ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Misc. Appln. No.S- 04 of 2019

 

Date                         Order with Signature of Hon’ble Judge

 

Priority case

1.     For hearing of main case

2.     For hearing of MA No.35/2019 (S/A)

12.04.2019

Mr. Mansoor Hussain Maitlo Advocate for the applicant

Mr. Fahan Ali Shaikh, Advocate for private respondent

Mr. Abdul Rehman Kolachi, DPG for the State

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Irshad Ali Shah, J;- The applicant by way of instant criminal miscellaneous application under Section 561-A, Cr.P.C has impugned order dated 01.01.2019 passed by learned Sessions Judge/Ex-Officio Justice of Peace Ghotki, whereby he has directed SHO Police Station Dad Leghari to record statement of the private respondent, and if it discloses commission of a cognizable offence  then a case be registered against the applicant and others.

 2.                   It is contended by learned counsel for the applicant that no incident as alleged by the private respondent has taken place, parties were already disputed over water rotation, the injuries allegedly sustained by the private respondent during course of the incident were non-cognizable in its nature yet learned Sessions Judge/Ex-Officio Justice of Peace Ghotki has issued direction against SHO Police Station Dad Leghari to record statement of private respondent for purpose of FIR, by way of impugned order same according to him has been passed without lawful justification and is liable to be set-aside.

3.                    Learned counsel for the private respondent and learned DPG for the State by supporting the impugned order have sought for dismissal of the instant criminal miscellaneous application by contending that the applicant and others have committed a cognizable offence.

4.                    I have considered the above arguments and perused the record.

5.                As per police report no incident as alleged by the private respondent has taken place, such report surprisingly was not rebutted by the private respondent by way of filing his objection to it, yet it was ignored or overlooked by learned Sessions Judge/Ex‑Officio Justice of Peace, Ghotki without assigning any reason for doing so. The injuries sustained by the private respondent as per medical certificate, which is furnished by the applicant were non-cognizable in nature. The parties admittedly are disputed over water rotation since long which may be a reason for the private respondent to involve the applicant and others in a criminal case by having a recourse by way of an application u/s 22-A and B Cr.P.C. In that situation, learned Sessions Judge/Ex-Officio Justice of Peace Ghotki was not justified to have directed SHO Police Station Dad Leghari to record statement of the private respondent for the purpose of FIR by way of impugned order.

6.                    In case of Rai Ashraf and others vs. Muhammad Saleem Bhatti and others (PLD 2010 SC-691), it has been held by the Hon’ble Supreme Court of Pakistan that;

“ Validity---Dispute between parties was over such house---Applicant had secured restrain, order against respondent from Civil Court, and for its violation, he had a remedy before Civil Court---Applicant had an alternate remedy to file private complaints against respondent---Applicant had filed another application before Ex-officio Justice of Peace/Additional Sessions Judge to restrain public functionaries from taking action against under Lahore Development Authority Act, 1975, Rules and Regulations framed thereunder---Application for registration of FIR had been filed with malafide intention.”.

6.                    In view of the facts and reasons discussed above, the impugned order is set-aside, the instant Criminal Miscellaneous Application is disposed of in the above terms.

 

Judge

 

ARBROHI