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