The brief facts out of which present writ petition arises are that respondents Nos.4 to 7 are involved in a case F.I.R. No.953 of 1999 which was registered at Police Station, Jaranwala on 4-10-1999 and the challan was submitted before the competent Court in November, 1999. Respondents Nos.4 to 7 submitted an application after submission of challan before the Inspector --General Police, who entrusted the investigation of the said case to Haji Mukhtar Ahmad, D.S.P. The said D.S.P. Found respondents Nos.5 to 7 as aggressor. The case was fixed before the learned trial Court for evidence.
The statement of Naseer Ahmad, A.-S.I. Was recorded as P.W.1 on 7-3-2002. The learned trial Court recorded the statement of prosecution witnesses up to P.Ws.13 till 10-7-2002. The petitioner/complainant filed an application before the learned trial Court on 14-11-2002 for summoning of Haji Mukhtar Ahmad, D.S.P. The application was dismissed by the learned trial Court vide order, dated 18-11-2002. Hence, the present writ petition.
2. The learned counsel of the petitioner submits that the learned trial Court erred in law to dismiss the application of the petitioner in violation of mandatory provisions of Cr.P.C. i.e. Section 265-F(2 and 3). He further submits that the learned trial Court erred in law to dismiss the application of the petitioner without applying its independent mind in violation of law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- "Muhammad Ibrahim v. The State" (1984 PCr.LJ 2950)
"Mahmob v. The State and 3 others" (1989 PCr.LJ 2050)
3. The learned law officer submits that the impugned order is valid in. The eyes of law in view of contents of the application of the petitioner.
4. The learned counsel of respondents Nos.4 to 7 submits that the writ petition is not maintainable in view of alternative remedy available toy the petitioner under section 435 read with section 439, Cr.P.C. He further submits that the statement of Haji Mukhtar Ahmad, D.S.P. Qua his opinion is not admissible in the evidence, therefore, the learned trial Court was justified to dismiss the application of the petitioner. He further submits that the challan was submitted on 30-11-1999 before the learned trial Court and the petitioner filed an application at belated stage of the proceedings on 14-11-2002; whereas Haji Mukhtar Ahmad--- D.S.P. Had recorded Zimni on 23-11-1999. He further urges that the police did not submit any supplementary challan. He further urges that the aforesaid D.S.P. Had not recorded any fresh statement under section 161, Cr.P.C. Subsequent to the submission of challan and also did not prepare the site inspection note. There was no sufficient material, therefore, the learned trial Court was justified to dismiss the application of the petitioner.
He further urges that the ingredients of section 265-F (2 and 3), Cr.P.C. Are not attracted and in fact the learned trial Court dismissed the application in terms of subsection (3) of section 265-F of the said Code. He further submits that the opinion of the police is not binding upon the Court.
5. The learned counsel of the petitioner in rebuttal submits that the petition is maintainable as the petitioner has no alternative remedy to file revision petition before this Court under section 435 read with section 439, Cr.P.C. As the learned trial Court has passed the order in the executive side.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. The petitioner has alternative remedy to tile criminal revision before this Court. In arriving to this conclusion, I am fortified by the law laid down in "Phali Gul. v. Shams-ul---Arifin and State" (PLD 1994 Pesh. 171). It is settled principle of law that the writ petition is not maintainable in the presence of alternative remedy as per law laid down by the Honourable Supreme Court in Ch. Muhammad Ismail's case (PLD 1996 SC 246). It is also settled principle of law that Constitutional proceedings can be converted into criminal revision. In this view of the matter, I am not inclined to dismiss the Constitutional petition on technical point i.e. In view of alternative remedy available to the petitioner. However, in the interest of justice and fairplay, the Constitutional petition is converted into criminal revision petition.
8. It is better and appropriate, to reproduce the following operative part of contents of the application to resolve the controversy between the parties:-- The aforesaid operative part of contents of the aforesaid application reveals that the petitioner tiled an application for summoning of Haji Mukhtar Ahmad, D.S.P. Qua his opinion. I myself perused the police file and found that the aforesaid D.S.P. Did not record any statement under section 161, Cr.P.C. And did not collect any material. In this view or the matter, the learned trial Court was justified to dismiss the application of the petitioner which is in accordance or subsection (3) of section 265-F, Cr.P.C. It is settled principle of law that the opinion of the police is not binding upon the Court. It is admitted fact that the challan was submitted before the learned trial Court on 30-11- 1999 and statement of first witness was recorded on 7-3-2002; whereas the petitioner had filed the aforesaid application on-14-11-2002. In case the aforesaid contents of the application, are put in juxtaposition, then it brings the case of the petitioner in the area that the petitioner did not approach this Court with clean hands. It is settled principle of law that he who seeks equity must come to the Court with clean hands, therefore, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in Syed Nawab Raunaq Ali's case (PLD 1973 SC 236) and Rana Arshad's case (1998 SCMR 1482). The judgments cited by the learned counsel of the petitioner, are distinguished on facts and law. It is settled principle of law that each and every case is to be decided on its peculiar circumstances.