SHARAFAT vs ADDITIONAL SEESSIONS JUDGE/JUSTICE OF PEACE and others

SYED SHAHBAZ ALI RIZVI, J.---With the consent of the parties this petition is being treated as a Pacca matter and shall be decided on the basis of the available record.

2. Briefly stated the facts of the case are that respondent No,3 moved an application to the SHO, Police Station City Pattoki, for registration of a criminal case against the petitioner and others with the allegation that his (respondent No,3's) servant namely Abdul Khaliq had fallen ill about 9 to 10 months ago who was given some money by the complainant/respondent No,3 for treatment.

Abdul Khaliq came back after 20/25 days and told respondent No,3 that he had undergone an appendix surgery conducted by Dr. Danial and his two fellow doctors. On 13-2-2015 Abdul Khaliq, again felt abdominal pain. Respondent No,3 took his servant to a private clinic at Pattoki where the doctor told him that his servant had not undergone any appendix surgery rather his one kidney had been removed. When respondent No,3 asked his servant, the latter informed the former that when he had gone to Civil Hospital Pattoki, Sharafat, his wife and Ashraf took him to their house for treatment by Dr. Danial where Dr. Danial gave him medicine and he became unconscious. When he came to senses, he was told that he was suffering from appendix problem and was operated upon. The proposed accused and one Dr. Danial, who were involved in the illegal business of kidney selling, in connivance with each other removed one kidney of respondent No,3's servant on the pretext of appendix surgery and committed a heinous crime. The SHO concerned did not pay any heed to the application of respondent No.3 whereupon he (respondent No,3) moved an application under sections 22-A and 22-B Cr.P.C. To respondent No.1 against the petitioner and others and respondent No,1 passed the impugned order on the said application.

3. Now, the petitioner has come up to this Court through the constitutional petition with the prayer that the order dated 26-2-2015 passed by respondent No.1 in connection with the application moved by respondent No,3 under sections 22-A and 22-B, Cr.P.C. Whereby respondent No,2 has been directed to proceed against the petitioner and others in accordance with law, may be set aside in the interest of justice, fair play and equity.

4. Learned counsel for the petitioner, inter alia, contends that the learned Ex-Officio Justice of Peace has passed the impugned order without considering the factual and legal aspects of the matter in issue; that the impugned order has been passed in total disregard of the procedure provided under the special law i,e, Transplantation of Human Organs and Tissues Act VI of 2010; that respondent No.3 being not aggrieved person was not competent even to move application under sections 22-A and 22-B, Cr.P.C. And that the impugned order being ultra vires is liable to be set aside by this Court in exercise of its constitutional jurisdiction. Finally, craves for acceptance of the writ petition.

5. Conversely, the learned counsel appearing on behalf of respondent No.3 controverts the arguments extended by the learned counsel for the petitioner by, inter alia, maintaining that the order passed by respondent No,1 is completely in accordance with law and no interference of this Court is required therein. Further contends that section 334, P.P.C. Also attracts in this case, hence, issuance of direiction to respondent No,2 by respondent No,1 is in accordance with parent law; that respondent No,l has not directed respondent No,2 to register FIR and the respondent No,2 is fully competent to proceed under any of the applicable provisions of the Criminal Procedure Code, 1898; that the offence committed by the petitioner as alleged in the proposed crime report is of very serious nature and such like element of the society is to be dealt with strong hands. Prays for dismissal of the 'writ petition.

6. Arguments heard. Record perused.

7. I have observed that respondent No,3 is not himself the aggrieved person rather he claims to be master of Abdul Khaliq alias Billa who, as per respondent No,3, accuses the petitioner and others for removal of his kidney without his consent. Respondent No.1 has issued direction to respondent No,2 through the impugned order without adverting to the express provisions of special enactment of the Transplantation of Human Organs and Tissues Act VI of 2010 as the offence alleged against the petitioner by respondent No,3 comes within the ambit of section 10 of the said Act, relevant part of which reads as under:-- "10. Punishment for removal of human organ without authority.--(1) Whoever renders his services to or at any medical institution or hospital and who for the purposes of transplantation, conducts, associates with or helps in any manner in, the removal of any human organ without authority, shall be punished with imprisonment for a term which may extend to ten years and with fine which may extend to one million rupees." (underlined by this Court)

The above reproduced express provision of law reveals that the offence alleged by respondent No.3 against the present petitioner and others is punishable under the abovementioned special law which also provides a specific procedure for the cognizance of the offence that is prescribed under Section 14 of the Act ibid which reads as under:- "14. Cognizance of offence.---(1) No Court inferior to that of the Magistrate of First Class empowered under section 30 of the Code of Criminal Procedure, 1898 (Act V of 1898) shall try an offence punishable under this Act.

(2) No Court shall take cognizance of an offence under this Act except on a complaint in writing made by:-

(a) The Monitoring Authority or its Secretary; or

(b) An aggrieved person who has given notice of not less than fifteen days, in such manner as may be prescribed, to the Monitoring Authority, of the alleged offence and of his intention to lodge a complaint.

(3) ....................

(4) ...................."

Sub-clauses (a) & (b) of subsection (2) as reproduced above specifically provide that the cognizance of the offence can be taken by the Court only on the complaint of the Monitoring Authority or its Secretary or on the complaint of an aggrieved person who has given notice of not less than fifteen days to the Monitoring Authority, of the alleged offence and of his intention to lodge a complaint.

8. In view of above, this Court is of the firm opinion that the special law has provided a special procedure for initiation of criminal proceedings against the accused and it is an established principle of law that when a thing is provided to be done in a particular manner, it is to be done in that manner and if it is not so done, it is illegal. In these circumstances the application moved by respondent No,3 who is not the aggrieved person in any manner was not maintainable even before respondent No.1

9. For what has been discussed above, this writ petition is allowed and the impugned order dated 26-2-2015 passed by respondent No,1 is set aside being patently illegal and ultra vires. The aggrieved person may adopt the remedy provided under the law as discussed above, if so advised.