ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Misc. Appln. No.S- 37 of 2017

Date Oder with Signature of Hon’ble Judge

Priority case

1. For hearing of main case

2. For hearing of MA No.313/2017 (S/A)

15.04.2019

Mr. Noor Ahmed Chadhar Advocate for the applicant

Mr. Nawab Ali Pitafi Advocate for private respondent

Mr. Aftab Ahmed Shar, Additional PG for the State

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Irshad Ali Shah, J;- The applicants by way of instant criminal miscellaneous application under Section 561-A, Cr.P.C have impugned order dated 16.01.2017 passed by learned 3rd Additional Sessions Judge/Ex-Officio Justice of Peace Mirpur Mathelo, whereby he has directed SHO Police Station Mirpur Mathelo 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 on account of the failure of the applicants to provide first aid or ambulance for shifting of his new born baby, he died for that they are liable to be prosecuted according to law.

2. It is contended by learned counsel for the applicants that no incident as alleged by the private respondent has taken place, the private respondent is dispenser in the hospital and he has been issued a show cause notice by his department and in order to satisfy his grudge he is intending to involve the applicants in this case falsely. By contending so, he sought for setting aside of the impugned order.

3. Learned counsel for the private respondent by supporting the impugned order has sought for dismissal of the instant criminal miscellaneous application.

4. Learned Additional PG has sought for dismissal of the instant Criminal Miscellaneous Application by contending that the new born baby died in the hospital at Sukkur and private respondent in order to satisfy his grudge with the applicants on account of issuance of show cause notice against him is intending to involve them in this case falsely.

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

6. Admittedly, the new born baby of the private respondent has died at Maternity Home of Sukkur Hospital. Nothing has been brought on record by the private respondent which may suggest that actually he took his new born baby at District Headquarter Hospital Mirpur Mathelo. The private respondent admittedly is a Dispenser and has been served with a show cause notice by his department. The contention of learned counsel for the applicants if is examined in that context then it smells of malafide on the part of private respondent to involve the applicants in a false case. In that situation, learned 3rd Additional Sessions Judge/Ex-Officio Justice of Peace Mirpur Mathelo was not justified to have directed SHO Police Station Mirpur Mathelo 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