' KHAWAJA SHAHAD AHMED, J.--- The correctness and legality of the judgment of Shariat Court adjudicated on 30-5-2003 has been assailed through the instant appeal.
2. The brief facts of the case are that Javaid Iqbal and two others, appellants, filed an application under section 249-A, Cr.P.C. And prayed for acquittal in a murder case which were filed in the competent Court against them registered through F.I.R. Dated 4-4-1992 by the Police Station Afzalpur under sections 307/34, 458, A.P.C. And 15, I.P.L. The case was registered on the statement of one Mst. Nazeer Begum, complainant, who narrated that on 4-4-1992, at about 4-45 a.m., she got up from her bed and went out of the room for performing abolition. When she reached the courtyard she heard the sound of a gun fire. She immediately rushed to the room where her son Tauqeer Ahmed was sleeping. She saw Javaid Iqbal, accused appellant, coming out of the room with a .12 bore gun. She wanted to get hold of the accused Javaid Iqbal and after getting himself free, he proclaimed that he has taken the revenge. Accused Rab Nawaz and Muhammad Afzal were also armed who left the courtyard along with the accused Javaid Iqbal from stairs leading to the roof of the house. One Arshad Ali also wanted to catch hold of the accused persons but they succeeded to run away. When the complainant and Arshad Ali came back to the room of Tauqeer Ahmed, they found him seriously injured and bleeding. They rushed to Mirpur Hospital for medical aid to Tauqeer Ahmed. The police registered a case on the statement of the complainant. It appears from the record that during the treatment in the hospital, he succumbed to the injuries and died with the result that offence under section 307, A.P.C. Read with 15, I.P.L. Was altered to 5, I.P.L. The concerned investigating agency after making necessary probe, filed a final report under section 173, Cr.P.C. Against the appellants to face the trial of murder of Tauqeer Ahmed. According to the available record the trial of the case, at present, has not so far been concluded. It may be mentioned here that repeated investigations were made in the case and the police finally by filing a supplementary challan on 11-6-2001 declared the appellants as innocent and as against them one Shaheen Iqbal, son of Abdul Hameed and Musarrat Shaukat wife of Arshad Ali were sent to face the trial of murder of Tauqeer Ahmed, above-referred. As far as the accused appellants are concerned, they were declared innocent. The accused mentioned in the supplementary challan could not be traced although warrant under section 204, Cr.P.C. Was issued. According to the record these two alleged accused persons are at large till now and proceedings under section 512, Cr.P.C. Have been ordered against them.
3. Appellants herein filed an application under section 249-A, Cr.P.C. In the trial Court for their acquittal on the ground that according to the last investigation they have been found innocent by the police and supplementary challan with a new set of accused has been filed. The learned Members of the trial Court disallowed the application filed by the appellants under section 249-A, Cr.P.C. And also dismissed the supplementary challan vide order, dated 29-9-2001. On appeal before the Shariat Court a learned Judge partly accepted the appeal and set aside the impugned order, dated 29-9-2001 to the extent of dismissal of the supplementary challan. He directed the trial Court to take the cognizance of the supplementary challan and record the evidence of the prosecution witnesses, belonging to both sides mentioned in the first and supplementary challan.
Aggrieved from the order of the Shariat Court Mst. Nazeer Begum, complainant, filed Criminal Appeal No,32 of 2002 on 9-7-2002 and the appellants herein filed Criminal Appeal No,34 of 2002 on 22-7-2002 in this Court, which were decided by a Division Bench of this Court in the following terms:-- "In view of above, while allowing both the appeals we set aside th .;udgment of the Shariat Court, dated 23-5-2002 and remand the case to the Shariat Court for fresh decision within next two months from the receipt of this order in accordance with law, keeping in view the observations recorded by us in this judgment."
4. The observations referred above which we could collect from the judgment of the Supreme Court are as under:-- "Shariat Court has not expressed any opinion as to whether the trial Court was justified in law in refusing to take cognizance of the subsequent challan on the ground that there is no evidence connecting the accused party nominated in the subsequent challan with the commission of the murder Tauqeer Ahmed deceased."
5. After remand of the case by the Supreme Court another learned Judge of Shariat Court in para.10 of the impugned judgment recorded his own finding that no sufficient material has been brought by the prosecution in the supplementary challan on the basis of which cognizance of the offence could be taken against the accused persons. Thus, he deviated from the finding of the Supreme Court. The reasons for this finding in para.10 have been given in para. 11 by discussing all the eight witnesses proposed to be produced in the trial Court. In the estimation of the learned Judge of the Shariat Court Shafique Ahmed, Muhammad Siddique and Muhammad Asif, who have narrated certain facts have not been introduced as prosecution witnesses in supplementary challan and that affidavit by Nadeem Akhtar Gondal has yet to be verified by the British Police, which disclosed that the murder of Tauqeer Ahmed was committed by Shaheen Iqbal Adil on the behest of Musarrat Shaukat alias Billo. Nadeem Akhtar Gondal who filed the affidavit has also not been introduced as a prosecution witness. The learned Judge of the Shariat Court even went to discuss the evidence of almost all the prosecution witnesses and finally recorded his finding that the prosecution has not placed sufficient material in the supplementary challan for taking cognizance of the offence against the accused mentioned in the supplementary challan.
Aggrieved by this judgment of the Shariat Court dated 30-5-2003, Javaid Iqbal and two others have filed the instant appeal.
6. We have heard the learned counsel for the parties and have also gone through the available record. The learned counsel for the appellants Mr. Abdul Majeed Malik, while placing reliance on sections 87, 190 and 204 of the Criminal Procedure Code, has vehemently argued that the trial Court after application of mind and believing that there was sufficient material against new set of the accused persons, took cognizance on the supplementary challan. On facts while discussing the finding of the Shariat Court in para.11 of the impugned judgment he submitted that the learned Judge below has discussed the proposed evidence in a way not warranted by law and has almost acquitted the accused mentioned in the supplementary challan and has even expressed himself about the alleged commission of murder by the appellants. He also placed reliance on sections 157 and 159 of the Code of Criminal Procedure to substantiate his argument that the police can investigate even where commission of a cognizable offence is suspected. While referring to the statements of proposed witnesses in the supplementary challan and one Nadeem Akhtar Gondal, he submitted that findings of the Shariat Court deserve reversal and the appellants herein are entitled to be acquitted. It may also be mentioned here that in his appeal and during the course of his arguments he prayed for any other relief to which the appellants are found entitled.
7. As against it Ch. Ali Muhammad Chacha, the learned counsel, while arguing on behalf of the complainant-respondent, defended the judgment passed by the Shariat Court. His precise arguments are that the trial Court even after taking cognizance of the offences in the supplementary challan could cancel the same subsequently at any time. While discussing the statements of the proposed witnesses and other material attached with the supplementary challan, he attempted to justify that subsequent challan did not contain sufficient material to justify cognizance by the trial Court. Similarly he opposed the prayer of the appellants for their honourable acquittal under section 249-A, Cr.P.C.
8. As much time has been consumed so far in completion of the trial against the appellants and final verdict by this Court in respect of supplementary challan, we propose to decide this controversy ourselves with regrets that the same could be settled in the first round of litigation by this Court. Keeping in view the facts of the case and respective arguments advanced at bar on behalf of the parties, we find that the judgment passed by the Shariat Court in the first round of litigation is in line with the legal position on the subject. Even otherwise we are of the considered view that the learned Judge in the Shariat Court was to rehear the parties only on the subject as to whether the trial Court was justified in law in refusing to take the cognizance of the subsequent challan on the ground that there is no evidence connecting the accused party nominated in the subsequent challan with the commission of the murder of Tauqeer Ahmed, deceased but he proceeded to decide himself that there is no evidence which could justify the filing of supplementary challan. Keeping in view the finding of this Court in the previous round of litigation, the Shariat Court was left with no option except to determine as to whether sufficient evidence was available to the trial Court to dismiss the subsequent challan. We regret to record that the observation recorded by the Supreme Court in the first round of litigation goes against the majority view recorded by the superior Courts including this Court. It is not evidence which has to be seen while accepting or rejecting the subsequent challan or report. It is in fact material or fresh material which has to be looked into by the trial Court along with evidence of first report under section 173, Cr.P.C. The learned Judge in the Shariat Court has discussed the evidence of the proposed witnesses in such a manner as if he was trial Court. He had to see as to whether trial Court had applied its mind and looked into the evidence to justify his order by which the dismissed the subsequent challan and application under section 249-A, Cr.P.C. Without dilating upon the correctness or otherwise of the material placed before the trial Court, we have come to the conclusion that the expression or the phraseology used is altogether different than the word "evidence" which has to be seen in view of different provisions of the Evidence Act. Fresh material attached with the subsequent challan, prima facie, appears to be such which includes not only some witnesses but also affidavit of Nadeem Akhtar Gondal, a cassette containing some material about Shaheen Iqbal Adil and Musarrat Shaukat in which he has disclosed about the murder of Tauqeer Ahmed. By avoiding any critical comments we are of the considered view that there is a fresh material available which must not be ignored from consideration either way. It has also been our considered view that in criminal cases particularly, the remand must be avoided and this Court should itself settle the legal or factual controversy arising in between the trial and its conclusion.
We, therefore, hold that subsequent report contains sufficient material which must be weighed by the trial Court after trial of the supplementary challan along with the original report filed under section 173, Cr.P.C.
9. As far the legal points raised by the learned counsel are concerned, we have no quarrel or cavil that:--
(i) Police can re-investigate a case and in this respect, it has unlimited powers;
(ii) The police can file supplementary challan even if the trial in the original challan has commenced or its trial was nearing completion;
(iii) Magistrate or for that matter, trial Court is not bound by any of the reports filed under S.173, Cr.P.C., because it is not bound to follow the finding of the police. It has to decide the case itself;
(iv) Magistrate can take cognizance or refuse the same after applying his judicial mind, even if the police had reported otherwise;
(v) Once cognizance has been taken, it can be withdrawn at any time during proceedings; and
(vi) It can acquit the accused at any stage of proceedings or trial;
(vii) There is no provision in the Cr.P.C. Which provides filing of more than one challan. Any supplementary challan is nothing, but an opinion of police along with some fresh material placed on record so that the trial Court may reach to a definite conclusion. It'is only the Court which has to venue the truth from the chaff of falsehood; (viii)The trial Court can consider any fresh material even as a defence version, provided the same is allowed under the provisions of Evidence Act.
10. There is another aspect of the case in hand. We are of the view and concur with the findings of the superior judiciary of the Sub-Continent that the cases must be decided on merit and merit means inter se merit, evidence of the parties and standard of evidence produced by the parties.
We, therefore, order that the subsequent supplementary challan shall be taken up along with the original challan and the trial Court shall determine the fate of the murder case of Tauqeer Ahmed, deceased. As far the application filed by the appellants under section 249-A, Cr.P.C. Is concerned, the record of the case does not justify acceptance of the same at this stage. We, therefore, while rejecting the said application, direct the trial Court to entertain the supplementary challan and the same be proceeded together and side by side with the original report/challan. Our this view finds support from the case reported as Farrukh Ahmed Chughtai v. Muhammad Imtiaz PLJ 1995 SC (AJ&K)
1. The facts of above referred case are that a murder challan was filed in the District Court of Criminal Jurisdiction Muzaffarabad and the accused respondents were examined under section 242, Cr.P.C. On 18-8-1992 who pleaded not guilty, as such, the prosecution was directed to examine its witnesses in support of the charge. In the meantime on November 26, 1992 a supplementary challan was submitted in the trial Court stating therein that Iftikhar and. Muhammad Wazir have been found innocent, therefore, they may be released under section 169, Cr.P.C. The trial Court in view of the objection refused to accept the supplementary challan. By an order of the apex Court dated 13-11-1993, the trial Court was directed to consider the material against the respondents in both the challans and to form the opinion as to whether the respondents should face the trial along with other co-accused or they should be released. By following the directions recorded by the apex Court, the trial Court released the accused respondents under subsection (3) of section 173, of Cr.P.C. As in its opinion there was insufficient material and consequently acquitted them. In the second round, however, the Supreme Court recorded a detailed order and held as under:-- "For the aforesaid reasons we accept the appeal and the order of the Shariat Court dated June 19, 1994 and that of the District Criminal Court, Muzaffarabad dated February 18, 1994 releasing the accused-respondents Iftikhar and Wazir under section 173(c), Cr.P.C. Are hereby quashed. The aforesaid both accused shall face their trial before the District Criminal Court Muzaffarabad along with other co-accused..."
11. As we have decided the controversy ourselves, therefore the judgments of the Shariat Court and the District Court of Criminal Jurisdiction stand vacated. The trial Court shall resume the trial and finally decide the case as early as possible. Unfortunately the trial could not be concluded within a period of over a decade which is cruel on the part of State agency.
' With the above referred observations, the appeal is consigned to the record.