' This writ petition has been filed with prayer that the order of the learned Magistrate dated 25-10- 2004 be set aside whereby he agreed with the report of the Investigating Officer and cancelled F.I.R.
No.429 of 2004 dated 11-8-2004, registered under sections 420, 468, 471, P.P.C. At Police Station, Civil Lines, District, Gujranwala.
2. According to the learned counsel for the petitioner the F.I.R. Was cancelled by the learned Magistrate without any notice or providing opportunity to the petitioner which is against the principle of natural justice. In this context, the learned counsel has referred NLR 2000 Criminal page.
604, whereby the impugned order of the learned Magistrate was set aside with direction to pass a fresh order containing the reasons and after applying a judicial mind and after affording opportunity to the parties.
3. The learned counsel for the respondent submits that opportunity was provided to the petitioner.
4. I agree with the legal proposition of the learned counsel for the petitioner but factually his contentions are incorrect. I have gone through the impugned order dated .25-10-2004 by Amjad Ali Bajwa, Judicial Magistrate 1st Class, Gujranwala. The order sheet bears two orders i.e. Dated 20-9- 2004 and a final order dated 25-10-2004. In order dated 20-9-2004 presence of complainant/petitioner, Rana Muhammad Akram, is shown and in his presence, the parties were noticed for 25-10-2004. On 25-10-2004 the complainant/present petitioner was not present, accused was present with his counsel along with Inspector Legal for the State. The impugned order further reveals that the learned Magistrate perused the record and gave reasons for his findings which are as under:-- "-Cancellation report has been prepared by the S.H.O., Police Station, Civil Line, which has been recommended and forwarded by the entire Investigating Agency. From the record available before this Court it reveals that the matter between the parties is of civil nature, which has been settled by the Civil Court in which the accused Younas was bound down to pay amount of Rs.8,00,000 to the complainant. Having availed the civil remedy the complainant has come up with an application for criminal proceedings against the accused Younas. The civil litigation has stated to be unchanged up to Honourable Lahore High Court, Lahore. Therefore, I agree with the cancellation report forwarded and recommended by the Investigating Agency. Record be sent back to the District Police Officer, Gujranwala."
5. The bare reading of impugned order shows that it was passed after application of judicial mind.
It further establishes that it is not correct that the complainant was not given notice or order was passed behind his back. As far as jurisdiction of Magistrate under section 173, Cr.P.C. Is concerned, the Honourable Supreme Court has held in Habib v. The State 1983 SCMR 370 as under:-- "The crux of the above noted provisions i.e. Sections 169, 170 and 173 is that whatever course the Investigating Officer adopts i.e. Whether he acts under section 169 or under 170, Cr.P.C. It is incumbent upon him to submit a final report under section 173, Cr.P.C. With regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as he may consider proper under subsection (3) of section 173, Cr.P.C. Or under section 190, Cr.P.C. As the case may be."
6. The provisions of section 173 Cr.P.C. As construed by the Honourable Supreme Court show that a Magistrate is fully empowered to pass an order as passed in this case. Therefore, the impugned order is consistent with the above declaration of the law by the Honourable Supreme Court, by agreeing with recommendation of the Investigating Officer and thereby cancelling the F.I.R. He gave notice to the complainant/petitioner on 20-9-2004 and passed final order on 25-10-2004 after recording reasons.
7. Criminal Procedure Code does not provide a clear provision under which F.I.R..May be cancelled by a Magistrate or any other authority.. However, consistent view of the superior Courts of the country is that such power is inherent under section 173(3), Cr.P.C. For example, this question was examined by a Full Bench of Lahore High Court in case of Wazir v. State PLD 1962 Lahore 405. The Full Bench held that power of cancellation of F.I.R. Is available in section 173, Cr.P.C. Because it is inherent in section 173 read with section 190, Cr.P.C. Subsequently, the Honourable Supreme Court of Pakistan approved the above finding of the Full Bench of the Lahore High Court in Bahadur v. State reported in PLD 1985 SC 62. The Supreme Court held as under:-- "The Magistrate, by the impugned order, dealt with and disposed of a final report submitted to him under section 173, Cr.P.C., recommending the cancellation of the registered criminal case. Neither section 173, Cr.P.C., nor any other provisions of the Criminal Procedure Code specifically deals with the question of cancellation of a registered criminal case. In the Full Bench decision Wazir v. State PLD 1962 Lah. 405, such a power was found to be inherent in section 173 read with section 190 of the Code of Criminal Procedure though the language of subsection (3) does not specifically apply to the case."
8. In the above two judgments rule 24.7 of Police Rules, 1934 was not discussed. In rule 24.7, expressly this power is conferred upon the Ilaqa Magistrate and a procedure is also provided which is as under:-- "Unless the investigation of a case is transferred to another police station or district, no first information report can be cancelled without the orders of a Magistrate of the Ist Class.
' When information or other intelligence is recorded under section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction and being a Magistrate of the first class for orders of cancellation. On receipt of such an order the officer in charge of the police station shall cancel the first information report by drawing a red line across the page, noting the name of the Magistrate cancelling the case with number and date of order. He shall then return the original order to the Superintendent's office to be filed with the record of the case."
9. In a recent case reported as Zafar-ul-Haq v. Muhammad Amin and others PLD 2005 Karachi 375, the Division Bench of. Karachi High Court has dealt with a similar proposition. In the said case, the Court held that when a police officer reaches to a conclusion that F.I.R. Deserves to be cancelled he follows the procedure provided under Police Rules. The learned Division Bench of Karachi High Court observed as under:-- "However, position is quite different when after investigation; police submit a report to the Magistrate for cancellation of the case under "B" class. If the Magistrate approves such report then he will order for cancelling the After passing such order by the Magistrate, the police would cancel the F.I.R. By putting cross lines on the said F.I.R. Available in the 154, Cr.P.C., book in red ink as per Rule 47.7, Volume-III of Police Rules, 1934. After crossing, the said F.I.R. In red ink then there will be no F.I.R. Pending on the file of police."
10.. In view of the importance of the subject, it might be relevant and beneficial to refer/discuss relevant provisions from the Indian Code of Criminal Procedure, 1973. It may also be pointed out that relevant section in the Indian Code of Criminal Procethire is also section 173, however, it has now eight subsections against section 173 of our Criminal Procedure Code which contains five subsections. The provisions of subsection (4) of section 173 of Indian Code of Criminal Procedure are in para materia with subsection (3) of section 173 of our Code. The above subsection has been construed by Punjab and Haryana High Court in a recent case reported as Harindel Pal Singh v.
State of Punjab 2004 Cri.LJ 2648, at 2651, 2652, 2653 (Punjab and Haryana). According to the said judgment, the Magistrate has power to disagree with the cancellation report and can pass an order for further investigation. However, it was held by the Court that there was no reason for issuing direction to further re-investigate the matter. The Special Judge could not reject the cancellation report submitted for the second time on the same ground and again order for further investigation. It was further held that if at all' he (Special Judge) was not satisfied with the closure report submitted by the C.B.I. For the second time and was of the opinion that report was not based on full and complete investigation, he could have taken cognizance of the matter under section 190(c) of the Code, but could not order_ for re-investigation of the matter for the third time. For further clarity one extract from the judgment is reproduced as under:-- "In the light of the aforesaid legal position the Court has examined the impugned order. The Special Judge, while not accepting the closure report for the second time and order re-investigation in the matter for the third time, has not given valid reasons. On, the first occasion when the cancellation report was not accepted and direction was issued for further investigation, it was mentioned that Jump(er) Slip in question was not taken into possession by the investigating agency. During the re- investigation, after taking all the relevant documents including the Jump(er) Slip into possession, the C.B.I. Again came to the conclusion that in view of the fact Jump(er) Slip was issued by the petitioner on 1-6-2000, there was no reason and motive for him to demand and accept bribe on 6- 6-2000. After going through the contents of the cancellation report submitted by the C.B.I. For the second time, there was no reason for issuing direction to further reinvestigate. The matter., The Special Judge could not reject the cancellation report submitted for the second time on the same ground. And again order for further investigation. If at all he was not satisfied with closure report submitted by the C.B.I. For the second time and was of the opinion that report was not based on full and complete investigation, he could have taken cognizance of the offence under section 190(1) of the Code, but could not order for reinvestigation of the matter for the third time. Further, the Special Judge has not fully applied his mind in the case, especially when he has not taken into consideration the statement made by the complainant made before him to the effect that he did not object to cancellation of the -case against the petitioner. In view of this, the fate of the prosecution case was imminent and it would be futile exercise to get the matter reinvestigated."
11. In view of the above discussion, I am not convinced with the arguments of the learned counsel for the petitioner, that the learned Magistrate passed impugned order without notice or without recording reasons. I also do not agree with the learned counsel for the petitioner that the learned Magistrate did not have jurisdiction to cancel the F.I.R. For reasons discussed in the foregoing paras. Therefore, this writ petition is dismissed.