Kh. Muhammad Sharif, J.--This judgment will dispose of Intra Court Appeal Nos, 452 and 453 of 2002 filed by Asad Mahmood Cheema, Inspector and Muhammad Arif Gondal, Inspector against the judgment dated 13.9.2004 passed in Writ Petition No, 12309 of 2004 whereby FIR No, 168 registered under Section 5 of the Punjab Prevention of Gambling Ordinance, 1978 with Police Station Sadar Lala Musa, District Gujrat was quashed and a criminal case was ordered to be registered against the present appellants under Sections 453, 395 PPC read with Section 156 of the Police Order, 2002.
2. Mr. Aftab Ahmad Bajwa, learned counsel for the appellants submits that cognizance of the case having been taken by the trial Magistrate after submission of the challan and one of the accused having confessed the guilt, there was no occasion for the High Court to interfere in its Constitutional jurisdiction because according to learned counsel, writ jurisdiction being an extraordinary jurisdiction can only be invoked when there is no other adequate and alternate remedy. For this proposition of law, learned counsel has relied upon PLD 2005 SC 831.
3. On the other hand, learned counsel for the writ petitioner submits that in view of the law laid down in the case of Nawazul Haq Chowhan vs. The State (2003 SCM R 1597), Intra Court Appeal against the order of a single Judge of the High Court passed in Constitutional jurisdiction under Article 199 of the Constitutional quashing the FIR is not maintainable.
4. Mr. Tahir Mahmood Gondal, learned AAG submits that an alternate remedy being available to the writ petitioner, writ petition was not maintainable. For this view, the learned law officer has relied upon 2006 SCM R 1957.
5. We have heard learned counsel for the parties at length. First of all we should address ourselves to the question of maintainability of this Intra Court Appeal. In this regard, we may rely upon the case of Pakistan International Airlines vs. Samina Masood and others (PLD 2005 SC 831) wherein their lordships of the Hon'ble Apex Court ruled that an order having been passed under Article 199 of the Constitution, we appeal able before two or more Judges of the same High Court. The Apex Court of the country has taken similar view while deciding CP No, 1684/L of 2006 decided on 31.7.2006.
So far as merits of the case are concerned we are of the considered view that in the facts and circumstances of the case when after submission of the challan the trial Magistrate has taken cognizance of the matter and a co-accused of the writ petitioner had made confession, the writ petition was not maintainable as the writ petitioner had a remedy before the trial Court to seek his acquittal by filing a proper petition. The learned law officer was thus right in relying upon 2006 SCM R 1957 wherein their lordships of the Apex Court observed that in a case where an alternate remedy is available to a petitioner and without availing of that remedy first it was not proper for the High Court to invoke its Constitutional jurisdiction. The order impugned herein are thus not legally sustainable.
For what has been discussed above, both the above titled Intra Court Appeals are allowed and as a result thereof the order dated 13.9.2004 passed in Writ Petition No, 12309 of 2004 is set aside.