' MUHAMMAD YUNUS SURAKHVI, J.--- Through this appeal the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 27-3-1999, has been assailed, whereby the revision petition filed by the appellant, herein, against the order of Tehsil Court of Criminal Jurisdiction, Pallandri, dated 31-7-1998 was disallowed.
2. The necessary facts, giving rise to the present appeal, are that a criminal case for allegedly committing offences under sections 324, 341 and 506, A.P.C. Was registered at Police Station Pallandri on the report of complainant-appellant. The police after necessary investigation submitted a report under section 173, Cr.P.C. Before the Tehsil Court of Criminal Jurisdiction, Pallandri stating therein that the F.I.R. Was fake and the case was liable to be dismissed. The Tehsil Criminal Court vide its order, dated 26-11-1997, concurred with the police report and the file was consigned to record room.
3. After sometime the police re-investigated the case on the direction of their high-ups and at the conclusion of the re-investigation 'submitted a challan under section 173, Cr.P.C. And requested the Tehsil Court of Criminal Jurisdiction, Pallandri to proceed with the case. The trial Court refused to take the cognizance on the ground that it had no jurisdiction to review its previous order, dated 26- 11-1997, whereby the report submitted by police under section 173, Cr.P.C. Was closed. According to the trial Court unless its previous order, dated 26-11-1997, was set aside it was not possible for it under law to try the accused-respondents again as they were not proceeded in view of its previous order. Thus, the trial Court vide its order, dated 31-7-1998 consigned the police report to record room and refused to take cognizance of the case. On revision taken to the Shariat Court by the appellant, herein, the same was dismissed vide the impugned order, dated 27-3-1999. It is the aforesaid order of the Shariat Court, the legality and validity of which has been assailed through the present appeal.
4. In support of appeal it was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the appellant, that the police was fully competent under law to re-investigate the case and to submit a second report under section 173, Cr.P.C. And such a subsequent report would not fall within the purview of reviewing a previous order of the Court. Thus, according to the learned counsel the trial Court as well as the Shariat Court fell in patent error in not entertaining the subsequent report. The learned counsel strenuously argued that under no law the police can be stopped from re-investigating a case and to submit a challan of the same if it is substantiated by a legal evidence. The trial Court as well as the Shariat Court, according to the learned counsel for the appellant, misconstrued the relevant law and, thus, committed an illegality in refusing to entertain the subsequent report. According to the learned counsel for the appellant the order, dated 26-11-1997, was passed by the trial Magistrate in an administrative capacity and the same, according to the learned counsel, is no bar for fresh investigation into the case and for filing a subsequent report under section 173, Cr.P.C. The learned counsel in support of his contentions placed reliance on Habib Bank Limited v. Zulfiqar Ali Malik 2000 PCr.LJ 967, Aftab Ahmed v. Hassan Arshad and 10 others PLD 1987 SC 13, Muhammad Akram and others v. The State and another M LD 1986 2439, Mulazim Hussain v. S.H.O. Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440, Bahadur and another v. The State and another PLD 1985 SC 62.
5. In rebuttal it has been urged by Raja Shiraz Kayani, the learned Advocate-General, that after completion of the investigation in a criminal case the report has to be submitted by police under section 173, Cr.P.C. Before the Magistrate who will act as a Court and after applying his judicial mind the Magistrate subsequently, cannot take cognizance of the same matter. Thus, the order, concurring with the view of the police submitted under section 173, Cr.P.C. Cannot be construed to be an administrative order rather the same will be a judicial order. If the prosecution was dissatisfied with the order of the Magistrate discharging the accused the remedy for the prosecution was to file either a revision petition or to lodge a private complaint. Thus, the order, dated 26-11.1997, passed by the trial Court being a judicial order could not be reviewed by the same Court subsequently. The learned Advocate-General also contended that in Azad Jammu and Kashmir because of the summons trial the order of discharge of accused will amount to the acquittal of accused, therefore, they cannot be retried or vexed twice for the same offence. The learned Advocate-General relied on Basharat Ahmad Shaikh v. Azad Jammu and Kashmir Government PLD 1965 Azad J&K 43, Raban Shah v. Mirzaman and others PLD 1960 Azad J&K 29 and Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755.
6. Sardar Abdul Hamid Khan, the learned counsel for the accused-respondents, pressed into service the submission that the order, dated 26-11-1997, was not passed by the Sub- Judge/Magistrate 1st Class but on the other hand the same was passed by the Tehsil Criminal Court comprising of the Sub-Judge Magistrate 1st Class and Tehsil Qazi, the members constituting the Tehsil Criminal Court. After applying its judicial mind the Tehsil Criminal Court agreed with the report submitted by the police under section 173, Cr.P.C. And, thus, decided not to proceed against the accused-respondents. The function of Tehsil Criminal Court cannot be construed to be an administrative function as the Tehsil Criminal Court and the District Criminal Court constituted under the Islamic Penal Laws Enforcement Act. In Azad Jammu and Kashmir are performing their judicial functions regulated by the said law. The Tehsil Criminal Court, according to the learned counsel for the accused-respondents, has no administrative function as pointed out by the learned counsel for the appellant. The learned counsel maintained that - once the Tehsil Criminal Court applied its judicial mind in a particular case and decided not to proceed against the accused the same would amount to an acquittal of the accused-respondents. Thus, subsequently, on the same report, after having acquitted the accused in the first instance, they could not be tried for the same offences. The learned counsel maintained that the order, dated 15-7-1998, was also recorded by the Tehsil Criminal Court and it was incorrect to suggest that on the subsequent report submitted by the police under section 173, Cr.P.C. The Court .Had taken cognizance and had summoned the accused-respondents.
7. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that it is wrong to suggest that the order, dated 26-11-1997, was passed 6y the Sub-Judge Magistrate 1st Class, on the other hand the order was passed by Tehsil Criminal Court, wherein it agreed with the report submitted by the police under section 173, Cr.P.C.
That a fake and concocted case had been filed against the accused-respondents. Subsequently, the police on the direction of their high-ups submitted a fresh report under section 173, Cr.P.C.
Whereby the accused were challaned before the Tehsil Criminal Court, Pallandri for facing their trial for allegedly committing offences under sections 324, 341 and 506, A.P.C.
8. There is no cavil with the proposition that under the Code of Criminal Procedure a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and discharges these duties not as a Court but as a peronsa designata.
9. In a case as Bahadur and another v. The State and another PLD 1985 SC 62 it was observed 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 revisional jurisdiction under sections 435 to 439, Cr.P.C."
10: In a case reported as Aftab Ahmed v. Hassan Arshad and 10 others PLD 1987 SC 13, relying on a reported case of Division Bench of Lahore High Court titled Muhammad Niwaz v. The Crown 1948 Cr.LJ 774, it was observed as under:-- "... The number of investigations into a crime by a Police Officer is not limited by law and when one has been completed, another may be begun on further information received. And this was also possible even after the submission of the challan report, when the Court has already taken cognizance of the case."
' The Supreme Court of Pakistan in another case titled Muhammad Akhtar v. The State and another 1972 SCM R 335 held that there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in suppression of his earlier one either on his initiative or on the direction of the superior Police Officer.
11. In a case reported as Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755, it was observed that a Police Officer was not competent to launch fresh investigation of the case when a discharge order, dated 11-5-1989 had already been passed by the learned Magistrate. In this view of the matter the Investigating Officer could not re-investigate the case unless he was permitted to do so. The Police Officer if so desired or is called upon to do so may do it after obtaining the necessary permission from the learned Magistrate.
12. The case reported as Alam Din v. The State PLD 1973 Lah. 304, Muhammad Akbar v. The State and another 1972 PCr.LJ 328 and Muhammad Akbar v. The State and another 1972 SCM R 335 fully support the contention raised by the learned counsel for the appellant that the police can take up another investigation and can file another report under section 173, Cr.P.C. As well. In fact the case reported as Muhammad Akbar v. The State 1972 SCM R 335 is an appeal against the judgment reported as Muhammad Akbar v. The State and another 1972 PCr.LJ 328.
13. The case reported as Haji Abdul R.Ehman v. Sultan and another 1971 PCr.LJ 1164 also lends support to the contention of the learned counsel for the appellant that even after release of the accused by the Magistrate on an application submitted by the appellant, the Magistrate is competent to summon the accused to stand trial.
14. From the survey of the above referred case-law it becomes abundantly clear that there is no bar to the re-investigation of a case by the police even if they had submitted an earlier report under section 173, Cr.P.C. Disclosing the fact to the Magistrate that no cognizance offence is made out against the accused. The police is fully competent to re-investigate and to submit a challan on the basis of subsequent investigation.
15. Section 6 of the Code of Criminal Procedure reads as under:-- "6. Classes of Criminal Courts.--- (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in Pakistan, namely:
(i) Courts of Sessions; (ii)
(iii) Magistrates of the First Class.
(iv) Magistrates of the Second Class.
(v) Magistrates of the Third Class.
This section divides the Criminal Courts in Pakistan into several groups and the third, fourth and fifth groups are "Magistrates". This, however, does not mean that a Magistrate is always a Court whatever he is doing. He has executive as well as judicial duties to perform. To constitute a criminal Court it is not sufficient that it is one of the Courts mentioned in section 6. It must be acting as a Criminal Court. Under the Code, a Magistrate is empowered to act judicially as well as in his administrative capacity. The fact that Magistrates have sometimes to perform executive functions will not in itself debar them from acting as Courts as provided in this section. Thus, a departmental inquiry by a Magistrate under orders of Government was an executive act. An order by a Magistrate under section 96 of the Code or under section 145 of the Code, is a judicial order.
16. We have already noted that when a Magistrate concurs with the police report or refuses to agree with it submitted to him under section 173, Cr.P.C. The order passed on such proceedings by the Magistrate will be an administrative order and not a judicial order as observed by the Supreme Court of Pakistan in the above referred most of the authorities. Similarly the powers of agreeing with the police report under section 173, Cr.P.C. Or refusing to agree with the report of police and various other orders of Magistrate in his administrative capacity have now been entrusted to Tehsil Criminal Courts (comprising of Sub-Judge Magistrate 1st Class and Tehsil Qazi) constituted under Islami Tazirati Qawanin Nifaz Act; 1974. The Tehsil Criminal Court, Pallandri while passing order, dated 26-11-1997, concurred with the report submitted by the police under section 173, Cr.P.C. But at the same time neither discharged the accused nor cancelled the challan. This also shows that the police was not debarred from re-investigating the case and submitting a subsequent report under section 173, Cr.P.C. Section 403 of the Code of Criminal Procedure reads as under:-- "403. Person once convicted or acquitted not to be tried for the same offence.--- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force not be liable to be tried again for the same offence, nor on the same facts, for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
(2)
(3)
(4)
(5)
' The aforesaid section is based on the principle that no man's life or liberty shall be twice put in jeopardy for the same offence on the same set of facts.. This section embodies the principle that the punishment twice for same offence is not justified but in the case in hand the accused- respondents were neither tried by the Tehsil Criminal Court nor they were acquitted of the offences alleged to have been committed by them. Thus, it cannot be said that by disagreeing with the police report submitted under section 173, Cr.P.C. The Tehsil Criminal Court passed an order which will amount to an acquittal of the accused-respondents from the alleged offences.
17. It has also been established on the basis of substantive law as well as the plethora of rulings referred to in the earlier part of the judgment that the power of police to re-investigate the case is unlimited and there is no law precluding the police from re-investigating a case. However, the fact remains that on the basis of any investigation or re-investigation into a case when a report is submitted to a Magistrate or Court under section 173, Cr.P.C. The Magistrate or the Court is not expected to blindly follow the investigation undertaken by the police, as the ipsi dixit of police is never binding on a Magistrate or a Court.
18. In a case reported as Jameel Ahmed and 3 others v. The Superintendent of Police, Range Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310, it was observed as follows:- "It is no doubt true that the order of discharge passed by the Court, notwithstanding, the case against the accused remains alive and the F.I.R. Forming the basis of the case against the accused is not cancelled. However, I am of the view that if the Court which passed the order of discharge has applied its conscious judicial mind to the facts of the case as placed before it by the police and has passed a well-reasoned and a speaking order, the order of discharge does clothe the accused with a right not to be roped in the case over again unless the police/Investigating Agency is able to lay its hands on some new material connecting the accused with the commission of the crime and has placed the said material before the Court which passed the order of discharge and has had the order of discharge earlier passed set aside/reviewed/cancelled."
Thus, we are of the view that law being settled on the point that reinvestigation by police cannot be stopped in a particular case and the fact that the order passed by the Tehsil Criminal Court on a report submitted by police under section 173, Cr.P.C. Was administrative in nature, thus, the police was not debarred from re-investigating the case and submitting a challan against the accused if they, in/he opinion of the police, are liable for the commission of the alleged offences against them. However, if the police has accordingly been able to discover and lay its hands on some material/evidence which connects the accused with the commission of the offences alleged against them, it should approach the Court which passed the earlier order of agreeing with the police report riot to proceed against the accused and place the newly discovered material before the Court and persuade it on the strength of the material, thus, placed before it. The Court shall be at liberty to look into the report, in the first instance, submitted by the police under section 173, Cr.P.C., and the subsequent report submitted under section 173, Cr.P.C. And persuade it on the strength of material, thus, placed before it.
19. In Azad Jammu and Kashmir as envisaged under section 34 of 'the Azad Jammu and Kashmir Government Act of 1970, the Tehsil Criminal Courts and District Criminal Courts were constituted.
The Tehsil Criminal Courts were entrusted apart from other functions those functions which were previously entrusted to Magistrates 1st Class. Thus, the order of remand, the order to proceed or not to proceed on a report submitted under section 173. Cr.P.C. Etc. Were entrusted to Tehsil Criminal Courts. In the case in hand the Tehsil Criminal Court Pallandri vide its order, dated 26-11-1997, concurred with the police report submitted under. Section 173, Cr.P.C. That no case was made out against accused-respondents to proceed against them under law. However, the accused were neither acquitted nor discharged as appears from the bare reading of the aforesaid order. Thus, the police was under no law estopped to re-investigate the case against the accused- respondents and to submit their subsequent report before the Court to proceed against the accused-respondents. In its subsequent order, dated 31-7-1998, when a report was submitted by police under section 173, Cr.P.C. Requesting the Court to proceed against the accused, it simply observed that in view of its previous order, dated 26-11-1997, it could not proceed against the accused. The aforesaid approach of the trial Court appears to be illegal. It was enjoined upon the trial Court to look into the fresh material and to apply its judicial mind in order to proceed or not to roceed against the accused-respondents. It was in the sole discretion of the trial Court to look into the first report and the subsequent report submitted under section 173, Cr.P.C. And then to resolve the point and to decide as to whether the material collected during both the investigations was sufficient to proceed against the accused-respondents or not.
20. In this view of the matter we set aside the impugned judgment of the Shariat Court as well as that of the trial Court and direct the Tehsil Criminal Court, Pallandri to appraise both the investigation reports submitted under section 173, Cr.P.C. And to apply its judicial mind and to pass an appropriate order whether to proceed against the accused-respondents or not. With the aforesaid observation the appeal filed by the complainant is accepted in terms indicated above.