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Petitioner: KEMAL SHARIF RANA AND 33 OTHERS VS Respondent: PROVINCE OF PUNJAB THROUGH JUDGMENT
Court Name: Lahore High Court Judge(s): Manzoor Hussain Sial Title:KEMAL SHARIF RANA AND 33 OTHERS vs PROVINCE OF PUNJAB THROUGH
JUDGMENT
Reported As: PLD 1985 Lahore 135 Result: Order accordingly Judgment JUDGMENT ' This order will dispose of Writ Petitions Nos. 4606/82, 4793/82, 4954/ 82, 2247/82, 2248/82, 4494/82, 1858/82, 150/83, 352/83, 193/83, 876/83, 877/83, 4572/83, 94/84 and 521/84 as common questions of law and facts are involved therein. ' The petitioners are unregistered practitioners in Allopathic System of Medicine. On the basis of their long experience and qualifications they claim to have attained proficiency entitling them to practice in medicine. They assert that they are not quacks but rendering valuable service in health to the people in almost all areas of the country and particularly in the remotest rural areas. They maintain that due to inadequate number of qualified registered medical practitioners in the country to cope with the health requirements of the masses and their reluctance to serve the people in rural areas, the Government of Pakistan promulgated Allopathic System (Prevention of Misuse) Ordinance (LXV of 1962) (hereinafter called 1962 Ordinance) and recognized with the registered medical practitioners and other class of persons authorized by the Government to prescribe antibiotic and dangerous drugs. A short while after the publication of the aforementioned Ordinance in the official Gazette, the Government invited applications from eligible persons for the grant of permits. Some of the petitioners applied, but their applications could not be considered for want of rules required to be framed under the aforesaid 1962 Ordinance. The matter remained in lurch for about four years until in the year 1966 Allopathic System (Prevention of Misuse) West Pakistan Rules, 1966 were notified in the official Gazette. The West Pakistan Medical Practitioners
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Association, Gujranwala representing some of the petitioners challenged through Writ Petition No, 1535/67, the wires of 1966 rules on the ground of mala fide and purported to eliminate large number of experienced medical practitioners. The writ petition was admitted to regular hearing but on the statement of a representative of the Provincial Government made on 22-5-1968, about withdrawal of the 1966 rules, the same was dismissed having become infructuous. The requisite rules were, however, not framed for another two years, until on 3-12-1968, Allopathic System (Prevention of Misuse) Rules, 1968 (hereinafter refered as 1968 Rules) were notified in the official Gazette. In pursuance of the rules, applications were invited from eligible persons for grant of permits to prescribe antibiotic or dangerous drugs, The conditions of eligibility prescribed were that no person shall be eligible for the grant of a permit unless. (a) he has studied for a period of not less than four years, the licentiate course or degree course of medical education in any institution and was eligible to appear in the final examination for such course on account of his having studied all the subjects prescribed for the final examination though he did not pass or appear in such examination ; or (b) he has studied for a period of not less than one and a half years, a course of medical education in any institution which, in the opinion of the Provincial Screening Board had at the time when the applicant studied therein, the facilities laid down in Schedule 'A' and has been declared successful in the final examination conducted by that institution and has not less than five years of practice in Allopathic System of Medicine, or (c) he is a graduate from recognised University in Science with Chemistry or Physiology or Microbology or Pharmaceutical Chemistry or who is a graduate from such University in Pharmacy and has completed not less than five years of practice in Allopathic System of Medicine, or (d) he is a Health Assistant duly registered with the West Pakistan State Medical Faculty and has not less than five years of practice in Allopathic System of Medicine ; or (e) he is a dispenser duly registered with the West Pakistan Medical Faculty and has not less than seven years of practice in Allopathic System of Medicine." ' Screening Boards were to be constituted, under the rules to process the applications, and interview the candidates for the grant of permits to them. The West Pakistan Medical Association, Gujranwala once again challenged the aforesaid rules through Writ Petition No, 247 of 1969. The Provincial Government in report submitted, that the 1968 Rules were not yet enforced and the Government was considering to repeal 1962 Ordinance. The writ petition was, therefore, disposed of with the observation that in case the writ petitioner felt aggrieved at any subsequent stage against the enforcement of the rules or the non-repeal of 1962 Ordinance, the proceedings could be revived on petitioner's motion in the matter. On the other hand, some of the petitioners through Writ Petition No, 7431 of 1980, sought enforcement of the 1968 Rules and grant of permits to eligible persons. On 21-9-1981 learned counsel representing the Provincial Government before the Court made a statement to the effect that the Government was prepared to consider the applications of the eligible persons as envisaged under the rules. The writ petition was accordingly disposed of having borne fruit. ' The petitioners maintain, that despite the above-referred statement made before this Court and assurance given in that behalf no action was taken in that direction by the respondents for sometime until on 21-2-1982 applications were invited through newspaper advertisement for issuance of permits to eligible persons for prescribing antibiotic and dangerous drugs. The petitioners' applications submitted in response to the announcement made through advertisement in newspaper were not considered. Consequently, except for petitioner in Writ Petition No, 1558 of 1982 who had challenged the vires of 1968 rules restricting grant of permits to some categories of medical practitioners, a section of other petitioners filed Writ Petitions Nos. 2247 of 1982 and 2248 of 1982 seeking implementation of 1962 Ordinance and 1968 Rules framed
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thereunder. However, during the pendency of the abovementioned petitions, the Medical and Dental Degrees Ordinance (XXVI of 1982) (hereinafter referred as 1982 Ordinance) repealing and re-enacting Medical Degrees Act VII of 1916 was promulgated which led the petitioners to file other writ petitions and some persons interested in the matter filed applications for impleading them as parties to these petitions. The respondents filed comments to those petitions and admitted therein that 1968 Rules were enforced and the Provincial Government was prepared to issue permits to eligible persons, but in the written statements filed by Federal Government it was maintained that 1982 Ordinance impliedly repealed 1962 Ordinance and disentitled the petitioners to the grant of permits for prescribing antibiotic and dangerous drugs as they were not qualified to practise Scientific Medical and Dental System, ' The writ petitions were admitted to regular hearing by this Court to consider the scope of 1982 Ordianance. ' The respondents, on the contrary, maintain that the petitioners are quacks, they pose to possess some degrees which are fake and issued by bogus institutions. They are playing havoc with the human life. Their involvement in medical practice is hazardous to public health. The Medical Degrees Act, 1916 has been repealed, by Medical and Dental Degrees Ordinance, 1982 and the quacks have been prohibited to practice in Allopathic System of Medicine. The 1982 Ordinance, has also impliedly repealed 1962 Ordinance and 1968 Rules framed thereunder, envisaging issue of permits to petitioners for prescribing antibiotic and dangerous drugs. ' Except for Kh. Ashfaq Ahmad, Advocate who represented petitioner in Writ Petition No, 1558 of 1982 and challenged the vires of 1%8 Rules, whose contentions, I propose to mention and deal, at some later stage, learned counsel appearing on behalf of other petitioners contended that Medical and Dental Degrees Ordinance (XXVI of 1982), specifically repealed Medical Degrees Act VII of 1916 and re-enacted the same with some modifications. It neither impliedly repealed Allopathic System (Prevention of Misuse) Ordinance LXV of 1962 nor 1968 Rules framed thereunder. It was argued that the repeal of Medical Degrees Act, 1916 and its re-enactment in terms of 1982 Ordinance virtually brought no change in legal position, nor repealed the intermediate enactment viz. 1962 Ordinance which co-existed without conflict with Medical Degrees Act, 1916 for a period of not less than two decades. Reference was made to R. v. Minister of Health (1), wherein it was held :- "It is our opinion when these Acts were repealed and re-enacted by a consolidating Act, the position remained exactly as it was before the consolidating Act was passed. A Statute which repeals and re-enacts the provisions of an earlier Act cannot have the effect of repealing an intermediate enactment." ' Reference was also made to paragraph 233 of Crawford "The Constructions of. Statutes" to state that where a Statute is re-enacted in the same or substantially the same terms it will presumed that the law-makers did not alter its scope or meaning in the absence of a clear intention to the contrary. The re-enactment is declaration of a continuance of legislative intent express in the prior Act. It was stated that in the absence of express repeal of a Statute or a provision thereof the Courts have generally declined to favour repeal by implication. With reference to Maxwell on `The Interpretation of Statutes, by P. St. J. Langan (12th Edition) ; it was submitted that if earlier and later statutes can reasonably be construed in such a way that both can be given effect to, that must be done. Similarly omission of a particular Statute from the list of repealed Statutes annexed with the later Statute, will be a strong indication of an intention not to repeal that statute by implication, particularly when legislature is presumed to be aware of all existing laws relevant to the subject. Reliance was placed on Abdul Samod v. Iqbal Ahmad Khan (2), wherein reference was made to doctrine of implied repeal as expounded by Crazies at page 365 of his book on Statute Law (Sixth Edition) and couched in following words :-
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"Where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier. The Courts lean against implying a repeal, unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts unless (1) (1936) 1 All E R 817 (2) PLD 1972 Lah. 41 there is some express reference to the previous legislation or unless there is necessary inconsistency in the Acts standing together .Before coming to the conclusion that there is a repeal by implication the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later, imply the repeal of an express prior enactment-i,e, the repeal must, if not express flow from necessary implication and it was held that West Pakistan Maintenance of Public Order Ordinance, 1960 did not impliedly repeal the Goondas Ordinance XXXV of 1959, because both the Statutes did not deal with the same subject-matter or situation. It was further submitted that when the repeal of a Statute is not express, the burden lies on those who assert that two Statutes cannot stand consistently. ' It was argued that the plain duty of the Court, while interpreting a provision of law is to ascertain the intention of the legislature and to carry out the same irrespective of the consequences that may ensue to a particular party. In support of this submission learned counsel cited The Punjab Province v. Malik Khizar Hayat Khan Tiwana (1), wherein similar observation was made by their Lordships of the then Federal Court of Pakistan. ' It was also contended that, on the basis of assurance given by the Provincial Government to implement the 1968 Rules and invited applications from the eligible persons for the grant of permits, this Court had passed judgment and disposed of the case accordingly. Since the respondents failed to dispose &petitioners' applications in accordance with law the petitioners by means of a writ of mandamus can seek successfully enforcement of the judgment of this Court and cited Shifa Laboratories, Lahore v. Government of Pakistan and another (2) and Pakistan, through the Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat (3). The petitioners' next submission was that they have established practice on the basis of their skill and experience, demonstrated through their ability to diagnose and use of medicine, which had gained public recognition and appreciation of the Federal Government expressed through speeches delivered by the Ministers from time to time ; on the contrary, the registered medical practitioners, have degenerated themselves in their conduct, with patients to deplorable extent and referred to a portion of the speech delivered on 28-4-1984 by the Principal, King Edward Medical College, Lahore, as appeared in Press, wherein he criticised about the conduct of medical practitioners towards the patients reportedly in the following words :- {{URDU TEXT ' It was also contended that object of 1982 Ordinance is to impose restriction on unregistered medical institutions, as well as, degrees and diplomas issued by them and on the recipients of those degrees and diplomas, to give false impression that they were qualified medical practitioners and (1) PLD 1956 FC 200 (2) PLD 1971 Lah. 1040 (3)PLD1962SC28 registered with Medical and Dental Council of Pakistan but there was no bar to the grant of permit to the 'eligible persons for prescribing antibiotic and dangerous drugs and the recipients to practice in accordance with the terms and conditions of the permit. ' Kh. Ashfaq Ahmad, learned counsel representing petitioner (West Pakistan Medical Practitioners Association (Regd.), Gujranwala), in Writ Petition No, 1558 of 1982 tried to trace out the historical background in respect of the claim of unregistered medical practitioners to practice in Allopathic
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System of Medicine and submitted that their usefulness was first recognized as far back as in the year 1916, when under second proviso to clause (b) of section 13 of the Punjab Medical Registration Act II of 1916, the Government after consulting the Council, was authorised to permit registration of those persons who had been actually practising medicine in Province of Punjab, N.-W. F. P. Or Dehli before 25th day of September, 1915. According to him, there is no bar on the unregistered medical practitioners to engage themselves in practising Allopathic System of Medicine. It was pleaded that 1962 Ordinance placed no restriction on the unregistered medical practitioners except that they could not prescribe some antibiotic and dangerous drugs specified in the Rules. It was stated that there is no bar and any person irrespective of his qualification can practice Allopathic System of Medicine. According so him rule 4 of 1968 Rules, restricts grant of permits to some categories of medical practitioners thereby depicts arbitrary exercise of power to eliminate large number of medical practitioner; and therefore, ultra vires of 1962 Ordinance. He referred to barefooted doctors in China rendering great service to the people in health problems in that country. ' Malik Muhammad Qayyum, learned Deputy Attorney-General, representing the Federation of Pakistan, being respondent, in some cases, submitted that 1982 Ordinance, has repealed, by implication 1962 Ordinance and 1968 Rules, framed thereunder. It was argued that both the Statutes deal with Allopathic System of Medicine. The re-enactment of 1982 Ordinance, repealing Medical Degrees Act, 1916 and consciously omitting preamble existing in the repealed Statute, brought a specific change exhausting the entire field by subsequent legislation and relied on Pakistan Tobacco Co.,' Ltd. v. Karachi Municipal Corporation (1), wherein it was observed :- "A Legislature is deemed to be aware of the previous state of the law and if knowing this it makes a change when repealing it and re-enacting some of its provisions the intention is clearly to effect a change." ' In this behalf he also relied on Chairman. District Council, Jhelum v. Ali Akbar and 2 others (2), wherein the dictum laid down in Pakistan Tobacco Co. Ltd. v. The Karachi Municipal Corporation (3) was re-affirmed. Learned counsel also cited Maj. Mehtab Khan v. The Rehabilitation Authority aid another (4), and relied on the principle laid down by the Supreme Court, as contained in the following observation :- " It is an accepted principle of interpretation of statutes that subsequent legislation on the same subject would, by necessary implication, (1)PLD 1967 SC 241 (2) 1970 SCMR 105 (3) PLD 1967 SC 241 (4) PLD 1973 SC 451 repeal the earlier law to the extent of their mutual inconsistency or repugnancy." ' According to him both the Statutes, cannot stand together and the 1982 Ordinance being the last will of the legislature has overruling effect. He made reference to section 6 of 1982 Ordinance and stated that the addition of words "uses any words to give false impression" enlarged the scope of taking action against those persons who falsely gave impreasion by their words that they were qualified to practice Scientific Medical and Dental System of Medicine. It was further argued that the Court while interpreting a statutory provision is to ascertain the true intention of the Legislature and the intention has to be gathered from the words used by the legislature itself. It was stated that in some cases Court can modify the language of the Statute to give effect to manifest and clear intention of the law-makers. He cited Muhammad Ismail and others v. The State (1) and Lt.- Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others (2) in support of his submissions. ' It was lastly urged that there was no shortage of qualified medical practitioners in the country and the same is apparent from the fact that the Government has planned to reduce seats for admission to Medical Colleges. The petitioners are quacks and they are not allowed under the law
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to practice in Allopathic System of Medicine on the basis of fake degrees and diplomas issued to them by bogus institutions. ' Mr. Rashid Aziz Khan, learned Advocate-General, Punjab, supported the Deputy Attorney-General, in his submissions and further contended that by virtue of section 6 of 1982 Ordinance, the scope has been enlarged to penalise those who by use of their words give false impression to the people that they are qualified to practice in Allopathic System of Medicine on strength of degrees possessed by them. It was also submitted that when there is re-enactment of Statute, the intention of the legislature is presumed to effect a change in statutory law. It was further argued that Legislature by subsequent enactment may alter, repeal or amend a provision of law, without exhibiting its intention and relied on Fazl-lMahmood v. Ch. Muhammad Hussain Chatha (3), wherein it was held :- ' It is, however, well-settled that in order that a subsequent enactment may alter, repeal or amend a provision of law, it is not necessary that the intention should be clearly stated. In United Provinces v. Mst. Atiga Begum AIR 1941 FC 16, Sulaiman, J., observed as follows :- "But it is not absolutely necessary that a staute must be repealed by express language, e.g. Shown as repealed in an attached schedule. Repeal, and certainly alteration or amendment, can be effected by necessary implication also. When two Acts are clearly inconsistent with or repugnant to each other, the former will be deemed to have been impliedly repealed or amended, as the last expression of the will of the Legislature must always prevail." ' It was next contended that heading of section 3 of 1982 Ordinance viz. "Right to confer degrees etc." being not part of the Statute does not override the intention of the Legislature. It does not curtail power (1) PLD 1969 SC 241 (2) PLD 1961 SC 119 (3) PLD 1964 (W. P.) Lab. 74 given in the section itself or control meaning of the section, but is taken into account in case of ambiguity in the words used in the section. Reliance was placed on Mir Darya Khan v. Mehran Khan and others (1) and Messrs Hoosen Brothers Ltd., Karachi v. Messrs Lakhani Corporation, Karachi (2) in respect of his submission. ' It was lastly stated that since 1962 Ordinance and rules made thereunder, have been repealed by 1982 Ordinance, therefore, the prayer made in Writ Petitions Nos. 2247 of 1982, 876 and 877 of 1983, directing the respondents to grant permits to the petitioners for prescribing antibiotic and dangerous drugs cannot be granted to them. ' Syed Niaz Ali Shah Advocate appearing on behalf of respondents in Writ Petition No, 877 of 1983, raised preliminary objection that International Task Force Medical Practitioners Association, Lahore being not registered Association, cannot file and maintain this petition. It was submitted that only those persons are entitled to practice in Allopathic System of Medicine who hold degrees of institutions mentioned in the schedule attached to 1982 Ordinance or such other authority as the Federal Government or Provincial Government may by Notification in the official Gazette authorise in that behalf or recognized under Medical Council Ordinance XXXII of 1962. None of the petitioners is holder of degree or diploma issued by any one of the institutions referred above, therefore, not entitled to practice in Allopathic System of Medicine. It was also stated that the petitioners themselves claimed to be unregistered medical practitioners, whereas section 6 of 1962 Ordinance read with rule 3 of 1968 Rules contemplates grant of permits to registered medical practitioners or persons authorised by Government other than medical practitioners. They being medical practitioners are, therefore, not entitled to the grant of permits for prescribing antibiotic and dangerous drugs. It was also argued that 1968 Rules since stood impliedly repealed and new rules having been not framed, the relief prayed for in this petition cannot be granted to the petitioners.
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' Learned Deputy Attorney-General as well as Syed Niaz Ali Shah, Advocate representing the Federation of Pakistan were asked to produce relevant file iniating the promulgation of 1982 Ordinance to ascertain the aim and object of the law-makers in this behalf, but they failed to produce the same until the conclusion of their arguments despite reasonable opportunity provided to them. ' Before venturing to determine, the main controversial question involved in these cases, I propose to deal with the preliminary objections raised by Syed Niaz Ali Shah, Advocate, representing the Federation of Pakistan in Writ Petition No, 877 of 1983 and Advocate-General representing the Province of Punjab, regarding the maintainability of this petition. Syed Niaz Ali Shah, Advocate contended that International Task Force Medical Practitioners Association, being an unregistered Association is not competent to file this petition. In my view, this objection cannot prevail, because ; besides, the aforesaid unregistered Association, all the aggrieved persons in their individual capacity have also been arrayed as petitioners, who undoubtedly can file and persue the petition. ' As to the other objection of the learned counsel that under rule 3 of 1968 Rules, the petitioners who are medical practitioners cannot ask for (1) PLD 1974 Kar. 209 (2) PLD 1976 Kar. 116 permits to prescribe antibiotic and dangerous drugs, because such permits can be issued to persons other than medical practitioners, the relevant rule is reproduced for reference :- "Application for permission to prescribe antibiotics, etc.-(1) Any person, other than a medical practitioner, desirous of prescribing any antibiotic or dangerous drug shall make an application in Form 1 to Government through the District Health Officer, Civil Surgeon or Agency Surgeon as the case may be, for the area where the applicant ordinarily resides, for the grant of a permit." The perusal of the above-quoted provision of rule shows that the word "Registered" preceding the words "Medical Practitioner" occurring in the first line has incidently been omitted, otherwise, it appears absurd to grant permits to persons other than medical…
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