2003 PLP 1797 (MLD)

MUHAMMAD YUNUS SURAKHVI, C.J.

The above titled both the appeals arise out of a common judgment passed by the Shariat Court of Azad Jammu and Kashmir on 24-6-2002 and relate to the same occurrence. As common questions of facts and law are involved in the both of them, therefore, the same are disposed of through this single judgment.

2. The necessary facts, giving rise to the present appeals, are that an F.I.R. was lodged against the accused-respondents Muhammad Mushtaq son of Muhammad Fazil and 4 others on 26-1-2001 at 3-45 a.m. at Police Station Kotli by the appellant, Muhammad Arshad son of Muhammad Akbar, for the commission of alleged offences under section 302, 324, 337-A, 458/34, A.P.C. After the necessary investigation, the police submitted a challan No.51 of 2001 under section 173, Cr.P.C. before the District Court of Criminal Jurisdiction Kotli on 10-3-2001, wherein the accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque, Muhammad Fazil, Gulzar Khan and Ishtiaq Hussain Shah, were found guilty of commission of offences under sections 302, 324, 337/F-3, 458, 34 and 109 A. P. C. The occurrence was stated to have been witnessed, besides Muhammad Arshad, by, Mst. Mehfooz Jan, widow of Muhammad Akbar, deceased Mst. Farzana, wife of Muhammad Arshad, Muhammad Anwar son of Muhammad Akbar and Mst. Saima, daughter of Muhammad Akbar, deceased.

3. The trial Court recorded the statements of accused respondent under section 242, Cr.P.C. in which they, denied the charges levelled against them and claimed their trial. The prosecution was ordered to produce evidence in support of its case and the case was adjourned for producing the prosecution witness.

4. It is alleged by the complainant-appellant that after some time one Muhammad Arshad son of Ali Dad, was apprehended by the local police in connection with some other case, with the connivance of accused-respondents. S.H.O. Police Station Kotli, Muhammad Jamil Khan, subjected him to a severe torture and under the coercion got divulged from him that he had committed the murder of Muhammad Akbar. Later on confessional statement of accused, Muhammad Arshad son of Ali Dad, was recorded by the Magistrate on 23-4-2001. However, he remained in the custody of Police instead of being sent to judicial lock-up 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 persons put up a subsequent challan before the District Court of criminal jurisdiction Kotli on 18-7-2001. The accused -respondents applied for their bail after, arrest before the trial Court 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 on leave therefore, the appropriate order on the application would be passed on 27-8-2001. During this period, the accused-respondents moved a transfer application before the Sharait Court on 1-8-2001 on the ground that the learned 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 section 497 and 498, Cr.P.C. and ordered the release of accused-respondents vide its order dated 8-8-2001. The Shariat Court observed that as the subsequent challan has been submitted in the District Court of Criminal Jurisdiction Kotli against some other persons, hence first set of accused persons were liable to be set at liberty. The complainant-appellant filed an appeal before the Supreme Court of Azad Jammu and Kashmir against the aforesaid judgment of the Shariat Court and this Court vide its judgment dated 8-11-2001 set aside the order of Shariat Court dated 8-8-2001 and non-bailable warrants for arrest of accused -respondents were issued by this Court. This Court also directed that the trial Court should decide whether proceeding against the accused persons shall be initiated in the first challan or in the subsequent challan. The District Criminal Court Kotli vide its judgment dated 31-1-2002 ordered that proceedings shall be carried out in the light of first challan submitted by S.H.O. Police Station Kotli and also observed that the subsequent challan filed against Muhammad Arshad and others is not entertainable. Respondents Nos.1 to 5, feeling aggrieved by the aforesaid judgment of the District Criminal Court, filed a revision petition before the Shariat Court on 1-4-2002. The Shariat Court vide its judgment dated 24-6-2002 partly accepted the revision petition and ordered that proceedings in both the challans shall be conducted by the trial Court. It was observed by the Shariat Court as follows:-- ".......... It is directed that the trial Court shall take cognizance of supplementary report and record statement of accused respondents 3 to 6 (appellants herein) under section

242. Cr.P.C. in the light thereof and rest of the proceedings shall be conducted in accordance with law as observed in preceding paras." It is the aforesaid judgment of the Shariat Court dated 24-6-2002 handed down in Criminal Revision Petition No.60 of 2002 against which the present appeals have been filed (i) titled Muhammad Arsahd v. Muhammad Mushtaq and 5 others (Criminal Appeal No. 10 of 2002) and (ii) titled Kamran Aziz and 2 others v. Muhammad Mushtaq and 7 others (Criminal Appeal No. 11 of 2002).

5. In support of Appeal No. 10 of 2002, it was vehemently contended by Mallick Muhammad Zarait Khan, the learned counsel for the appellants, that the order passed by the District Court of Criminal Jurisdiction Kotli dated 31-1-2001, whereby the subsequent challan was not entertained is quite in accordance with law and suffer from no illegality or infirmity. The learned counsel contended that the first challan was submitted by S.H.O. Police Station Kotli against the accused-respondents, Muhammad Mushtaq and others, after thorough inquiry, probe and after recording the statements of eye-witnesses under section 161, Cr.P.C. on the basis of recoveries of weapons of offence at the instance of accused persons and supportive evidence like medical reports and other evidence like the recovery of blood-stained clothes. The statements of first informant and eye-witnesses recorded under section 161, Cr.P.C. reveal that the accused-respondents were identified by them, as such the involvement of some others innocent persons by the police on the basis of subsequent challan is not justified and is indicative of the fact that the police want to give undue benefit to the accused -respondents who are fully responsible for the murder of Muhammad Akbar, deceased and murderous assault on the persons of Muhammad Arshad, complainant. The learned counsel contended that in the subsequent challan the accused, Muhammad Arshad son of Ali Dad, is stated to have been arrested by the police in F.I.R. No.99 of 2001 dated 25-4-2001 who has confessed the murder of deceased, Muhammad Akbar. This version of the police, on the face of it, is unfounded and baseless because the challan submitted in the District Court of Criminal Jurisdiction Kotli regarding F.I.R. No.99 of 2001. clearly shows that Muhammad Arshad son of Ali Dad was not shown in the column of accused persons: therefore, the version of police regarding the statement of Muhammad Arshad, accused, stands totally belied, as he has not been challaned as an accused in the said case nor his name appears in the F.I.R. The said Muhammad Arshad was produced before the Magistrate 1st Class Kotli for getting his statement recorded under section 164, Cr.P.C. on 22-5-2001. The Magistrate ordered that the accused be kept in judicial lock-up and be produced on 23-5-2001 for getting his statement recorded under section

164. Cr.P.C. However, the S.H.O. Kotli instead of sending him to judicial lock-up, as ordered by the Magistrate, kept him under his custody at Police Station and sent him to judicial lock-up on 24-5-2001 after getting his statement recorded under section 164, Cr.P.C. The learned counsel also pressed into service the submission that even the statement of the accused recorded by the Magistrate 1st Class suffers from serious defects, lacunas and the same cannot be used against the accused, persons. Even the essential prerequisites of recording statement under section 164, Cr.P.C. were not fulfilled. The accused was not warned by the Magistrate that the statement which he was going to make could be used against him or that he was not bound to give such a statement. The accused was not even asked as to wherefrom he was coming. He was even not asked that whether he was giving statement in accordance with his free-will and without any coercion, fear or torture on the part of police. The record also reveals that in the first instance, the police managed some doctor to examine the accused, Muhammad Arshad son of Ali Dad, who stated that he has not been subjected to any torture but ultimately a Board of Doctors examined him which found so many injuries on his person which remained unexplained by the police before getting his confessional statement recorded. The Magistrate even did not record a note at the end of the statement that he made aware the accused of the fact that he is not bound to make such a statement and if he does so, the same can be used against him and further that the accused made statement out of his free and sweet will without any coercion or torture on the part of police. It was also not told by the Magistrate to the accused that he would not be sent to police custody after getting his statement recorded.

6. The learned counsel contended that it is the case of police that the accused who were nominated in the subsequent challan entered the house of deceased Muhammad Akbar in order to commit dacoity whereas none of the accused tried to loot or rob any property or any valuable article from the house except killing Muhammad Akbar and injuring the complainant, as claimed. It is also evident from the F.I.R. that the accused firstly knocked the door of one room of the house and after getting no response knocked the other door. If the accused had any intention to commit dacoity, then how they kept on knocking the doors of the house.

7. During the police custody, the accused nominated in the subsequent challan, Muhammad Arshad son of Ali Dad, Kamran Aziz and Muhammad Naseer made a request before the District Magistrate Kotli that they were physically beaten by the police on which a Medical Board was constituted and after examining the said accused persons, medical reports were submitted, according to which Muhammad Arshad had sustained five injuries, Kamran Aziz sustained two injuries and Muhammad Naseer sustained three injuries. All these injuries have been attributed during the detention of accused persons by the police.

8. The learned counsel contended that besides the injured witness, Muhammad Arshad son of Muhammad Akbar, there are other eye-witnesses of the occurrence, i.e. Mst. Mehfooz Jan, Muhammad Anwar, Mst. Saima and Mst. Farzana, who have unequivocally implicated the accused-respondents with the commission of alleged offences. He also contended that the dogs from the Army Dog Centre were also used to trace the evidence and it was after this exercise that the accused were arrested on being found guilty during the investigation the learned counsel further contended that the second set of accused persons is held up on the basis of statement of Muhammad Arshad, son of Ali Dad, allegedly recorded under section 164, Cr.P.C. when the police was holding investigation against the accused persons in connection with F.I.R. No.99 of 2001, but Muhammad Arshad is not and had never been accused in F.I.R. No.99 of 2001, hence according to the learned counsel the filing of challan against the accused-respondents on its basis is unfounded and without any lawful authority as it is intentionally done to make the case against the accused persons doubtful. The learned counsel further contended that the accused, Muhammad Arshad, after getting his confessional statement recorded immediately retracted from the confessional statement by filing an affidavit before the trial Court. The learned counsel vehemently argued that the retracted judicial confession could not be acted upon by the Courts unless corroborated in material particular by some reliable evidence. The learned counsel in support of his contention cited a case reported as Mst. Darya Khatoon v. The State (1996 PCr.LJ 1477) wherein it was observed that the retracted judicial confession is not to be acted upon by the Courts unless corroborated in material particulars by reliable evidence. In this authority, the learned counsel argued, that some fundamental rules for recording judicial confession have been recorded at page 1483 and some of them are as follows:-- "(i) The Magistrate should whenever feasible examine the body of the accused provided the accused consents to such examination. If there appear grounds of suspecting violence, he should have the accused examined by Medical Officer, if possible; (ii) all questions put to the accused must be recorded in writing and his answers thereto must also be recorded in his words; (iii) the Magistrate should add to the certificate required by section 164 of the Cr.P.C. a statement in his own hand, if grounds on which he believes that the confession is voluntary, the precaution which he took to remove the accused from the influence of the police and the time, if any, given to him for reflection; (iv) accused who declines to make a statement before the Magistrate; or at accused who makes a statement, whether confessional or not, should not be remanded to police custody under any circumstances; and (v) after a prisoner has made a confession, he be committed to jail, and the Magistrate should note on the warrant for the information of the Superintendent of the Jail concerned, that the prisoner has made a confession. "

9. The learned counsel for the appellant also contended that in a case reported as Muhammad Ayub v. Hussain Kiani and another (2001 PCr.LJ 578) it was observed that the Magistrate is not competent to record confession. Confession under Hudood cases must be recorded by the trial Court and a Magistrate is not competent to undertake this exercise. Any such statement recorded by a Magistrate would not be a confession and the same would have no legal effect. Keeping in view the aforesaid authority, according to the learned counsel for the appellant, in the same analogy in the cases of Qatl-i-Amd triable exclusively by the District Criminal Court, the confessional statement could not have been recorded by the Magistrate.

10. The learned counsel for the appellant further contended that in the supplementary challan besides the witnesses already cited in the original challan about thirty new witnesses have been cited which figure as 38 to

67. Out of these witnesses, witnesses Nos.39 to 42 have sworn affidavit and witnesses Nos.57, 59, 60, 66 and 67 stated before the Court that they do not know the respondents and neither have they ever been produced before them for identification. The witnesses from No. 1 to 37, which were cited in the first challan their supplementary statements were not recorded. All the witnesses of first challan which are also entered as witnesses in the subsequent challan from No. 1 to 37 fully implicate the first set of accused persons and not the second set of accused. The learned counsel also contended that it is the discretion of the Court to accept or to reject the challan and the Court below has rightly rejected the subsequent challan. The learned counsel further contended that the complainant and his family members have no grievance, grudge or complaint against those accused-respondents against whom the supplementary challan is filed. Their case is only against the first set of accused-respondents and in the circumstances of the case shifting of burden to second set of accused is just to give undue benefit to real culprits by creating doubts in the case.

11. Raja Muhammad Hanif Khan, Advocate appearing for second set of accused persons who are appellants in Appeal No. 11 of 2002, contended that the trial Court on the report submitted under section 173, Cr.P.C. can take cognizance of the offence under section 190, Cr.P.C. According to him cognizance is deemed to be taken when process is issued against the accused and as no process is issued against his clients, hence they cannot be deemed guilty of offence and supplementary challan shall be deemed to have been rejected. According to the learned counsel, the trial Court after applying its mind discussed in detail the circumstances under which his clients were not found guilty on account of which the cognizance in the matter against them was not taken. The learned counsel further contended that the rejection of supplementary challan amounts to discharge of the accused against which anneal could be filed by the Sate or by the complainant while the revision petition before the Shariat Court was filed by the accused-respondents, who were neither complainant nor authorised agents to do so, hence the revision petition against his clients was not competent.

12. Controverting the arguments raised by the learned counsel for the appellant, Mr. Abdul Rashid Abbasi, the learned counsel for the accused-respondents, submitted that the trial Court instead of following the direction given by the Supreme Court has predetermined the guilt of accused-respondents by holding that the challan filed against them is based on sufficient ocular, circumstantial and recovery evidence which speaks the mind of the Court that it is prejudicial towards the accused- respondents. He further contended that the trial Court was bound under law either to reject the supplementary challan or take cognizance on it while the Court instead has ordered that it is not entertainable. According to the learned counsel, the prosecution is at liberty to file any number of supplementary challans under section 173, Cr.P.C. and the Court is bound either to reject the supplementary challan or to accept it for proceedings or to order that the supplementary as well as the original challan shall be proceeded together. The order of the trial Court refusing to entertain the supplementary challan is without lawful authority. The learned counsel in this regard placed reliance on a case reported as Jamil Ahmed and others v. Superintendent of Police, Range, Crime Branch, Rawalpindi and others (1999 PCr.LJ 310). The learned counsel further contended that the trial Court should have proceeded on both the challans as evidence in both the cases was cited by the prosecution while submitting the original as well as the supplementary challan. He further contended that the police after investigation has found the first set of accused-respondents as innocent and the other set of accused-respondent as guilty. Hence, according to the learned counsel, in the circumstances of the case, both the cases should have been joined and tried together and ultimately the trial Court should have convicted, or acquitted the person found or not found guilty from any of the reports before it. The learned counsel relied upon the cases reported as Mir. Zafarullah Khan Jamali v. State through S.P. Anti-Corruption Establishment Balochistan (PLD 2001 Quetta 10), Rahim Bakhsh v. Mian Muhammad Shafi and others (1995 SCMR 440), Muhammad Akbar v. State and others (1972 SCMR 335) and Muhammad Akhtar Mir and others v. State (1972 PCr.LJ 15). The learned counsel invited attention of the Court towards the statement of Muhammad Arshad son of Muhammad Akbar, recorded on 26-1-2001 on the basis of which F.I.R. No.30 of 2001 was registered and then to his another statement recorded under section 161, Cr.P.C. on the same date and the supplementary statement recorded on 27-1-2001. In the light of these statements the learned counsel contended that Muhammad Arshad had not nominated any person in his statement dated 26-1-2001 on the basis of which F.I.R. was registered and he subsequently made improvements in the subsequent statement recorded under section 161, Cr.P.C. on 26-1-2001 and 27-1-2001 which are not reliable. He further contended that in view of contradictory stands of Muhammad Arshad son of Muhammad Akbar, no case against the first set of accused -respondents is made out. He also contended that the police while holding investigation in another case found that Muhammad Arshad son of Ali Dad, Kamran Aziz and Muhammad Naseer are real culprits who have committed the offence on which the confessional statement of Muhammad Arshad son of Ali Dad, under section 164, Cr.P.C. was recorded before the Magistrate on the basis of which investigation against them was initiated in this murder case which culminated into supplementary challan. He contended that three .30 bore pistols recovered on the pointation of these accused. It is also contended by the learned counsel that two cloth sheets were also recovered from them.

13. Mr. Ashfaque Hussain Kiani, the learned counsel for pro form-as-respondents Nos.6 and 7, submitted that the subsequent challan is liable to be rejected and the same was rightly cancelled by the District Court of Criminal Jurisdiction Kotli. In the subsequent challan, the witnesses of the first challan from Nos.1 to 37 have also been listed as witnesses who fully support the case of the prosecution regarding the first challan. They never resiled from their statements nor their statements were recorded by the Investigating Officer who conducted the investigation in the subsequent challan. So the evidence collected in the supplementary challan has been belied by the evidence of the witnesses of the first challan. The learned counsel in support of his contentions relied upon the cases reported as Mian Mehraj Din v. The State (1985 PCr.LJ Lah. 2987) and Abbas and 3 others v. The State (1993 PCr.LJ Lah. 2410).

14. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, at the very outset it may be pointed out that the conduct of the police in the present case is highly deplorable and immediate action is required to be taken against the Investigating Officer, Muhammad Jamil Khan, S.H.O. Police Station Kotli, who for his ulterior motives and in connivance with the accused tried to correct and introduce a new story in order to give undue benefit to the accused-respondent so that on the basis of doubt they may be exonerated from the liability of a murder and murderous assault. It seems to be that the S.H.O., Muhammad Jamil Khan, was heavily bribed by the accused-responder so that they may get rid of the heinous offences like murder and murderous assault. It also appears that the confessional statement of Muhammad Arshad, son of Ali Dad, which was allegedly got recorded was a result of severe torture and coercion exerted on the said accused who in consequence thereof made a confessional statement and admitted his guilt before the magistrate but despite that no tangible evidence was collected by the subsequent Investigating Officer to exonerate the first set of accused-persons and to implicate the other set of accused persons in the commission of crime.

15. The next significant point which requires consideration is that in the first Challan No.51 of 2001, Muhammad Arshad, complainant, Mst. Mehfooz Jan, window of Muhammad Akbar, Mst. Farzana, wife of Muhammad Arshad, Muhammad Anwar, son of Muhammad Akbar and Mst. Saima, daughter of Muhammad Akbar, are the eye-witnesses of the occurrence who saw with their own eyes the first set of accused persons entering into the house of Muhammad Akbar, father of complainant with masks on their faces. The above-stated all the witnesses are inmates of the house where the occurrence is alleged to have taken place. Out of the aforesaid eye-witnesses Muhammad Arshad is an injured witness who is the son of Muhammad Akbar, deceased, and who was born at England and was brought up over there. He had comp to his native village whereas Mst. Mehfooz Jan, wife of Muhammad Akbar deceased, Mst. Farzana, wife of Muhammad Arshad, Muhammad Anwar, sons of Muhammad Akbar, deceased, and Mst. Saima, daughter of Muhammad Akbar, deceased, are residents of Panakh, District Kotli. Similarly the accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque son of Muhammad Fazil, Muhammad Fazil son of Badar Din, Caste Qureshi, Gulzar Khan son of Mangoo khan, are also residents of Panakh and Ishtiaq Hussain son of Nisar Hussain Shah is resident of Chakmir, District Kotli. So all these accused are even previously well-known to the eye-witnesses.

16. Mst. Mehfooz Jan in her statement under section 161, Cr.P.C. recorded on the day of occurrence, i.e. on 26-1-2001, has categorically stated that Muhammad Mushtaq son of Muhammad Fazil threatened to kill her husband Muhammad Akbar. Muhammad Akbar told the matter to Chairman Karamdad who promised that he would tell Mian Mushtaq not to do so. On the occasion of marriage of their son and daughter, Mian Mushtaq was not invited. Lamberdar Gulzar Khan asked her husband why you did not invite Muhammad Mushtaque upon which her husband told him that due to some enmity Muhammad Mushtaque has not been invited as he had been extending threats to kill him. After this, Lamberdar Gulzar Khan asked her husband as to when would he go to England. Her husband told that he would soon go but Lamberdar insisted upon asking the exact date. After inquiring the exact date, he went out. Ishtiaq Hussain Shah has been coming to England but on a photo-change passport he was caught over there and deported back to Pakistan. Ishtiaq Hussain Shah was in a doubt that her husband and made a complaint regarding his passport. On the basis of this enmity, Muhammad Mushtaq and Muhammad Ashfaque, sons of Muhammad Fazil, Ishtiaq Hussain Shah son of Nisar Hussain Shah after making a planning on 26-1-2001 at about 2-30 a.m. entered in their house where her husband was sleeping. The accused knocked the door and her husband opened the door. One accused who had masked his face fired with a pistol upon her husband, Muhammad Akbar and the same hit him on the left side of the chest. Her husband tried to catch hold of the accused so in this struggle the mask was taken off and she in the light of bulb and tube identified accused, Muhammad Mushtaq son of Muhammad Fazil. In the meantime her son Muhammad Arshad, daughter-in-law, Farzana, her daughter Saima and her son Muhammad Amvar also reached. The other accused who was also wearing mask was caught hold by Muhammad Arshad in the compound of the house and in the struggle with him the mask was taken off upon which she identified that he was Muhammad Ashfaque son of Muhammad Fazil. When Muhammad Arshad caught hold Muhammad Ashfaque, he immediately fired with his .30 bore pistol upon him. The third person who was also wearing mask and was near the wall, Muhammad Arshad also tried to catch hold of him and in a struggle his mask was also taken off and he was identified as Ishtiaq Hussain Shah son of Nisar Hussain Shah, who fired with his pistol upon Muhammad Arshad which hit him on his left hand. Ishtiaq Hussain Shah made a second fire which hit the left thigh of Muhammad Arshad. Muhammad Arshad fell down on account of firing and the accused ran away from the place of occurrence. The accused persons, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, with the connivance of Lamberdar Gulzar Khan and Muhammad Fazil with a pre planning have committed murder of her husband.

17. The statement of Mst. Farzana, wife of Muhammad Arshad, is exactly the same has been stated by Mst. Mehfooz Jan. Similarly Mst. Saima, daughter of Muhammad Akbar, deceased, is also an eye-witnesses who has fully supported the version of the other eye-witnesses. Besides this, Muhammad Anwar, the son of Muhammad Akbar, has also supported the version of the prosecution.

18. In every criminal case particularly in murder cases the evidence of eye-witnesses is very important and there are numerous cases in which the accused were convicted on the solitary statement of one witness provided his statement rings true. In the subsequent challan which was presented on the basis of subsequent investigation no supplementary statements of the aforesaid eye-witnesses were recorded by the subsequent Investigating Officer. Thus, even in the subsequent challan the eye-witnesses of the occurrence are Muhammad Arshad son of Muhammad Akbar, Mst. Mehfooz Jan, Mst. Farzana, Muhammad Anwar and Mst. Saima, who fully implicate the first set of accused persons and they know the accused persons very well as they belong to the same place and are well-known to each other.

19. The Shariat Court has observed that under section 154, Cr.P.C. when an information relating to commission of an offence is given to an Incharge of a Police Station it is registered and investigation is begun by the police, report whereof is to be submitted to the competent Court under section 173, Cr.P.C. In accordance with the procedure laid down therein. When the report is so filed, the competent Court is authorised to take cognizance of the offence under section 190, Cr.P.C. and to issue process under section 204 of the said Code if there are sufficient grounds for proceedings. However, the police is not debarred from making further investigation after having submitted report under section 173 Cr.P.C. or after the process being issued by the Court on the basis of that report. The Code does not prevent Investigating Officer from submitting subsequent report in addition to or in supersession of earlier one and the Court does not become functus officio after taking cognizance of first report/challan under section 173, Cr.P.C. There is no cavil with the aforesaid observation made by the Shariat Court but the fact remains that the first challan as well as the subsequent challan both are to be placed before the Court of competent jurisdiction which after applying its judicial mind may issue process in one case and may deny the issuance of process in the other case on account of lack of evidence or on the basis of insufficient material connecting the accused with the commission of offence. It has been repeatedly held by this Court that ipsi-dixit of police is never binding on Courts. In a case reported as Farrukh Ahmad Chughtai v. Muhammad Imtiaz and 6 others (PLJ 1995 SC(AJK) 1) it has been observed that the ipsi-dixit of police is not binding on the Courts of law. The Courts of law have to apply their judicial mind on the facts and circumstances of each case and if from the material placed on the record before the Court, the Court reaches the conclusion that process be issued to summon the accused persons no illegality is committed by the Court but if the Court blindly issues process against the accused person without looking without looking into the material connecting the accused with the commission of offences alleged, this exercise on the part of Court is subject to scrutiny by the superior Court and the same can be set at naught.

20. In the instant case even in the previous round of litigation a direction was given to the trial Court that both the first as well as the supplementary challans shall be placed before the trial Court and it after perusal of the same and evaluation of the material, shall issue process to the accused in anyone of the challans or in both the challans. The trial Court in compliance of order of this Court cancelled the subsequent challan by advancing cogent reasons and discussing all the salient features of the material collected by the police. After discussing the whole material the trial Court reached the conclusion that there was no justification or ground made .out to issue process against the accused persons entered therein and cancelled the same.

21. An objection has been raised from the other side that the subsequent challan was not entered, therefore, the question of its cancellation does not arise. This argument is factually incorrect. The subsequent challan was presented before the learned District Qazi, a Member of the District Court of Criminal Jurisdiction, on 18-7-2001 on which he ordered as follows:-- In presence of this order, it cannot be argued that this challan was never presented before the Court so the question of its cancellation does not arise at all. The whole fabric of the version of the other side that the challan could not have been cancelled unless it had been presented in the Court crumbles down on the ground due to the above order of the learned District Qazi.

22. The contention raised by Raja Muhammad Hanif Khan, the learned counsel for Kamran Aziz and others, has a substance that the challan against his clients was cancelled by the trial Court after discussing in detail the material collected by the subsequent Investigating Officer and the cancellation of challan amounts to discharge of his clients. The other contention of the learned counsel is also correct that the revision petition against Kamran Aziz and others could have been filed before the Shariat Court only either by the State or by the heirs of the deceased or by the injured witness or even by some eye-witness or the complainant while the revision petition was filed by the accused who were neither complainant nor authorised agents to do so. Hence the revision petition against his clients was not competent.

23. The prosecution in the instant case is in possession of eye-witnesses out of whom one has sustained the fire-arm injuries, namely, Muhammad Arshad son of Muhammad Akbar, deceased, whose presence on the scene of occurrence cannot be denied. The other witnesses are inmates of the house who are quite natural witnesses. From the place of occurrence blood-stained clay was recovered by the police in presence or witnesses. The blood-stained clothes of deceased and injured witness. Muhammad Arshad, were handed over by the doctor to the police in presence of marginal witnesses of seizure memos. The ocular version of the prosecution is duly supported by the recoveries or three pistols on the pointation of accused persons. Similarly the empties and bullets were also recovered from the place of occurrence. The ocular version of the eye-witnesses is supported by the medical evidence. The doctor who conducted the post mortem and examined the injured witness, Muhammad Arshad fully corroborates the prosecution. The fire-arms were sent to Chemical Examiner for his opinion and the opinion given by him is positive which supports the case of the prosecution. All the above evidence and the other evidence collected by the police prima facie connects the first set of accuses persons and not the second one. Suffice it to say that the second set of accused were introduced to give undue benefit to first set of accuses persons and the conduct of police, as stated in the earlier part of this judgment, has been clearly mala fide and it appears that a lot of money, was bribed to the second Investigating Officer in order to spoil the case of the prosecution. Such a police officer who at the stake of life of one murdered person and other one seriously injured, spoils the case of prosecution in order to give undue benefit to the accused persons, does not deserve to remain in police service; therefore, a copy of this judgment shall be sent to the President of Azad Jammu and Kashmir, Prime Minister, Azad Government of the State of Jammu and Kashmir and Inspector-General of Police to take action against such irresponsible Police Officer.

24. In the light of what has been stated above, by setting aside the impugned judgment of the Shariat Court dated 24-6-2002, to the extent of proceeding against both the sets of accused persons, we accept Appeal No. 10 of 2002 and direct the trial Court to proceed against the first set of accused persons, Muhammad Musthaq and others. Appeal No. 11 of 2002 filed by Kamran Aziz and others stands accepted and the impugned judgment of the Shariat Court to proceed against these accused in the subsequent challan is declared to be illegal and without any lawful authority. Thus, the impugned judgment of the Shariat Court dated 24-6-2002 is modified to the above extent and the judgment of the trial Court dated 31-1-2002 is upheld. N.H.Q./378/SC(AJK) Order accordingly.