1. The captioned writ petition has been filed under Article 44 of Azad Jammu and Kashmir Interim Constitution, 1974, in order to assail the impugned edict passed by the learned Tehsil Criminal Court Trarkhel dated 19.03.2016.
2. Precise facts of the case are that Respondent No. 2 submitted an application at Police Station Baloch against the petitioners stating therein that on 09.06.2014, the accused launched an attack on him as a result whereof he and his brother sustained injuries. On this application F.I.R. No. 49/2014 in the offences under Sections 337-AF, 147, 148, 149 and 109-APC was registered at Police station Baloch on 09.06.2014. The police after investigation submitted cancellation report before Tehsil Criminal Court Trarkhel. The trial Court disagreed with the said report and directed the Investigating Officer to reinvestigate the matter and submit challan before the Court within two weeks vide its-order dated 31.01.2015. The order dated 31.01.2015 was assailed before this Court through revision petition which was send away. An appeal filed before the learned apex Court was also dishonoured vide order dated 03.02.2016. Thereafter, the investigating agency once again reinvestigated the matter and again submitted cancellation report before Tehsil Criminal Court Trarkhel but the learned trial Court again disagreed with it and directed S.H.O. Police Station Baloch to reinvestigate the matter and present final report before the Court vide order dated 19.03.2016, hence the captioned writ petition.
3. The learned counsel for the petitioners reiterated the grounds already taken in the writ petition and zealously contended that the impugned order is patently illegal as the trial Court has got no jurisdictional competence to order the Police again and again to reinvestigate the matter. The learned counsel further argued that 4/5 Investigating Officers have investigated the matter and found the petitioners innocent and further opined that fracture in the leg of the brother of the complainant is not caused by any injury inflicted by the petitioners, therefore, the submission of cancellation report before the trial Court was just, in line, consonance and nexus with the reality but the Court below failed to appreciate the controversy in a legal fashion and reached at a wrong conclusion which is not sustainable in the eye of law.
4. The learned counsel for the complainant mainly opposed the writ petition on technical grounds and strenuously argued that the instant writ petition against the impugned order is not maintainable because an alternate, efficacious and speedy remedy under the statute is available to the petitioners. He further submitted that the learned trial Court has also not been impleaded as party, thus on these two grounds, the writ petition is liable to be dismissed, however, on merits when confronted by the Court the learned counsel with brave heart conceded that the trial Court has no jurisdiction to direct the Investigating Agency to re-investigate the matter.
5. I have heard the learned counsel for the parties, gone through the impugned order and record of the case with utmost care and caution.
6. On completion of investigation of a criminal case registered under Section 154, Cr.P.C. the police is duty bound to submit its report under Section 173, Cr.P.C. and to forward its opinion before the concerned Magistrate along with relevant record. The Magistrate is not obligated to concur with the report presented by police under Section 173, Cr.P.C. rather always expected to apply its judicial wisdom before proceeding in the matter and never anticipated to blindly follow the conclusion of investigation of the investigating agency as ipse digit of the police is never meant to be followed by the Courts. Reliance can be placed on 2004 SCR 119. The Magistrate if after applying his judicial mind is of the view that the opinion of the Investigating Officer is just and appropriate he may accept the report, however if the Magistrate/Court, before whom the report is submitting disagrees with the report the only option lefts with the Court under law is to proceed in the matter and take cognizance on the basis of material produced before it. The Magistrate/Court has no Jurisdictional competence under law to send the matter back to the police by directing it for reinvestigation.
7. Reliance may be placed on PLD 2007 Suprem e Court 31 and 2012 SCR 1. In the instant case, the trial Court firstly sent back the matter to the Investigating Officer for reinvestigation vide order dated 31,01.2015 and that matter was brought before this Court as well as before the learned apex Court however, the question as to whether the trial Court has got jurisdiction, to direct the Investigating agency to reinvestigate the matter was neither agitated nor attended in the previous round of litigation and thereafter the trial Court once again returned the cancellation report to prosecuting inspector with direction to S.H.O. Baloch to reinvestigate the matter through impugned order. As stated above the trial Court/Magistrate is neither expected nor empowered to send back the case for reinvestigation because in case of disagreement with the report of police, can proceed further in light of the available record after recording speaking and tangible reasons in support of its order, thus the impugned order blatantly lacks legal efficacy hence, not sustainable in the eye of law.
8. Even the learned counsel for the complainant frankly and honestly yielded during arguments that the impugned order on its merits is illegal and not sustainable.
9. As far the stance advanced by the learned counsel for the complainant that in presence of statutory remedy a constitutional petition is not maintainable is concerned, this Court for the ends of justice may convert one proceeding into another, hence, for the safe administration of justice, the captioned writ petition is hereby converted into a petition under Section 561-A, Cr.P.C.
10. The next contention of the learned counsel for the complainant that Tehsil Criminal Court Trarkhel has not been impleaded in line of respondents is concerned, though the trial Court was necessary party in this case, however, as stated in the preceding paragraphs the impugned order is patently void ab-initio, anomalous, skittish in nature and fanciful which caused flagrant miscarriage of justice and it is a celebrated precept of law that decision of the cases must be based on its merits instead of disposal on technical grounds so in the peculiar circumstances of this case, I am convinced to ignore this technical fault in order to save the matter from the shekels of procrastination and for the safe administration of justice.
11. The crux and epitome of the above discussion is, the captioned writ petition is hereby converted into a petition under Section 561-A, Cr.P.C. and is disposed of with the direction to the trial Court to pass fresh order on the cancellation report by applying judicial mind and if the Court is not satisfied with its conclusion, may proceed in the case in the manner indicated hereinabove.