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
>>>>>>>…<<<<<<<<
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