ISHTIAQ IBRAHIM, J.---Kashif Khan, petitioner, through this Writ Petition, invoked Constitutional Jurisdiction of this Court, praying that:-- "On acceptance of instant writ petition, this Hon'ble Court may very graciously be pleased to declare and set aside the impugned order dated 21.05.2015 passed by learned respondent No,2 to be illegal, void ab-initio, without perusing the record and applying its own mind, in clear violation of the principles of administration of justice laid down by the superior Courts on the subject matter, vide which while agreeing with the final report for cancellation of case FIR No,344 dated 26.04.2015 under section 324/34 P.P.C. Police Station Cantt. Bannu, the learned respondent No,2 cancelled the ibid FIR, through the impugned order. It is further prayed that on setting aside the impugned order, the FIR No,344 ibid may kindly be restored and the respondent/ police officers may kindly be directed to proceed with the ibid case FIR No,344 in accordance with law.
Thereafter, Mohammad Jamal Complainant in counter FIR No,345, through W.P. No, 17-B of 2016 prayed as under:-- "On acceptance of this Writ Petition, the Writ Petition No,318-B of 2015 and C.M. No,254-B of 2015, of the respondent may very kindly be dismissed."
Both the writ petitions are going to be decided through this single judgment.
2. Learned counsel for the petitioner argued that the investigating agency while conducting unfair and one sided investigation as, the complainant of Case FIR No,345 is serving at police department Bannu, while one of the deceased namely Haider Ali was also police employee, therefore, the local police extended undue favour to them. He further argued that the petitioner sustained injuries on most vital part of his body, but dishonest investigating officer, given baseless opinion that the injuries on the person of the petitioner caused by his companions. His further argument was that the petitioner lodged very prompt report about the occurrence, wherein respondent No,11 along with his two deceased co-accused were directly charged for the commission of offence and direct evidence of injured witness fully get support from medical evidence in shape of MLC, but despite that learned respondent No,2, without applying his judicial mind blindly accepted unfair, biased investigation of the 10. He vehemently argued that the local police took the job of evaluation and accessing the evidence' Of the case and accepted the plea of alibi of respondent No,11, over direct evidence of petitioner. His last argument was that the District Public Prosecution has no power under the Code of Criminal Procedure and Police Rules, to interfere in an investigation and to direct the investigating officer to cancel the FIR. He concluded by arguing that the learned Judicial Magistrate-II, Bannu in mechanical manner, without assessing the material available on record cancelled the FIR which act of the Court concerned is absolutely illegal and in violation of principles of administration of justice. He placed reliance on case titled "Mohammad Shah v. Mohammad Zaigam and 5 others" (PLD 2016 Lahore 495).
3. On the other hand learned counsel for respondent argued that after registration of cognizable offence under section 154, Cr.P.C., prerogative and privilege of the I.O. by no means can be restricted. He further argued that during, investigation the case FIR No,344, was found false, concocted and recommended for cancellation of FIR to the area Judicial Magistrate under section 173, Cr.P.C. and the worthy Judicial Magistrate agreed with the findings and recommendations of the 1.0., by properly applying his judicial mind and righty cancelled the case FIR which order need not to be interfered with. He lastly prayed that by accepting connected Writ Petition No,17-B of 2016, this Writ Petition No,318-B/2015 may graciously be dismissed.
4. Arguments heard and available record perused.
5. It is evident from the record that during the incident petitioner received firearm injuries at his vital part of the body and from the spot taken to the hospital, where he lodged the report FIR No,344, thereafter another FIR was lodged by Mohammad Jamal, regarding the same incident lodged in counter FIR No,345, wherein two persons have lost their lives. After investigation the investigating officer came to the conclusion that FIR No,344 is false, concocted and after taking opinion from the DPP, Bannu, requested to the learned Judicial Magistrate for cancellation of FIR. The learned Judicial Magistrate by accepting, the opinion of I.O. vide impugned order dated 21.05.2015 filed the same without further proceedings, hence, the instant writ petition.
6. Report under section 173, Cr.P.C. as to guilt or innocence of an accused person is a mere opinion of Investigating Officer certainly not binding upon the Court. Such a report under section 173, Cr.P.C. cannot be termed as an evidence to be blindly relied upon without applying judicial mind and recording reasons for the same if agreed or otherwise. Reliance is placed on case titled, "Arif All Khan and another v. The State and 6 others" (1993 SCMR 187), wherein it is held that:-- "It is true that in the above cited case this Court clearly-laid down that a Magistrate while cancelling a registered criminal case, acting on the report of police submitted to him under section 173, Cr.P.C., though required to act judicially but his orders so passed are not amendable to revisional jurisdiction under sections 435 to 439, Cr. P. C. But this does not mean that where the Court reaches a positive conclusion in a case that a particular order passed by the subordinate criminal Court amounted to an abuse of the process of Court, it would be powerless to rectify, the injustice."
7. It is duty of the Investigating officer to find out truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person. The Magistrate can take cognizance of an offence even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents. Reliance is placed on Case titled "Safdar Ali v. Zafar lqbal and others" (2002 SCMR 63).
8. Two FIRs of same occurrence were lodged. As per requirement of law, three possible courses were available to a magistrate firstly to agree with report and order cancellation of FIR, secondly to disagree with report and order further investigation and thirdly to take cognizance under section 190(1)(b), Cr. P. C. Magistrate while adopting any of the courses was required to act judiciously and in that he was to act fairly, justly and honestly, if he reached on any of the conclusion, he was required by law to record reasons for the same, but the learned Judicial Magistrate has not adopted a proper course and without forming his opinion has blindly relied upon the opinion of the I.O. and cancelled the FIR, which is an illegality and cannot be countenanced with. No doubt a Magistrate acts in administrative capacity while dealing with such reports under section 24-A of the General Clauses Act, 1897, even any executive authority is supposed to give reasons while passing any order as the case may be. Section 24-A of the General Clauses Act, 1897, provides as under:-- "24-A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
This aspect of the case has been dealt with in case titled, "Amir Hussain v. Murid Hussain and others" (1995 PCr.LJ 423), wherein it is held that:-- "The learned Magistrate on the said application simply recorded that as per request the respondents are discharged. This order to my mind should not have been passed. Learned Magistrate should have at least examined the file before allowing the request of the police. If the order was to be passed in a mechanical manner, the police could have done it itself. The mere fact that in such a situation the case is brought before a Magistrate for orders means that he is required to examine the file and satisfy himself if the request of the police is genuine and justified on the basis of evidence collected."
9. For the reasons stated above, this writ petition is allowed, impugned order of learned Judicial Magistrate-II dated 21.05.2015 is set aside and the case is remanded back to the learned Judicial Magistrate-II, Bannu, for decision afresh in light of observations mentioned above by a speaking order. As the instant writ petition has been accepted and the case has been remanded back, the connected Writ Petition No,17-B/2016 filed by Mohammad Jamal has become infructuous, hence, dismissed as such.