PLJ 2018 SC 548[Appellate Jurisdiction]
Present: Ejaz Afzal Khan & Maqbool Baqar, JJ.
DR. SAMINA MATLOOB--Petitioner
STATE through P.G. Punjab and another--Respondents
Criminal Petition No. 1187 of 2017, decided on 3.1.2018.
(Against the order datod 30.10.2017 of the Lahore High Court, Bahawalpur Bench passed in Crl. Misc. No. 2927-B of 2017-BWP.)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 322 & 34--Punjab Healthcare Commission Act, 2010--Bail before arrest confirmed--New-born baby died during delivery--Negligence--Domain of Commission--Delay of two months--Police investigating case did not apply for disinterment of body of newborn-babe to collect medical evidence in support of allegation--Belated charge and failure on part of investigating agency to invastigate case on proper lines, however, resulted in loss of evidence--Even if there was any, incident in this case could not have been investigated by local police or prosecuted under normal penal law of land--Report of investigating agency exonerating petitioner would constitute yet another circumstance making out a case for confirmation of pre-arrest bail--Bail was granted. [Pp. 549 & 550] A & B
M. Asif Saeed Rana, ASC and Syed Rafaqat Hussain Shah, AOR for Petitioner.
Rana Abdul Majeed, Addl. P.G. Pb., Rana M. Anwar, SSP, Multan and Mansoor, DSP, Multan for State.
Nemo for Complainant
Date of hearing: 3.1.2018.
Ejaz Afzal Khan, J.--Petitioner who is charged in a case registered against her and two others under Section 322/34 PPC vide FIR No. 212 dated 15.12.2016 at P.S. City District Lodhran when failed to get the concession of pre-arrest bail from the lower forum as well as the High Court moved this petition mainly on the grounds that there is absolutely no evidence on the record to show that the new-born babe died during the course of delivery on account of negligence of the petitioner; that belated report of the occurrence goes a long way to belie the prosecution version and that in view of the provision contained under Section 29 of the Punjab Healthcare Commission Act, 2010 the matter lying within the domain of the Commission could neither be investigated nor prosecuted under the normal penal law of the land.
2. The learned Additional Prosecutor General, Punjab appearing on behalf of the State did not dispute the assertions made by the learned ASC for the petitioner.
3. We have carefully gone through the record and considered the submissions of the learned ASC for the petitioner as well as the learned Addl. P. G. Punjab for the State.
4. The record reveals that the incident was reported after two months of the occurrence. The police investigating the case did not apply for disinterment of the body of the newborn-babe to collect medical evidence in support of the allegation. Belated charge and
failure on the part of the investigating agency to investigate the case on proper lines, however, resulted in the loss of evidence. Even if there was any, the incident in this case could not have been investigated by the local police or prosecuted under the normal penal law of the land in view of the provision contained in Section 29 of the Punjab Healthcare Commission Act. The Additional Prosecutor representing the State has not disputed the above stated legal position nor has he disputed that the hospital providing healthcare service is registered in terms of Section 13(4) of the Act. The report of the investigating agency exonerating the petitioner would constitute yet another circumstance making out a case for confirmation of pre-arrest bail.
5. For the reasons discussed above, we convert this petition into appeal, allow if, set aside the impugned judgment and confirm the ad-interim bail granted to the petitioner on 6.10.2017.
(M.M.R.) Appeal allowed
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