ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. Misc. Appln. No.S- 878 of 2018
Date Order with Signature
of Hon’ble Judge
Priority case
1.
For hearing of
main case
2.
For hearing of MA
No.5162/2018 (S/A)
15.04.2019
Mr. Manzoor Hussain Maitlo Advocate for the applicant
Mr.Pardeep Kumar, Advocate for private respondent
Mr. Aftab Ahmed Shar, Additional PG 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 10.10.2018
passed by learned 2nd Additional Sessions Judge/Ex-Officio Justice
of Peace Ghotki, whereby he has directed SHO Police Station ‘A’ Section Ghotki 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 alleged by the private
respondent that the applicants and others after keeping him and Mustaqeem under
fear of death caused Iron rod blow to Mustaqeem with intention to commit his
murder.
3. It is contended by learned counsel for the
applicant that no incident as alleged by the private respondent has taken place,
parties were inimical with each other since long, the injury allegedly
sustained by injured Mustaqeem during course of the incident was opined to have
been caused with sharp cutting weapon and it was declared to be non-cognizable
in its nature, which belies the private respondent in his version that it was
caused with Iron rod, yet learned 2nd Additional Sessions
Judge/Ex-Officio Justice of Peace Ghotki has issued direction against SHO
Police Station ‘A’ Section Ghotki 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.
4. Learned
counsel for the private respondent and learned Additional PG for the State by
supporting the impugned order have sought for dismissal of the instant criminal
miscellaneous application.
5. I have
considered the above arguments and perused the record.
6. 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 by learned 2nd
Additional Sessions Judge/Ex‑Officio Justice of Peace, Ghotki without
assigning any reason for doing so. The injury sustained by injured Mustaqeen as
per medical certificate, which is furnished by the applicant was non‑cognizable
in nature. The parties admittedly are inimical with each other 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 2nd Additional Sessions
Judge/Ex-Officio Justice of Peace Ghotki was not justified to have directed SHO
Police Station ‘A’ Section Ghotki to record statement of the private respondent
for the purpose of FIR by way of impugned order.
7. 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.”.
8. 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