MUHAMMAD YUNUS SURAKHVI. C.J.---This appeal/revision petition has been directed against the judgment of Shariat Court in Criminal Appeal No. 37 of 1998 decided on 13-6-2002, whereby it was observed that the impugned order does in no way prohibit the police to take up the case for reinvestigation and the revision petition was disposed of accordingly.
2. The necessary facts, giving rise to the present appeal/revision petition, are that on 26-6-1997 F.I.R. No. 105 of 1997 was filed by one Sardar Muhammad Ashraf Khan. Prosecuting Inspector, who at the relevant time was working as Sub-Sector Commander, Bagh. The report was filed at 11-30 a.m.
In his F.I.R. He submitted that due to encounter between the police party and workers of Muslim Conference some police constables and private persons belonging to said political party were injured. Further details of the F.I.R. For the purpose of disposal of present appeal/revision petition are not relevant se those need not be repeated.
3. Another F. I. R. No. 106 of 1997 was filed by respondent No.2, Sardar Mir Akbar Khan, at 2-45 afternoon in which he involved the appellants/petitioners for having murdered his real brother Abdul Hameed. The time of occurrence in this F.I.R. Was stated as 9-30 a.m. As against 8-30 a.m. As full detail and version is available in F. I. R. No. 106 of 1997 therefore, the details need not be narrated.
4. The police started investigation on each F.I.R. And filed challan in the Court of competent jurisdiction, which is still pending. As far F.I.R. No. 106 of 1997 is concerned, the Station House Officer, Bagh himself initiated the investigation and then S.S.P., Bagh recorded the statements of certain witnesses. In view of no confidence, another investigating team was nominated by the Inspector- General of Police which was headed by Raja Abdul Qayyum, D.S.P. Crime Branch. The Crime Branch Team after detailed investigation concluded F. I. R. No.106 of 1997 as "found it false" and submitted a report of the occurrence to the Inspector-General of Police as "not admitted as correct" for disposal under law and consequently the cancellation order as provided by law was submitted to. The Additional District Court of Criminal Jurisdiction on 26-10-1998 and 31-10-1998 the case in F.I.R. No. 106 of 1997 was cancelled by the Additional District Criminal Court.
5. On 28-11-1998 respondent No.2 filed an appeal/revision petition against the order of Additional District Criminal Court, dated 31-10-1998 before the Shariat Court and prayed for setting aside the same and for redressal of his grievance. It is pertinent to state that the initial appeal/revision petition was filed against the State and the appellants/petitioners were arrayed as respondents vide order of the Shariat Court, dated 24-5-2000. The Shariat Court vide the impugned order, dated 13-6-2002 disposed of the revision petition by observing that the reinvestigation and collection of fresh evidence can be made by the police at any time and that dropping of the case for insufficient evidence does not debar the Investigation Agency despite the cancellation of the case by the competent Court.
6. In support of appeal/revision petition it was vehemently contended by Kh. Shahad Ahmed, the learned counsel for the appellants/petitioners, that under law reinvestigation cannot be conducted without the permission of the Court which has cancelled the case and agreed with the report of first Investigating Agency under section 173, Cr.P.C. The learned counsel in this regard placed reliance on Mst. Iqbal Begum v. The State (199. PCr.LJ 1755) and Abdul Waheed v. The Statc (PLD 1986 Lah. 81) by contending that the version after detailed investigation was rejected by the Investigating Agency and the same was agreed to and the case was cancelled by the competent Court. In the alternative it was argued by the learned counsel that assuming for the sake of arguments that reinvestigation could be ordered, the same could only be initiated after withdrawal of the order of Additional District Criminal Court which has cancelled the case previously. The learned counsel also contended that an order passed under section 173, Cr.P.C. Is an administrative order against which the appeal/revision petition is not competent under law. This objection was raised in the Court below which finds mention in the impugned judgment but the learned Judge did not advert to the said objection. Reliance in this respect is placed on a case reported as Bahadur and another v. The State and another (PLD 1985 SC 62). The case of the respondents in the Sharriat Court was not one for reinvestigation but the version was that their investigation on F.I.R.
No. 106 of 1997 be ordered which version was rejected after detailed inquiry. The remedy was available to respondent No.2 to file private complaint as provided by law. He could not and still is not competent to force the police or any Investigating Agency according to his own choice particularly when the police and Investigating Agency after detailed investigation have rejected and cancelled his case. In fact respondent No.2 failed to file private complaint in time and to avoid legal defect he filed appeal in the Shariat Court. Reliance in this regard is placed on Bahadur and another v. The State and another (PLD 1985 SC 62) and Amir Ali v. The State and others (PLD 1968 Lah. 537). It was also contended by the learned counsel that the Shariat Court has relied on a letter by A.S.P. Crime Branch to allow the reinvestigation. The learned Judge failed to note that the letter, which is annexed as Annexure "I", is dated 9-10-1998 and the order of the District Criminal Court is dated 31-10-1998, which means that the findings of the Court below are against record as this letter was written before the cancellation of the case and no prayer was made to the trial Court. The learned counsel further contended that the bare reading of the letter, dated 9-10-1998 makes it clear that there is no request for investigation rather the same is for transfer of record.
7. On the other hand by controverting the arguments of the learned counsel for the petitioners/appellants, Mr. Abdul Rashid Abbasi, the learned counsel for the respondent No.2, submitted that the Shariat Court committed no illegality by observing that the reinvestigation can be made by the police at any time and the police are not debarred from collection of fresh evidence. The learned counsel further contended that the order impugned before the Shariat Court does in no way prohibit the police to take up the case for reinvestigation, however, the revision petition filed by the respondent was disposed of in a manner that it does not show as to whether the same was accepted or rejected. The learned counsel strenuously argued that reinvestigation can be conducted without the permission of the Court which has cancelled the previous report submitted to it that no case has been made out against the accused-appellants. The learned counsel also pointed out that irrespective of the fact that against the administrative order of the Court revision petition was competent, the Shariat Court committed no illegality by observing that the reinvestigation by the police cannot be stopped by any authority as this function exclusively vests in the police. The learned counsel submitted that even a subsequent challan can be presented before the Court of competent jurisdiction on the basis of fresh material collected by the Investigating Agency. The only condition precedent is that the Court before which the material is placed has to apply its judicial mind and it has to issue the process against the accused if a cognizable case is made out against the accused persons.
8. We have givers our due consideration to the arguments advanced by the learned counsel for the parties and with their assistance have examined the record of the case. The Additional District Criminal Court, Circuit Rawalakot vide its order dated 31-10-1998 concurred with the report submitted by D.S.P. Bagh under section 173, Cr.P.C. That the case is not substantiated against the accused-appellants. Subsequently r revision petition/appeal was filed by Sardar Mir Akbar Khan against the accused appellants before the. Shariat Court stating therein that the Additional District Criminal Court has illegally agreed with the report of the police for the cancellation of challan and it was also disclosed in the revision petition/appeal that the murder of Abdul Hameed, deceased, took place during the daylight, as such the trial Court committed an illegality by agreeing with the report of the police. He also prayed .In the revision petition/appeal that the investigation may be handed over to some responsible and impartial police official. It was prayed that the order of Additional District Criminal Court, dated 31-10-1998 may be set aside and the order for reinvestigation may be given.
9. The learned counsel for the appellants/petitioners. Kh. Shahad Ahmed, vehemently urged that the order under section 173, Cr.P.C., is an administrative order against which the Shariat Court has no revisional jurisdiction. According to the learned counsel the point was agitated in the Shariat Court but the same was not attended to and resolved. The learned counsel contended that in a case reported as Brahm Dev v. Emperor (AIR 1938 Lah. 469) the proposition was directly replied that order on police report that a case can be struck of is not a judicial order which was also held in another case reported as Muhammad Ishaq Khan v. Abdul Hamid Khan etc. (PLD 1958 Azad J&K 42) holding that the order of Magistrate striking of the case on police report that the case was not .Proved is not judicial but administrative order and not open to revision. The same proposition was answered by Full Bench of the Lahore High Court in a Reference reported as "Wazir v. State (PLD 1962 Lahore 405) wherein it was held that order of cancellation being administrative in nature no revision is competent under law. After detailed survey of the case-law the Supreme Court of Pakistan in cases reported as Sardar Noor Hussain v. Chief Settlement Commissioner (PLD 1983 SC 62) and Riaz Hussain and others v. The State (1986 SCMR 1934) held that revision against the administrative order is not competent and that the reinvestigation is always ordered for getting favourable reports and the Supreme Court of Pakistan depreciated the practice of ordering the reinvestigation. In Azad Jammu and Kashmir after 1958 the subject in hand was discussed in detail by the Supreme Court of Azad Jammu and Kashmir in a case reported as Mir Dad Khan v. Zahir Shah and 3 others (2000 PCr.LJ 1739) wherein the subject of reinvestigation and the nature of order have been answered in detail. There is no cavil with the proposition that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceeding or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a` persona designata. In a case reported 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 and that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers, 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 render 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."
Therefore, the above objection raised by Kh. Shahad Ahmed, the learned counsel for the petitioners/appellants is upheld.
10. The next point to be resolved is as to whether after agreeing with the report submitted by police under section 173, Cr.P.C. That a false case has been filed against the accused-respondents, subsequently the police are competent to submit a fresh report under section 173, Cr.P.C: against the accused-respondents for facing the trial for allegedly committing the cognizable offences.
There is no cavil with the proposition that the police have unlimited powers for reinvestigation into a crime. 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 Nawaz 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 Akbar v. The State and another (1972 SCMR 335) held that there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in super--session of his earlier report either on his initiative or on the direction of the superior Police Officer.
The cases 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 SCMR 335) fully support the view 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 and another (1972 SCMR 335) relates to an order passed in appeal by the Supreme Court of Pakistan against the judgment reported as Muhammad Akbar v. The State and another (1972 PCr.LJ 328).
The case reported as Haji Abdul Rehman's v. Sultan and another (1971 PCr. LJ 1164) also lends support to the view that even after the release of accused by the Magistrate on an application submitted by the appellant, the Magistrate is competent to summon the accused to stand trial.
11. There are some authorities in which it has been held that if an accused person has been discharged by the Magistrate by cancelling the challan then if a subsequent report is submitted under section 173, Cr.P.C. Against the accused on the basis of new material collected by the Investigating Agency, the police must get permission front the Magistrate/Court who in the first instance released the accused and agreed with the police report under section 173, Cr.P.C. That there was nothing to proceed against the accused but the preponderance of the authorities of the Supreme Court of Pakistan as well as of this Court is to the effect that the police are not bound to seek permission from the Magistrate/Court for reinvestigation of the case as the investigation and reinvestigation are the subjects which vest within the exclusive domain of police. The police may reinvestigate regarding a cognizable case and without seeking any permission from the Magistrate/Court who in the first instance agreed with the police not to proceed against the accused and place the material before the Magistrate/Court of competent jurisdiction for proceeding against the accused on the basis of fresh material collected by it and the police after application of judicial mind, if comes to the conclusion that there is sufficient material to proceed against the accused, it has the authority to do so.
12. From the careful study of the above --referred case-law, it becomes abundantly clear that there is no bar to the reinvestigation of the case by the police even if they had submitted an earlier report under section 173, Cr.P.C. Disclosing the fact to the Magistrate or the Court that no cognizable offence is made out against the accused. The police is fully competent to reinvestigate and submit a challan on the basis of subsequent investigation. In a case reported as Mirdad Khan v. Zahir Shah and 3 others (2000 PCr.U 1739) it has been resolved by this Court that when the Magistrate and the Tehsil Criminal Court concur with the police report under section 173, Cr.P.C. Or refuse to agree with it submitted to them under section 173, Cr.P.C., the order passed on such proceedings by the Magistrate/Tehsil Criminal Court 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.
13. It thus follows that when a Magistrate or Tehsil Criminal Court concurs with the police report or refuses to agree with it submitted to them under section 173, e Cr.P.C., the order passed on such proceedings by the Magistrate . Will be an administrative order and not judicial one. 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 Magistrate Class 1 and Tehsil Qazi) and District Criminal Courts (comprising of Sessions Judge and District Qazi) constituted under the Islami Tazirati Qawanin Nifaz Act, 1974, while exercising their powers as a Court of original jurisdiction. The Additional District Criminal Court in the instant case concurred with the report submitted by the police under section 173, Cr.P.C. And agreed with the suggestion of the police for dismissing the said report.
14. It thus stands established on, the basis of substantive law as well as the plethora of rulings, referred to in this judgment, that the powers of police to reinvestigate the case are unlimited and there is no law precluding the police from reinvestigating the case. However, the fact remains that on the basis of any investigation or reinvestigation into a case when a report is submitted to a Magistrate or Court under section 173, Cr.P.C., the Magistrate or Court is not expected to blindly follow the investigation or the reinvestigation undertaken by the police as the ipsi dixit of police are never binding on Magistrate or a Court of law.
"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. "
15. We may also add that the Additional District Criminal. Court while agreeing with the report under section 173, Cr.P.C. Did not advance any cogent reason and the order passed by it is not a speaking order in the true sense. The Shariat Court was not vested with the jurisdiction of revision,st as discussed earlier. Therefore, it rightly refrained from doing so. However, the Shariat Court committed no mistake in observing that the investigation or reinvestigation by police cannot be debarred.
16. We are thus of the view that the law being settled on the point that reinvestigation by police cannot be stopped in a criminal case and the fact that the order passed by Tehsil Criminal Court or District Criminal Court on a report submitted by police under section 173, Cr.P.C. Was administrative in nature, does not debar the police from reinvestigating the case and submitting a challan against the accused if, in the opinion of the police, they are liable for the commission of the offences alleged against them. The police is free to submit its subsequent report after proper reinvestigation into the matter and to submit the same to the Additional District Criminal Court competent to proceed against the accused --petitioners/appellants. The Court shall apply its judicial mind and if from the fresh material as well as the previous material collected by the police it reaches the conclusion that the accused-petitioners are prima facie guilty of a cognizable offence, it shall issue a process to the accused --petitioners/appellants to dace the trial according to law. The appeal/revision petition stands disposed of in the manner indicated hereinbefore.
N.H.Q./334/SC(AJ&K)