' AMER RAZA NAQVI, J.---The appellant was tried by Special Judge for C.N.S Larkana in Special Case No.107 of 2009 for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 arising out of Crime No.128 of 2009 of P.S. Hyderi and he was convicted under section 9(b) for the charge framed on 25.05.2010 against him and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.25000/=, in default of payment of fine he was to further undergo S.I. For three months more. Appellant was also granted benefit of section 382(b), Cr.P.C. Such conviction was awarded by the trial Court through judgment passed in the above matter on 14.09.2011. Such judgment was impugned in this appeal, which was allowed on 18.02.2015 and appellant was acquitted for the charge framed against him by the trial Court through short order, following are the reasons for such short order:-- ' The allegation against the appellant contained in the charge was that on 15.09.2010 at about 1400 hours on road leading towards Akil near Jamali Curve Beat No.4, Channa Village, Larkana, he on seeing police party fled. Towards northern side and police party found one sack containing five pink colour Whiskas written shoppers of charas weighing 5 k.g. Charge was framed under section 9(c) Control of Narcotic Substances Act, 1997.
' Prosecution in support of their case examined three witnesses two being witnesses of recovery namely P.W Mushtaq Ahmed and P.W Abdul Hayee whereas P.W Sajjad Hussain was Investigation Officer of the case. Both the witnesses of recovery supported the case of prosecution and claimed that above mentioned contraband item was recovered from the accused at the time and place mentioned in the charge. The charas so recovered was sent to the Chemical Examiners at Rohri and Karachi and the reports were positive.
' Appellant challenged the impugned judgment through present appeal. In support of his appeal learned counsel for the appellant submitted that the recovery was not made from the accused and even in the charge and FIR it is not claimed that the recovery was from the person of the accused or accused was arrested in possession of charas. He submitted that name of the accused has been mentioned in the FIR on account of some enmity. He further submitted that there are material contradictions with regard to the recovery of charas therefore, the impugned judgment can not sustain in the law and appellant is entitled to be acquitted of the charge framed against him.
' On the other hand, D.P.G appearing on behalf of the State submitted that both the witnesses have supported the case of the prosecution and case has been investigated by another officer therefore, no mala fide is involved in this case. He submitted that the conviction and sentence awarded to the appellant is strictly in accordance with the law and is based on evidence.
' We have heard learned counsel appearing in the matter and have perused the record with their assistance.
' In this case according to allegations accused had fled away by dropping the charas in the garden and also dropping his bicycle in which charas was lying. In such situation, it can not be said that the recovery was made from the exclusive possession of the appellant. Strangely enough the charge on the contrary states that accused was in possession of the charas in contravention of provisions of section 6 of Control of Narcotic Substances Act 1997. For the sake of arguments if it is believed that police has found the charas at the place mentioned in the charge there is no sufficient evidence available on the record that present appellant was the same person who left the charas at the time and place mentioned in the charge. The evidence of the prosecution is absolutely silent on this point that how the accused was identified and the case of prosecution in this respect is not free from doubt. Complainant admitted in cross that he did not know the accused, he claimed that PC Ali Gohar had pointed out that he was the same person, said PC Ali Gohar was not examined by the prosecution.
' Complainant Mushtaque Ahmed while deposing before the trial Court also stated that the police party separated one patti of the charas divided equally which became 500 grams each for dispatching it to the laboratory. He also stated that charas was sealed separately under memo of recovery which was prepared by PC Ali Gohar as mentioned above he was not examined by the prosecution.
' On the other hand, investigation Officer stated that property handed over to him comprised two parcels each containing 500 grams one to be sent to Chemical Examiner Rohri and other to the Chemical Examiner Karachi and third parcel containing 4 k.g. Was the remaining recovered material. This fact is not mentioned by the complainant in his statement and in such circumstances, it was necessary for the prosecution and learned court sent her to `Dar-ul-Aman'.
Thereafter the petitioner through an application, got recorded her statement before the learned Additional Sessions Judge, Jhang to the effect that she wanted to accompany her husband, she was released from `Dar-ul-Aman' Jhang on 08.08.2014 and since then she is residing with her husband Saif-ulMalook. Learned counsel for the petitioner after referring the documents available on the file in support of his above contentions further maintains that the petitioner is happily residing with her husband and that despite her statement respondent/police officials being in connivance with respondent No.4 are not ready to prepare the cancellation report of the case.
Learned counsel also contends that Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973, provides protection to the marriage and family life but the petitioner is being deprived of the same. Learned counsel finally argues that petitioner is carrying eight months pregnancy out of her wedlock with Saif-ul-Malook and craves for quashing of the FIR by invoking constitutional jurisdiction of this Court to rescue the petitioner and her husband and to provide them the protection guaranteed by the Constitution.
3. Conversely, learned counsel appearing on behalf of respondent No.4 maintains that the petitioner is also the accused of impugned crime report and she is continuously misusing the concession of pre-arrest bail. He further contends that 'Nikah' of petitioner with Saif-ul-Malook co- accused is a forged and fabricated document. In fact she is wife of the complainant/respondent No.4. The petitioner herself filed a suit for dissolution of marriage on 05.07.2014 before the learned Senior Civil Judge, Toba Tek Singh, wherein she admitted that four months earlier she entered into marriage with Ghulam Shabbir complainant and performed her marital obligations. In the said suit, she has nowhere mentioned that her thumb impression on 'Nikah Nama' was obtained forcibly by her elders and her signatures in English were fake. Learned counsel further contends that she also mentioned in her said suit that Ghulam Shabbir her husband is a man of bad character and she was not being provided her maintenance and he (Ghulam Shabbir) also used to ask her to bring cash from her parents; that petitioner is living an immoral life with her co-accused Saif-ul-Malook and is liable to be punished through the prosecution of the instant case under the law. Learned counsel for respondent No.4 finally argues that after the completion of investigation as directed by this Court while passing the order dated 30.10.2014 in connection with Writ Petition No.22253 of 2014 purely on merits, the police has sent report under Section 173 Cr.P.C. To the learned trial court on 13.02.2015 and now learned trial Court is ceased with the trial which is in progress.
4. Learned Assistant Advocate General opposes the petition on the ground that the FIR is not to be quashed especially When the challan has been submitted before the learned trial court.
5. Having heard the learned counsel for the parties, learned Assistant Advocate General and perused the available record, this Court has Observed that petitioner earlier filed a Writ Petition No.22253 of 2014 for the same relief and on 30.10.2014 while disposing of the same, my Hon'ble brother Manzoor Ahmad Malik, J. Observed as under:-- ' "The matter involves factual controversy which cannot be resolved by this Court in writ jurisdiction.
The investigating officer of this case is directed to conclude the investigation on merits after considering all the material available on record. With the above direction, this petition stands disposed of." (underlined by this Court) which transpires that the instant writ petition is second petition on the same subject by the petitioner which is barred by law, the principle of res judicata. In this regard reference can be made to the case titled Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others (2012 SCM R 366).
The Honourable Supreme Court of Pakistan has also deprecated the practice of filing more than one writ petition on the same facts with different pleas at different times as is evident from the observations made by the august Court in case titled Mirza Muhammad Yaqub v. (1) The Chief Settlement Commissioner, Lahore, and (2) Syed Sadiq Hussain Zaidi (PLD 1965 Supreme Court 254) that reads as under:-- "A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review if such a petition be maintainable. The general principle of res judicata is applicable to writ petitions also."
' Moreover, the trial of this case is pending before the competent court and petitioner is having alternate remedy in the form of filing application under Section 249-A, Cr.P.C. In such like situation, guidance can be sought from the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in the cases titled Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969) and Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others (PLD 2013 Supreme Court 401). It would be advantageous to reproduce the relevant portion of tie above latter referred judgment which reads as under:-- "The law is quite settled by now that after taking of cognizance of a case by a trial court the F.I.R.
Registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. To seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction."
6. In view of all discussed above, the instant petition is dismissed being not maintainable.