The petitioner Muhammad Shah has challenged the impugned order dated: 18.01.2012 passed by the respondent No.1/Magistrate 1st Class, Renala Khurd, District Okara, through which the cancellation report of case FIR No. 493/2011 dated:27.08.2011, offence under Sections 395/398 PPC, Police Station Chuchak, District Okara submitted by the Investigating Officer was accepted and the said FIR was cancelled.
2. Learned counsel for the petitioner has argued that it is evident from the impugned order that the petitioner was never summoned and the impugned order was passed in a clandestine manner behind the back of the petitioner, therefore, the order, being illegal, be set-aside.
3. Learned Additional Advocate General assisted by the counsel for the respondents No.2 to 6 have opposed this Writ Petition and have argued that there is no illegality in the impugned order, therefore, the Writ Petition be dismissed.
4. Arguments heard and record perused.
5. There is no provision in the Code of Criminal Procedure, 1898 for the cancellation of an FIR, rather this is provided in Rule 24.7 of the Police Rules, 1934, according to which a Magistrate is empowered to cancel an FIR, if the Magistrate agrees with the cancellation report, forwarded to him by the Investigating Officer. A Magistrate, when passing an order for cancellation of an FIR, is not acting in his judicial capacity and the order passed by him is an administrative one. It has been held by the Hon'ble Supreme Court of Pakistan in "BAHADUR and another. v. THE STATE and another, PLD 1985 S.C 62" that though the Magistrate is not acting in his judicial capacity but still he is required to judicially examine the report under Section 173 Cr.P.C pending before him for his decision/approval to cancel or not-cancel the FIR.
6. In the case in hand, the offences mentioned in the FIR are not triable by the Magistrate rather they are triable by the Court of Sessions, hence, respondent No.1/Magistrate 1st Class, Renala Khurd, District Okara was not competent to pass the impugned order. The said Magistrate should have, after applying his mind to the cancellation report placed before him, recorded his detailed opinion giving reason as to why he agreed or disagreed with the cancellation report and then forwarded the same to the Court of competent jurisdiction and it was then for the Court of competent jurisdiction to decide whether cognizance was to be taken or not, hence the order of the Magistrate could only be considered as a recommendation report to the Court having competent jurisdiction.
7. Relying upon "RASOOL BUX SHAIKH v. THE STATE and another, 2010 PCr.L.J 733, Karachi", this Writ Petition is accepted and the impugned order dated:18.01.2012 passed by the Judicial Magistrate 1st Class, Renala Khurd, District Okara is set-aside and the case is remanded to the respondent No.1/Judicial Magistrate 1st Class, Renala Khurd, District Okara to pass a speaking order, record his reasons for agreeing with the cancellation report submitted by the Investigating Officer for cancellation of the said FIR and then forward his recommendations to the Court of competent jurisdiction.