Dr. Mian Tauseef-Ud-Din Vs Javed & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH OURT, PESHAWAR.

[JUDICIAL DEPARTMENT]

W.P No. 6068/25

Dr. Mian Tauseef-Ud-Din

Vs

Javed and Others

For petitioner(s): Mr. Waseem Alam, Advocate.

For respondent(s): Mr. Mushtaq Rahim, A.A.G.

Date of hearing: 24.10.2025.

Date of Announcement: _____________.

JUDGMENT

Dr. Khurshid Iqbal, J.-

1.The petitioner is a medical surgeon, by profession since the year 1994. He is serving as In-charge of Surgical (A) Unit in the District Headquarter Hospital, Swabi. He also practices in Jamal Medical Center, Jahangira road, Swabi, where on 31.08.2023, he conducted surgery of Mst. Salma Bibi, aged 65 years. The respondent No 1 son of the above- mentioned Mst. Salma Bibi, filed a complaint No. 129/2023 with the respondent No. 2, under section 13 of the Khyber Pakhtunkhwa Health Care Commission (Act, 2015), alleging that medical negligence on his part as well as on the part of one Dr. Sabir. The respondent No. 1 stated in his complaint that when his mother could not recover after having undergone surgery under the supervision of the petitioner, he took her to Peshawar’s Lady Reading Hospital where he was informed that the patient’s intestine was damaged owing to negligence of the petitioner. An inquiry committee constituted by the respondent No. 2 proceeded against the petitioner under the provisions of the Act 2015 read with the KP Health Care Commission (Complaints Management) Regulation 2022. After hearing the parties, the committee, vide, its (impugned) report dated 23.05.2025, found the petitioner guilty of medical negligence and imposed fine of Rs. 5, 00,000/-. The petitioner filed an appeal before the learned District and Sessions Judge, Swabi, under section 21 of the Act 2015, which was dismissed, but the amount of fine was reduced to Rs. 3,00,000/-. The petitioner challenged both the committee’s report and the judgment and decree of the learned District and Sessions Judge through this constitutional petition.

2.Arguments heard. Record perused.

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3.The point for determination is whether the impugned Order dated 23.05.2025 of the Commission and the impugned judgment and decree dated 22.07.2025 of the learned District Judge warrant interference in our constitutional jurisdiction. We shall begin with the availability of jurisdiction of Commission. In other words, whether the authority suffered with jurisdictional defect. Jurisdiction, as may be understood in light of the landmark judgment in Zia-ur-Rehman1 (1973), is “a right” of an authority (including a court and/or tribunal) to decide a certain subject matter in a particular case as also the power and the manner in which it is exercised by an authority, and the person in respect of whom such power is exercisable. The Commission is the creation of the Act 2015 (section 3), having the power and functions, inter alia, “to enquire and investigate into mal-administration, malpractice and failures in the provision of private healthcare services and issue consequential advice and orders” [section 6(2)(g)]. It receives complaints from an aggrieved person, and has the duty “to investigate, in a transparent manner, the complaints relating to quality of health services, health services or system and medical negligence” [section 13(1)(3)]. The complaint was received and managed under the Commission’s 2022 (Complaints Management) Regulations. It pertained to “medical negligence” which per regulation No. 2 (aa) “means the failure to perform due diligence or the breach of duty of care by a healthcare establishment or service provider which results in damage to the person or property of a patient and same includes[...].” It was received and managed by the Commission’s Directorate of Legal Affairs (also the competent authority) who conducted inquiry through a committee. Regulation No. 3(3) states that “the competent authority may seek technical and expert opinion from any of the experts identified and duly notified by the Commission.” The committee, however, did not seek the opinion of any such expert. Moreover, the commission has the authority to receive and entertain complaint about medical negligence [regulation: 6(1)]. It follows that the commission has the jurisdiction in the matter.

4.Next, to be seen is that the jurisdiction must be exercised according to law. In Syed Hadi Ali (1956)2, it was held: “[t]he point to be decided always is whether the order (including one within the discretion) is within the power that has been granted” by the law. The Court emphasized that “it is not possible to support the proposition that in respect of purely executive acts, the discretion of the executive is not subject to any consideration of justice, reason and fair play.” In a nutshell, an impugned order shall not suffer with procedural defect. A committee—comprising of Complaint Officer, Legal Officer and Director Legal Officer—conducted the inquiry, at the very inception of 1 The State v. Zia-ur-Rehman (PLD 1973 SC 49).

2 Syed Hadi Ali v The Government of West Pakistan and other (PLD 1956 (W.P.)

Lahore 824).

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which it issued notices to the petitioner requiring him to put personal attendance and submit his written reply [regulations No. 8(1) and No.

5.Then, it is a must to afford to both the parties an opportunity of fair hearing (Latin: audi alteram partem. English: Let the other party be heard as well). In the 1966 Abdus Saboor3, the Supreme Court ruled that it is a duty of every decision making body to act fairly and justly by applying the principles of natural justice provided it is not specifically freed from the clutches of this principle. The record transpires that the committee issued notices to both the parties and offered them opportunity of hearing according to inquiry procedure laid down in Regulation No. 8.

6.While examining a decision of the Federal Land Commission in the 1983 Gul Bibi, the Supreme Court held that the High Court should not sit in judgment as a court of appeal over the decision of the statutory tribunals simply that the High Court is of the view that it is wrong.4 However, the Court maintained, the High Court may exercise judicial review if the decision is not “based on evidence, or arrived at as a result of misreading of evidence [.]” The principle expounded from this ruling is that an impugned order shall be free of any adjudicatory defect. For further clarity of the nature of the judicial review as not synonymous to the appellate power of the High Court, guidance may also be sought from Mir Abdul Baqi Baluch (1968).5 The Court held: What the Court is concerned with is to see that the executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. It means that an impugned order shall not unreasonable.

7.The 2014 Asif Fasihuddin Khan Vardag6, is not only a relatively recent case on the subject, but sets out the above tests in a more nuanced manner. The Supreme Court observed that the basic test for judicial review is to find out:

Whether there is any infirmity in the decision-making process. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision-making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or it is actuated with mala fides.

3 Abdus Saboor v. Karachi University and Controller of Examinations, Karachi University (PLD 1966 Supreme Court 536).

4 Federal Land Commission v. Mst. Gul Bibi and other (1983 SCMR 818). 5 Mir Abdul Baqi Baluch v. (1) The Government of Pakistan through the Cabinet Secretary, Rawalpindi, (2) The Government of West Pakistan through Home Secretary, (3) The Commissioner, Karachi Division, (4) The Deputy Commissioner, Karachi, (5) The Superintendent, Central Prison, Karachi, (6) The Superintendent, New Central Jail, Multan (PLD 1968 Supreme Court 313).

6 Asif Fasihuddin Khan Vardag v. Government of Pakistan (2014 SCMR 674).

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8.A copy of the inquiry committee’s proceedings reflects that the petitioner was heard at great length on 09.11.2023, and the respondent presented his contention on 28.11.2023. In its impugned Order dated 23.05.2025, the inquiry committee perused the entire record and submissions of the parties. For the sake of quick reference, we reproduce the impugned Order as under:

Since Director licensing being on deputation has relinquished the charge and has joined her new assignment at the health department, she will be replaced by the complaints officer-1, KPHCC.

Having gone through the entire record and submission of the parties, the inquiry committee observes as follows:

a) As per different international studies of health Establishments "Cholecystectomy is one of the commonest operations performed by surgeons all over the world. Bile dust injury (BDI) occurs in 0.1-0.2% of open cholecystectomies". This means BDI is not a very common complication and can be avoided if the doctor exercises due diligence during the surgery and its treatment also requires diligent action by the surgeon.

b) We are also agreed with the Dr. Tusif Ud Din comments (As per various gastroenterologist and consultants) patient should wait for 4-6 weeks for bile leak to lose by itself if the patient condition is satisfactory but in the present case, the condition of the patient sunt improving at all and getting worse with every passing day. In such case, the doctor was supposed to think over alternatives, for better management of the patient's condition, which he did not. c) As per comments of Dr. Tusif Ud Din and as documented in the discharge Slip, the Accessory Duct was repaired. It is however very much established that there was still bile leakage in the abdominal cavity. Dr. Tauseef has nevertheless failed to diagnose the reason of leakage, which obviously was due to some injury, as reported by the subsequent medical record of Shifa International Hospital and Quaid e Azam International Hospital. It was of course the leakage that resulted into further complications and multi organs failure. Had the root cause of leakage been diagnosed in the proper time, further complication could be avoided.

d) As per Dr. Tusif Ud Din comments mentioned in his own written reply that he offered free of cost treatment to the patient for bile duct injury repair but as per the record of patient file patient visited twice times to the Dr. Tusif Ud Din on dated 11/09/2023, 14/09/2023 why she was sent back to home with oral medication instead of admitting her until recovery. This means that Tauseef took the condition of patient casually and did not apply his better capacity to find the root cause and go for sustainable treatment, in peculiar circumstances of the case, where condition of the patient was not improving record shows that after going through the record of the patient, Shifa International Hospital and Quaid e Azam International Hospital admitted the patient.

e) It was improper diagnosis and delayed and in appropriate response in the bile leakage that resulted into complication to the patient and the prime responsibility of this situation lies upon Dr. Tusif uddin who failed to exercise due diligence in post-surgery management of the patient Saleema (Mother of the complainant). In the view of above, Dr. Tusif Ud Din is held guilty of medical negligence and line of PKR. 5 lac is imposed upon him U/s 18 of the Khyber Pakhtunkhwa Health Care Commission Act, 2013, So far as the Page 4 of 6

plea of complainant for recovery of the financial loss is concerned, he may approach the Civil Court of competent Jurisdiction for compensation.

Legal Officer Complaint Officer

KPHCC KPHCC

Director Legal Affair

KPHCC

9.Coming now to the impugned appellate judgment and decree of the learned District Judge. Under section 21 of the Act 2015, an appeal lies to the District and Sessions Judge. The provision reads as under:

21.Appeal... (1) A person who is aggrieved by the, -

(a)refusal of the Commission to issue or renew a license;

(b)decision of the Commission to suspend or revoke a license;

(c)order of closing down of a healthcare establishment or making improvements in the healthcare establishment;

(d)order relating to equipment, apparatus, appliances, or other things at a healthcare establishment; or

(e)imposition of fine by the Commission;

may, within thirty days from the date of communication of the order of the Commission, prefer an appeal in writing to the District and Sessions Judge.

(2)The private health care service provider shall provide legal aid to a person, working in the health care establishment, pertaining to the matters related to this Act.

10.The learned District and Sessions Judge has the jurisdictional competency as the appellate forum, who summoned both the parties and heard them, having the jurisdiction and having exercised such jurisdiction properly. Two questions were raised in the appeal: the legal impact of a criminal case—FIR 1608 dated 22.12.2023— registered against the petitioner; and secondly, the propriety of the Commission’s impugned order of imposition of fine of Rs. 5, 00,000/-.

11.So far as the contention of the petitioner as regards the criminal proceedings against him are concerned, in this respect we would not like to enter into the legality of such proceedings. The reasons is that the criminal proceedings have not been separately challenged before us in the instant constitutional petition. Needless to say, the criminal proceedings are different in nature. Though the learned District Judge has considered the same question, but for the reason mentioned above we still cannot go into such findings. Moreover, as per Clause-e of sub- section (1) of Section (21) of the Act 2015, in an appeal before the District Judge, imposition of fine by the Commission could be challenged.

12.So far as the propriety of the committee’s imposition of the fine, its findings reproduced in para 9, above, are self-explanatory. We find the same as based on proper appreciation of the relevant surgical protocols and the adverse effects their non-fulfilment trigger on the Page 5 of 6

health. The learned appellate court examined those findings palpably and reduced the fine to Rs. 3,00,000/- keeping in view the petitioner’s long service career and first-time default while conducting the surgery in question.

13.The conclusion of the above discussion is that none of the impugned order of the commission and judgment of the appellate court suffers with, to quote from Asif Fasihuddin Vardag case—arbitrariness, illegality, irrationality and procedural impropriety... (also called the Wednesbury unreasonableness principle—pronounced by the United Kingdom Court of Appeal in the 1948 Associated Provincial Picture Houses Ltd. v Wedenesbury Corp7). Resultantly, we dismiss this constitutional petition.

Announced

(Shahid Ali *JSS*). Sd x x x x x

JUDGE

Sd x x x x x

JUDGE

(D.B) Justice Syed Arshad Ali & Justice Dr. Khurshid Iqbal.

7 Associated Provincial Pictures Houses Ltd v. Wednesbury Corp [1948] 1 KB 22, 230.

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