1. MISS AALIA NEELUM, J.--- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the following prayer has been made:--- "that the instant writ petition may graciously be accepted while declaring the orders dated 15-2- 2013 and 23-2-2013 as illegal, void ab initio, ultra vires and nullity in the eyes of law, and having no effect on the notified official status of the petitioner. It is also prayed that the questionable orders be suspended, till the finalization of writ petition, having effect from the day of its issuance as it is continuous wrong; furthermore the respondent No.5 may also be directed to restrain to meddle in the guise of Inquiry as the powers to initiate any action against any delinquent are integral part of the set of powers conferred upon the Board of Governors. The respondent No.2 may kindly be directed to release the last 6 months pay of the petitioner with immediate effect."
2. 2.Notice was issued to the respondents and comments were called and the same were submitted by respondents Nos.2, 3 and 5.
3. 3.At the very outset the learned Law Officer raised objection that the instant writ petition is not maintainable as the petitioner had earlier filed Writ Petition bearing No.6085 of 2013 on the same grounds with the same prayer and presently orders impugned dated 15-2-2013 and23-2-2013 have been implemented as respondent No.3 conducted inquiry and after approval of judicial action against the culprits, the case F.I.R. No.67 dated 1-10-2003 registered under sections 409, P.P.C. and 5 of Prevention of Corruption Act, 1947 was got lodged, all these material facts have rendered the petitioner disentitled to the grant of equitable relief in writ petition.
4. 4.Learned counsel for the petitioner in reply to the aforementioned objection submitted that in the earlier writ petition, the petitioner had only prayed for declaration that the Inquiry Committee constituted by respondent No.3/Commisioner, Sahiwal Division, Sahiwal is without any lawful authority and the same is coram non judice and he has no authority to constitute the committee whereas in the instant petition, the petitioner has prayed that the orders dated 15-2-2013 and 23-2- 2013 be declared as illegal, void, ab initio, ultra vires and nullity in the eyes of law. Learned counsel for the petitioner has, therefore, submitted that the subject-matter of the present writ petition was different from that of earlier writ petition and orders dated 15-2-2013 and 23-2-2013 passed by respondents Nos.2 and 3 are without justification and the same are liable to be set aside. Learned counsel for the petitioner also contends that withdrawal of a writ petition at motion stage is no bar to the second petition filed even on the same facts and that the Civil Procedure Code, 1908 cannot be applied to the case of the petitioner for exercise of extraordinary writ jurisdiction.
5. 5.I have heard the arguments advanced by the learned counsel for the parties at length and have minutely perused the record annexed with this petition.
6. 6.The record annexed with this petition reflects that earlier the petitioner filed Writ Petition bearing No.6085 of 2013 which was withdrawnbythelearnedcounselforthepetitionervideorder dated 11-6- 2013 which is reproduced hereunder in extenso:--- "Learned counsel for the petitioner submits that the subject-matter of the petition is under consideration before the Chairman, Board of Governors, Cadet College, Okara who has called for comments from the Commissioner, Sahiwal Division, Sahiwal/respondent No.3. In this view of the matter, he does not press this petition for the time being. Dismissed as withdrawn."
7. However, the following prayer was made in the earlier writ petition filed by the petitioner which reads as under:--- "that the instant writ petition may kindly be accepted and it be declared that the Inquiry Committee constituted by the respondent No.3 has been constituted without any lawful authority and same is coram non judice and has no authority to constitute the committee in the best interest of justice."
8. 7.It is true that in first Constitutional petition, the petitioner had prayed only for declaration to the effect that the Inquiry Committee constituted by respondent No.3/Commissicner Sahiwal Division, Sahiwal be declared without any lawful authority and the same is coram non judice and has no authority to constitute the committee in the best interest of justice whereas in the present writ petition, the petitioner has also sought declaration with the prayer that the order dated 15-2-2013 and 23-2-2013 passed by respondents Nos.2 and 3 be declared illegal, void ab initio, ultra vires and nullity in the eyes of law, and having no effect on the notified official status of the petitioner. This, however, does not make any material difference because the petitioner's case in both the petitions is basically the same. The petitioner had assailed constitution of Inquiry Committee conducted by respondent No.3 and seekingthesamereliefofquashingofordersdated15-2-2013and 23-2-2013 passed by respondents Nos.2 and 3. It will be relevant to mention here that respondent No.3 vide order dated 15-2-2013 constituted an Inquiry Committee to probe into every affair of the College, whereas respondent No.2 vide order dated 23-2-2013 transferred the petitioner from Cadet College. The earlier writ petition wasfiledon12-3-2013andatthattimetheimpugnedorderdated 23-2- 2013 was in field but the same was not assailed. The basic question, therefore, is whether the petitioner having withdrawn his earlier writ petition can maintain the present writ petition as prayed for. In my view the petitioner having abandoned this relief by withdrawing the earlier writ petition, cannot file a fresh petition to re-agitate the same relief with the same grounds, as he had withdrawn his earlier writ petition unconditionally and without any permission to file a fresh one for the time being. It is settled principle of law that principles of Civil Procedure Code are applicable in the Constitutional proceedings as per law laid down by the Hon'ble Supreme Court of Pakistan in case of Hussain Bakhsh's case reported as (PLD 1970 SC 1). It is also held by the Hon'ble Supreme Court of Pakistan in the case of Pir Bakhsh v. The Chairman Allotment Committee (PLD 1987 SC 145) that second writ petition qua the same subject-matter and the relief claimed for is not maintainable in view of section 11 of Civil Procedure Code, 1908. The petitioner withdraw the earlier writ petition unconditionally and he did not seek any permission to file a fresh writ petition in respect to the same subject-matter as contained in Order XXIII, Rule 1 of C.P.C., as he did not withdraw the same on any technical or any formal defect. The plea of learned counsel for the petitioner that earlier he did not assail the order dated 23-2-2013 has no force because it is a fundamental principle of law, applicable to the writ petitions as well as the suits, that a point or a ground, which was available to the petitioner and was not taken by him in the earlier will be deemed to be refused or abandoned. Therefore, the order dated 23-2-2013 was not passed after filing of earlier writ petition as the same is filed on 12-3-2013. Even otherwise the contents of the Constitutional petition and parawise comments filed by respondents Nos.2, 3 and 5 are put in a juxtaposition that it brings the case in the ambit of disputed question of facts and this Court has no jurisdiction to resolve the disputed question of fact in the Constitutional jurisdiction as held by the Hon'ble Supreme Court in case of Muhammad Younas Khan v. Government ofN.-W.F.P. and others (1973 SCMR 618) and in the caseofCol.ShahSadiqv. MuhammadAshiqandothers (2006 SCM R 276).
9. 8.For what has been discussed above, the Constitutional petition is dismissed as not being maintainable. Since the main case has been dismissed, therefore, the C.Ms are also dismissed as having become infructuous.