IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Crl:Misc. Application No.S- 649
of 2012
Applicant: Taj
Muhammad Narejo, through
Mr.Abdul
Haque G.Odho, Advocate.
Respondent
No.2: Munir
Ahmed Shaikh, through
Respondents
No.1 & 2: Mr.Abdul
Rehman Kolachi,
A.P.G.
Date
of hearing: 10th.
December, 2012.
O R D E R
SALAHUDDIN
PANHWAR, J- The applicant Taj
Muhammad Narejo, has assailed the order dated 24.9.2012, passed by 1st
Additional Sessions Judge/Ex-officio Justice of Peace, Khairpur Mir’s, whereby
he has dismissed the application U/s 22-A & 22-B,Cr.P.C.
02. Concisely
the facts of the case are that on 01.10.2012, the daughter of applicant, being pregnant,
was admitted in the private Clinic of Dr.Rukhsana Shaikh at Isra Medical
Centre, Shaikh Muhalla, Gambat for
treatment, where proposed accused Dr. Rukhsana started treatment and due to
wrong treatment the position of Mst.Kalsoom became critical and then allegedly
the said patient was expelled by the doctor from the Clinic. In result whereof applicant
shifted his daughter to Sindh Medical Centre, where she gave birth to a expired
baby-boy and doctor disclosed that due to usage of expired medicines new born
son has been expired.
03.
The applicant approached before the Sessions Judge/ Justice of Peace, Khairpur
U/s 22-A & 22-B, Cr.P.C seeking
directions to Station House Officer of Police
Station, Gambat for recording his statement, whereby said application was
turned-down.
04. Learned counsel for the applicant
inter-alia contended that the impugned order dated 24.9.2012 is against the
principles of natural justice; lodgment of FIR is mandatory right of the
applicant and he cannot be deprived from such right; sufficient grounds were
available but without appreciation of judicial mind the application was
turned-down.
05. Conversely,
counsel for the State contends that the impugned order is legal and same is
based on sound reasons; applicant has
attempted to defame the proposed accused, otherwise the application U/s
22-A & 22-B, Cr.P.C, apparently reveals that proposed accused has not
committed any offence.
06. Heard
the counsel, perused the record.
07. On
careful examination of application U/s 22-A & 22-B,Cr.P.C and order passed thereon it appears that applicant,
himself, in his application U/s 22-A & 22-B, Cr.P.C, has mentioned that “proposed accused Dr.Rukhsana Shaikh started
treatment of his daughter and due to her wrong treatment situation of patient
Mst.Kalsoom became critical and on enquiry doctor became annoyed and expelled
them from her Clinic” and it is further
stated that “Mst.Kalsoom was shifted at Sindh Medical Centre where she gave
birth to baby boy where doctor disclosed that due to expired medicines new born
baby died.
08. From
the perusal of impugned order, it appears that above factual position was
considered by the learned Ex-officio Justice of Peace and reached on the
conclusion that as per contentions “it appears that it is very weak presumption
that has been created by the applicant without any cogent or document proof”,
therefore, application was declined. Moreover, learned Ex-officio Justice of
Peace has rightly opined that according to Section 22-A, Cr.P.C the words “may”
and “proper” has incorporated by the legislatures, which clearly indicate that
Justice of Peace has to apply his mind to the facts of the case while passing
the orders in such jurisdiction. Reference can be made to the case of Muhammad
Bashir v. SHO P.S Okara Cantt: and others reported in (PLD 2007 SC 539).
09. As
discussed above, the legal and factual position, it is suffice to say that the
applicant’s counsel has failed to point-out any illegality, infirmity or
irregularity in the impugned order and points raised by the counsel for the
applicant apparently do not show that proposed accused was guilty of any act or
omission which could be termed to be a ‘cognizable offence”. Needless to say
that before insisting upon exercise of jurisdiction under section 22-A,B Cr.P.C
for issuance of direction for lodgment of FIR one has to show / narrate facts
of commission of cognizable offence, as is the requirement of Section 154
Cr.P.C, which fact can legally be looked into by Ex-Officio Justice of Peace
while dealing with such application. Since such aspect is lacking hence, I am
of the view that the impugned order is legal and according to law. Consequently
the instant application is dismissed.
Above,
are the detailed reasons of my short order dated 10.12.2012.; whereby instant
application was dismissed.
JUDGE
A.R.BROHI