Briefly stated the facts are that real son of the petitioner namely Ghulam Rasool was brutally murdered whereas one Farman Sarwar was murderously assaulted by Ali Akbar, Muhammad Azam, Muhammad Aslam and Zulfiqar in furtherance of their common intention on 11-7-1998 at 9- 00 a.m. Accordingly F.I.R. No,148 of 1998, dated 11-7-1998 was registered on the statement of complainant/petitioner. Besides the petitioner the occurrence was witnessed by his sons namely Muhammad Sajjad and Farman Sarwar. Ghulam Sarwar succumbed to the injuries at the spot whereas Farman Sarwar was removed to Hospital. During the investigation all the P. Ws. Supported the prosecution case. However, without there being any iota of evidence to justify the same, the Investigating Officer being in league with accused party concluded that except Zulfiqar all other three accused persons namely Ali Akbar, Muhammad Azam and Aslam were innocent. The petitioner being dissatisfied with the said finding of the local police got the investigation transferred to D.S.P. Headquarters Munir Ahmad Bhatti. As a result of investigation of D.S.P. Azam and Zulfiqar were found guilty whereas Muhammad Aslam and Ali Akbar were found innocent. The accused persons being influential got the investigation transferred to A.S.P. Saddar who did not come to any conclusion and in the meanwhile the petitioner got the investigation transferred to Additional S.P. Who agreed with the investigation conducted by the local police. As the investigation was not being conducted honestly, fairly and justly, the petitioner filed a private complaint reiterating his version appearing in F.I.R. Referred above. The learned Additional Sessions Judge recorded the statement of petitioner and referred the matter for enquiry under section 202, Cr.P.C. To Mr. Akhtar Bahadur, Civil Judge/Judicial Magistrate who is still seized of the matter. The Investigating Officer being in league with the accused party did not comply with the provisions of section 173, Cr.P.C. And got the accused Muhammad Azam, Muhammad Aslam and Ali Akbar discharged from the Court of Mr. Ahmad Ali Zafar, Magistrate 1st Class, Sheikhupura vide order, dated 5-12-1998.
2. Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the said order has been sought to be declared as unlawful on the grounds mentioned therein.
3. Arguments have been heard and record perused.
4. The main stand of the learned counsel for the petitioner is that learned Magistrate could not pass order of discharge as there was ample evidence on record to involve the accused in the commission of offence alleged against them. He further contends that learned trial Court has referred to case diaries, but has chosen to refer to only those portions which favour the accused and not the others which support the complainant/petitioner's version. He, thus, submitted that impugned order is liable to be quashed. In support of his contention that such orders can be quashed he has relied upon Mansha and 7 others v. Illaqa Magistrate, Police Station Bahlak District Faisalabad and 4 others PLD 1997 SC 339, Rehmat Ali v. Nazir Hussain 1997 M LD 1135 (Lahore), Sajjad Hussain v. S.H.O. Police Station Pindigheb and 4 others 1998 PCr.LJ 1804, Niamat Ali v. The State and others 1998 PCr.LJ 1530.
5. Conversely the impugned order has been supported by the learned counsel for the accused/respondents Nos.4, 5 and 6 who submits that impugned order has been passed by the learned Magistrate after taking into consideration all the evidence collected and brought on record during the investigation of this case. He further, contended that as the impugned order is based on sound reasoning and it does not suffer from any jurisdictional defect, as such there is no force in the instant writ petition and same be dismissed. In support of his contention he relied upon Muhammad Sharif and 8 others v. The State and another 1997 SCM R 304 and Bahadur and another v. The State and another PLD 1985 SC 62. He further, contended that as the petitioner has chosen an efficacious remedy in the form of filing a direct complaint against the accused/respondents Nos.4, 5 and 6 and the same is pending in the Court so the instant petition is not maintainable.
6. It is evident from the facts stated above that plaintiff/petitioner has nominated the accused/respondents Nos.4, 5 and 6 in his F.I.R. It is also fact that as a result of investigation they have been found innocent by the local police as well as other Investigating Officers. It is also fact that the impugned order, dated 5-12-1998 has been passed by the Illaqa Magistrate after scanning the evidence brought on record. However, it does not mean that this Court is bereft of its powers to scrutinise the vires of said order by invoking its Constitutional jurisdiction. But if a party has resorted to any other efficacious remedy, then this Court will be reluctant to exercise its Constitutional jurisdiction. In the authorities referred by the learned counsel for the petitioner, it has been held that this Court is competent to dislodge such order if the same has been passed in violation of the settled principle of criminal justice. However, in none of said authorities, the complainant had resorted to an efficacious remedy in the form of filing a direct complaint. Similar is the case with the authorities cited by the learned counsel for the respondents Nos.4 to 6. Thus, with utmost respect to the said authorities, it is held that the same are not applicable to the facts in hand. As in the instant case the complainant/petitioner has also filed a direct complaint against respondents Nos.4 to 6, who have been discharged vide impugned order.
7. Be that as it may, as the complainant/petitioner has resorted to efficacious remedy, so the instant petition has become infructuous and is hereby dismissed.