' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal is directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on 18-5-1998, whereby accepting the revision petition filed by Muhammad Yasin, respondent No,,2 herein, the order of Tehsil Court of Criminal jurisdiction Dadyal, dated 15-4-1997, was set aside. It was ordered that the accused shall appear before the trial Court on 27-5-1998 and the trial Court shall pass a fresh order in respect of accused after taking into consideration the material which was collected by the police during both the investigations.
2. The relevant facts, giving rise to the present appeal briefly stated, are that on a written report lodged by Muhammad Yasin, respondent No,,2 herein, at Police Station Dadyal, a case under sections 341, 147, 148, 149 and 337-A(i), A.P.C. Was registered against Wajid Hussain, Sajid Hussain, Jamshed Khan, Gul Dad Khan, Hukam Dad Khan, Abdul Jabbar, Jameel Khan and Safdar Hussain, out of them five are entered in the list of appellants herein. On 1-4-1996 the challan was presented before the trial Court and the accused were sent for facing their trial. Later on the case was re- investigated and a supplementary challan was presented in the trial Court, whereby except accused Wajid Hussain all the accused were shown innocent and placed in Column No,,2 of the report submitted under section 173, Cr.P.C. The trial Court vide its order, dated 2-5-1997, concurred with the view taken by the police in the subsequent investigation and except Wajid Hussain accused the challan to the rest of the accused was cancelled and as such they were discharged.
On a revision petition filed by the complainant Muhammad Yasin before the Shariat Court the same was accepted and the order passed by the trial Court was set aside. The Shariat Court issued a direction that all the accused shall appear before the trial Court on 27-5-1998, and it shall pass a fresh order in respect of accused after taking into consideration the material which was collected by the police during both the investigations vide the order impugned, dated 18-5-1998. It is the aforesaid order of the Shariat Court which is the subject of present appeal.
3. Arguing the case on behalf of accused-appellants, it was vehemently contended by Mr. Muhammad Riaz Alam, the learned counsel, that the Shariat Court committed an illegality by making an observation that the trial Court failed to take into consideration both the investigation reports submitted by the police and adverted only to the subsequent investigation. According to the learned counsel for the accused-appellants the eye-witnesses named in the First Information Report did not support the case of the prosecution during the subsequent investigation. Similarly the medical report was at variance with the ocular version of the prosecution, as such the trial Court committed no illegality in concurring with the conclusions of the police arrived at during the subsequent investigation. The learned counsel in the alternative submitted that to agree or to disagree with a conclusion recorded by the police during the investigation is an administrative matter and the order passed by the Magistrate (Court) in this regard is not revisable as such the revision petition was not competent. The learned counsel for the appellants in support of his contentions cited Bahadur and others PLD 1985 SC 62 Muhammad Akram and another v. The State and another 1986 M LD 2439.
4. Controverting the arguments raised by the learned counsel for the appellants, it was vehemently contended by Ch. Muhammad Sabir, the learned counsel for respondent No,,2, that the trial Court failed and derelict from its duty to look into both the investigations and to arrive at a definite conclusion. The Courts of law are always supposed to apply their judicial mind in such an eventuality and to reach a definite conclusion keeping in view both the investigations and to proceed further after drawing conclusions from both the investigations but in the instant case the trial Court committed a grave error by blindly accepting the investigation conducted by subsequent police agency and without any cogent reason did not advert to the investigation made by the first Investigating Agency. It is also true that the Court is vested with the powers to agree with the investigation made by the police but at the same time it is not bound by the ipsi dixit of the police and have to apply its judicial mind keeping in view the facts and circumstances of each case and then to reach a definite conclusion. In the case in hand the trial Court no doubt did make a casual reference to the first investigation but all the particular ingredients of the first investigation were Snot taken into consideration by the trial Court. Instead the trial Court started making a detailed appraisal of evidence by observing that the ocular version of the prosecution does not find support from the medical evidence. The trial Court also went on observing that even the weapon of offence was not recovered from the accused persons, losing sight of the fact that in presence of eye-witnesses account of the recovery evidence is merely of a confirmatory and corroborative in nature. The order recorded by the trial Court depicts that as if the same was passed after recording the evidence of both the parties during the trial and after duly giving the fair chance of cross-examination, but this being not the situation the trial Court should have been careful in making an elaborate discussion of the material on the record. The learned counsel also submitted that the Shariat Court committed no illegality in passing the impugned order by exercising its provisional jurisdiction as the order recorded by the trial Court was patently illegal and violate of law. In alternative the learned counsel argued that before the Shariat Court this was never urged by the learned counsel for the appellants nor an objection was taken to the effect that the order of trial Court was not assailable before the Shariat Court in its provisional jurisdiction. In alternative the learned counsel contended that the Shariat Court is vested with wide inherent powers under section 561-A, Cr.P.C. To quash an order of the trial Court, if the same amounts to an abuse of process of the Court. The learned counsel in support of his contentions placed reliance on reported cases title Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCM R 1503. Shamsul Qamar alias Sepoy v. The State 1984 PCr.LJ 504 and Falak Sher and others v. The State PLD 1967 SC 425.
5. 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 furnishing in the report, take cognizance of a case against the person whom the Police Officer believed to be innocent. Where cognizance is taken by a Magistrate of a case on the basis of a negative report under section 173 of the Code of Criminal Procedure, such cognizance is taken obviously on the police report and not upon his own knowledge or suspicion. Clause (b) of subsection (1) of section 190 does not say "upon a report in writing of facts against the accused". All that it states is that upon a report in writing of such facts made by any Police Officer. The basis for taking cognizance under the said section is not the report against the accused but on a report of facts as made by the Police Officer. The case, therefore, falls under clause (b) of subsection (1) of section 190 and not under clause (c) of subsection (1) of section 190, Cr.P.C. Thus, if a person is shown in Column No,,2 of the challan and the Investigating Officer reports that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate for trial, it is competent for the Magistrate to direct that the bond given by the accused be discharged. It would mean that the Magistrate on perusal of the report is satisfied that the report of the police was correct and considered that it was in the interest of justice that no further proceedings should be taken against the accused. The Magistrate, however, is under no obligation to act in accordance with the opinion of the Police Officer and he can, on the material which is furnished in the report, take cognizance of a case against the person whom the Investigating Officer believed to be innocent or that there was no sufficient evidence to justify his trial. If he takes such an action before he records any evidence, he will be deemed to be acting on the police report within the meaning of, clause (b) of subsection (1) of section 190.
6. In the instant case in the subsequent investigation except Wajid Hussain, accused, all the accused were found innocent and were placed at Column No,,2 of the challan. The Court concurring with the view of subsequent investigation made the observation that the eye-witnesses mentioned in the F.I.R. Did not support the prosecution version nor the weapon of offence was recovered, as such there was a doubt in the testimony of the eye-witnesses. The Court while agreeing with the opinion by the subsequent Investigating Agency discharged the rest of the accused except Wajid HuSsain. This order was assailed by filing a revision petition in the Shariat Court by Muhammad Yasin, respondent No,,2 herein, and the Shariat Court vide the order impugned, dated 18-5-1998, accepted the revision petition and directed that all the accused shall appear before the trial Court on 27-5'4998, and the trial Court shall pass a fresh order in respect of accused after taking into consideration the material which was collected by the police during both the investigations. The Court which was seized with the final report recommending cancellation of challah against all the accused except Wajid Hussain should have acted fairly, justly and honestly by applying its mind to material placed before it. It was expected of the Court to pass a well- reasoned order after duly considering pros and cons of matter. #The Court is not expected to put its signatures on dotted line, or blindly ditto report of police which could signify its lack of application of mind or give impression of being led by nose by police. It was enjoined upon the Court to look into the material placed by both the Investigating Agencies and then to reach to a definite conclusion to proceed against the accused or not. In the case in hand all. The eyewitnesses who were named in the F.I.R. Had supported the contents of F.I.R. The police in the subsequent investigation recorded statements of some other persons namely Muhammad Azam, Muhammad Ishaque, Shoaib and Majeed etc. According to these witnesses only Wajid Hussain accused was responsible for the occurrence. The trial Court was probably influenced by the subsequent investigation and the statements of the witnesses mentioned in the subsequent investigation whereas under law it was enjoined upon the Court to take into consideration all the material which was collected by the police during both the investigations and then to draw conclusion for or against the accused persons. What would be the evidentiary worth of those witnesses whose statements were recorded long after the occurrence and who were not even named in the is to be seen by the trial Court at the conclusion of the trial as the same is within the domain of the trial Court.
7. Now we come to the argument that the revision petition was not maintainable. It is true that the Supreme Court of Pakistan held in case reported as Bahadur and others v. The State and another PLD 1985 SC 62, as follows:-- "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly, and honestly, a duty common to the exercise of all state power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order renders himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. He does not function as a criminal Court For that reason his order is not amenable to provisional jurisdiction under sections 435 to 439, Cr.P.C."
' However, in a case reported as Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCM R 1503, Mr. Justice Ajmal Mian, J., who is presently the Chief Justice of Pakistan, while referring another reported case of the Supreme Court titled Arif Ali Khan and another v. The State and 6 others 1993 SCM R 187 spoke for the Court in a following manner at page 1506 of the report:-- "In the above first case this Court has held that though sections 435 to 439, Cr.P.C., cannot be pressed into service by a High Court in a case in which a Magistrate concurs with the report of an Investigating Officer under section 173, Cr.P.C., but the High Court can invoke aid of section 561-A, Cr.P.C. It will be advantageous to reproduce the relevant observations which read as under-- ' But this does not mean that where the Court reaches a positive conclusion in a case that a particular order passed by the subordinate criminal Court amounted to an abuse of the process of Court, it would be powerless to rectify the injustice. ...."
It would, therefore, follow that if provisional powers cannot be exercised in the present matter then section 561-A, Cr.P.C. Is available for redressing the1 grievance. Therefore, the argument raised by the learned counsel for the appellants has no practical effect because remedy in any case is available. We may also point out a distinguishing feature that the Supreme Court of Pakistan in Bahadur's case was dealing with an order passed by the Magistrate while in the present case the order has been passed by a Tehsil Criminal Court which is a Court and does not perform any executive functions.
8. For the foretasted reasons, finding no force in this appeal, it is hereby dismissed.