2000 P Cr (PLP)

Through this revision petition the validity of the order, dated 31-7-1998 recorded by Tehsil Court of Criminal Jurisdiction Pallandari is assailed.

2. The brief facts of the case are that a Crime No.95 of 1997 for offences under sections 324/341 and 506, A.P.C. was registered at Police Station Pallandari on a report of the petitioner/complainant. The police after investigation submitted a report under section 173, Cr.P.C. before Tehsil Court of Criminal Jurisdiction, Pallandari stating therein that the F.I.R. was fake one. The said Court concurred with the police report, the file of the case was consigned to record room and the accused/respondents were discharged vide its order, dated 25-11-1997.

3. After some time, the police reinvestigated the case on the direction of their higher authorities and submitted a challan under section 173, Cr.P.C. and requested the same Court to proceed with the case. The trial Court refused to take cognizance on the ground that it had no jurisdiction to review its previous order, dated 26-11-1997. According to the trial Court unless the aforesaid order was set aside, it was not permissible under law to try the accused/respondents once again as they were discharged through the order. dated 26-11-1997. Therefore, the said Court through its order, dated 31-7-1998 consigned the police report to record room and refused to take cognizance of the case. Hence this revision petition.

4. The learned counsel for the petitioner while assailing the impugned order contended that the police was all competent under law to re-investigate the case and submit a second report under section 173, Cr.P.C. and the second report did not fall within the purview of review. Thus, the impugned order was bad in law and was liable to be quashed, the learned counsel maintained. The learned counsel referred 1990 PCr.LJ 967 and PLD 1987 SC 13 to support his view.

5. On the contrary, the learned counsel supported the impugned order and submitted that the police were debarred under law to re-investigate the case without prior permission of the Court and in the instant case the matter was re-investigated on the direction of their higher authorities. According to the learned counsel a Court order, dated 26-11-1997 intervened between first and second investigation, therefore, the Court could not be by-passed. It was further argued that through the order, dated 26-11-1997 the respondents accused were discharged through a Court order and as long as the aforesaid order was intact they could not be vexed once again for the same charges The learned counsel relied on 1991 PCr.LJ 1755 and PLD 1985 SC 62 to substantiate his claim.

6. I have examined the record of the case and the case-law cited by the learned counsel for he parties.

7. It looks proper to have a brief survey of the case-law cited at Bar. In Firdous Barket Ali's case 1990 PCr.LJ 967, it was held as under:-- "Criminal Procedure Code (V of 1898), Ss. 169, 161, 403 & 561-A

Penal Code (XLV of 1860), Ss.406, 408, 420, 468, 471, 472 & 477-A

Quashing of second F.I.R.

F.I.R. was investigated and a report under 5.169, Cr.P.C. was submitted to the Illaqa Magistrate intimating that sufficient evidence was not available to send up the accused for trial

Written complaint giving certain fresh instances concerning the involvement of the accused was also filed

Report under S.169, Cr.P.C., held was not conclusive and final and the accused could not take advantage of S.403, Cr.P.C Police was not debarred from continuing the investigation

Second report could be competently lodged

Trial Court was to decide whether the second report was a statement under S.161, Cr.P.C. or a fresh complaint

Petition for quashment, thus, dismissed in limine.

(Investigation). In Aftab `Ahmed's case PLD 1987 SC 13, it was observed as follows:-- "Case was registered for offences under sections 307, 364, 465, 452, 148 and 149, P.P.C. Magistrate took cognizance of the case and framed charge under section 364/307/452/148/149, P.P.C. and thereafter, statement of one of the prosecution witnesses was also recorded. In the meanwhile, the police on the intervention of higher authorities re-investigated the case and submitted a second report under section 173, Cr.P.C. for offences under section 336/342/148/149, P.P.C. The other more serious offences were omitted." In Bahadur and another's case PLD 1985 SC 62, it was held as . under:-- "Ss. 435, 436, 437, 438 & 439

Magistrate concurring with police report submitted under S.173, Cr.P.C. discharging accused and cancelling a criminal case registered under 5.379/420. P.P.C. does not function as criminal Court. Order of cancellation of criminal case for that reason is not amenable to revisional jurisdiction of High Court under Ss.435 to 439, Cr.P.C.

Penal Code (XLV of 1860), Ss.379 & 428

Criminal Procedure Code (V of 1898), 5.173." In Mst. Iqbal Begum's case it was observed by the learned Judge as under:-- "Criminal Procedure Code (V of 1898)

Section 173, Cr.P.C. Investigating of case was taken up by D.S.P. under the D.I.-G. (Police) without permission of the Magistrate

Investigating, held, could not re-investigate the case without necessary permission of Magistrate in circumstances."

8. The critical survey of the above-referred authorities show that the case-law cited by the learned counsel for the petitioner have no relevancy in the instant case. In Firdous Ali's case a report under section 169, Cr.P.C was submitted to Illaqa Magistrate intimating that sufficient evidence was not available to send up the accused for trial. A second complaint was also filed giving certain fresh instances showing involvement of the accused. The Court held that report under section 169, Cr.P.C. was not. conclusive and final land the accused could not take advantage of section 403, Cr.P.C. Therefore, it was observed by the learned Judge that the police were not debarred from continuing the investigation.

9. In Aftab Ahmed's case a report for offences under sections 307, 364, 465, 542, 148 and 149 was sub judice before a Magistrate and the trial was in progress as prosecution evidence was being recorded. In the meanwhile the police under the direction of higher authorities re-investigated the case and a second report under section 173, Cr.P.C. for offences under sections 336, 342, 148 and 149, P.P.C. was submitted. The serious allegations levelled in prior report were omitted while submitting the subsequent report.

10. There is no quarrel with the above-referred law but the cases cited by the learned counsel for the petitioner have got no bearing on the case in hand. In the instant case, the police submitted a final report under section 173, Cr.P.C. to the Court that the case registered against the respondents was found as fake one and the Court agreed with the finding of the police through the order, dated 26-11-1997 and the matter was closed. This report obviously was a police report under section 173, Cr.P.C. and not a report under section 169, Cr.P.C. The police if felt expedient to re-investigate the case, the right course was to get the order, dated 26-11-1996 set aside or seek the- permission of the Court to re-open the case but unfortunately the police failed to meet any of the abovementioned requirements. Here neither the report under section 169, Cr.P.C. was submitted nor a report under section 173, Cr.P.C. was sub judice before the Court at the relevant time. Had it been a report under section 169, Cr.P.C. naturally re-investigation could not be barred as the report under section 169, Cr.P.C. is not conclusive and final. Similarly while a police report (challan) under section 173, Cr.P.C. is sub judice before a competent Court there is no bar to re-investigate the case and submit a second report under section 173, Cr.P.C. But the matter becomes totally different when a police report being a final report under section 173, Cr.P.C. is submitted declaring the case to be false one and the Court agreed with the report of the police and the accused were discharged.

11. The Honourable Judge while deciding the case of Mst. Iqbal Begum observed that after recording the order of discharge by the Magistrate in a report under section 173, Cr.P.C. no re-investigation could be made without permission of the Magistrate. This case-law has definite bearing on the instant case. In other case referred by the learned counsel for the respondents PLD 1985 SC 62 it was held by the learned Judge that the Magistrate while agreeing with the finding of police under section 173, Cr.P.C. discharged the accused and cancelled the criminal case. As the order was passed in administrative capacity and not as a criminal Court, therefore, the same was not open to revision by the High Court. Without including into controversy as to whether or not the order of the Magistrate is a order of Criminal Court or administrative in nature the matter is to be viewed in the light of the Constitution of the Courts E established in Azad Kashmir. In Azad Kashmir Tehsil Courts and District Courts consisting of two members a Magistrate/Sessions Judge and a Qazi are established and are working since long. Therefore, it can safely be said that the order, dated 26-11-1997 is a Court order and the same was recorded in Judicial capacity. This order was open to challenge before a competent forum but the police without adopting the proper course re-investigated the case merely on the intervention of their own higher authorities which is not permissible under law. Thus, the order, dated 31-7-1998 does not deserve any interference by this Court and the trial Court acted in light direction while recording the aforesaid order. The revision petition being devoid of force is hereby dismissed. H.B.T./87/Sh.C.(AJ&K) Revision dismissed.