PESHAWAR: Peshawar High Court has ruled as illegal resorting to general criminal law in matters of medical negligence instead of approaching Khyber Pakhtunkhwa Health Care Commission (KPHCC).

A bench consisting of Justice Sahibzada Asadullah and Justice Farah Jamshed, while allowing plea of a female gynecologist, set aside order of an ‘ex-officio justice of peace’ under Code of Criminal Procedure and directed a magistrate to initiate an inquiry into a matter of alleged medical negligence.

“In our considered view, the impugned order passed by the learned ex-officio justice of peace is not in accordance with law and thus calls for interference,” the bench ruled.

Similarly, the bench disposed of a related petition filed by an aggrieved person against the justice of peace for not ordering registration of an FIR against the said gynecologist, with the direction to KPHCC to look into his grievance.

Says Health Care Commission should be approached first in such cases; sets aside inquiry ordered by ‘ex-officio justice of peace’ against gynaecologist

“In these peculiar facts and circumstances, and in order to advance the cause of substantial justice, this court deems it appropriate to direct Khyber Pakhtunkhwa Healthcare Commission to entertain the complaint of the petitioner, if presented afresh, and to examine the same strictly on merits without returning or dismissing it solely on the ground of limitation,” the bench ordered.

In its 49-page detailed judgement, the bench threadbare discussed provisions of KPHCC Act, 2015, Constitution of Pakistan and Code of Criminal Procedure (CrPC) as well as prevalent national and international laws and practices related to medical negligence including that of Canada, the USA, UK and India.

“Resort to general criminal law, without exhaustion or invocation of the special statutory remedy, would, in such matters, be neither efficacious nor conducive to the ends of justice, rather, the special law must steer the course, and the general law must yield to the extent of its specialised field of operation,” the bench observed.

The bench ruled: “Once it is found that the special enactment creates a complete and self-contained mechanism for examination of allegations relating to medical negligence, and that the determination of negligence on the part of a medical practitioner or any allied healthcare functionary can only be effectively undertaken by the competent forum or committee duly constituted under the framework of Khyber Pakhtunkhwa Health Care Commission, then any premature recourse to the ordinary criminal process would not only be legally inappropriate, but may also frustrate the very object of the special legislation.”

“The reason is obvious that medical negligence is not a matter to be casually inferred, but is a question requiring specialised scrutiny to determine whether the alleged act or omission falls below the recognised professional standard, what precise damage ensued therefrom, and upon whom the legal responsibility can justly be fastened,” the bench observed.

“Thus, where the legislature has consciously provided a specialised statutory avenue for adjudication of such disputes, the same must be allowed to take its full course, for such mechanism is not merely procedural in character, but substantive in purpose, intended to ensure that accountability is determined on the basis of professional competence, rather than conjectural criminal accusation.”

The court was of the opinion that establishment of healthcare commissions in various provinces of the country was not an isolated legislative experiment, nor an accidental statutory innovation; rather, it was the product of an evolving legal realisation that disputes involving medical negligence, professional misconduct, deficient healthcare services, and patient safety require a forum possessing technical competence, professional expertise, and regulatory authority.

“The creation of Khyber Pakhtunkhwa Health Care Commission was neither accidental nor ornamental, it was the result of legislative recognition of a practical and recurring problem, that allegations against medical practitioners, by their very nature, occupy a field fundamentally distinct from ordinary criminality,” the bench observed in the judgement authored by Justice Sahibzada Asadullah.

In the instant case, wife of the aggrieved man (petitioner), being in an advanced stage of pregnancy and expecting delivery, was brought to the said gynaecologist and was admitted for childbirth at her health facility. He claimed that his wife suffered from post-delivery complications deteriorating her health severely.

He alleged that medical complications were the direct consequence of negligent handling and deficient medical care on the part of the attending doctor.

Setting criminal law into motion, he approached the SHO of the relevant police station to register a case, however, no tangible action was taken upon his complaint.

He then approached the “justice of peace” under section 22-A CrPC, which declined to order registration of the FIR but directed a judicial magistrate to undertake an inquiry into the matter for ascertainment of facts and determination of responsibility.

Both the doctor and the husband of the patient had challenged the order through instant petitions.

“The power to order or command an inquiry by the magistracy, in the manner so undertaken, finds no sanctuary in the language of the code (CrPC) and stands unsupported by any legal foundation. Thus, the exercise undertaken is not merely without jurisdiction, but constitutes a manifest transgression of the statutory framework, amounting to an assumption of authority where none exists in the eye of law,” the bench ruled.

“Accordingly, this court is constrained to hold that Section 22- A of the Code of Criminal Procedure, 1898, does not confer any competence upon the ex-officio justice of peace to issue directions to a judicial magistrate for conducting an inquiry.

“Any such direction, having been issued without lawful authority, is bereft of jurisdictional validity and cannot be sustained in the eye of law,” the bench declared.

Published in Dawn, May 4th, 2026