PESHAWAR: The Peshawar High Court has ordered quashing of a criminal case against a lady doctor accused of negligence while dealing with delivery case of a woman resulting in her death and loss of her child.

A bench consisting of Justice Mohammad Naeem Anwar and Justice Shahid Khan accepted a petition filed by the doctor Alia Wahab and ruled that the matter exclusively fell in the jurisdiction of the Khyber Pakhtunkhwa Health Care Commission (KPHCC) established under the KPHCC Act, 2015.

The bench observed that the complainant in the case (husband of the deceased woman) would be at liberty to seek remedy from the proper forum (KPHCC) in accordance with the law.

The bench observed that section 33 of the KPHCC Act gave it an overriding effect over other laws and the said provision endorsed its enforceability over any provision in any other law for the time being in force which was contradictory or repugnant to it.

Rules KP Health Care Commission law to prevail over other legislations

“It is a well celebrated rule that a special law always prevails over the general law,” the bench ruled.

“In the present case, the complainant has leveled the allegations of negligence against the petitioner and a special law was available to deal with the matter but he, without exhausting the remedy under the Act, resorted to criminal proceedings which cannot sustain in view of the bar contained in section 19 of the Act according to which no suit, prosecution or other legal proceedings related to provision of private health care service shall lie against a health care establishment except under the Act,” the bench ruled.

The court further observed that it was well-settled that when there was a conflict between a special and a general law, the former would prevail.

The impugned FIR was registered against the petitioner at police station Munda, Dir Lower, on May 24, 2023, under section 322 (unintentional murder) of the Pakistan Penal Code.

Complainant Saeedul Haq claimed that he had brought his pregnant wife to a private hospital in Munda on Oct 29, 2022, where the present petitioner prescribed her some medicines.

He stated that as per direction of the petitioner he again brought his wife to her on Oct 31, 2022, and she was admitted there.

He alleged that the petitioner had negligently attended his wife during her delivery process as result whereof she died and consequently the baby she had conceived was also lost.

The complainant had reported the matter to police after which an inquiry was conducted and the body was also exhumed and after wards the said FIR was registered against the petitioner on the opinion given by the district public prosecutor (DPP).

The petitioner’s counsel, Hazrat Rahman, contended that the FIR was based on illegal opinion given by the DPP as the said opinion was not backed by any juristic medical opinion. He added that the petitioner was a well experienced and qualified professional in her field.

He contended that the proceeding conducted against the petitioner was against the provisions of the KPHCC Act, which being a special law would prevail over other laws including the PPC.

Referring to section 13 of the Act, the bench ruled that the complainant had not made any complaint to the commission in the mode and manner prescribed in the said section rather he reported the matter to local police and thereafter the FIR in question was registered against the petitioner in total disregard to the Act.

Moreover, the bench observed that the matter in hand pertaining to death of a woman at delivery stage fell in clause (a) of section 3 of the KPHCC Conduct of Business Regulations, 2016, categorising the act of medical negligence, maladministration practice, etc.

Published in Dawn, March 11th, 2024