2023 PLP 46 (YLRN)

AFTAB AHMED GORAR, J.

Through instant. Cr

1. Misc. Application, the applicant has challenged the order dated 12.06.2017 passed by learned III-Additional Sessions Judge/Ex. Officio Justice of Peace, Mirpur Mathelo, whereby an application under sections 22-A and 22-B, Cr.P.C. filed by respondent No.3 was allowed and S.H.O., Police Station Mirpur Mathelo was directed to record statement of respondent No.3 and if, cognizable offence is made out , his FIR may be registered. The relevant facts are that on 13.05.2017 applicant along with his maternal cousin Qasir Nawaz, nephew Imtiaz Ali and other relatives were standing at the Jarwar crossing and heard void from Hyder Shah Mohallah near Railway Station Mirpur Mathelo, it was 6:00 p.m, they proceeded there and saw his coucin Shahzado son of Feroz Khan Korai was lying on the ground accused Zahid Hussain, Khalid Hussain, Javed Ahmed, Shahid Hussain, Zubair Ahmed by caste Korai resident of Hyder Shah Mohallah Mirpur Mathelo,

6. Waseem Akram along with one unidentified person will be identified if seen again duly armed with lathis in their hands were causing lathi blows to Shahzado and on seeing them ran away towards line of eastern side. It is alleged that they observed their cousin Shahzado was in serious condition who disclosed that accused persons had robbed the mobile and cash from him on his resistance they maltreated him lathi injuries they took him to District Hospital Mirpur Mathelo where M.S. Dr. Abdul Latif Buriro present and he refused to treat injured and within their sight the injured succumbed to the injuries and died. The respondent No.3, then approached the S.H.O., who refused to take action and lodged FIR. He filed application under sections 22-A and 22-B, Cr.P.C. before learned Justice of Peace which was allowed, hence the applicant being aggrieved filed instant Crl. Misc. Application. Learned counsel for the applicant contended that the impugned order passed by learned Ex-Officio Justice of Peace is against the law; that no such incident has taken place such report was submitted by S.H.O. He further submits that S.H.O. in his report submitted that HC Abdul Waheed Waseer of Police Station, Mirpur Mathelo during patrolling received information that one dead body of a person who used to intoxication (Heroinee) is lying at Hirpur Mathelo, where police proceeded and recovered the dead body and handed over the same to his cousin Ali Hassan but such report of S.H.O. was not considered by learned Justice of Peace; that from the averments made in Misc. application it appears that only the name of applicant No.1 has been given serial No.6 of title page of the Misc. application which create serious doubt that he has been falsely arrayed as proposed accused; that no person from the village has been cited as witness except nephew and cousin of respondent No.3; that applicant has been involved in this case with mala fide intention as he has no nexus with the alleged incident, therefore he prayed that impugned order may be set aside. He relied upon case of Abdul Latif v. Hakim Zadi and 2 others (2013 PCr.LJ 813)

2. Asif Ali Jatoi v. Station House Officer, Police Station Qasimabad, Hyderabad and 2 others (2018 YLR 318) and Rai Ashraf and others v. Mohammad Saleem Bhatti and others (PLD 2010 Supreme Court 691). Conversely, the learned counsel for respondent No.2 supported the impugned order and submitted that the story narrated in Misc. application constitutes a cognizable offence, however he admitted that deceased used to intoxication. He relied upon case of Dr. Taqdees Naqash v. Senior Superintendent of Police and others (2015 PCr.LJ 1628). Learned Addl. P.G. supports the impugned order. Heard arguments of learned counsel for the parties, learned Addl. P.G. for the State and perused the record. Bare perusal of report of S.H.O. reveals that they have received information that one dead body of a "Heroinee" (A person who is using intoxication) is lying in Civil Hospital Mirpur Mathelo and after codal formalities they handed over the dead body to his cousin Ali Hassan, however, the nominated persons have not committed the murder of said deceased Shahzado. The report further reveals that they received a death certificate in which the Medical Officer clearly mentioned that due to taking heavy intoxication the death of deceased Shahzado was occurred and the application filed by the applicant is false and baseless however, the applicant party have no nexus with the alleged murder of deceased Shahzado, presumption is that they have been involved in this case falsely. The allegation against applicant is that he did not make treatment of the deceased as he was angry with deceased is no ground to implicate him in heinous case as it is sole duty of the Dr. to treat every person either who is stranger or his relative. Furthermore, the applicant has alternate remedy to file direct complaint before the competent Court but he did not do so. In the case of Rai Ashraf and others (Supra) the Honourable Supreme Court has held that "the learned High Court had erred in law to exercise discretion in favour of the respondent No.1 without realizing that the respondent No. 1 had filed application before the Additional Sessions Judge/Ex-Officio Justice of Peace to restrain the public functionaries not to take action against him in accordance with the LDA Act, 1975, Rules and Regulations framed thereunder, therefore, respondent No.1 had filed petition with mala fide intention and this aspect was not considered by learned High Court in its true perspective". Hence, there is only the vague and general allegations made against the applicant party which on face of it are not proved. The perusal of Misc. Application. further reveals that there is previous litigation between the parties and in that vengeance the respondent No.2 filed application against the applicant party. For the foregoing reasons, instant application is allowed and impugned order dated 12.06.2017 passed by learned III-Additional Sessions Judge/Ex. Officio Justice of Peace, Mirpur Mathelo, is set aside. SA/A-200/Sindh Application allowed.