' MUHAMMAD YUNUS SURAKHVI, J.---This appeal has been directed against the judgment and order passed by the Shariat Court on 8-8-2001, whereby accepting the application the accused- respondents were released forthwith from the judicial lock-up.
2. The necessary facts, giving rise to the present appeal, are that an F.I.R. Was lodged against the accused-respondents on 26-1-2001, at 3-45 p.m. At Police Station Kotli, by appellant No,1, for allegedly committing offences under sections 302, 324, 337 and (F.3) 458/34 and 109, A.P.C. After the necessary investigation the police submitted a report/challan No,51 under section 173, Cr.P.C.
Before the District Court of Criminal Jurisdiction Kotli on 7-32001, wherein the accused-respondents Muhammad Mushtaq, Muhammad Ashfaque, Muhammad Fazil, Gulzar Khan and Ishtiaq Hussain Shah were found guilty of the commission of alleged offences. The occurrence was stated to have been witnessed by Mst. Mehfooz Jan, widow of Muhammad Akbar, deceased, Mst. Farzana, wife of Muhammad Arshad, Muhammad Anwar, son of Muhammad Akbar and Mst. Saima, D/o Muhammad Akbar, deceased. It is alleged by the appellant that after sometime one Arshad, son of Ali Dad, was apprehended by the local police in connection with some other case and with the connivance of the accused-respondents the S.H.O. Police Station Kotli subjected the said Arshad, son of Ali Dad, to a severe torture and under the coercion got his statement recorded in which the said accused admitted that he had committed the murder of Muhammad Akbar. The confessional statement of Arshad accused was recorded by the Magistrate on 23-4-2001, however, he remained in the custody of Police instead of being sent to judicial lockup as ordered by the S.D.M. It is also alleged by the complainant-appellant that with the ulterior motives the local police in collaboration with the accused put up a subsequent challan in District Court of Criminal Jurisdiction on 17-3-2001. The accused-respondent applied for their bail after arrest on 26-3-2001.
On 9-4-2001 the Court ordered for issuance of notice to the complainant. On 26-7-2001 the learned District Qazi passed an order that as the other member (District and Sessions Judge) constituting the Court is absent, therefore, the appropriate order would be passed on 27-8-2001. During this period the accused-respondents moved a transfer application before the Shariat Court on 1-8- 2001, on the ground that the District Qazi was not dealing with the case fairly and impartially, therefore, their bail application be transferred to some other Court of competent jurisdiction. The Shariat Court treated the said application as an application under section 561-A read with sections 497/498, Cr.P.C. And ordered the release of accused-respondents vide its order, dated 8-8-2001. It is the aforesaid order of the Shariat Court which is the subject-matter of present appeal.
3. In support of appeal it was vehemently contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants, that soon after the occurrence an F.I.R. Was lodged by appellant No,1 regarding the commission of murder of his father on 26-1-2001 and the same was fully supported by the evidence of inmates of the house wherein the occurrence took place. On the basis of report lodged by the appellant the police submitted a report/challan under section, 173, Cr.P.C. Before the Court of competent jurisdiction but after that in connivance, and collaboration with the accused in order to give them undue benefit, the police submitted a supplementary challan on 18-7-2001 stating that accused-respondents were found innocent during the subsequent investigation, therefore, they may be exonerated from the challan and fresh challan was filed against Arshad Kamran, Nazir and Abid. The learned counsel for the appellants contended that the subsequent challan was produced by the local police in collaboration with the accused-respondents in order to absolve them from the liability of the commission of offence of murder. The learned counsel contended that the Shariat Court committed a grave legal error by following the ipse dixit of police and did not apply its judicial mind to the facts and ' circumstances of the case. The mere fact that in the subsequent challan the accused-respondents were declared innocent by the local police is no ground for release of the accused. Still it was enjoined upon the Court to apply its judicial mind and to come to a conclusion as to whether there were reasonable grounds for believing that the accused-respondents were guilty of the commission of the alleged offences. The learned counsel pressed into service the submission that the Shariat Court also committed error in not sending the case back to the trial Court for seeking its wisdom in the first instance in the matter of bail but directly released the accused thereby confirming the subsequent investigation of the police as a sacrosanct and truthful. The learned counsel contended that it was not the job of the Shariat Court to substitute its own opinion for that of the trial Court. The learned counsel for the appellant's in support his contentions relied upon Muhammad Alam and another v. Additional Secretary to Government and 4 others PLD 1987 SC 103-, - Mirdad Khan v. Zahiar Shah and 3 others 2000 PCr.LJ 1739, Farrukh Ahmad Chaughtai v. Muhammad Imtiaz and 6 others PL." 1995 SC (AJK) 1, and Haji Inayat-ulHaq v. Said Muhammad Khan and another 1988 SCM R 1743.
4. In reply Sardar Abdul Hameed Khan, the learned counsel for the accused-respondents, fully defended the impugned judgment passed by the Shariat Court and contended that since the District Qazi was partially dealing with the case and procrastinating the bail matter in absence of the Sessions Judge, the other member constituting the Court, the accused were left with no option except to move the Shariat Court for transfer of the hail petition. The Shariat Court was fully vested with the jurisdiction to treat the application of the transfer of bail petition into one for quashment of proceedings under section 561A read with sections 497/498, Cr.P.C. The learned counsel contended that when in the supplementary challan the police reached a definite conclusion that the accused-respondents were not guilty of murder of Muhammad Akber, thereafter their detention for any further period was an illegal and unlawful in the eye of law. Thus, the Shariat Court committed no illegality in releasing the accused-respondents. The learned counsel emphasized that when the Shariat Court, on the basis of material placed before it, reached the conclusion that the accused were innocent, there was no bar for it to release them immediately. The learned counsel in support of his contentions relied upon Mirdad Khan v. Zahir Shah and 3 others 2000 PCr.LJ 1739, Muhammad Rashid and another v. The State PLD 1981 SC (AJ&K) 110, Muhammad Alam and another v. Additional Secretary to Government and 4 others (PLD 1987 SC 103, Murid Hussain v. The State and another (1993 M LD 2402 and F.S. Wahid-ud-Din v. The Crown PLD 1956 (W.P.) Kar.
489.
5. As stated earlier the matter of bail of accused-respondents was pending before the District Court of Criminal Jurisdiction Kotli that one of its members, the learned Sessions Judge, was not present on 26-7-2001 and the case was adjourned to 27-8-2001. In the meantime the accused- respondents moved a transfer application before the Shariat Court, as stated earlier, on the ground that since the District Qazi was not dealing with the case impartially and fairly, therefore, the bail application of accused-respondents be transferred to some other Court of competent jurisdiction.
The learned Chief Justice of the Shariat Court, as stated earlier, vide the impugned order, dated 8- 8-2001 the application as one under section 561-A read with sections 497/498, Cr.P.C. And ordered the release of accused-respondents. It was observed by the Shariat Court that "when the petitioners (accused-respondents) are declared by the police innocent and deleted from the challan which is so stated in police diary No, 1 recorded on 15-7-2001 and also evident from the challan filed in the Court, their detention is without lawful authority.
' It is therefore, ordered that the petitioners (accused-respondents) shall be released forthwith from the lock-up. The Jail Superintendent is directed to release the petitioners (accused- respondents) immediately".
6. After hearing the respective contentions of the learned counsel for the parties and carefully perusing the record, it may be stated that the Shariat Court in releasing the accused-respondents did not apply its judicial mind as to whether there were no reasonable grounds for believing the accused-respondents to have committed the alleged offences. The learned Judge in the Shariat Court simply followed the ipse dixit of police which is not the requirement of law. It is a celebrated principle of criminal jurisprudence that no embargo can be placed on the powers of investigation of police. Even during the pendency of a challan the police is competent under law to initiate reinvestigation and to submit a supplementary challan but this fact should not be lost sight of that the Courts of law have to form their own independent judicial opinion as to whether at the stage of bail there are reasonable grounds for believing the accused to be guilty of commission of non- bailable offences as alleged by the prosecution.
In a case reported as Mirdad Khan v. Zahir Shah. And 3 others 2000 PCr.0 1739 it was observed that there is no bar to the reinvestigation of a case by the police although they have submitted an earlier report. The police is fully competent to reinvestigate and to submit a challan on the basis of subsequent investigation. The power of police to reinvestigate the case is unlimited. The Magistrate or Court are not expected to blindly follow the investigation undertaken by the police as the ipse dixit of police is never binding on a Magistrate or a Court.
' In a case reported as Farrukh Ahmad Chughtai v. Muhammad Imtiaz and 6 others (PU 1995 SC
(AJK) 1).It was observed that there is no quarrel with the proposition that the police has ample powers to re-investigate the matter and to submit supplementary challan and to reach a definite conclusion on the basis of evidence collected at both the stages as to whether the material is prima facie sufficient or not against the accused-respondent to proceed. It is a celebrated principle of criminal jurisprudence that the Courts of law are not bound by ipse dixit of police. They have to form their own judicial opinion. The view taken by the police is not sacrosanct but is always subject to judicial scrutiny and analysis for the purpose of arriving at a conclusion.
' In a case reported as Hassan. Arshad and others v. The State (1987 PCr.LJ 466) it was observed that the first report was submitted by S.H.O. The Court took copizance of the case. Second challan was submitted by the D.S.P. After reinvestigation. It was held that the Court would not become functus officio in entertaining the first report of police under section 173, Cr.P.C. And should act oh report submitted after subsequent investigation.
' In a case reported as Haji Inayat-ulHaq v. Said Muhammad Khan and another (1988 SCM R 1743) it was observed that it is true that a person accused of a non-bailable offence is entitled as of right to bail if the officer in charge of police station comes to a definite conclusion on consideration of entire material that "there are no reasonable grounds for believing that the accused has committed a non-bailable offence". Column No,2 of the Challan Form relates to the names and addresses of the accused persons not sent up for trial. The High Court is not denuded of the authority to see and assess whether' the material . Already on the record was sufficient for the Investigating Officer to come to the conclusion that no reasonable existed for believing that the accused had committed a non-bailable offence. There was no bar upon the High Court from evaluating the material on the record to see whether the Investigating Authority was justified in thinking that the accused was innocent, on the basis of. The said material. The High Court could go into this aspect of the matter because the material could clearly be examined by it and the opinion of the police officer directing ;hat the accused be placed in Column No,2 did not stand in the way of making such an evaluation.
7. Now we may refer to the authorities relied upon by the learned counsel for the accused- respondents. In a case reported as Muhammad Rashid and another v. The State PLD 1981 SC (AJ&K)
110 it was observed that section 561-A, Cr.P.C. Gives wide powers to meet such eventualities and pass any order as the ends of justice may require. The High Court under section 561-A, Cr.P.C. Is empowered to interfere even at interlocutory stage of criminal proceedings to prevent the abuse of powers of any Court.
' In a case reported as Atta Muhammad v. Inspector-General of Police and others (PLD 1965 (W.P.)
Lah.734) it was observed that there is no bar for the police to pursue its own investigations and submit their results to Court to find the guilt or innocence of the accused persons before it becomes too late. It was further observed that there is no bar to the investigation by the police after the submission of a final report under section 173, Cr.P.C. Nor is the police not competent to file, if it is so disposed, a second report as a result of its subsequent investigation into the case.
' In a case reported as Zafar Sarwar v. The State (1969 SCM R 59) it was observed that the police submitting incomplete report under section 173, Cr.P.C. And showing the accused to be in Column No,1 but in the final challan submitted subsequently accused's name entered in Column No,2.
Contention that as the accused's name was shown in Column No,2 of the final police challan, Inquiry Magistrate could take cognizance only under section 190(1)(c), and therefore, it was necessary to allow the accused option to have inquiry against him held by another Magistrate. It was held that there is no provision in the Code of Criminal Procedure for submission of incomplete report under section 173, Cr.P.C. Inquiry Magistrate, in such circumstance, not precluded from taking cognizance until final challan submitted. Contention, therefore, that accused should have option to have inquiry held by another Magistrate was declared to be ill-founded.
' In a case reported as Muhammad Alam and another v. Additional Secretary to Government and 4 others (PLD 1987 SC 103) it was observed that the report was submitted by police under section 173, Cr.P.C. Before the Deputy Commissioner who was admittedly authorized to take cognizance of offence under the Regulations. The Investigating Officer submitted another report purporting to be under section 169, Cr.P.C. (not in form prescribed for report under section 173, Cr.P.C. Requesting for the release and discharge of petitioners as case against them was weak and higher authorities had also desired so. The Deputy Commissioner allowed- the request of Investigating Officer with the result that the. Petitioners were presumed to have been discharged under section 169, Cr.P.C. It was held that although application of Investigating Officer to Deputy Commissioner was under section 169, Cr.P.C. And was also not in form prescribed for report under section 173, Cr.P.C.
Presumption would be that the Investigating Officer intended the application to be the second report under section 173, Cr.P.C. Which was permissible under law. Report under section 169, Cr.P.C.
Otherwise too was not proper course in the circumstances. The order of Additional Deputy Commissioner releasing the petitioner and discharging him of his bond could be made under section 173, Cr.P.C. And not under section 169, Cr.P.C. It was held that the cancellation of case also, if validly made, would have to be made under section 173, Cr. P.0 .
' In a case reported as Muhammad Shabir and 3 others v. Muhammad Ayub (PLD 1988 SC (AJ&K)
176) it was observed that in a private complaint the process were issued. The Shariat Court quashed the proceedings subsequent to order issuing process and remanded the case. The Additional Tehsil Criminal Court dismissed complaint in light of decision of the Shariat Court. The Shariat Court quashed the order. It was held that the proceedings taken by the Additional Tehsil Criminal Court needed quashment in the ends of justice and the Shariat Court rightly quashed the same.
' In a case reported as F.S. Waheedud-Din v. The Crown (PLD 1956 (W.P.) Karachi 489) it was observed that the High Court had power to quash the proceedings if it was satisfied that on the basis of allegations made or undisputed documents including police diaries made available, no prima facie case could be said to have been made out.
8. The authorities thus, cited by the learned counsel for the respondents mostly relate to the quashment of proceedings when the same are the abuse of the process of the Court. There is no quarrel with the principles enunciated in the aforesaid authorities but the question in the instant case is that whether the Shariat Court applied its independent judicial mind and released the accused as in its opinion there were no reasonable grounds for believing that the accused were guilty of non-bailable offence or it simply based its opinion on the ipse dixit of police. We have already referred the portion of the impugned judgment from where it becomes abundantly clear that the learned Judge in the Shariat Court merely relied upon the ipse dixit of police and did not apply his judicial mind while releasing the accused-respondent nor remanded the bail matter to the trial Court to apply its independent judicial mind in reaching the conclusion after taking into consideration both the reports as to whether there were reasonable grounds for believing that the accused-respondents were not guilty of the alleged offences.
9. In the light of what has been stated above, the impugned order passed by the Shariat Court on 8-8-2001, whereby the accused-respondents were released, is set aside by accepting the appeal.
Non-bailable warrants shall issue against the accused-respondents who shall be taken into custody forthwith and sent to judicial lock-up and the case is remanded to the District Court of Criminal Jurisdiction Kotli with a direction that it shall decide in the first instance the question whether to proceed against the accused-respondents on the basis of first challan or supplementary challan or both of them simultaneously. After deciding the above question, the bail application of the accused-respondents shall be decided by the trial Court keeping in view the material of the relevant challan placed on record in accordance with the settled principles relating to bail matters. The appeal stands accepted in terms indicated above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.