2003 PLP 1753 (MLD)

MUHAMMAD YUNUS SURAKHVI, C.J.

This is an application for initiating contempt of Court proceedings against the respondents as visualized under section 45 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with sections 3, 4 and 5 of the Contempt of Court Act, 1993 and Order XLVII of the Azad Jammu and Kashmir Supreme Court Rules, 1978.

2. The necessary facts, as alleged in the application, are that on 26-6-1997, in an encounter between the workers of Muslim Conference and the Local Police Patrol Party, one Master Abdul Hameed, son of Ali Akbar Khan, was killed and some political workers and police personnel were injured about which F.I.R. No. 105 was lodged by a Prosecuting Inspector of Police, who was functioning as Area Commander of the Police Patrol Party. After about five hours, another report, which according to the petitioners, was false one, was filed by real brother of deceased, Abdul Hameed, which was entered as F. I. R. No. 106 in which the petitioners herein were roped in for the murder of Abdul Hameed. After separate investigation and inquiry, a challan was filed for the offences mentioned in F.I.R. No.105. As far F.I.R. No.106 is concerned, it was cancelled by the competent Court and the matter came to an end.

3. The complainant of F. I. R. No. 106 filed a revision petition in the Shariat Court which held that re-investigation can be conducted by the police. On appeal by the petitioners, the apex Court after detailed survey of case-law held that the order of cancellation of F.I.R. being administrative in nature, revision petition in the Shariat Court was incompetent. It was also held that the police is competent to re investigate the matter and to submit a report to the Court concerned. This fact finds mentioned in para. 14 of the previous judgment of this Court titled Muhammad Ajmal Khan and others v. The State and another (Criminal Appeal No. 12 of 2002 decided on 22-11-2002). Finally this Court recorded its finding at page 20 of the said judgment in the following words:-- "The police is free to submit its subsequent report after proper re-investigation into the matter and to submit the same to the Additional District Criminal Court Bagh 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 the cognizable offence, it shall issue a process to the accused -petitioners/appellants to face the trial according to law. The appeal/revision petition stands disposed of in the matter indicated hereinabove. "

4. The respondents who are police officials filed an application for the cancellation of bail of petitioners stating therein that the process is being initiated in the light of judgment of Supreme Court and the prayer made by the said officials at the bottom of the application in the light of judgment of Supreme Court is reproduced in verbatim:-- According to the application filed by the petitioners, the petitioners alleged that in the judgment of this Court dated 22-11-2002 it has been observed as follows:-- (a) that it was held that re-investigation was allowed only in F.I.R. No.106 and no order or observation was recorded in F.I.R. No.105. The version of respondents to this extent is clear misinterpretation of judgment of the apex Court, consequently it is a flare contempt; and (b) that the finding of the Hon'ble Court was that fresh evidence, if any, was to be placed before the District Criminal Court for further proceedings and ascertaining the guilt, which had cancelled the previous case. In the present case, the respondents have proceeded in clear contravention of the order of Court which is also wilful contempt of the order of Court as provided by section 45 of the Interim Constitution Act and section 3 of the Contempt of Court Act, 1993. In addition to the above, it is stated that the proceedings taken by the respondents are clear disobedience and disregard of the order and direction of the Supreme Court rendering all the accused liable to the punishment and on the basis of above, it has been prayed by the petitioners that the respondents may be punished for the contempt of Court as provided under section 45 of the Azad Jammu and Kashmir Interim Constitution Act read with sections 3, 4 and 5 of the Contempt of Courts Act and Order XLVII of the Supreme Court Rules.

5. On presentation of this application, the alleged contemners were served with a notice to file their comments/objections. Objections were filed by respondents Nos. 1 to 7 through their counsel, Mr. Abdul Rashid Abbasi, wherein it has been stated that the application by the petitioners was filed with mala fide intention for prolonging the proceedings regarding re-investigation and issuance of process of the Court concerned. Re-investigation in the matter has been undertaken by the concerned agencies in accordance with law and also in accordance with the principle enunciated by the apex Court is the judgment dated 22-11-2002. In the objections it was also stated that the petitioners have got interim relief from the Court by suppressing and misrepresenting the true facts. The allegation of petitioners is that the police is going to apprehend them under the pretext of judgment of the apex Court which is totally incorrect. The fact of the matter is that the police have submitted a report to the Court concerned (District Court of Criminal Jurisdiction, Bagh) with the request for cancellation of bail of accused as submitted in the report itself. It was also alleged that no grievance can be claimed by the petitioners against the process by a Court of competent jurisdiction and the instant application of the petitioners amounts to pre-empt the exercise of jurisdiction by the said Court. It also amounts to bypassing the due course of law. According to the respondents, in the judgment of the apex Court dated 22-11-2002 it has been clearly provided as under:-- (i) that re-investigation by police cannot be stopped in criminal cases; (ii) that an administrative order passed by Tehsil Criminal Court/District Criminal Court on a report submitted by police under section 173, Cr.P.C. does not debar the police from re investigating the case and submitting the challan against the accused, if, in the opinion of the police, they are liable for the commission of offences alleged against them; (iii) that the police are free to submit their subsequent report after proper re-investigation of the matter to the Court concerned; (iv) that 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 are guilty of a cognizable offence, it shall issue the process to the accused to face the trial according to law. The interpretation as put forth by the petitioners, according to the respondents is a deliberate misstatement which amounts to abuse of process of Court and flouting the judgment of this Court.

6. Arguing the case on behalf of the petitioners, Kh. Shahad Ahmed, the learned counsel, submitted that instead of placing the material after re-investigating the case before the District Criminal Court, Bagh, the respondents-contemners have moved an application before the Court which is at page 26 of the paper book stating therein that the accused have been found guilty for the offences alleged to have been committed by them, therefore, they are required to be apprehended so that the recovery of fire-arms may be made by them and they may be enquired into with regard to some other matters relating to investigation. This application shows beyond any manner of doubt that the police did not place any material before the trial Court for its persuasion as to whether the material is sufficient for issuing process against the accused for facing trial or not but on the other hand, their clear purpose seems to be to arrest the accused and to take them into custody for their ulterior motives. The learned counsel also contended that the material so collected by the police was not placed before the Court in the shape of additional challan which was a requirement of the judgment of the apex Court.

7. Controverting the arguments raised by the learned counsel for the petitioners, Mr. Abdul Rashid Abbasi, the learned counsel for the respondents-contemners, submitted that no violation of the direction of this Court has been committed, rather in compliance of the direction of this Court subsequent investigation has been made and sufficient material has been collected by the police to be placed before the trial Court and to request the Court to proceed against the accused who committed the offence of murder and murderous assault. The learned counsel also pointed out that no embargo can be placed on the wishes of police to request the Court that the accused may be handed over to them so that they may be apprehended and the recoveries may be effected on their pointation. The learned counsel for the respondents ultimately contended that even not an iota of evidence has been brought on record which may show that the respondents-contemners have committed the contempt of Court.

8. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the concluding para of our judgment in a case titled Muhammad Ajmal Khan and others v. The State and another (Criminal Appeal No.12 of 2002 decided on 22-11-2002) is reproduced below for guidance of respondents as well as the trial Court which is to the following effect:-- "We are thus of the view that the law being settled on the point that re-investigation 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 re-investigating 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 re-investigation 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 face the trial according to law."

9. From the above observations, the following principles have been laid down:-- (i) the police is free to submit its subsequent report after proper re investigation into the matter and the same is to be submitted to the trial Court which is competent to proceed against the accused-petitioners (appellants therein); and (ii) 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 are prima facie of cognizable offence, it shall issue process to the petitioners (appellants therein) to face the trial according to law otherwise not. Thus the language of above observations is absolutely clear and there should be no misconception to anyone with regard to observations which have been made in clear terms. The whole of the matter is left to the discretion of the trial Court which is the only competent forum to proceed against the accused if from the fresh material and the old material they are found guilty in the opinion of the trial Court. If they are found guilty, the trial Court may issue process against them. What is the meaning of 'process' we need not explain and every judicial officer or a Court of law is bound to understand it. We have nowhere observed in our previous judgment that the Court may cancel the bail of the accused and hand them over to police. We have also not left the accuses at the mercy of the police rather their fate is to be determined by the trial Court and we, at this stage, cannot observe any more which amounts to interference in the function of the trial Court.

10. So far as the question of contempt of Court is concerned, the investigating Officers, Ch. Muhammad Munir, D.S.P. and Raja Abdul Razzaq, A.I.G. Police, by requesting the Court through their application that the accused may be handed over to them and by not placing any additional challan on the basis of fresh material collected by them before the trial Court are prima facie guilty of contempt of Court. However since both of them have put themselves at the mercy of the Court and they are young officers, who prima facie are acting under the influence of their high-ups, therefore, we give them the benefit of doubt acquitting them of the offence of contempt of Court. We hope that in future they would be careful and would see that the order of Court, be it an inferior or a superior Court, must be obeyed in letters and spirit. In this view of the matter, we do not issue them the regular notice of contempt and do not want to proceed against them in the peculiar circumstances of the case.

11. In the light of what has been stated above, the contempt proceedings initiated against the respondents are dropped. While concluding the judgment, the police officials are directed to proceed in accordance with law in the light of our previous and this judgment regarding the investigation of the case. N.H.Q./364/S(AJK) Order accordingly.