Immunity

2026 PLD 23 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 13, 19 & 33Penal Code (XLV of 1860), S. 322Criminal Procedure Code (V of 1898), S.154Constitution of Pakistan, Art. 199Khyber Pakhtunkhwa Health Care Commission Conduct of Business Regulations, 2016Medical negligence by a medical practitionerImmunityOverriding effectQuashing of FIRConstitutional jurisdiction of High CourtScopePetitioner/accused sought quashing of FIR by invoking constitutional jurisdiction of the High CourtValidity

Allegations against the petitioner/accused was that she, being a medical practitioner, negligently and carelessly attended to wife of complainant during her delivery process, as result whereof she died and consequently the baby she had conceived was also lost

In the present case, the complainant had leveled the allegations of negligence against the petitioner and a special law i.e. Khyber Pakhtunkhwa Health Care Commission Act, 2015,was available to deal with the matter but he, without exhausting the remedy under the Act, resorted to criminal proceedings which could not be sustained in view of the bar contained in S. 19 of the Act, according to which no suit, prosecution or other legal proceedings related to provision of private health care service shall lie against a health care establishment except under the Act

When there is a conflict between a special law and a general law, the former would prevail over the latter

Thus, mode of the proceedings conducted on the report of complainant were illegal being contrary to the provision of the Act, 2015

Complainant in the present case, being an aggrieved person because of death of his wife due to alleged negligence of the petitioner in her hospital, had not made any complaint to Commission in the mode and manner as prescribed under S. 13(1) of the Act

Complainant reported the matter to local police on which an inquiry was conducted and thereafter the FIR in question was registered against her in total disregard of the Act which was in the field at the relevant time followed by Khyber Pakhtunkhwa Health Care Commission Conduct of Business Regulations, 2016 (the Regulations)

In said Regulations the entire procedure for filing of complaints had been given

Matter in hand, pertaining to death of a lady at delivery stage, fell in clause (a) of S. 5 of the Regulations categorizing the act of medical negligence, mal-administration malpractice or any other act or omission resulting in compromised healthcare service on the basis of severity

Thus, complainant had not agitated the matter before the proper forum and the proceedings so conducted by police culminating into registration of the FIR were against the relevant law

Petition was allowed and FIR under S. 322, P.P.C., registered against the petitioner was quashed.

2022 YLR 63 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 322Sindh Health Care Commission Act, 2013 (VII of 2014), Ss. 4(6)(b) & 29Qatl-bis-sababInvestigation into allegations of mal-administration and malpractice of medical professionalsImmunityScopePetitioners sought quashing of FIR lodged under S.322, P.P.C. against themValidity

Section 322, P.P.C. attracted to the case if death was caused due to criminal negligence of the petitioners (Medical professionals)

Petitioners belonged to medical profession and settled test of medical negligence provided that "a medical professional was not guilty of negligence if he had acted in accordance with a practice accepted as proper by a responsible body of a medical men skilled in the particular art"

Sindh Health Care Commission was constituted to determine whether the petitioners had committed medical negligence or not

High Court referred the matter to Sindh Health Care Commission under S.4(6)(b) of Sindh Health Care Commission Act, 2013 for inquiry/investigation with direction to transmit the result of investigation to the Trial Court

Constitutional Petition was disposed of accordingly.

2022 PCrLJ 1447 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 29 & 28Constitution of Pakistan, Art. 199Constitutional petitionImmunityJurisdiction of Commission for adjudication of fineCriminal proceedings, initiation ofScope

Accused persons sought quashing of FIR registered on the direction of Justice of Peace while claiming protection under S. 29 of Sindh Health Care Commission Act, 2013

Validity

Accused persons were found guilty of the negligence and professional misconduct by Sindh Health Care Commission after thorough inquiry conducted on the complaint of respondent and fine was also imposed

Respondent, thereafter, had approached the Justice of Peace after exhausting the remedy available to him under the Sindh Health Care Commission Act, 2013, through an application under Ss. 22-A & 22-B, Cr.P.C. which was allowed

Case against the accused persons was challaned before the Court having jurisdiction

Criminal as well as civil law could be set into motion simultaneously

Factual controversy could not be taken into consideration by the High Court through constitutional petition

Constitutional petition was dismissed.

2021 PTD 1585 ISLAMABAD Judicial Precedent

S.51Electronics Transactions Ordinance (LI of 2002), Ss.36 & 37Criminal Procedure Code (V of 1898), Ss.22-A & 22-BConstitution of Pakistan, Arts.10-A, & 248Official proceedingsImmunityScope

Ex-Officio Justice of Peace allowed application filed by respondents/taxpayers for breach of provisions of Ss.36 & 37 of Electronic Transactions Ordinance, 2002, by petitioners/authorities and directed to register F.I.R.

Petitioners/authorities claimed protection of S.51 of Sales Tax Act, 1990, for acts done in official capacity

Validity

No protection from investigation or prosecution could be afforded to any public official for an alleged act

Whether or not a public official was liable for an illegal act, could only be determined after a fair investigation and trial

Every citizen had a right to due process and fair trial, when a claim was made by a citizen that a public official was involved in an offence causing legal injury to such citizen

Both citizens and public officials have a right to due process and fair trial and to have their rights and liabilities determined in accordance with law

No public official could claim protection against investigation or prosecution

In view of Art.10-A of the Constitution, it was only the procedure to be followed in conducting investigation and prosecution of public officials that could be regulated by statutory provisions

Allegations regarding any fraud that were or were not committed by respondents/taxpayers were to be determined in accordance with the provisions of Sales Tax Act, 1990

Severity of such allegations had no bearing on obligation of petitioners/authorities to exercise any authority vested in them such that it was in accordance with the law

Complaint was filed by respondents/taxpayers alleging that actions of petitioners/authorities constituted an offence under provisions of Electronic Transactions Ordinance, 2002

Neither immunity afforded by law to petitioners/authorities against investigation and prosecution in relation to such offence, nor order passed by Ex-Officio Justice of Peace suffered from legal infirmity for allowing registration of F.I.R. and initiation of investigation

Constitutional petition was dismissed in circumstances.

2020 SCMR 361 SUPREME-COURT-OF-CANADA Judicial Precedent

Police officialsUnlawful ordersCivil liabilityImmunityAppellant used an escalator in a subway station without holding the handrail

Police officer employed by the city, who had been designated as an inspector by the transport authority responsible for the subway system, ordered her several times to hold the handrail, since the authority taught police officers that holding the handrail was an obligation under a by-law

Appellant refused to comply and to identify herself, where after the police officer arrested her and searched her bag

Police officer gave the appellant two separate fine tickets, one for disobeying a pictogram indicating that the handrail should be held, which the transport authority had posted near the escalator pursuant to its by-law, and another ticket for hindering the police in their duties

After being acquitted in the Municipal Court, the appellant instituted a civil liability action against the police officer, his employer and the transport authority, contending that the arrest was unlawful and unreasonable and that it constituted a fault because holding the handrail was not an obligation under the by-law, but simply a caution/warning

Trial judge dismissed the action, finding that the police officer had not committed any civil fault and that it was the appellant who had behaved in an inconceivable manner by refusing to comply with the officer's order

Court of Appeal affirmed the decision of the trial judge

Held, that the police officer committed a civil fault by ordering the appellant to identify herself and by arresting her and conducting a search based on a non-existent offence, namely disobeying the pictogram indicating that the handrail should be held

Reasonable police officer in the same circumstances would not have concluded that disobeying the pictogram was an offence under a by-law, and would necessarily have doubted the existence in law of the offence and, as a result, would not have required the appellant to identify herself so that she could be given a fine ticket

Such an officer would certainly not have arrested her if she refused, but would instead have allowed her to continue on her way

Before depriving the appellant of her liberty, the officer had to ensure that there was valid legal justification for his actions

Reasonable police officer would have concluded that the pictogram simply advised users to be careful, despite the training received

Police officer's conduct necessarily constituted a fault insofar as it resulted from an unreasonable belief in the existence of an offence that did not exist in law

As principal, the city was also bound to make reparation for the injury caused, [pursuant to Arts. 1463 & 1464 of the Civil Code of Quebec, 1994], because it was not in dispute that the police officer was acting in the performance of his duties when the fault was committed, even though his conduct was also unlawful

Transport authority had no public law immunity

Legal person established in the public interest may be civilly liable if it made an error of law in implementing its own regulations or by-laws

In the present case, the training provided to police officers by the transport authority was part of the implementation of a by-law

In this respect, the transport authority committed a direct fault in the implementation of the by-law by providing training that suggested to police officers called upon to enforce its by-laws that holding the handrail was an obligation

Once the transport authority undertook to provide police officers with training, it had to ensure that the training would be appropriate and that it would reflect the law

If the police officer was at fault for believing that holding the handrail was an obligation, the transport authority was equally at fault for misinterpreting the by-law and providing training accordingly

Transport authority was also liable as mandator for the police officer's fault

Designation of a police officer as a subway inspector created a legal relationship analogous to that of mandate (within the meaning of Art. 2130, para. 1 of the Civil Code of Quebec, 1994), in which a public transit authority may incur civil liability to a third person

In enforcing the by-laws of a public transit authority, a police officer ipso facto represented that authority in the performance of a juridical act, which must be interpreted broadly

Appellant was entitled to refuse to obey an unlawful order and therefore committed no fault that would justify an apportionment of liability

Unless a statutory provision or common law rule clearly imposed it, there was no obligation to identify oneself to, or indeed to cooperate with, a police officer

Similarly, the appellant could not be faulted for not doing anything to mitigate the injury she suffered

Reasonable, prudent and diligent person was not under an obligation to obey an unlawful order

In a free and democratic society, no one should accept or expect to be subjected to unjustified state intrusions

Interference with freedom of movement, just like invasion of privacy, must not be trivialized

Appellant suffered minor bodily injuries, but also above all, moral injury as a result of her unlawful arrest, the force used against her and the unreasonable search of her personal effects

Compensation for suffering, anguish and humiliation had to be awarded in the present case

Appellant was awarded $20,000 with interest in damages, with the transport authority and the police officer, each liable to pay 50% of said amount

Appeal was allowed accordingly.

2020 SCMR 361 SUPREME-COURT-OF-CANADA Judicial Precedent

Legal person established in public interestCivil liabilityImmunity

Legal person established in the public interest generally incurred no civil liability where it made or passed a regulation or by-law that was subsequently held to be invalid, unless its decision to do so was made in bad faith or was irrational

Purpose of said immunity was to preserve the latitude that a legal person established in the public interest must have in order to make policy decisions in the interests of the community

However, legal person established in the public interest that made an error of law in implementing its own regulations or by-laws may be civilly liable.

2014 CLC 817 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 32Constitution of Pakistan, Arts.129 & 248Law Reforms Ordinance (XII of 1972), S.3Intra-court AppealMaintainabilityDirection to GovernorImmunityScope

Complaint filed by petitioner was dismissed by Provincial Ombudsman, against which representation to Governor was pending

Petitioner sought direction to Governor for deciding his representation expeditiously

Validity

Governor was acting as an appellate authority to substitute the decision of Provincial Ombudsman

Any order passed by Governor in representation when challenged before High Court, the Governor could be impleaded as an appellate authority to decision made by the Ombudsman

Wisdom behind immunity provided to Governor under Art.248 of the Constitution was that since he was acting upon advice of Cabinet, therefore, immunity had been provided to the office of Governor under Art.248(1) of the Constitution

While deciding representation, Governor was not to act in accordance with advice of Cabinet or Chief Minister but was acting as quasi judicial authority

High Court declined to interfere in the judgment passed by Single Judge of High Court

Intra-Court Appeal was dismissed in circumstances.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Expert witnessImmunityExceptionsPurpose

Exceptions to the immunity to witnesses rule included perjury, contempt of court, professional misconduct and liability for the wasted costs of the other side

Said exceptions were all, in their different ways, in support of the courts' interest in witnesses behaving properly: telling the truth, obeying court orders or respecting the undertakings given to the court, behaving professionally so as to justify the courts' confidence in their expertise and not wasting the time of the court or the other parties

Said exceptions were there to encourage and oblige the witness to perform his/her duty to the court and they were not there to protect the interests of the witness's client

Exception which was being made in the present case was to protect the interests of the client, which was a significant departure from existing principles

Appeal was dismissed, accordingly.

2012 SCMR 1298 SUPREME-COURT-OF-UK Judicial Precedent

Public policy as a basis for immunityScope

Public policy was not immutable and any rule of immunity was required to be considered in the light of present day (prevailing) conditions.