2004 PLP 713 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred for grant of leave to appeal against the judgment dated 18-4-2001 passed by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, in Writ Petition No.2317 of 2000 filed by the present petitioner under Article 199 of the Constitution. The relevant facts in small compass giving rise to this petition are that as a result of a quarrel taken place between the petitioner side and the private respondents, a case under sections 302/148/149/324, P. P. C. was registered against the present petitioner and others vide F.I.R. No.86 of 1999 at Police Station Tamman Tehsil Talagang District Chakwal. During the course of investigation of the case, the complainant party was also found to have committed offences under sections 148/149/324/337-A(ii), 337-A(iii), 337-L(ii), P.P.C. and consequently a separate challan containing the counter-version was also submitted against the complainant party by the local police which remained pending in the Court of Magistrate without sending it to the Sessions Court for trial alongwith the trial in the murder case registered against the petitioner and others, therefore, the petitioner moved an application in the Lahore, High Court, Lahore, which was disposed of with the direction to the Magistrate for early sending the case to the Court of learned Additional Sessions Judge, Chakwal, who was seized of the trial of the murder case. The Magistrate concerned instead of sending the case to the Court of learned Additional Sessions Judge, in compliance of the directions of the High Court, returned the challan to the Inspector Legal and meanwhile, the Deputy Inspector-General Police of the Range on an application moved by the private respondents, ordered for the re-investigation of the case against them and in consequence to the re-investigation, the local police in the light of opinion expressed by the Investigating Officer, got discharged the accused from the concerned Magistrate. The petitioner being aggrieved of the order of discharge of the accused passed by the Magistrate filed a Constitution petition in the Lahore High Court, Rawalpindi Bench, which was disposed of through the impugned judgment with the following observations:-- "

10. The petitioners side in this case had two options. They could challenge the discharge order and at the same time could also file a private complaint before the trial Court already seized of the report under section 173, Cr.P.C. submitted against their opposite side before the learned Additional Sessions Judge. It appears that they did not avail of the option for filing a private complaint and allowed the trial in the challan case against them to continue. And thus having acquiesced the chance available for lodging the private complaint was lost. It is now too late in the day for them to pursue for submission of any additional report under section 173, Cr.P.C. to be lodged on the basis of their version of the occurrence, and asking for a re-trial of their version now. " Learned counsel for the petitioner has contended that the local police having found the private respondents responsible for committing the offences under sections 148/149/324/337-A(ii), 337-A(iii), 337-L(ii), P.P.C. submitted challan against them and the Magistrate was bound to send it to the Court of learned Additional Sessions Judge under section 190(3) of the Cr.P.C. for their trial with the murder case but the learned Magistrate without any legal excuse at the first instance instead of sending the case to the learned Additional Sessions Judge as per direction of the High Court returned it to the Inspector Legal and subsequently on the request of police discharged the accused from the case which caused injustice to the petitioner and his co-accused in the murder case. Learned counsel contended that the defence of the accused in the murder case was seriously prejudiced as their version was not allowed to be brought before the Court but the learned Judge in Chambers in the High Court without attending this aspect of the matter and considering the serious consequences flowing from the order passed by the Magistrate and also the manner in which he acted, dismissed the writ petition in undue haste without proper exercise of the discretion. Learned counsel, however, when confronted that the petitioner instead of agitating the matter before the High Court for setting aside the discharge order could conveniently avail the remedy of filing the private complaint on, the basis of the facts relating to the counter-version brought on record during the investigation and at the same time could also plead the said version in his defence in the murder trial, he submitted that although the remedy of private complaint was available to the petitioner but subsequent to the submission of challan by the police in a case triable by the learned Additional Sessions Judge; the Magistrate had no option except to send it to the Court of competent jurisdiction, therefore, notwithstanding the availability of remedy of private complaint, it was a fit case for interference by the High Court. We having heard the learned counsel for the petitioner at length, find that the occurrence in the present case took place in the year 1999 whereas the order relating to discharge of private respondents was passed by the Magistrate on 11-9-2000 and during the intervening period the trial against the petitioner and others in the murder case, was concluded. In consequence to the first investigation, the local police in the light or cross-version in the murder case against the petitioner and others also challaned the private respondents for 'the charge under sections 148/149/324/337-A(ii), 337-A(iii), 337-L(ii), P.P.C. and while this challan was still pending with a local Magistrate, a fresh investigation was conducted under the order of D.I-.G. in which the said respondents were found innocent and on the request of police were discharged by the Magistrate. The petitioner instead of availing the alternate remedy of filing a private complaint, preferred to challenge the discharge order through a Constitution petition and meanwhile the proceedings in the murder case stood concluded, therefore, it would be a futile exercise for the High Court to interfere in the matter at the belated stage. We are, therefore; of the view that in the given circumstances, the learned Judge in the High Court has rightly declined to interfere in the matter. The learned counsel for the petitioner has contended that in the light of the observations made by the learned Judge in Chambers of the High Court, the petitioner would no more be in a position to avail the remedy of private complaint and at the same time, he would be caused prejudice in appeal in the murder case which is still pending in the High Court for disposal. We are afraid, the appeal in the murder case will definitely be decided on the basis of its own facts and merits and the refusal of the High Court to interfere in the order in question would not cause arty prejudice to the petitioner in the appeal. The order of the High Court being unexceptional, does not call for interference and: accordingly, we dismiss this petition. Leave is refused. S.A.K./A-301/S Leave refused.