Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Dr. ANWAR ZADA and others VS Respondent: Mst. YASMINand another
Court Name: Peshawar High Court Judge(s): Abdul Latif Khan Title: Dr. ANWAR ZADA and others vs Mst. YASMINand another Case No.: R.F.A. No,81 of 1998 Date of Judgment:2014-06-02 Reported As: 2015 YLR 1263 Result: Order accordingly
JUDGMENT
JUDGMENT ' ABDUL LATIF KHAN, J.---This appeal has been directed against the judgment and decree dated 22- 10-1998 passed by learned Senior Civil Judge/Aala Illaqa Qazi, Dir at Timergara, whereby suit of the respondent/plaintiff for recovery of five million rupees was decreed. 2. Facts of the case are that Mst. Yasmeen, plaintiff/respondent instituted a suit against Dr. Anwarzada and seven others for recovery of Rs, 50, 00,000 as damages alleged therein that she was sick and was under treatment of different doctors. On 28-8-1992, she came to DHQ, Hospital, Timergara, for treatment and after getting OPD chit and consulting Medical Specialist, namely, Dr. Shoib, she purchased medicines as per his prescription, and went back to her home but feeling no relief, she again came to the hospital on 26-8-1992 for further treatment and on examination Dr. Muhammad Shoib advised her admission in the hospital and as she had neither consulted her family members nor having necessary utensil, so, she went back home and on 27-8-1992 at morning, she along with her father, niece Mst. Nusrat and nephew Muhammad Zeb came to the hospital and after making arrangement for a private room in the hospital by her father, she along with her father, niece and nephew went to the said room. After some time at 10.00 a.m., Dr. Anwarzada, appellant No,1, came there and asked her some loutish and irrelevant questions, went out and again came there after a few minutes along with defendants 2 to 7 and asked from her further ridiculous questions about her character. The appellants then started search of the room, their persons and bathroom in spite of the fact that the appellants were told that she was ill and Dr. Muhammad Shoib advised her for admission in the hospital but even then, they continued search of the room and her body and also her family members. She averred in the plaint that in the meanwhile, sufficient number of the public attracted to the spot, observing her as well as her
---
## Page 2
family members in miserable situation through the door and windows of the room from the verandah, thereafter, the defendants locked the bathroom as well as the room from outside and asked the local police to guard against her room. Defendant No,1 at the same time asked the hospital staff not to provide any medicine to her, thereafter, her sister also arrived in the hospital but she was not allowed by the police guard to come inside the room. She alleged in her plaint that the defendants kept her and her other family members in illegal confinement since morning of 27- 8-1992 till 8.00 p.m. On 28-8-1992. She averred that at the intervention of the SHO of the Police Station, the guard was removed and she was allowed to go her home without any treatment. The acts of the defendants were not only against their profession but she and her family members were highly disgraced and humiliated besides she was put to severe mental and physical torture. She further alleged that the incident was advertised in the local newspapers on which her relatives annoyed as a result of which they attacked on her house on 29-9-1992 at night time and started indiscriminate firing due to which her nephew was hit and died while her father received injuries and some of the inmates of her house also received injuries, therefore, the plaintiff sought for the desired decree. 3. The suit was contested by the defendants by filing written statement. Learned trial court when found parties on cross road, framed the following issues from the divergent pleadings of the parties. ISSUES. (1) Whether the plaintiff has a cause of action? (2) Whether suit is incompetent in present form? (3) Whether suit is bad for misjoinder and non-joinder? (4) Whether proper court-fee has not been affixed on the plaint? (5) Whether this court has got jurisdiction to try the present suit? (6) Whether proper notice was not given to the defendant prior to present suit, if so, its effect? (7) Whether suit has been malafidely instituted? (8) Whether defendants are entitled to receive special costs from plaintiff under section 35-A, C.P.C? (9) Whether plaintiff was advised to be admitted in Civil Hospital Timergara in view of her serious illness and consequently she got a private room on 27-8-1992 for the purpose of treatment? (10)Whether defendants Nos. 1 to 7 have shown indescency towards plaintiff by asking irrelevant questions about her character and they also disgraced and humiliated her by conducting illegal search of her person and the room, locking the doors of bathroom as well as private room and also arranged police guard on the said room malafidely? (11)Whether defendants Nos.1 to 7 managed to stop the supply of medicines and food to the plaintiff during her stay in the hospital room and she was forcibly confined to the said room from 10.30 a.m. On 27-8-1992 till 8.00 p.m. On 28-8-1992. (12)Whether the acts of defendants Nos. 1 to 7 were based on mala fide and violative of their professional norms and conduct due to which plaintiff faced mental torture, agony and humiliation in the family as well as general public and it was in this background that the niece of plaintiff was killed by the maternal uncle/relatives of plaintiff in fury of anger? (13)What is the liability of defendant No, 8 in the present case? (14)Whether plaintiff is entitled to the recovery of Rs, 50 lac from defendants on account of defamation, mental tension and agony, as damages? (15)Relief. 4. After framing of issues and submission of lists of witnesses, the parties produced their respective evidence as they wished to adduce. After the close of evidence and hearing the parties, learned trial court decreed the suit in favour of plaintiff against the defendants vide judgment and decree dated 22-10-1998.
---
## Page 3
5. The defendants/appellants felt aggrieved of the judgment of trial Court filed R.F.A. No, 81/1998 before this Court, which was partially accepted and reduced the decretal amount from 50,00,000 to 20,00000, vide judgment and decree dated 11-5-2005. 6. Both the parties filed Appeals Nos.1759/2005 and 1825/2005, which were accepted and the case was remanded back to this Court for decision of Appeal No,81/1998 afresh. 7. Learned counsel for the appellants contended that the plaintiff has failed to prove her proper and legal admission in private room of the hospital in the hospital and Exh.P.W.6/1 does not bear her name. It is contended that Dr. Muhammad Gul, P.W.7, has also not supported the case of the respondent/plaintiff and findings of trial are the result of misreading and non-reading of evidence. It is contended that trial court has not properly addressed the issue with special reference to issued Nos. 10, 11 and 12. It is contended that the inquiry was conducted on the direction of Medical superintendent which was wrongly ignored by the court below. It was, argued that evidence led in support of issue Nos. 3, 6 and 13 was not properly appreciated by the trial court and solitary statement of the plaintiff has been based for decree in her favour which is against law and norms of justice. It is contended that the allegation made against the appellant by the plaintiff regarding her illegal confinement in the room and use of abusive and insulting language has not been proved through confidence inspiring evidence. It is contended that the plaintiff badly failed to prove that any occurrence allegedly taken place on the basis of incident in the hospital and that due to this incident her father became mad/insane as no evidence to this effect has been produced and entire case hinges upon presumption which cannot be based upon for decree in her favour of huge amount. It was contended on behalf of respondents 2 and 3 that no role has been attributed to the appellants and even in enquiry they were assigned no role to this effect and there exists no evidence that they have committed any act violative of law which entitles the plaintiff/respondents for damages. It was also argued that the trial court has not differentiated the role of appellants. It was contended that the agent and owners of the newspapers were not made as party. It was added that the quantum of damages is too high and not commensurate with the facts alleged by the plaintiff/respondent. 8. As against that learned counsel for the respondents contended that the appellant failed to rebut the incident taken place in hospital. It is contended that plaintiff/ respondent was legally admitted in the hospital and referred to Exh.P.W.5/1 to Exh.P.W.5/5 and Exh.P.W.6/1 to Exh.P.W.6/3 and argued that these documents show that room No,6 was allotted in accordance with law which fact has been admitted by the doctor. It is contended that Dr. Shoiab has admitted that she remained her patient and was examined by her admission in the hospital. It is contended that P. Ws. 5 and 6 have brought the record which shows that legal admission by respondent in the hospital. It was vehemently contended that Dr. Anwar Zada was having no authority as he was neither Medical Superintendent nor Incharge and failed to produce any evidence that he was given the task to supervise as Medical Superintendent and has verbal assertion that he was asked by the doctor working as acting M.S. To look after the affairs of the hospital was not supported by any evidence and this plea was taken just to counter the incident taken place as alleged by the plaintiff. It is contended that appellant No,1 visited the room of the appellant without any justification and normal routine asking her insulting and derogatory questions regarding her character besides search of the room, wash room and personal search of the plaintiff and her family members i,e,, father and niece and during all this large number of people including police contingent she was humiliated at public by the appellant. It is contended that due to the non-professional attitude of the appellant No,1, the respondent and her family members were highly disgraced and humiliated which cause mental torture and as result of incident the matter was published in local news papers and close relatives and maternal uncle of the plaintiff were highly annoyed and instigated to attack her house and started indiscriminate firing as a result of which her nephew was killed and
---
## Page 4
some of the inmates of the house were received injuries. The trial court has appreciated the evidence on the record with conscious and application of independent mind and rightly granted decree in favour of the respondent warrants no interference. 9. Arguments of learned counsel for parties heard and record perused. The issue-wise findings are as under:- ISSUES NOS. 9 to 13. ' All these issues being interlinked and core issues, therefore, I would like to discuss it en bloc. Defendants Nos.1 to 3 are the Medical Officers, who were posted in DHQ, Hospital, Timergara in year, 1992, whereas defendants Nos.4 to 7 were the paramedical staff while defendant No, 8 was the Medical Superintendent in the said hospital. The plaintiff based her claim for recovery of Rs, 50,00,000 as damages against all the defendants and their individual role has not been bifurcated in the incident. Medical Superintendent was not present on the day of the incident and Dr. Anwar Zada, defendant No,1/appellant, claimed to have been assigned with the duty of acting Medical Superintendent in the hospital, however, he failed to produce any evidence, either documentary or oral to this effect that he was assigned with the duty as Medical Superintendent to look after the overall administration of the hospital. So far as defendants Nos.2 and 3, Dr. Rafi-udDin and Muhammad Riaz are concerned, no role has been attributed to them by the plaintiff and even in the inquiry no role has been assigned to them. ' The scanning of the entire evidence would reveal that defendants 2 to 8 have not been ascribed any specific role for which they can be held responsible for disgracing and humiliating the plaintiff. After remand of the case from august Supreme Court, the parties relied upon the evidence already recorded by the Trial Court despite opportunity afforded to the parties to raise all questions/objections in the light of the issues framed with special reference to the question of defamation and the entitlement of the plaintiff regarding amount of damages as claimed by her. The plaintiff in support of her claim produced Bakht Zameen as PW-5, who produced the documents regarding the admission of plaintiff in the hospital. Exh.P.W.5/1 reveals that the name of plaintiff finds mentioned in it at Serial No,46687 dated 22-8-1992. Similarly another document was produced and at page No, 351 at S.No, 48150 the name of plaintiff is find mentioned. He also produced documents Exh. P.W.5/2 to Exh.P.W.5/4, however, Exh.P.W.5/2 reveals that name of plaintiff has been shown with age of about 40 years, however, it bears cutting in dates. Ubaidullah, Incharge Private Rooms, DHQ, Hospital, Timergara, was produced as PW-6, who brought on record the chit of Dr. Muhammad Gul, ENT, Specialist, dated 27-8-1992, posted as Exh.PW 6/1, admission chart of the even date and indoor private room register of dated 27 and 28 August, 1992 regarding room No,6, which are posted as Exh.P.W.6/2 and Exh.P.W.6/3 respectively. The witness in his cross- examination deposed that room No, 6 was under supervision of ENT Specialist. He refused the suggestion that a doctor cannot allow a room to the patient which is in the control of another doctor without permission of Medical Superintendent. He deposed that private room No, 6 was allotted to the plaintiff on the chit brought by one Jehan Anwar, Radiographer. Statement of Dr. Muhammad Gul, ENT, Specialist, was recorded as P.W.7, who verified his initial on the chit, Exh.P.W.6/1, vide which the room was allotted to one patient of Dr. Shoib on the request of one Sher Rehman, Dispenser. Though, the name of the plaintiff was not mentioned in it, however, it was confirmed by the doctor that the same room was allotted on the request of Sher Rehman. He also deposed in his cross-examination that on 27-11-1992 at 11.15 a.m. Dr. Anwar Zada, Dr. Riaz and Dispenser Qazi Halim requested him for a private room for their patient and in response to which he informed them that he has one room which he had already allotted to his own patient on the request of Sher Rehman, Dispenser. Statement of Dr. Shoib was also recorded, who has affirmed the stance of plaintiff to the effect that on 22-8-1992 the plaintiff came to him and he verified the prescription which is in his own hand writing. Similarly, he also verified the prescription dated 27-8-
---
## Page 5
1992 advised by him to the plaintiff wherein her name was also find mentioned and he has verified the signature over it. He has admitted that he examined the patient on 26-10-1992 and admitted her in the hospital. He further deposed that the plaintiff remained his patient, however, he was unaware of the affairs after admission in the hospital as he paid no visit/round in the evening normally. He deposed that the patient was admitted in hospital on the next day which is a routine matter as the patient, advised for admission for variety of reasons adjourned for the other day, if not serious case of emergency. Dr. Muhammad Rahim Shah, PW-9, was examined, who worked as Assisting Medical Officer with Dr. Shoib and supported the deposition of Dr. Shoib and also Exh.P.W.5/3. He deposed that Dr. Uzair advised the plaintiff to be admitted in the hospital as she was not feeling well but the plaintiff was reluctant due to her personal obligations, however, in cross- examination he deposed that it is not necessary for a Doctor to examine the patient only on the chit and in case of an old patient if prescription is provided the patient can be examined by the doctor directly. He deposed that he the plaintiff examined on 22-8-1992 and to this effect the record also supported the statement of this witness. The statement of Sher Rehman, Dispenser and Jehan Anwar, Radiographer, were also recorded and as per version of the Sher Rehman the patient of Dr. Shoib advised for admission and on his request a room was allotted by Dr. Gul Muhammad in favour of the plaintiff. He deposed in cross-examination that plaintiff was not known to him, however, Jehan Anwar, Radiographer, deposed that an old person accompanied the patient was stated to be the father in law of one Bakhtiar mistri, who had friendly terms with him, asked him that they are in need of private room and the old person named as Gul Sahib Haq, happened to be the father of the plaintiff, however, he deposed that the plaintiff was not known to him right from the incident. The plaintiff herself appeared as P.W.13, who has reiterated the stance as averred in the plaint. She has produced and exhibited all the prescriptions regarding her long ailment, which were not objected by the other side. She was subjected to searching cross-examination but nothing adverse to the stance of plaintiff was brought on record from this witness. On the other hand, the defendant produced evidence and brought on file record of the hospital. DW-5 has not uttered a single word regarding illegal admission of the plaintiff into the hospital. He deposed that on 28-8-1992 on the request of Bukhtiar Mistri, who claimed to be the brother in law of the plaintiff/ respondent, asked him to make request to Dr. Anwar Zada, defendant No,1/appellant, to discharge the patient/plaintiff from the hospital and in response he told him that due to Friday she cannot be discharged as the record of the private room was in the custody of Incharge private room and she would be discharged on next day morning and at the time of discharge, father of plaintiff produced a chit Exh.P.W. 6/1 vide which he undertook that the plaintiff would not commit mistake any further and would not make interaction with bad character people/vagabonds in the premises of hospital. The document by itself shows malice on the part of Dr. Anwar Zada, defendant No, 1/appellant, as this is something abnormal and that too, without proof that who were persons with whom she had relations for which the Medical Officer, Anwarzada, was having reservations. Needless to mention that he was a simple doctor in hospital and was having no nexus with the ailment of the plaintiff, or her admission in the hospital or her affairs as he was not occupying the status either Incharge of Hospital or private rooms or was performing his duty as acting Medical Superintendent. He was unable to substantiate through his own statement and in evidence of the defendants or even in cross-examination of the PWs to show his locus standi to inquire about the character or relation of the plaintiff with any characterless persons as alleged by him and has levelled serious allegations against the plaintiff resulting into her humiliation and bad name in the society. His visit to the room of the plaintiff along with other staff as deposed by the plaintiff and exchange of hot talks between the parties with special reference to search made by him and abusive language used by the doctor, was not denied rather had given a different colour to his visit claiming himself to be the overall Incharge of the hospital
---
## Page 6
for which he has badly failed to prove and stance of the defendant No,1/appellant that plaintiff was illegally admitted in hospital, was misplaced, for the reason that documents produced by the employees of the hospital shows that she was legally admitted in the private room of the hospital and there is nothing in rebuttal of the documents produced by the P.Ws. ' It is evident from the record that DW-5 has produced an enquiry report, posted as Exh.DW-5/1. The enquiry was allegedly conducted by the three doctors, namely, Dr. Shahabuddin, Dr. Abdullah and Dr. Shah Bahadar but none of the authors of the enquiry report has been produced in support of the document rather it was produced by an un-authorized person. The findings of the alleged enquiry officers were to the effect that admission of the patient/plaintiff in hospital was illegal, however, ignored the purpose for which the enquiry was allegedly conducted. The Junior Clerk, who has brought on record the said report, was not entrusted with the duty either to retain the same or to produce, before the Court and, as such, cannot be relied upon. Moreover, the findings arrived at in the enquiry are contrary to the statements of PWs, namely, Dr. Shoib, Dr. Muhammad Gul and Sher Rehman, Dispenser. The learned counsel for the appellate/defendant No,1 also referred to enquiry made by the Medical Superintendent which was not brought on record, however, the author of the same was not examined in support of the document and, as such; of no importance and cannot be considered as evidence in the case. A perusal of the evidence would suggest that the unfortunate incident took place in the hospital as alleged by the plaintiff which has been, though, denied evasively, however, appellant/defendant No,1 in his written statement took the plea that the plaintiff got entered into the private room without any justification, entitlement rather against the procedure, unlawfully. In reply to Para 14, the allegations made by the plaintiff were rebutted as baseless, however, it was added that prior to this, the inhabitants of the area have shown their reaction and report was made in the Police Station by dint of FIR No, 77 dated 26-4-1986 while deposing as DW-8, the appellant No,1, on his behalf and as attorney of rest of the defendants, power of attorney was produced on file as Exh. DW 8/1, deposed that on 27-8-1992 he was acting as Incharge of DHQ, Hospital, acquired knowledge that a few girls occupied private room No,6 without proper documentation, thereafter, he enquired about it from the staff and in the company of few doctors he tried to get the information for about two hours but failed to find out any permission for admission in the room, thereafter, on the conduct of Mst. Yasmeen, who was abusing the staff members, namely, Jehan Anwar, etc. He informed the Incharge of Police Post and asked him to look after Mst. Yasmeen, later on, at evening, some relatives of Mst. Yasmeen met him and asked for her discharge from the hospital, which he ,accepted as she was not legally admitted in the hospital. He deposed that neither he nor any of the staff members has even talked to Yasmeen, plaintiff, nor abused her and suit being baseless is liable to be dismissed. In cross-examination he admitted that he was unable to produce the authority as to his duty as Incharge of Hospital on 27-8-1992. He admitted that for enquiry he along with his companion and Incharge of PP went to the private room No,6 to enquire from plaintiff about documents regarding her admission in the hospital, who in response told the same story which was narrated by an old man, her father, when enquiry was made from him who justified her admission in the hospital. Needless to mention that documents in this regard were produced by the concerned Clerk, who deposed as PW-5, duly exhibited as Exh.P.W.5/1 to Exh.P.W.5/3. Later on, he went to Dr. Shoib, who deposed that he has not admitted the patient in room No, 6, thereafter, he consulted Dr. Muhammad Gul, who deposed that he has no knowledge about the admission but the statements of Dr. Shoib and Dr. Muhammad Gul runs counter to the statements of defendant No,1, who admitted the examination of the patient and admission in private room No, 6, so, the plea of defendant No,1/ appellant to the effect that the plaintiff was illegally and against procedure occupied the private room No, 6, was misplaced. He has categorically mentioned that on enquiry and acquiring knowledge about illegal occupation of private room No, 6, he along with defendants
---
## Page 7
2, 3 and 4 went to the room where in veranda a cot was lying where upon an old person along with Incharge of PP, Timergara, was sitting, told him that room was occupied by him along with his daughter and granddaughter. He further asked about the documents regarding her admission, who, in response, told him that the dispenser, Sher Rehman, had got admission for them on the chit provided by Doctor and this fact has already been affirmed by Dr. Muhammad Gul and Dr. Shoib. Strange enough that the appellant deposed that when he reached the private room, the persons present there were seems to be highly doubtful and it does not stand to reason that once he went there and asked about the document and told the plaintiff that Dr. Shoib has not allowed her to occupy the room in response to which the inmates of the room told him that the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.