Dr. SHAHINA PARVEEN Versus State
ORDER
MUHAMMAD FAISAL KAMAL ALAM, J.--- Through this Bail Application, the Applicant / Accused, namely, Dr. Shahina Parveen is seeking her pre-arrest bail in respect of Crime No.89 of 2020, registered at Police Station Nabi Bux, Karachi, for offences under sections 334 and 337(L)(1) and 34 of the Pakistan Penal Code (P.P.C.).
Precisely, the prosecution case is that the above named Applicant/Accused has committed the above offence when she treated the wife (Ms. Rozina/patient) of present Complainant and while doing so the accused is guilty of sheer negligence when she left gauze swab in the Abdomen of above patient and in subsequent surgery after delivery the uterus of said patient was removed [hysterectomy].
Learned counsel for Applicant/ Accused has stated that even the FIR is defective, because the first Statement of Complainant should have been treated as FIR, which he made on 27-5-2019, available at page 99 of the Police Papers filed by Assistant PG, which is now part of the present proceeding. It is contended that from the first Statement, the offence(s) complained of are not made out and in order to frame the present Applicant/Accused in a more serious offence, the second Statement of Complainant was made the basis of above FIR, which was recorded after ten months of the incident. It is contended that uterus of above patient was removed in order to save her life because after giving birth to a child, excessive bleeding occurred. He has relied upon the reported decisions-PLD 1980 Peshawar page-25 [Abdul Hamid v. The State] and PLD 1975 Lahore page-257 Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore and another]. The legal team of Applicant / Accused also invoked sections 79 to 89 of P.P.C., in support of their arguments that any act done in good faith cannot be equated with mens rea, which is a basic ingredient for committing an offence. It is further contended that both the above named patient/wife of Complainant and the child are alive and well, thus, the Applicant / Accused may be given concession of bail.
Learned counsel for Complainant has read the FIR and stated that it is quite specifically mentioned that above Accused committed the grave offence when she removed the Uterus of Complainant's wife, without any consent of Complainant and the patient herself. He has referred to Literature of National Health Services, United Kingdom to show that in terms of Paragraphs-4.3, 7.12, 7.12.3 (in particular) the procedure was not followed by the Accused when she removed the Uterus of patient illegally. He has further argued that from the evidence collected so far and submitted by the learned APG, it is not evident anywhere that any severe blood loss of above Patient was reported, which necessitated the second surgery immediately after delivery in which the Uterus was removed. To substantiate his arguments, he has referred to one of the Reports of the Holy Family Hospital where Patient was treated, which is available at page-229 of the Police Paper. The learned counsel has also referred to the Report of the Sindh Health Care Commission (the Commission) to further substantiate his arguments that medical negligence was proved even from the above Report, available at page 67 of the Court File. He has cited the following case law to augment his arguments_
1. 2019 PCr.LJ Note page-38 [Malik M. Nisar v. The State]
2. PLD 2018 SC page-595 [Mst. Sughran Bibi v. The State]
3. 2014 PCrLJ page-630 (Sindh) [Shahzadi Sonia v. The State]
4. 1999 PCr.LJ page-166 [The State v. Mohtarma Benazir Bhutto]
Learned Assistant Prosecutor General Sindh while supporting the case of Complainant has rebutted the arguments of legal team of Applicant/ Accused, that in the first Statement to SHO, the Complainant has not mentioned anything about removal of Uterus. Learned APG has stated that after order of this Court dated 20.02.2020, passed on Criminal Miscellaneous Application No.407 of 2019, on the Statement of Complainant the present FIR was lodged, besides the matter was inquired by the above Commission and the Report is submitted. Both learned counsel for the Complainant and APG have argued that if the concession of bail is extended to the Applicant / Accused, there is every possibility that such type of acts will be repeated and committed, which would obviously harm patients and is against the public interest.
Arguments heard and record perused.
The above Patient was first admitted to the Holy Family Hospital on 24.04.2019. After normal delivery she was again operated upon after few hours and uterus was removed. Due to complaint by Patient when CT scan was done it was found that gauze piece was left in the abdomen after surgery, hence, she was once again operated upon. Patient was finally discharged on 07.05.2019. Fact of the matter is that the above Commission vide its Report dated 03.09.2019 has imposed a fine of Rs.5,00,000/- (rupees five hundred thousand only) on the Administration of Holy Family Hospital, where the above Patient was treated, besides recommending disciplinary action against the Applicant / Accused. The disciplinary action as recommended by the Commission is to be taken by the Regulator of medical profession, viz. Pakistan Medical and Dental Council (PMDC). Secondly, perusal of first Complaint of Complainant dated 07.08.2019 to the Commission, shows that he has agitated his grievance about the negligent attitude of Accused and Holy Family Hospital but specifically has not mentioned the removal of Uterus. Even though, learned counsel for the Complainant has cited case law (ibid) in support of his arguments that such Statement cannot be taken as a final word of the Complainant and if in FIR (although lodged in the circumstances stated above) he has specifically stated the fact of removal of Uterus, it would not be termed as improvement; thus, the offence is clearly made out; whereas, the arguments of Legal team of Accused is different and is already mentioned herein above. This Particular line of argument of both sides can be considered by the learned Trial Court and giving a definite finding on this particular aspect at this bail stage may prejudice the main case (before the Trial Court).
On a specific query, the learned APG states that the investigation is under way and has not been completed, hence, no challan has been submitted in the Trial Court, but the investigation so far shows that the present Applicant / Accused is not involved in any such incident previously, nor, there is any complaint that present Accused is not cooperating in the investigation; thus, the apprehension shown by the Prosecution while opposing this bail, has no force.
In addition to the above, Complainant's side has also filed a Suit primarily seeking damages, in this Court being Suit No.1598 of 2019 (which is sub judice), against the present accused and other persons, including the Hospital.
Whether the post-delivery surgery was necessary or not in which Uterus was removed, which is the main offence (alleged) in the present case falling within the ambit of section 334, of P.P.C. is to be determined by the learned Trial Court, where the legal team of Applicant/ Accused will obviously have a benefit to argue the applicability of section 88 of P.P.C. and particularly Illustration-1. (strenuously relied upon), which for the sake of convenience is reproduced herein under_
"A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence."
In the above discussed particular circumstances, in which an Accused-Doctor and Hospital have already been penalised by the Commission; secondly, the act complaint of is also to be adjudicated upon by the Regulatory Authority, that is, PMDC; thirdly, a Civil Suit for purported medical negligence is sub judice; fourthly, present case falls within the purview of a case of further inquiry, inter alia, regarding the guilt of above Accused; fifthly, at the Trial basic elements, that is, mens rea and actus reus are yet to be determined, the concession of bail to the Accused cannot be withheld.
The upshot of the above discussion is that the Applicant / Accused, who was granted interim pre-arrest bail on 13.03.2020, is in my considered view, entitled to bail on the terms mentioned in the above order, which is hereby confirmed. It is needless to observe that any of the observation contained herein-above will not influence the trial of the case in any manner whatsoever and if the concession of bail is mis-used then the Trial Court may take any action in accordance with law. In the above terms, the instant Criminal Bail Application is granted.
SA/S-108/Sindh Bail granted.