' SHAHID HAMEED DAR, J.---The petitioner. Khawaja Muhammad Hussain Khateeb once instituted Writ Petition No,28613 of 2014 under -Article .199 of the Constitution of Islamic Republic of Pakistan, 1973 with the prayer that learned trial court's (Magistrate 1st Class, Sialkot) order dated 26.10.2010 might be set 'aside besides the respondent 1.0. Might be proceeded against in the light of order dated 16.7.2011 passed by a learned Additional Sessions Judge at Sialkot and proceedings of the cross-version/case might be stayed till disposal of the said writ petition, and withdrew it on 28.10.2014 by adopting the plea, as to pendency of Writ Petition No,17231 of 2011 then without 'eeking the permission to institute it afresh.
2. The relevant facts of the case in brief, are that petitioner is the complainant of case-FIR No,171/2009, dated 4.4.2009. For offences under sections 420, 468, 471, P.P.C. Police Station Uggoki District Sialkot which was registered against Asif Muhammad Sulehri (respondent No,8) and others including Dr.Muhammad Arif Malik, Dr.Zahid Ghani Dar and Sajjad Ghani Dar; the investigating officer on finalizing the investigation found the case false and submitted a cancellation report under section 173, Cr.P.C. Which was agreed to by the learned area magistrate Sialkot vide order dated 26.10.2010 the impugned order. The investigating officer also recorded a crossversion/case during investigation of the above-noted FIR case against Khawaja Muhammad Hussain Khateeb (petitioner) which stood the test of investigation and a challan under section 173, Cr.P.C. In respect thereto, was submitted before the learned trial court, wherein the petitioner's trial is still underway.
The FIR case has, however, gone extinguished after the afore-noted developments.
3. Before proceeding further, it may not be out of place to mention here that the petitioner filed a revision petition against the above- said order of the learned area magistrate, which was allowed by the learned Additional Sessions Judge, Sialkot on 19.7.2011. Asif Muhammad Sulehri assailed the order of the revisional court through Writ Petition No,17231 of 2011, which was allowed by this court vide judgment dated 10.1.2.2014, resulting in annulment of the revisional court's order and resuscitation of the learned area magistrate's order dated 26.10.2010, which has been impugned herein.
4. Learned counsel" for the petitioner was confronted with the crucial question of maintainability of this petition, after dismissal of the earlier one on the same subject on 28.10.2014, as the petitioner did not seek a permission from this court to institute it again, if he ever so needed. He has submitted that the petitioner committed no offence still he was going through the rigours of a regular trial in the cross-case and those who in reality, committed the crime had been let-off by the learned area magistrate through the impugned order, which rendered the FIR case dead. He has further submitted that the withdrawal and dismissal of the earlier constitutional petition on the subject was conditioned with the outcome of Writ Petition No,17231 of 2011, which had been decided on a technical ground other than the merits, hence, petition-in-hand may not be viewed from the angle of its maintainability, in the backdrop of withdrawal of the earlier petition without permission to file a fresh one.
5. It may easily be perceived that learned counsel for the petitioner unequivocally understands as to what it exactly meant, when a constitutional petition is sought to be withdrawn without a permission for instituting it afresh and wouldn't it be invariably impossible to escape the bar, as contained in Order XXIII, rule 1(3) of the Code of Civil Procedure 1908, in such a situation. The main object of the above provisions is to avoid splitting of claim and restrict multiplicity of litigation in the matter. It would be advantageous to refer to the provisions of Order XXIII, rule 1(3), C.P.C., which read as under:- "1. Withdrawal of suit or abandonment at part of claim. ---(1) At any time after institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of the claim.
(2) Whether the Court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute fresh suit for the subject-matter of a suit or part of claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon each part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.
' It is an unquestionably settled principle of the law that provisions of the Civil Procedure Code 1908 would exclusively regulate and control the constitutional proceedings as laid down by the Hon'ble Supreme Court of Pakistah in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1). The subsequent constitutional petition on the same subject matter and the relief sought after, is not maintainable in view of section 11 of the Civil Procedure Code 1908, as held by the apex court in Pir Bakhsh v. The Chairman, Allotment Committee and others (PLD 1987 SC 145).
6. It cannot be assumed that dismissal of Writ Petition No,17231 of 2011 (supra) had generated a fresh ground in favour of the petitioner to file the instant petition. The order dated 28.10.2014, whereby earlier constitutional petition on the subject was dismissed as withdrawn clearly shows that no permission had ever been sought by the petitioner on the said occasion.To file a fresh one, in case there need be, hence, no such permission was accorded by this court then. The petitioner did not withdraw the earlier one on account of any technical or formal defect. The point or plea, which was available to him and was not taken by him in the earlier writ petition would be deemed to have been taken up and refused or abandoned.
7. A strong impression arises from the earlier dismissal order that the petitioner therein, who is none else than the petitioner herein, whimsically anticipated the outcome of Writ Petition No,17231 of 2011 (supra) going his way, otherwise he might have abstained from plainly withdrawing it, without lodging a request to file it again in the hour of need. He misconstrued the situation and committed such an error, the repercussions whereof, would terminally haunt the petition-in-hand and all those on the subject, still in the pipeline. It has been laid down by the Hon'ble Supreme Court of Pakistan in Hashim Khan v. National Bank of Pakistan (PLD 2001 SC 325) that withdrawal of suit without permission to file a fresh suit debars institution of any fresh proceedings. The petitioner certainly finds himself in a blind alley, so far as question of maintainability of this petition is concerned. It merits no other end but an outright dismissal. Done accordingly.