ORDER HASSAN RAZA PASHA, J.---Through this writ petition the petitioner has challenged the order dated 2-9-2010 passed by learned Judicial Magistrate, Section 30, Islamabad,
2. Brief facts giving rise to this writ petition are that a legal point was raised before learned trial Court during trial of case F.I.R. No.94 dated 1-5-1999 under sections 324, 109 and 506/34, P.P.C.
Registered at Police Station Kohsar, Islamabad that as per Order of this Court dated 11-12-2001 petitioner has been acquitted of the said case. Learned trial Court after hearing the arguments decided to proceed further in the case against the petitioner as well vide impugned order dated 2- 9-2010.
3. Learned counsel for the petitioner contends that petitioner filed Writ Petition No.3395-Q of 2001 before this Court, which was decided on 11-12-2001 and Challan was ordered to be corrected by effacing the name of petitioner. It is next contended that exclusion of name of petitioner from Challan is quashment of proceedings and this order attained finality, as it was never challenged before any forum. It is further contended that conclusion drawn by the learned trial Court is perverse, based on mala fide and against law. The Order passed in Writ Petition No.522 of 2002 was obtained by concealing the real facts. It is further contended that once name of petitioner was struck down by this Court then investigating agency had no right to submit Challan against the petitioner, which is in violation of section 403, Cr.P.C. And Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
4. I have heard the arguments advanced by learned counsel for the petitioner.
5. Earlier petitioner filed Writ Petition No.3395 of 2001 before this Court in which he impleaded his real were as respondent No.2 wherein my learned Brother Mr. Justice Ali Nawaz Chohan passed the Order dated 11-12-2001, the relevant Para is reproduced as under:-- "This being the position, the question is whether a case is at all made out against the petitioner and whether a complainant could be allowed the liberty to keep on changing the versions through statements. The answer is in the negative. When something is built on mala fide, it is destitute of any status in law. We have to protect the abuse of process wherever it is taking place. The inclusion of the name of the petitioner through the third report was without basis and this is also admitted by the Inspector/S. H.O. Before this court. As this inclusion has no basis, it has to be effaced through correction in the Challan to the extent it mentions the name of the petitioner. Order accordingly."
Thereafter the complainant of instant F.I.R. Filed another Writ Petition No.522 of 2002 before this Court, which was presented before the same learned Bench who vide Order dated 29-3-2002 observed as under:-- "The solution to the problem shall lie if the matter is referred to the SSP, Islamabad with directions that he considers referring it to a Senior Investigating Officer of the rank of SP, who after hearing both sides shall take a decision whether Malik Tariq who has been named in the F.I.R. As an accused, is also to be proceeded against as well as Malik Mushtaq accused, against whom it is alleged that he was not being arrested. The new Investigating Officer shall act in accordance with law and shall not be prejudiced by any of the previous investigations/ findings. The SSP, Islamabad shall be submitting a compliance report to this court through its Deputy Registrar (J) by the 22nd of April, 2002."
6. A s per direction passed by this Court vide Order mentioned above SP submitted report showing involvement of the petitioner in the case and thereafter if any report under section 173, Cr.P.C. Was submitted while placing the name of petitioner in Column No.2 and learned trial Court summoned him the same was in compliance of Order passed by this Court. Petitioner never challenged the Order dated 29-3-2002 and accordingly appeared before learned trial Court along with his co- accused. Even the petitioner received copies of statements of witnesses under section 161, Cr.P.C.
And affixed signatures and thumb impression on order sheet and thereafter charge was also framed on 24-8-2008 and once again the petitioner affixed his signature or thumb impression.
Thereafter the petitioner kept on appearing on each and every date of hearing along with the co- accused. It is pertinent to mention here that he duly appointed his counsel who also cross- examined the prosecution witnesses on his behalf and he never challenged the proceedings throughout. As a matter of fact, in the Writ Petition No.3395 of 2001 the F.I.R. Was not quashed, however, it was directed by this Court to make correction in the Challan to the extent of name or petitioner. The arguments advanced by learned counsel for the petitioner could have some weight had this Court ordered for quashment of F.I.R. So in the absence of any order of quashment, the name of petitioner cannot be directed to be were out. Instant petition is dismissed in limine. As the matter pertains to the year of 2001 and trial of the case has not yet been concluded so the learned trial Court is directed to conclude the trial expeditiously with intimation to Deputy Registrar (Judicial) of this Court.