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Official Citation: 2024 PLD 230
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-10-14
Parties: Muhammad Tariq Javed vs Punjab Healthcare Commission and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-10-14, officially reported as 2024 PLD 230. In this matter between Muhammad Tariq Javed and Punjab Healthcare Commission and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2024 SC 230
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Muhammad Tariq Javed vs Punjab Healthcare Commission and others Case No.: Writ Petition No. 7031/2023 Date of Judgment:2024-10-14 Reported As: 2024 LHC 5323 Result: Order Accordingly
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. - This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), is directed against the judgment dated 26.8.2023 delivered by the District and Sessions Judge, Lodhran. Background 2. The Petitioner owns Tariq Medical Store in Basti Mianpur, Tehsil and District Lodhran, and has a valid drug sales licence to run it. The Punjab Healthcare Commission (the "Commission"), mandated to eradicate quackery[1] in the province, launched a series of surveys beginning in 2015, including one in District Lodhran, where the Petitioner was identified as engaging in quackery. Subsequently, Dr. Mahmood Khan also filed a complaint against the Petitioner. On 25.11.2022, acting on Census Data and in response to Dr. Mahmood's complaint, two officials of the Commission, Muhammad Jawad Khalid and Suleman Ahmad (the "PHC Officials"), visited the Petitioner's premises but found it closed. They marked the location for surveillance and revisited it on 7.12.2022 and 9.12.2022, but it was closed on both occasions. Upon inquiry, the local community informed the PHC Officials that the Petitioner was engaged in allopathic practice and had prior notice of their visits through WhatsApp groups, which enabled him to evade inspection. Consequently, Suleman Ahmad sealed the medical store and reported the matter to the Commission on 10.12.2022. 3. On 15.2.2023, the PHC Officials visited Tariq Medical Store for the fourth time. They found the Commission's seals on the premises intact, but local residents informed them that the Petitioner had established a new clinic, named Tariq Clinic, a few yards behind the medical store, where he was allegedly practising allopathic medicine. Upon visiting the clinic, the PHC Officials found it
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operational, but the Petitioner fled. They collected used syringes, medical waste (including injection vials), and loose medicines from the site, recorded video footage, and then sealed the premises. The PHC Officials reported the matter to the Commission, giving details of the collected materials and attaching the footage as evidence. 4. On 7.10.2022, the PHC Officials visited the location once again. They found the Commission's seal on Tariq Medical Store broken, though it was closed. Local residents informed them that the Petitioner had broken the seal and practised allopathic medicine twice or thrice a week. The PHC Officials re-sealed the medical store and submitted a report to the Commission. 5. Considering the above-mentioned reports, the Commission issued a notice dated 16.1.2023 to the Petitioner, directing him to appear before its designated committee (the "Hearing Committee") with all relevant documents, qualified staff, and an affidavit explaining his position. The Petitioner did not respond, so the Commission again issued him a summons on 20.2.2023 and 2.5.2023. He failed to respond to any of them. Eventually, the Commission sought assistance from the District Police Officer, who ensured his appearance before the Hearing Committee on 8.5.2023. 6. The Petitioner's plea before the Hearing Committee was that he owned Tariq Medical Store, which he operated under a valid drug sales licence, and the store premises were his personal property. He explained that when his medical store was sealed, he was busy with his cousin, who had cancer and later passed away. He denied engaging in quackery at the store and claimed he had no connection with Tariq Clinic, which the PHC Officials sealed on 15.2.2023. He said a different person had been practising at that clinic but left after two months. The Petitioner also submitted an affidavit regarding his defence. 7. The Hearing Committee confronted the Petitioner with the PHC Officials' visit reports and the supporting evidence. He refuted them and reiterated his aforementioned version. 8. Upon conclusion of the proceedings, the Hearing Committee, by order dated 8.5.2023, imposed a fine of Rs. 300,000/- on the Petitioner and directed that Tariq Medical Store and Tariq Clinic be kept under surveillance to ensure that no healthcare services are provided in violation of the Punjab Healthcare Commission Act, 2010 (the "PHC Act")[2] and the Anti-Quackery Regulations[3] (the "2016 Regulations"). The Petitioner filed an appeal under section 31 of the PHC Act against the said order. The District and Sessions Judge, Lodhran, partially accepted it vide judgment dated 26.8.2023 and reduced the amount of the fine from Rs.300,000/- to Rs.150,000/- 9. It is pertinent to mention that nobody has come forward to challenge the sealing of Tariq Clinic, which remains sealed. The Petitioner has disclaimed the ownership of Tariq Clinic throughout the proceedings and has asserted that he has no connection with it. The submissions of the parties 10. Ch. Shafi Muhammad Tariq, Advocate, contends that the proceedings against the Petitioner are illegal and should be quashed. He argues that, under section 22(2) of the PHC Act, an inspection team is authorized to inspect a healthcare establishment[4] only (a) at the time of issuance or renewal of a licence or (b) upon receiving a formal complaint. Therefore, the PHC Officials had no lawful authority to visit the Petitioner's medical store. Their reports have no legal value, and no action could be taken against him on their basis. Mr. Shafi next contends that section 2(xviii) of the PHC Act outlines the qualifications and composition of an "inspection team." The officials who conducted the proceedings in this case did not meet these statutory requirements. Resultantly, the said proceedings were without jurisdiction and coram non judice. The counsel further contends that the PHC Act does not empower the Commission to seal or close healthcare establishments. Hence, Regulations 5 and 5A of the 2016 Regulations are ultra vires of the Act. Lastly, he asserts that under section 28, read with section 4(2)(g) of the PHC Act, only the Commission is competent to impose a fine on individuals found to be practising quackery. It cannot delegate this power to a committee. Therefore, the order dated 8.5.2023 is void, and because the District and Sessions
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Judge has failed to appreciate this point, his judgment dated 26.8.2023 is also unsustainable. Mr. Shafi relies on Punjab Healthcare Commission v. Mushtaq Ahmad Ch. and others (PLD 2016 Lahore 237)[5] and Manzoor Elahi v. District & Sessions Judge, Sargodha, and others (PLD 2021 Lahore 843) in support of his contentions. 11. On the factual aspect, Mr. Shafi argues that there is no evidence to suggest that the Petitioner was involved in quackery at his medical store. As regards the second premises, Tariq Clinic, the Petitioner neither owns nor has any connection with it. Therefore, the Hearing Committee's order dated 8.5.2023 lacks a legal foundation and is liable to be set aside. 12. The Commission's Legal Advisor, Mr. Gulzar Ahmad Khan Durrani, has controverted the above contentions. He maintains that the PHC Officials and the Hearing Committee conducted the proceedings in accordance with the law. He emphasizes that, under section 4(g) of the PHC Act, the Commission is competent to delegate its powers to committees, including the authority to impose fines. Therefore, the Presiding Officer's appointment was valid, and her order dated 8.5.2023 is to be reckoned as the Commission's order and enforced accordingly. Regarding the Manzoor Elahi's case, Mr. Durrani argues that Mr. Shafi's reliance on it is misplaced because the Supreme Court of Pakistan set aside that judgment through its order dated 18.11.2021 in Civil Petition No. 5444 of 2022 (titled: "Chairperson Punjab Healthcare Commission v. District & Sessions Judge, Sargodha, and another"). He has also submitted a copy of that order, which has been placed on record. 13. Mr. Durrani refutes the Petitioner's contention that there is no incriminating material against him. He contends that the PHC Officials' reports, recovery of used syringes and vials, and video footage established that he was engaged in quackery prohibited by law. Questions of law 14. This petition raises the following questions of law: i) Does Regulation 3(2) of the 2016 Regulations conflict with section 22 of the PHC Act? ii) Are the powers of seizure and sealing conferred by Regulations 5 and 5A of the 2016 Regulations ultra vires of the PHC Act? iii) Can the Punjab Healthcare Commission delegate its adjudicative powers to a committee in cases involving violations of the PHC Act, rules, or the 2016 Regulations? If so, is that committee competent to impose fines on the offender? 15. Since the above questions are of public importance and involve interpretation of the Constitution and statutory law, this Court issued a notice to the Advocate General Punjab under Order XXVII-A of the Code of Civil Procedure 1908. The Advocate General's submissions 16. The Advocate General has filed written submissions in response to the notice under Order XXVII- A CPC. He argues that section 4 of the PHC Act grants the Commission broad authority, including the power to delegate its functions. He submits that section 22 pertains to the inspection process, while Regulation 3(2) provides a mechanism to combat quackery. There is no conflict between these provisions as they govern different aspects of the Commission's regulatory functions. The Advocate General contends that the Petitioner's challenge to the Commission's authority to seal healthcare establishments is unfounded because it is based on the Lahore High Court's judgment reported in PLD 2016 Lahore 237, which the Supreme Court has overturned. In a subsequent ruling (PLD 2018 Lahore 762), the High Court upheld the Commission's power to seal premises under the precautionary principle, affirming that section 4 of the PHC Act includes the authority to take preventive measures, such as sealing healthcare establishments, to protect public health. 17. The Advocate General maintains that the Commission can lawfully delegate its quasi-judicial functions, including imposing fines, under sections 4(2)(m) and 4(3) of the PHC Act. The PHC Act does not differentiate between powers that can be delegated and those that cannot, allowing for
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the delegation of all powers and functions, including the imposition of penalties. The Advocate General asserts that the Petitioner's reliance on Manzoor Elahi v. District & Sessions Judge, Sargodha, and others (PLD 2021 Lahore 843) is misplaced because the Supreme Court has set it aside and it is no longer a good law. Even otherwise, that judgment failed to address the PHC Act's explicit provisions that permit delegation. Opinion 18. The PHC Act of 2010 aims to improve the quality of healthcare services and ban quackery in the Punjab in all its forms and manifestations.[6] It applies to all healthcare establishments, public and private hospitals, non-profit organizations, charitable hospitals, trust hospitals, semi-government and autonomous healthcare organizations.[7] The PHC Act establishes the Punjab Healthcare Commission to achieve the said purpose, and section 4 outlines its functions and powers. Section 4(3) of the PHC Act allows the Commission to delegate any of its functions to another person, subject to terms and conditions mutually agreed upon between the Commission and that person. 19. Under section 5(1) of the PHC Act, the Board is entrusted with the overall supervision, direction, and management of the Commission's affairs, including its policy-making responsibilities. It is empowered to exercise all the powers and perform any acts, deeds, or functions that the Commission is authorized to undertake under the Act. Section 9(3) authorizes the Board to establish committees to assist it in performing its functions. 20. Chapter V (sections 22 to 31) of the PHC Act deals with inspection and enforcement. Section 40 empowers the Commission to make regulations for carrying out the purposes of the Act by issuing a notification in the official Gazette. Under section 41, the Government may also frame rules to give effect to the provisions of the Act. 21. The Commission initially issued Standing Orders,[8] (the "Standing Orders") purportedly under sections 4(2)(q) and 9(1)(i) of the PHC Act, to address quackery. These inter alia provided for setting up an Anti-Quackery Cell and authorized the Commission to seal or close down healthcare establishments. However, in Punjab Healthcare Commission v. Mushtaq Ahmad Ch. and others (PLD 2016 Lahore 237),[9] the Court held that while section 4(2)(q) of the PHC Act mandates the Commission to take necessary steps to ban quackery, it does not authorize the creation of a new regime, such as setting up an Anti-Quackery Cell through a Standing Order. The "necessary steps" must be taken through subordinate or delegated legislation. The Court stated that section 13, read with section 31(1)(c) of the Act, does not empower the Commission to seal or close healthcare establishments. A passing reference in section 31 to an order closing a healthcare establishment is of no consequence, as the Act does not confer substantive power to issue such an order. Administrative Standing Orders cannot substitute proper statutory provisions or rules. Consequently, the sealing of the healthcare establishment was deemed unlawful, and the decision of the District and Sessions Judge, Toba Tek Singh, which set aside the sealing, was upheld. The Court recommended that the Commission propose amendments to the PHC Act or develop the necessary rules and regulations to achieve what was intended in the Standing Orders. Until such steps are taken, neither the Commission nor the Board can seal healthcare establishments or establish an Anti-Quackery Cell to handle third-party complaints. 22. In response to the Court's observations in the aforementioned case, the Commission, exercising its powers under section 40(1), read in conjunction with section 4(1) and clauses (j) and (k) of section 40(2) of the PHC Act, framed the Anti-Quackery Regulations 2016[10] vide Notification No.REG.AQ-1/2016 dated 10.9.2016 (published in the Punjab Gazette on 27.10.2016). These Regulations were subsequently amended in 2017.[11] 23. Additionally, the Commission appealed the aforementioned judgment in the Supreme Court. On 14.2.2017, through a consent order, the Supreme Court accepted that appeal (along with other connected appeals)[12] and remanded the cases to this Court to be consolidated and heard
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alongside Writ Petition No. 2427/2017. In that petition, the constitutionality of the PHC Act was challenged on the grounds that the Provincial Government lacks the authority to legislate on matters related to the medical profession, as Entry 11, Part II of the Federal Legislative List reserves the regulation of legal, medical, and other professions for the Federal Government. The argument was that the PHC Act attempts to regulate the medical profession by requiring all medical practitioners to register with the Commission, which conflicts with federal law since such practitioners are already registered under federal law. 24. In the post-remand judgment dated 6.7.2018, which is reported as Punjab Healthcare Commission v. Mushtaq Ahmed Chaudhary and others (PLD 2018 Lahore 762), the Court ruled that the PHC Act does not regulate the medical profession but instead regulates healthcare services, establishments, and service providers. These areas do not fall under the subject of the medical profession but rather within the realm of public health or healthcare, which requires regulation, standardization, and accountability. In any regulatory framework, registration and licensing are essential for the authority to achieve its objectives and mandate. Accordingly, the Commission is responsible for establishing a clinical governance and healthcare system to effectively monitor all services, providers, and establishments within the healthcare sector. This is distinctly different from the registration of medical practitioners. The Court concluded that the PHC Act is not ultra vires the Constitution, and its mandate falls squarely under provincial jurisdiction. 25. The Court further held that the power to seize and seal is a necessary preventive measure to protect public health and safety. Based on the precautionary principle, this power shifts the focus from reaction to prevention. Under section 4 of the PHC Act, the Commission possesses inherent powers to seal healthcare establishments as a precautionary step, a power that existed even before the framing of the 2016 Regulations. The relevant excerpt is reproduced below: "The Regulations issued under Section 40(1) of the [PHC] Act in 2016 prescribe the procedure to be adopted when the Commission is to seal a healthcare establishment. Hence, the power of sealing exercised by the Commission is in furtherance of the mandate of the [PHC] Act and the powers given to it under the law. In this regard, the power exercised prior to the framing of the Regulations falls within the inherent power to seal healthcare establishments to prevent any further risk or harm to persons under treatment or care by a healthcare establishment or healthcare service provider. Hence, no illegality is made out against the act of sealing." 26. Leave to appeal was preferred against the above judgment dated 6.7.2018, but the Supreme Court refused the same vide order dated 26.12.2018. 27. It is pertinent to note that earlier, while adjudicating upon SMC No.1 of 2010 and HRC No.27813-P of 2017, the Supreme Court issued the following order on 14.4.2018: "We accordingly direct the C.E.O. of the Punjab Healthcare Commission to take immediate steps to ban such business including sealing of premises where quackery is being practiced throughout the Province of Punjab. In case in pursuance of this order, the premises where quackery is being practiced are sealed by the Commission, no other Court in Pakistan shall interfere in the order passed by the Commission. The aggrieved person may approach this Court for redressal of his grievance as the order for banning and sealing of premises has been passed by this Court ..." 28. Having outlined the legislative framework, let's delve into the moot points. Vires of Regulation 3(2) 29. Chapter V of the PHC Act deals with inspection and enforcement. Section 22, in relevant part, provides: 22. Inspection.- (1) The Commission may, by order in writing, appoint an inspection team to perform the functions and exercise the powers of the Commission in relation to inspections under this Act, rules, or regulations subject to such conditions and limitations as the Commission may specify in this behalf.
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(2) The inspection team may inspect a healthcare establishment: (a) at the time of issuance and renewal of licence; or (b) on receipt of a complaint. (3) The inspection team may inspect any apparatus, appliance, equipment, instrument, product, goods, or item used or found in, or any practice or procedure being carried out at the healthcare establishment. (4) The inspection team may enquire any case if there has been any instance or allegation of maladministration, malpractice, or failure in the provision of healthcare services against a healthcare establishment. (5) The Commission may impose a fine which may extend to fifty thousand rupees upon a healthcare service provider who - (a) refuses or fails, without reasonable cause, to furnish any information to the inspection team; or (b) gives any false or misleading information to the inspection team. (6)...... (7)...... 30. Section 22(1) of the PHC Act grants the Commission the general power to appoint an inspection team[13] to carry out its functions and exercise its powers regarding inspections under the Act, rules, or regulations to ensure compliance with the law. In contrast, section 22(2) applies specifically to two scenarios: when a healthcare establishment applies for a new licence or renewal and when there is a complaint against a healthcare establishment. The overall focus of section 22, particularly through section 22(2), seems to be ensuring that licensed establishments meet the required standards. However, the broader authority granted by section 22(1) can extend to other areas like quackery if needed. 31. While section 22 of the PHC Act lays down the inspection procedure, section 4(1) generally empowers the Commission to "perform such functions and exercise such powers as may be required to improve the quality of healthcare services and clinical governance and to ban quackery." Section 4(2) lists the specific powers without prejudice to the generality of section 4(1). Section 4(2)(m) empowers the Commission to appoint, engage, authorize, and terminate employees, consultants, advisors, attorneys, inspection teams, contractors, agents, and experts on such terms and conditions as deemed fit and assign, delegate, or entrust them with such functions and powers as are expedient for the performance of functions of the Commission. Section 4(2)(q) allows the Commission to take necessary steps to ban quackery. Furthermore, section 4(3) authorizes the Commission to assign any of its functions to an individual. Section 4(4)(b) empowers it to coordinate with the Government. 32. Section 22 of the PHC Act cannot be construed in a manner that undermines or nullifies section 4. To reconcile the two sections, the court may invoke the rule of purposive interpretation, which focuses on the law's underlying purpose to ensure it achieves the intended objective when the literal meaning leads to an ambiguous, absurd, or unjust outcome. In Mangin v. Inland Revenue Commission, [1971] 1 All ER 179 at 182, [1971] AC 739 at 746, the Privy Council stated: "the object of the construction of a statute being to ascertain the will of the legislature it may be presumed that neither injustice nor absurdity was intended. If, therefore, a literal interpretation would produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted." In Molar Mal (Dead) through L.Rs v. M/s Kay Iron Works (P) Ltd. (AIR 2000 SC 1261), the Supreme Court of India held: "... normally the courts will have to follow the rule of literal construction which rule enjoins the court to take the words as used by the Legislature and to give it the meaning which naturally implies. But, there is an exception to this rule. That exception comes into play when application of literal construction of the words in the Statute leads to absurdity, inconsistency or when it is shown that
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the legal context in which the words are used or by reading the Statute as a whole, it requires a different meaning." 33. The purpose of section 22 of the PHC Act is that a healthcare establishment should be inspected by qualified persons so that they may ensure regulatory compliance. These inspections naturally require technical expertise, as inspectors must evaluate complex medical practices and equipment, ensuring that the healthcare establishment is providing safe and effective services. In contrast, identifying quackery primarily involves verifying the credentials of the individual concerned, which does not demand the same level of technical expertise. Therefore, a technical expert is not essential for inspecting premises suspected of quackery. 34. Regulation 3(2) of the 2016 Regulations empowers the Commission to authorize executive authorities or law enforcement agencies, through written instructions or directions, to exercise the necessary powers to visit premises suspected of quackery. These agencies are required to report quacks and quackery-related activities to the Commission, either directly or through designated officers. Regulation 3(2) is fundamentally based on the wide powers granted to the Commission under section 4 of the PHC Act. While the Commission can appoint inspection teams under section 22 for various purposes, including investigating quackery, Regulation 3(2) derives its legitimacy from the Commission's broader regulatory authority under section 4. Therefore, it is lawful and not ultra vires. Question-I is answered in the negative. Vires of Regulations 5 & 5A 35. As discussed, the Commission initially issued Standing Orders, purportedly under sections 4(2) (q) and 9(1)(i) of the PHC Act, to combat quackery and, to this end, inter alia, provided for the establishment of an Anti-Quackery Cell and sealing/closing the premises where quacks operated. However, in Punjab Healthcare Commission v. Mushtaq Ahmed Ch. and others (PLD 2016 Lahore 237), when the Court…
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