NAJAF SALEEM vs Lady Dr. TASNEEM and others

' This judgment will dispose of Criminal Appeal No,122 of 2003 filed by Najaf Saleem, appellant, against the judgment dated 6-11-2002 passed by Judicial Magistrate Section 30, Lahore, whereby he acquitted the present respondents, namely, Lady Dr. Tasneem Kausar and Lady Dr. Fauzia in a private complaint titled as Najaf Saleem v. Lady Dr. Qamar Aziz, M.S. Etc.

2. Brief facts of the case are that Mst. Aneela (deceased) wife of the complainant was in her family way. At the time of maturity of pregnancy, she was taken to Lady Aitchison Hospital by the complainant and Muhammad Yousaf uncle of Mst. Aneela (deceased). At the time of preliminary check-up, it was the opinion of the doctors that it was a case of normal delivery and Mst. Aneela (deceased) was physically and medically fit to procedure, they decided to get rid of the patient while referring her emergency of Mayo Hospital on 1-8-1996. Doctors of Mayo Hospital suggested that due to failure of kidneys they were not in a position to handle the case of patient and advised the complainant to shift The patient to Ittefaq Hospital.

' Consequently, the patient was removed to Ittefaq Hospital and during the intervening night of 1/2- 8-1996 despite the hectic efforts and treatment of the doctors from the Ittefaq Hospital, Mst. Aneela (deceased) expired on 5-8-1996. It is alleged that death of Aneela is a direct consequence of the negligence and professional incapability of the doctor who operated upon the patient for the delivery of baby. Muhammad Yousaf, uncle of the deceased after the death of Aneeal (deceased) approached to the S.H.O., Gowalmandi for registration of the case against all the accused but he refused to entertain his request as he was under the influence of accused persons. Muhammad Yousaf, thereafter, moved an application to the S.S.P., Lahore even then his grievances were not redressed. Consequently, the complainant went in writ petition whereupon he was advised to file a private complaint and resultantly, this private complaint was lodged for summoning and punishing the accused persons for their illegal acts.

3. After recording the preliminary evidence, accused Nos.1 to 3 were acquitted under section 249-A, Cr.P.C. Whereas, accused Nos.5 and 6 were declared Proclaimed Offenders. Accused Nos.3 and 4 appeared before the trial Court.

4. Charge was framed against the two accused on 23-2-1998. Accused denied the charge and claimed for trial. Consequently, complainant's evidence was summoned.

5. At the trial, prosecution in order to prove its case produced three witnesses in all, thereafter, the statements of the accused-respondents were recorded under section 342, Cr.P.C. In which they pleaded innocence. One Muhammad Shabbir was also examined as D.W.1.

6. Learned counsel for the appellant in support of this appeal submits that there are three witnesses, who had appeared before the learned trial Court and supported the prosecution case to its hilt against the present respondents, that it was the present respondents who acted negligently and as a result of which Mst. Aneela died later on in Ittefaq Hospital. Learned counsel has referred to the statement of Dr. Tasneem Kausar recorded under section 342, Cr.P.C. Particularly the answer that why this case against you. He submits that she has admitted in her statement that during the delivery of the child stitches wounds were punctured which were already stitched wound when first delivery had taken place to the deceased. He further submits that Dr. Tasneem Kausar herself admitted the responsibility of the death of the deceased.

' Learned counsel for the State supports learned counsel for the appellant.

7. On the other hand, learned counsel for the respondents submits that original file regarding the operation of Mst. Aneela was taken forcibly by the complainant party when they took Mst. Aneela from that hospital, that it is a mandatory provision that consent of the legal heirs of the patient was obtained prior to conducting the operation of the deceased and that was taken, that in order to blackmail and pressurize the present respondents, this false complaint was filed by the complainant, that no expert was produced by the complainant which can prove the cause of death of Mst. Aneela. Learned counsel for the complainant has also referred page 1365 of a book titled as "Obstetrics and Perinatal Care for Developing Countries" written by Saad Rana, wherein it has been observed that "although while conducting cesarean section injur: to the urinary bladder and ureter are rare during cesarean section. Most of the injuries occur in patients with previous cesarean section and when there are dense and extensive adhesions between the bladder and the lower uterine segment. It is also a major complication after cesarean hysterectomy especially when it is performed for ruptured uterus".

8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. It is well known that when any patient is operated upon, then, necessary permission is being taken from the legal heirs/guardian of that patient. The contention of learned counsel for the respondents was that complainant party while taking Mst. Aneela deceased from the hospital took away original file. There is no documentary evidence on record whatsoever produced by the complainant either at the time of recording of preliminary evidence or at the time of trial that what was the cause of death of the deceased in the instant case. Merely, on oral testimony of the P.Ws. The cause of death of the deceased cannot be ascertained or proved, even no expert was ever produced by the complainant during the trial. The story of the complainant was that after the condition of Mst. Aneela became precarious, she was taken to the hospital, there doctor observed that due to negligence on the part of the present respondent the deceased died but none of the said doctor was ever produced from Ittefaq Hospital, neither he was cited in the list of calendar of witnesses of the complaint filed by the complainant. Learned counsel for the appellant during his arguments has submitted that Dr. Tasneem Kausar had admitted in her statement recorded under section 342, Cr.P.C. That during the delivery uterus was attached with bladder due to previous operation and the same got punctured which was repaired by Doctor Farooq Rasool who was expert in this field and the patient was shifted to Mayo Hospital for further treatment of bladder. Her whole statement in this regard was read out which showed that this was the second delivery of Mst. Aneela while at the time of first delivery she was also operated upon and at that time cesarean operation was done of her bladder. The complainant party himself took Mst. Aneela to Ittefaq Hospital. It is not known whether the treatment given by the doctors of Ittefaq Hospital led to the death of Mst. Aneela or the present respondents. Even lady Dr. Fauzia/respondent No,2 has produced documentary evidence that she was on leave from 27-9- 1996 to 31-9-1996 while the operation had taken place on 28-9-1996, which also proves her innocence. To my mind, prosecution has not been able to prove its case against the respondents beyond any shadow of doubts. Even otherwise, when an accused person is acquitted from the charge by a Court of competent jurisdiction, then, double presumption of innocence is attached to its order, with which this Court and the Apex Court normally does not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record which is not present in the instant case. Reliance is also placed on PLD 1985 SC 11 Full Bench judgment titled as Ghulam Sikandar v.

Mumraze Khan.

9. After having heard the learned counsel for the parties and going through the evidence available on record I am of the considered opinion that no case for interference by this Court is made out, therefore, this appeal filed by Najaf Saleem against the acquittal of present respondents is dismissed.