Dr. Saiqa Yousaf vs State S — 2024 PCrLJ 1852 ISLAMABAD

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Dr. Saiqa Yousaf VS State S. 561-a---Penal Code (XLV of 1860), Ss. 322 & 34---Constitution of Pakistan, art. 199---Quashing of FIR---No expert opinion available---Qatl-bis-sabab, common intention---Complainant alleged that his wife was under care of petitioner during her high-risk pregnancy with monochorionic diamniotic twins, a condition requiring extra attention and care; however, the negligence and professional misconduct of petitioner resulted in the death of their twins, hence the FIR was lodged---Petitioner sought quashing of FIR lodged against him on the grounds that there was no direct evidence available on record to constitute the requirements of offence under S.322, P.P.C, and even matter was of technical nature which could only be resolved by filing a complaint before Healthcare Regulatory authority under S.33 of the Healthcare Regulation act, 2018, thus the FIR be quashed---Held, that there was no cavil to the proposition that offence of medical negligence in terms of S.319, P.P.C, or S.322, P.P.C, as the case may be is difficult to prove without evidence of technical expert opinion which was a missing link in the case, even Investigating Officer had not put any serious effort to conclude such a matter except referring two letters to PM&DC and MIRa, which were answered by the respective officers by referring the remedies provided under their special laws, which explained the intent of the Legislature and no criminal case could be registered directly by any stretch of imagination---In the present scenario, when private complaint had also been filed, it appeared that complainant had taken the entire onus upon his own shoulder to discharge the burden of proving the case of medical negligence in terms of S.319, P.P.C, with the claim of qatl-i-khata where he had to prove the mistake of act or mistake of fact committed by the doctors while treating the wife of complainant but surprisingly Judicial Magistrate, had issued the process for summoning of accused persons on the basis of tentative assessment of private complaint as well as by considering the statements of witnesses without obtaining expert evidence of any doctor---In this backdrop, from any angle no offence had been demonstrated by the complainant, nor by Investigating Officer as there was no underlying technical expert report or evidence to prosecute the professional doctors before the registration of FIR---This aspect persuaded the Court to exercise the powers under S.561-a, Cr.P.C., which could only be exercised in extra-ordinary or in exceptional circumstances like the case in hand---Constitutional petition was allowed by quashing the FIR lodged against the petitioner.

Dr. Saiqa Yousaf vs State S — 2024 PCrLJ 1852 ISLAMABAD

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