took note of the facts, that under Article 9 of the Constitution, the word "life" was very significant as it covers all facet of human existence and a person was entitled to protection of life in terms of Article 9 of the Constitution. State has to protect a citizen/individual by providing adequate medical facilities for its people and it is an essential part of obligations undertaken by Government in a welfare State. Government discharge its obligations by running hospitals and health centres, which provide medical care to a person seeking to avail those facilities. Preservation and protection of human life is thus of paramount importance. Government hospitals run by the State and medical hospitals employed therein are duty bound to extend medical assistance for preserving human life and failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment would result in violation of his right to life guaranteed under the Constitution.

5. We noted pain and agony of a father, who is running from pillar to post for medical treatment of his daughter, who is suffering from fatal disease of cancer and is fighting for her survival. Therefore, we observe that she is entitled to all available medical treatment and facilities in all public sector/Government owned hospitals as and when she is taken to the Government owned hospitals of KPK.

6. However, in the instant case, we noted that petitioner has prayed for issuance of direction in the nature of mandamus against the respondents Nos. 3 to 6, who are neither performing functions in connection with the affairs of the Federation nor a Province or a local authority. A plain reading of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, reflects that there are three main parts noted in Sub-Article (1) of Article 199 of the Constitution. Clause (a) of sub-clause (i) of Article 199 of the Constitution confers jurisdiction upon the High Court with regard to writ of mandamus, certiorari and prohibition and in clause (b) habeas corpus and writ of quo warranto is provided, while in clause (c) jurisdiction to enforce the fundamental rights, provided by Chapter I of Part II of the Constitution has been conferred to the High Court.

7. In sub-clause (i) of clause (a) of Sub-Article (1) of Article 199 of the Constitution, a declaration or direction can be sought by a party who is aggrieved by an act or proceedings taken by a person performing functions in connection with the affairs of Federation or a Province or a local authority, as observed in the preceding para, however, the respondents Nos.3 to 6 are neither public functionary serving in the affairs of Federation nor in a Province nor has the status of local authority. It is incumbent upon the petitioner who knocks at the door of High Court under Article 199 of the Constitution to show that he was aggrieved of an act of the person or proceedings referred to above, otherwise, he would not be granted the claimed relief of mandamus, prohibition or certiorari. In the present case, we find that petitioner has not sought any relief against the public functionaries, therefore, the claimed writ cannot be issued against the respondents Nos.3 to 6.

8. In view of the foregoing discussions, the instant petition is dismissed in limine. SA/61/P Petition dismissed.