May 5, 2026
By Rehan Piracha
LAHORE
The Peshawar High Court has ruled that allegations of medical negligence cannot be directly subjected to criminal proceedings without first being examined by the Khyber Pukhtunkhwa Healthcare Commission, holding that the specialized statutory body constitutes the appropriate forum for technical determination of professional healthcare disputes before any criminal liability can be established.
A division bench comprising Justice Sahibzada Asadullah and Justice Farah Jamshed delivered the ruling on April 22, 2026, in a consolidated judgment disposing of two writ petitions arising out of a single order passed by an Ex-Officio Justice of Peace in a case involving a Peshawar-based gynaecologist accused of negligence during the delivery of a patient.
Medical negligence alleged in post-delivery complications
The case traces its origins to what began as a successful delivery. Dr. Shandana Wahab, a qualified gynaecologist and obstetrician practicing at Mercy Hospital and her private clinic at Dabgari Gardens, Peshawar, had admitted the wife of one Shams-ur-Rehman for childbirth.
The delivery itself was conducted successfully and the child was born. However, the petitioner alleged that post-delivery complications transformed what should have been a joyful occasion into prolonged suffering.
According to Shams-ur-Rehman, post-delivery complications developed in his wife’s health condition that were not natural medical occurrences but the direct result of negligent handling by the attending doctor.
He alleged that his wife’s uterus was removed during treatment, which subsequently precipitated a chain of severe medical consequences, including kidney failure and other associated ailments. The petitioner stated that the deteriorating health of his wife compelled him to seek treatment from multiple hospitals, exhausting his financial resources while subjecting his family to severe emotional anguish and social distress.
Shams-ur-Rehman first approached the Station House Officer of the concerned police station to register a criminal case, but no action was taken. He then filed an application under Section 22-A of the Code of Criminal Procedure before the Ex-Officio Justice of Peace, seeking directions for registration of an FIR against Dr. Shandana Wahab.
The Ex-Officio Justice of Peace, after hearing both parties, passed an order with a dual outcome: on one hand, it declined to direct registration of an FIR, and on the other, it directed the Judicial Magistrate to conduct an inquiry into the matter to ascertain facts and fix responsibility.
This order satisfied neither side. Dr. Shandana Wahab challenged it before the Peshawar High Court, arguing that subjecting a medical professional to judicial inquiry was improper in a matter falling within the exclusive domain of specialized medical regulatory mechanisms.
Shams-ur-Rehman also approached the High Court separately, challenging the refusal to order registration of an FIR. Both petitions were consolidated and decided through a single judgment.
Does a medical negligence allegation obligate an FIR?
The court identified five important legal questions that required determination, touching upon what it described as “the delicate intersection between criminal jurisprudence, medical science, and statutory healthcare regulation.”
The first question was whether every allegation of a cognizable offence automatically obligates police to register an FIR, or whether allegations involving technical and specialized fields like medicine stand on different footing.
The second was whether allegations of medical negligence involving surgical intervention, post-operative complications, and questions of causation can safely be examined by ordinary investigating agencies whose expertise lies in conventional criminal investigation and not in specialized medical science.
The third question was whether medical negligence can be determined without expert evaluation. As the court observed, “the issue here is not merely whether complications occurred, but whether such complications were attributable to negligence, omission, lack of due care, or whether they were recognized risks inherent in the medical process itself.”
The fourth question was whether the police machinery, prosecution agencies, or even the Ex-Officio Justice of Peace possesses the technical competence to independently assess allegations involving complex medical procedures without first obtaining expert determination.
The fifth, and what the court described as “perhaps the most crucial question,” was whether, in the presence of the KP Healthcare Commission as a specialized statutory framework, the ordinary criminal process can be directly invoked at the threshold, or whether the special mechanism must first be exhausted.
Special law must prevail
The court examined healthcare regulatory models across multiple jurisdictions including the United States, United Kingdom, and India, before concluding that the establishment of the KP Healthcare Commission reflected a universal legislative philosophy — that medical allegations must pass through specialized expert scrutiny before criminal consequences are considered.
The court invoked the latin maxim generalia specialibus non derogant — that general provisions do not derogate from special provisions — holding that where the legislature has created a specialized statutory mechanism with its own forum, procedure, and remedy, the ordinary criminal process must yield.
“Medical negligence is not a matter to be casually inferred,” the court held, “but is a question requiring specialized scrutiny to determine whether the alleged act or omission falls below the recognized professional standard, what precise damage ensued therefrom, and upon whom the legal responsibility can justly be fastened.”
Healthcare commission a competent forum to evaluate medical negligence
The court was careful to note that the creation of healthcare commissions was not designed to immunize doctors from liability.
“The purpose of such statutory bodies is neither to provide immunity to doctors nor to deprive aggrieved patients of remedy,” the court stated, describing the commission as “a neutral, specialized, and technically competent forum capable of evaluating allegations of professional misconduct and medical negligence with the aid of experts.”
The court characterized the protection afforded by the special law as “procedural, not substantive, protective, not absolute.”
Ex-officio Justice of Peace lacked jurisdiction
On the specific legal question of whether the Ex-Officio Justice of Peace was competent to direct the Judicial Magistrate to conduct an inquiry, the court was unequivocal.
It held that the jurisdiction of the Ex-Officio Justice of Peace under Sections 22-A and 22-B of the Code of Criminal Procedure is “essentially corrective in nature, designed to ensure that police authorities discharge their lawful obligations,” adding that these provisions are “fundamentally administrative and supervisory over police functionaries.”
The court ruled that “these provisions do not extend the jurisdiction of the Ex-officio Justice of Peace into the realm of judicial adjudication or fact-finding inquiry, nor do they authorize interference in the domain of subordinate criminal Courts.”
Relying on the principle that jurisdiction is a creature of statute and cannot be assumed by implication or convenience, the court declared that the direction to the Judicial Magistrate to conduct an inquiry was issued without lawful authority and was therefore legally unsustainable.
“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 court held, setting aside the impugned order and allowing Dr. Shandana Wahab’s petition.
Commission directed to entertain fresh complaint
However, the court also took note of Shams-ur-Rehman’s earlier complaint to the KP Healthcare Commission, which had been dismissed as barred by the sixty-day limitation period prescribed under the Commission’s rules.
Counsel for Shams-ur-Rehman conceded that a complaint had indeed been filed before the Commission, but that it was not entertained on limitation grounds.
The court declined to allow this procedural bar to shut out the petitioner’s substantive grievance. Noting that litigants approaching quasi-judicial forums are “more often than not, persons of limited means and lacking adequate acquaintance with the technical complexities of law,” the court held that procedural rigors governing limitation “ought not to be employed as an instrument to defeat a bona fide grievance merely on account of procedural lapses, particularly where such lapses stem from ignorance, rather than indifference.”
The court noted that Shams-ur-Rehman had persistently pursued his remedy, moving from one forum to another, and characterized such conduct as demonstrating “diligence rather than neglect.” Accordingly, while disposing of his petition, the court directed the KP Healthcare Commission to entertain a fresh complaint from Shams-ur-Rehman if lodged, and to examine it “strictly on merits without returning or dismissing it solely on the ground of limitation.”