1997 P Cr (PLP)

The petition has been filed by the petitioner and his grievance in the petition is that the respondent No. l be directed to lodge an F. I. R. of which pro forma has also been file] with the petition itself. In relation to the same incident and F.J.R. No.43 of 1997 has already been lodged by one Sher Bahadur, which was recorded at Saddar Police Station on 4-3-1997. The contents of F.I.R. are follows:-- "Sher Bahadur son of Ghulam Haider, resident of House No.296 recorded that he resides on the above address and works on Shahji's Hotel Mir Karam Ali Talpur Road and near this Hotel another Hotel Al-Qadir is situated where Manager Mehtab Gul son of Wali Gul is working as Manager, when at midnight four persons entered the hotel as customers and after some time they started firing when he and the Manager of other hotel tried to catch hold of them on which they with intention to kill started direct firing on them which hit on the arm of the complainant and on the palm of Manager Mehtab .Gul and they both fell down and started bleeding from their injuries and they could identify them when produced. This incident has happened at 00.15 hours. The particulars of the accused was 5' 7" and aged about 35 to 36 and from their appearance they appeared as Pathan. The other accused aged about 21/22 years with beard also appeared to be Pathan, the third 21/22 years height 5'-6" of fair colour also appeared to be Pathan. This incident was witnessed by Abdul Aziz and others. The accused persons had fired with intention to kill them. Hence this F. I. R." The grievance of the petitioner is that in the F.I.R., which he proposes to lodge against the accused persons is that he has disclosed the names of persons who committed Haraba in terms of Article 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979. In the parawise comments it has been stated by the S.H.O. that the petitioner is an eye-witness of occurrence and because he was also injured alongwith the complainant; therefore, section 324 of the was and Diyat Ordinance has been initially stated to be the law which was violated by the accused persons. While during the course of enquiry, because it was revealed and a sum of Rs.46,000 has been robbed from the petitioner the offence is also registered and enquired under the provisions of Article 17(3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 and challan has been filed against accused including the accused named by the petitioner in his proposed F.I.R., who are absconding and such fact is mentioned in challan. Mr. Abdul Ghani Shaikh, learned Addl. A.-G. has drawl, my attention to section 239 of the Code of Criminal Procedure and clause (a) hereof read as follows:--

239. What persons may be charged Jointly:-- The following person may be charged and tried together, namely:-- (a)??????? persons accused of the same offence committed in the course of the same transaction; ???????????

Mr. Abdul Ghani Sheikh, learned Additional Advocate-General stated that still if the complainant/petitioner wants to set the law in motion on his own he may file a private complaint and in case of private complain as well as the case on the basis of challan filed by the State in relation to the same incident, the private complaint will proceed first. According to Mr. Abdul Ghani Sheikh, learned Additional Advocate-General the petitioner has alternate remedy of direct complaint and, therefore, no case has been made out for exercising the Constitutional powers of this Court. The purpose of lodging the F. I. R. is to set the criminal law ill motion. The number of cases to be registered against the persons are immaterial. If the offence is committed in the same series and several offences arc alleged to have been committed, all such offences ought to be included to the final challan submitted before the Court and such steps which is beginning of trial of accused persons in the trial Court and the last act or the part of the administration charged for investigation in relation to an offence. Admittedly 11 this case the offence alleged to have been committed is also mentioned in the challan submitted before the trial Court. The petitioner is an eye-Witness and shall narrate the event before the trial Court during the course of trial. No useful purpose would .be served for registering another F.I.R. in relate to the same incident and in the same series. Moreover, the petitioner has alternate remedy of direct complaint as well. For these reasons and also as the petitioner has alternate remedy, consequently this petition is dismissed with no order as to costs. N.H.Q./M-192/K ?????????????????????????????????????????????????????????????????????????????? Petition dismissed.