1. By this single order, I intend to dispose of Writ Petition No. 14054 of 2015 titled Dr.Malik Muhammad Yaseen vs. Justice of Peace, etc. and Writ Petition No.15759 of 2015 titled Dr. Ammara Ali vs. Justice of Peace, etc. as both are outcome of the same impugned order dated 09.09.2015 passed by the learned Justice of Peace/ASJ, Kabirwala.
2. Through these petitions, the petitioners has called in question the order dated 09.09.2015 passed by the learned Justice of Peace/ASJ, Kabirwala whereby on the application filed by respondent No.4 under Section 22-A Cr.P.C. respondent No.2 was directed to proceed in accordance with law against the petitioner. The facts of the case were that respondent No.4 filed petition under Section 22-A Cr.P.C. to the learned Justice of Peace for registration of case against the petitioners and others with the allegation that on 30.1.2015 at about 10/11 p.m. he took her wife to Tehsil Headquarter Hospital, Kabirwala in emergency. He further alleged that since delivery of his son took place at his own house by untrained birth attendant and due to excessive bleedings his son died and after 3 to 4 hours he took his wife in emergency ward Tehsil Headquarter Hospital, Kabirwala where the petitioners being Doctors did not attend his wife as a result of which she died. The learned Justice of Peace called comments from respondent No.3/ SHO who after inquiry submitted his report, appended with this file as Annex-A & B. Then the learned Justice of Peace through the impugned order dated 09.09.2015 issued direction to respondent No.3 to proceed in accordance with law by invoking the provisions of Section 154 Cr.P.C.
3. Learned counsel for the petitioner contends that the impugned order dated 09.09.2015 is illegal, void ab initio and against the law and facts without applying judicial mind. He further contended that the occurrence took place on 30.01.2015 whereas the application under Section 22-A Cr.P.C. was filed on 16.5.2015 without any plausible explanation of delay and that through the contents of the petition under Section 22-A Cr.P.C. respondent No.4 has not raised any allegation of negligence on the part of the petitioner. Further added that the learned Justice of Peace did not have jurisdiction to pass the impugned order in view of existence of Punjab Health Care Commission Act, 2010 which is a special law has given the remedies to the respondent No.4 to agitate the matter before the concerned authorities, as such, the learned Justice of Peace has illegally assumed the jurisdiction in the instant matter. Further added that under Section 29 of the said Act when the negligence and the other misconduct of the doctors as mentioned under Section 26, occurred then the matter can be agitated before the concerned authority but the learned Justice of Peace did not bother even to see the aforementioned Act, and passed the order without jurisdiction. He also referred Section 23 of the Act whereby an aggrieved person may, within sixty days from the date of knowledge of the cause of action, file a complaint against a healthcare service provider or healthcare establishment by submitting an application in writing supported by an affidavit of the aggrieved person but the respondent No.4 has filed the instant application after lapse of four months and
that too at unconcerned forum.
Further argued that Section 26 of the Act is very much clear that where any act in contravention of this act is committed by a body corporate and it is proved to have been committed with the consent or connivance of, or to be attributable to any director, manager, secretary or other officer or employee of the body corporate, or any person who purported to act in any such capacity, he as well as the body corporate shall be liable to pay fine for such violation and under subsection (2) of Section 26 where it appears to the Commission that the circumstances of a case warrant action under any other law, the Commission may refer such case to the concerned governmental authority or law enforcement agencies for appropriate action under relevant laws. Further added that in view of the Full Bench judgment of this Court passed in the case of Khizar Hayat vs. I.G Police (PLD 2005 Lahore 470), it is not obligatory for the learned Justice of Peace to necessarily or blindfoldly issue direction regarding registration of criminal case whenever a complaint is filed before him, therefore, the order of the learned Justice of Peace is liable to be set aside. Lastly added that the respondent No.4 has submitted an affidavit exonerating Dr.Amara Ali, petitioner and stated that due to mis-understanding the application was filed against her, therefore, the allegations leveled by the respondent No.4 also doubtful against Dr. Malik Muhammad Yasin.
4. On the other hand learned A.A.G assisted by learned counsel for respondent No.4 opposed this petition and contended that prima facie cognizable offence was made out and the case can be registered directly against the petitioners. Learned counsel for the respondent No.4 further contended that applications were submitted to the higher authorities for taking action against the petitioners and in this regard receipts are available on record and when no action was taken by the higher authorities then the respondent No.4 filed instant application for registration of case against the petitioners.
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