' MUHAMMAD AZAM KHAN, C.J.---This appeal arises out of the order passed by the Shariat Court of Azad Jammu and Kashmir on 21st December, 2010, whereby Criminal Revision Petition No, 40 of 2009 has been dismissed.
2. The necessary facts for the disposal of the appeal are that the Headmistress, Government Girls Middle School, Sehnsa, filed a report at Police Station Sehnsa on 6th December, 2007 against the appellant, herein, that she was sitting in her office when Sardar Tahir Bismil, husband of Rukhsana Begum, Primary Teacheress, entered in her office and asked for signing the salary bill of his wife.
She refused and stated the reasons for its refusal, whereupon he abused and attacked upon her.
She went out of office. The accused appellant followed her while hurling abuses. She locked herself in another room. In the meantime, Muhammad Nawaz, Qari of the school, came there and tried to forbid the accused. The accused-appellant was taking away the record of the school with him.
Upon the intervention of Qari Muhammad Nawaz, he attacked upon him and beat him with brick and fists. Qari Muhammad Nawaz was badly injured. The occurrence was witnessed by Miss Razia, Miss Haleema and all the students of the school. A case under sections 353, 186, 337-A to 337-F and 506, A.P.C. Was registered against the appellant, herein. After necessary investigation, the Police submitted a report under section 173, Cr.P.C., for cancellation of the case. The Tehsil Criminal Court, Sehnsa, while disagreeing with the opinion of the Police, summoned the accused appellant and fixed the case for 12th April, 2008. The appellant challenged the order of the Tehsil Criminal Court, Sehnsa, by way of Criminal Revision Petition No,40 of 2009 in the Shariat Court. On the date fixed, the appellant, herein, did not appear in the Court. A learned single Judge in the Shariat Court dismissed the revision petition on merits.
3. Sardar Abdul Hamid Khan, counsel for the appellant, argued that the judgment of the Shariat Court is not maintainable. The judgment has been delivered without hearing the appellant, as such, it is not maintainable. He argued that the Police thoroughly investigated the case and after investigation reached to the conclusion that the case is false and submitted the report under section 173, Cr.P.C., before the trial Court for cancellation of the case. The trial Court illegally ordered for summoning the accused-appellant. The trial Court has no jurisdiction to differ from the report of the investigating agency.
4. While controverting the arguments, Mr. Muzaffar Ali Zafar, Additional Advocate-General, argued that under section 173, Cr.P.C., the Court is empowered to summon an accused person and differ from the report of investigating agency but in the present case a judicial inquiry was conducted and in the judicial inquiry, the appellant was found innocent, therefore, a report for cancellation of the case was submitted by the Police.
5. Qari Muhammad Nawaz, who is alleged to be injured by the hands of the appellant, appeared in person and argued that the appellant has beaten him with brick, fists and foot and tried to strangulate him. He has got recorded his statement under section 161, Cr.P.C.; before the Police. He was not summoned in judicial inquiry by the concerned officer. He requested for trial of the case.
6. We have heard the learned counsel for the parties and perused the record. The record reveals that on report made by the Headmistress, a case under sections 353, 186, 337-A to 337-F and 506, A.P.C., was registered against the appellant that he attacked the Headmistress when she locked herself in a room. Qari Muhammad Nawaz of the school tried to intervene but he was beaten by the appellant and injured. The occurrence is stated to have taken place on 6th December, 2007. The Police submitted a report for cancellation of the case on 2nd April, 2008 in the Tehsil Criminal Court, Sehnsa. Before passing the order, the Tehsil Criminal Court summoned the complainant Headmistress of the school and Qari Muhammad Nawaz, who was injured in the incident. The accused, Tahir Mahmood, who was Assistant Advocate-General was also heard by the Tehsil Criminal Court. After hearing them and perusing the record including the daily dairies, the trial Court observed that prima facie the accused-appellant is connected with the crime. The trial Court further observed that the Police, due to unknown reason, has opined that the case cannot be challaned and while disagreeing with the report of police, ordered to treat the same as a complaint and issued process for summoning the accused and fixed the case for 12th April, 2008.
7. The only question for resolution is that whether the Tehsil Criminal Court was bound by the report made by the Police/investigating agency to cancel the case or the accused was correctly summoned. Section 173, Cr.P.C., deals with the reports submitted by the Police. It will be useful to reproduce section 173, Cr.P.C., below: "173. Report of police-officer. ---(1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed; the officer incharge of the police station shall through the Public Prosecutor:--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: ' Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the order of the Magistrate, direct the officer incharge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise, as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: ' Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of costs.
(5) Where the officer incharge of a police station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."
A perusal of section reveals that the police, after investigation, has to submit the report in the Court of competent jurisdiction. The police has no jurisdiction to hold a person innocent or guilty. It is only the Court which has the jurisdiction to declare a person innocent or guilty of the offence. The Court is not bound by the ipse dixit of the police. Before passing an order on the report of police, the Magistrate has to examine the record and form the opinion whether the police report is correct and the request of police for cancellation of the case is genuine or not. If the Magistrate reaches to the conclusion after perusal of the record that the police has reached to the correct conclusion after investigation that the case is false, then he has to cancel the case and if reaches to the conclusion that the accused appears to be connected with the crime and there is sufficient material for trial of the case, then he shall summon the accused for trial. Now it is well-settled law that the Courts are not bound by the ipse dixit of the police. This Court in a number of cases has held that the Courts are not bound by the opinion of the police. The Court has to form its independent opinion on the basis of material brought before it. In a case titled Sardar Muhammad Nazir Khan v. Javed Iqbal and 6 C others 1996 PCr.LJ 569, it was observed as under:-- "...... The Investigating Agency, no doubt, is empowered to place any of the accused in Column No,2 of the challan, on the basis of material collected by it, but at the same time the requirement of law is that material should be sufficient enough for giving the benefit of section 169, Cr.P.C. To an accused. However, the Courts of law are duty bound to apply their own judicial mind and come to a definite conclusion as to whether an accused placed in Column No,2 by the Police should be summoned or not for facing the trial. ' The Courts are never bound by the ipse dixit of the Police.
From the material available on record the Courts are always required to form their independent opinion by proper application of the judicial mind. The practice to follow the suggestions made by the Police and to concur with their view blindly is always undesired. It was never the requirement of law that the learned District Criminal Court should have considered the question of summoning the accused-respondent or otherwise after recording the evidence of P.Ws.1 and 2. The order recorded by the trial Court as well as by the Shariat Court suggests that they simply followed the conclusion arrived at by the Police which, as said earlier, is not at all in consonance with the law,..."
' In the case titled Muhammad Yunus and another v. Malik Muhammad Nawaz and 5 others (1997 SCR 125), it was held at page 133 as under:--- "8. Now, the question is, if the Magistrate disagrees with the report, can he take action under clause
(b) against those whose names have been placed under Column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173.
When the said report is Teceived by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report.
' In another case reported as Jamshed Khan' and 4 others v. The State 1999 PCr.LJ 1891 it was observed as under:-- "After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the Court is not bound by the opinion of police officer expressed by him in his report under section 173 of the Code of Criminal Procedure. On the contrary, the Magistrate may, by relying on the material furnished in the report, take cognizance of a case against the person whom the police officer believed to be innocent."
' Similarly in a case titled Muhammad Arshad v. Muhammad Mushtaq and 5 others 2004 MLD 1797 it was held as under:- ".It has been repeatedly held by this Court that ipse dixit of police is never binding on Courts. In a case reported as Farrukh Ahmad Chughtai v. Muhammad Imtiaz and 6 others (PLJ 1995 SC(AJ&K)
1) it has been observed that the ipse dixit of police is not binding on the Courts of law. The Courts of law have to apply their judicial mind on the facts and circumstances of each case and if from the material placed on the record before the Court, the Court reaches the conclusion that process be issued to summon the accused persons no illegality is committed by the Court but if the Court blindly issues process against the accused person without looking into the material connecting the accused with the commission of offences alleged, this exercise on the part of Court is subject to scrutiny by the superior Courts and the same can be set at naught."
' In the case reported as Sabir Hussain and 4 others v. Abdul Karim and another 2004 SCR 119, this Court observed in paragraph 7 of the report as under:- "7. It is settled proposition of law that the Magistrate is not bound by the report submitted by the police and he may not agree with the conclusion reached by the Investigating Officer. The proposition came under discussion before this Court in a case titled Muhammad Yunus and another v. Malik Muhammad Nawaz and 5 others (1997 SCR 125) where the same was resolved in the following words:- "7. Section 190 provides that a Magistrate may take cognizance of any offence (a) upon a complaint, (b) upon a police report, or (c) upon information received by himself.
8. Now, the question is, if the Magistrate disagrees with the report, can he take action under clause
(b) against those whose names have been placed under Column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173.
When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under clause (b) in spite of the police report."
' In another case titled Muhammad Nazir Khan v. Javed Iqbal and 6 others 1996 PCr.LJ 569 similar situation arose and it was resolved as under:-- "The Investigating Agency, no doubt, is empowered to place any of the accused in Column No, 2 of the challan, on the basis of material collected by it, but at the same time the requirement of law is that material should be sufficient enough for giving the benefit of section 169, Cr.P.C. To an accused. However, the Courts of law are duty bound to apply their own judicial mind and come to a definite conclusion as to whether an accused placed in Column No,2 by the Police should be summoned or not for facing the trial. The Courts are never bound by the ipse dixit of the Police.
From the material available on record the Courts are always required to form their independent opinion by proper application of the judicial mind. The practice to follow the suggestions made by the Police and to concur with their view blindly is always undesired."
8. While reiterating the view taken by this court in the cases referred to above, we hold that the Tehsil Criminal Court was not bound by the report submitted before it by the police and correctly issued process for summoning the accused-appellant for trial.
' The result of the above discussion is that finding no force in this appeal, it is hereby dismissed.