P L D 1980 S C 6 (PLP)

KARAM ELAHEE CHAUHAN, J. This order will dispose of three Criminal Petitions for Special Leave to Appeal bearing Nos. 350/79, 365/79 and 364/79.

2. Taking up Criminal Petition for Special Leave to Appeal No. 350/79, it may be stated that the petitioners are involved as accused in a Complaint Case No. 3/78 which is pending in the Court of the learned Sessions Judge, Kasur. The purpose of the petitioners in this petition is to seek transfer of that case to some other Court of competent jurisdiction. Their request for this purpose (as made vide Criminal Miscellaneous No. 91-T/70) was rejected by the High Court on 12-6-1979. Hence this petition. We have heard the learned counsel at length with reference to the various allegations contained in their petition but we must say that we have not been convinced that the petitioners have any genuine cause for apprehending that justice will not be meted out to them by the learned Sessions Judge. Our primary reason for holding so is that the petitioners have also involved the other party (i. e. the complainants in the complaint case) in a regular challan case as per F. I. R. No. 253/77 dated 2-5-1977 which is also pending in the same Court for adjudication. Strangely enough learned counsel for the petitioners submitted that in that case his clients had no such grievance even though that also pertained to the same occurrence and transaction which is involved in the complaint case. It is not reconcilable that if in that case this is the position why in the other particular case such a grievance is being put forward. It may be further mentioned that the petitioners have secured bail in the complaint case, whereas the other party i.e. accused in the F. I. R. case are in judicial lock-up and the purpose of the present petition apparently seems to prolong the confinement of the other party in jail and to drag their trial (which we are told is own in the last phase). This petition which thus lacks bona fides has no merit and is dismissed.

3. Taking up Criminal Petition for Special Leave to Appeal No, 365/79 it pertains to an order of the learned Sessions Judge dated 24-4-1978 whereby he rejected bail application of the petitioners or cancelled their bail. The petitioners tried to get that order quashed from the High Court but their application (Criminal Miscellaneous 475-Q/79) was dismissed on 12-7-1.979. However, it is stated that the petitioners later on were granted bail. The present petition, the learned counsel, submitted, in the circumstances and developments above-mentioned constituted only an item of reference in support of the first mentioned Criminal Petition for Special Leave to Appeal No. 350/79 and by itself was not aimed at securing any other independent relief. Obviously the petition as such has no merit and is dismissed.

4. As regards Criminal Petition for Special Leave to Appeal No. 364/79, it is directed against certain proceedings of investigation which are being undertaken by the police with regard to the same occurrence which has given rise to the challan case against the other party and a complaint case against the petitioner. About that occurrence to clarify, now therefore in all three proceedings which are afoot ; (a) first is the challan case at the instance of the petitioners as per F. I. R. No. 253/77 against the accused mentioned therein (who may be called as the other party) under section 302/307/ 34, P. P. C. for the murder of Rashid; (b) second is a Cross Complaint Case No. 3 of 1978 lodged by the other party under section 307/34-5/324/148/149. P. P. C. is which the learned Sessions Judge has summoned only Nazeer Ahmad, Muhammad Amin and Munammad Tufail under sections 307/34, P. P. C. (on three counts) and Muhammad Iqbal under section 506, P. P. C., and (c) third is simply a further investigation of the same matter and occurrence which is being conducted by the police under instructions of the higher police officials. (The first two cases are in the Court of the learned Sessions Judge, Kasur, as already mentioned above). As regards the further investigation above-mentioned the police applied for obtaining warrants of arrest of the petitioners, so as to join them in that investigation. The learned, Magistrate granted the requisite warrants. Even though the police has not put up any challan against the petitioners so far but treating the issuance of warrants as tantamount to their being prosecuted for the same offence twice, they filed a petition being Criminal Miscellaneous No. 504-Q/79 for quashment of that action of the learned Magistrate. The petition was dismissed by the High Court on 12-7-1979. Hence this petition.

5. Learned counsel referred to Article 13 of the 1973 Constitution which deals with a "fundamental right" headed as "protection against double punishment and self-incrimination, "and lays down that "no person-(a) shall be prosecuted or punished for the same offence more than once ; or (b) shall, when accused of an offence, be compelled to be a witness against himself.'' The precise argument raised was that in the face of a complaint case against the petitioners and a challan case against the other party about the case occurrence the police could neither make any further investigation and nor could they apply for obtaining warrants for their arrest. The contention ha; no merit and the petition filed by the petitioners in the High Court under section 561-A, Cr. P. C. for (in a way) quashment or stoppage of polio investigation was misconceived. It is well settled that section 561-A, Cr. P. C cannot be invoked for such relief. See Emperor v. Khawaja Nazir Ahmad (AIR1945PC18) Moreover, as there is no second prosecution as yet against the petitioners for the same offence therefore Article 13 is also not, attracted inasmuch as the case is still at the investigation stage. Issuance of non-bailable warrants b the learned Magistrate was simply an act in aid of investigation and even otherwise all the petitioners now being on bail the basis of raising any grievance on that count also goes away. Furthermore as laid down in Muhammad Akbar v. The State and another (1) the power of investigation b police in case of cross version cannot be taken exception to.

6. The result is that this petition has no merit and is dismissed. For reasons to be recorded later these petitions were dismissed on 30-10-1979. The present judgment provides the reasons for that order. s. A. H.? Petition dismissed. (1) 1972 , S C M R 335