2016 PLP 881 (MLD)

QALANDAR ALI KHAN, J.

Faridoon and Gulab Riaz, petitioners, have filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for declaration to the effect that order dated 20.11.2012 of the Ex-officio Justice of Peace/ASJ-III, Abbottabad, (respondent No.3) is against law, facts and evidence on record, without jurisdiction and without lawful authority, whereby section 302, P.P.C. has been added by respondent No.3 in case FIR No.1045 dated 04.11.2012 under Sections 319/34, P.P.C. Police Station Cantt: Abbottabad.

3. The main grievance of the petitioners is that the case against them was registered under Sections 319/34, P.P.C. vide FIR No.1045 dated 04.11.2012 in Police Station Cantt: Abbottabad, and they had also secured Ad-interim pre-arrest bail from the Court, but on the application of complainant/respondent No.2, Muhammad Parvez, the Ex-Officio Justice of Peace directed the SHO Police Station Cantt: to include Section 302, P.P.C. in the FIR, which was beyond the scope of Section 22-A, Cr.P.C., thus falling outside the jurisdiction of Ex-Officio Justice of Peace.

4. The record would show that complainant/respondent, reported to the police that his daughter, Mst Shangi1 married to Gul Riaz, petitioner No.2, about two years ago, was driven out from his house by the latter after subjecting her to beating and snatching away four months old son, Faizan, from her and that the petitioners had also forcibly taken her to Sheikh Dhari from hospital where she was admitted for treatment a few days back and when he went to Sheikh Dhari to enquire about her health, he found her lying in semi conscious condition with her left hand burnt, probably, due to physical violence by her husband Gul Riaz (petitioner No.2), and father in law, Faridoon (petitioner No.1). Mst Shangi died in the hospital on 22.10.2012, leading to registration of the case under Section 319/34, P.P.C. vide FIR No.1045 dated 04.11.2012, in Police Station Cantt: Abbottabad.

5. At the very outset, the learned Additional Advocate General submitted copies of two charge sheets framed in the case, one by learned Additional Sessions Judge-III, Abbottabad, on 06.04.2013, under Section 319, P.P.C. against accused Arshad, apparently named subsequently in the case; and the other by learned Additional Sessions Judge-VII, Abbottabad, on 04.06.2013, under Section 302/34, P.P.C. against the petitioners.

6. There can be no cavil about this proposition that once charge is framed by the trial Court, keeping in view facts of the case and relevant provisions relating to framing of charge under Chapter No.XIX of the Criminal Procedure Code 1898,the sections of law applied in the case by the police /prosecution at the time of registration of FIR, during investigation and at the time of submission of challan become irrelevant and of no significance, as the trial Court enjoys discretion, of course, within the parameters of law, to frame charge in the light of facts and evidence available on record, regardless of the sections of law applied in the FIR or complete challan by the police/prosecution. In other words, the question of application of sections of law is rendered only academic after completion of investigation and submission of challan to the Court.

7. Moreover, even the sections of law under which an accused is charged by the trial Court are subject to alteration/variation "at any time" before judgment is pronounced, under Section 227, Cr.P.C. In any case, there would be no justification to invoke the constitutional jurisdiction of this Court when other adequate remedies are available at different stages in ongoing proceedings, not yet culminated to the detriment of a person bringing him within the definition of 'an aggrieved' person and thus accruing a cause of action in his favour under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

8. While reiterating strict adherence to the provisions of section 22-A, Cr.P.C. in its letter and spirit by the learned Justices of Peace, the writ petition is dismissed, being not maintainable for the forgoing reasons. HBT/283/P Petition dismissed.