MALIK HAQ NAWAZ, J.---An FIR bearing No. 01/2015 was registered against the respondents under sections 395/291, P.P.C. on 08.12.2014 at Police Station Basin as evident from the final police report submitted under section 173, Cr.P.C. and available on page 5 of the paper book of the instant case.
Accused eight in number namely Abdullah Khan, Ismail, Hashmatullah, Muhammad Farooque, Qambar Ali, Aziz-ur-Rehman, Mashoor Alam and Ibrar Hussain were arrested and later on released on bail by the competent Court of jurisdiction, while accused Zahid, Qurban Shah, Seyal, Bashir Muhammad, Khush Aman, Nazir, Imtiaz, Farhan, Maqsood and Share Muhammad obtained bail before arrest from the trial Court, which was confirmed on 29.06.2015. After completion of necessary investigation the challan of the case was submitted in the court of learned Judicial Magistrate section 30, Cr.P.C. Gilgit. On 03-11-2015 the learned Judicial Magistrate sent the case to the Court of learned Sessions Judge Gilgit under section 190, Cr.P.C. for trial as the offence under section 395, P.P.C. was exclusively triable by the Court of Sessions Judge.
2. The learned Sessions Judge Gilgit entrusted the case to the learned Additional Sessions Judge Gilgit on 04-11-2015. The case file when came before the learned Addl. Sessions Judge Gilgit the learned Sessions Judge on the same day formed an opinion that section 395, P.P.C. is not attracted in the instant case rather a case of theft punishable under section 379, P.P.C. is made out and on the said assumption the case returned back the case file to the learned Judicial Magistrate Gilgit for trial of the case under section 379, P.P.C., as evident from the order of learned Additional Sessions Judge Gilgit dated. 04-11-2015.
3. On 04-11-2015 the case file was placed before the learned Judicial Magistrate section 30, Cr.P.C.
Gilgit. The learned Judicial Magistrate issued process against respondents and case was fixed for 20.02.2016. On 20.02.2016 the respondents were present and the case was fixed for framing of charge on 08.03.2016. From 08.03.2016 till 22.10.2016 the case was being adjourned for one or the on other pretext.
4. On 22-10-2016, the learned Judicial Magistrate cancelled FIR No. 01/2015 of Police Station Basin Gilgit under Police Rules 24.7 of 1934 and forwarded a copy of the same order to SHO Basin for information. The complainant being aggrieved of the order of learned Judicial Magistrate have come to this Court for quashment of the order of under section 561-A, Cr. P. C. The learned counsel for the petitioner contended that the learned Judicial Magistrate was not competent to cancel FIR and the action of the learned Judicial Magistrate is in excess of jurisdiction and is liable to quashed.
5. On the other hand the learned counsel for the respondents supported the impugned judgment and submitted at bar that the learned Judicial Magistrate was competent to cancel the FIR. The order passed by learned Judicial Magistrate does not call for any interference by this Court. He cited 2015 PCr.LJ 1103, 2014 YLR 113 and 2012 PCr.LJ 159 to support his contention.
6. However, the learned Dy. Advocate General adopted the arguments advanced by the learned counsel for the complainant and submits that the order of the learned Judicial Magistrate is perverse, arbitrary and in excess of jurisdiction, which may be quashed and the case be remanded back for re-trial.
7. I have heard the parties at length and found that the FIR was initially registered under sections 395/291, P.P.C. and after completion of necessary investigations the case was sent for trial which was onward submitted by learned Judicial Magistrate to the Court of learned Sessions Judge Gilgit under section 190, Cr.P.C. The learned Sessions Judge entrusted the case to the learned Additional Sessions Judge Gilgit, who returned the same to the learned Judicial Magistrate Gilgit for trial under section 379, Cr.P.C., on the same day i.e. on 04-11-2015.
8. The case was entrusted to learned Additional Sessions Judge Gilgit by the learned Sessions Judge Gilgit after due application of mind and the learned Additional Sessions Judge should have proceeded with trial of the case and if the offence under section 395, P.P.C. was not made out, the learned Additional Sessions Judge was competent to alter the charge himself under section 227, Cr.P.C, as a charge could be altered at any stage of proceedings. The case was sent back to learned Judicial Magistrate Gilgit without any legal justification and the learned Judicial Magistrate too without any sanction of law cancelled the FIR under section 24.7 of Police Rules, 1934 which is illegal and unwarranted. Police Rules 24.7 is reproduced as under; 24.7. Cancellation of cases:- Unless the investigation of a case in transfer to another police station or district, no first information report can be cancelled without the orders of a Magistrate of the first 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 none 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 have 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 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. A plain perusal of the above quoted Police Rules shows that the learned Judicial Magistrate in the instant case has not applied his judicial mind and has travelled far beyond his jurisdiction as he sat as a revisional Court on the orders of Additional Sessions Judge which is not expected from a Judicial Officer. The order of the learned Judicial Magistrate dated 22-10-2016 and the order of the learned Addl. Sessions Judge dated 04-11-2015 are set aside by invoking the inherent jurisdiction under section 561-A, Cr.P.C. From the statements of PWs recorded under section 161, Cr.P.C. a prima facie case was made out and it is yet to be determined by the trial Court, whether an offence under sections 395/291, P.P.C., is made out as the penal section imposed in the final Police report submitted under section 173, Cr.P.C. or offence under section 379, P.P.C. or 384, P.P.C. is made out and if no offence is made out, the remedies are available for the accused/ respondent.
The learned Judicial Magistrate should have opted to exercise any other available powers conferred upon him and provided under law rather going for a high jump to cancel the FIR under Police rules, when he was trying a case registered under the provision of Criminal Procedure Code and the case was sent back to him by Additional Sessions Judge Gilgit. The case is remanded back to the Court of learned Sessions Judge Gilgit, who will try the same himself or entrust the case to the learned Additional Sessions Judge Gilgit for trial. Parties are directed to appear before the learned Sessions Judge Gilgit on 15-12-2016. The respondents/accused will be at liberty to avail any legal remedy available to them under law before the trial Court if so advised.