ALI ZIA BAJWA, J. Through this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter 'the Constitution) the petitioner has called into question the vires of the order dated 30.06.2022 (hereinafter 'the impugned order), passed by learned Magistrate, Section-30, Mandi Bahauddin/respondent No.2. Through the impugned order cancellation report prepared by the local police in respect of case FIR No.1183/2021, dated 20.11.2021, registered under Section 489-F, P.P.C. with Police Station Civil Line, Mandi Bahauddin, was agreed with.
2. Succinctly, facts of the case, necessary for the disposal of the petition in hand, are that the petitioner lodged the aforementioned crime report against Javaid Akhtar son of Fazal Elahi (hereinafter 'respondent No.4.') by narrating that respondent No.4 purchased poultry from him against which he issued cheque No.1776295581 worth Rs.1,29,00,000 (12.9 million rupees) of Muslim Commercial Bank Limited, King Road Sohawa Branch. The said cheque on its presentation for encashment before the concerned bank was dishonoured due to the non-availability of sufficient amount in the account. After registration of the criminal case, investigation was carried out in which it was opined, by the investigating agency that the cheque in question was issued by respondent No.4 as a guarantee on behalf of his brother-in-law, in a business transaction, and on that ground the case was recommended to be cancelled.
3. Heard, record perused.
4. The occurrence, in this case, took place on 07.10.2020 whereas the crime report was registered on 20.11.2021. After registration of the crime report, the investigation was conducted and a cancellation report under Section 173 of the Code of Criminal Procedure, 1898 (hereinafter 'Cr.P.C.') read with Section 169 Cr.P.C. was prepared and submitted before the learned Magistrate, who agreed with the same through the impugned order. It has been straightway noticed by the Court that the cancellation report in question was prepared on 22.11.2021 and the same was verified and forwarded by the DSP/SDPO, instead of Superintendent of Police concerned, on 09.12.2021 but astonishingly it reached the Court of concerned Magistrate as late as on 06.06.2022, also blatantly violating the mandate of Section 173 Cr.P.C.
5. A minute review of Cr.P.C. reveals that it does not contain any specific provision in it, under which the question of cancellation of a registered criminal case can be dealt with. However, the wording of Section 173(3) Cr.P.C. clearly indicates that it provides inherent power to a Magistrate of the first class to cancel a criminal case. Earlier, a similar question came up for consideration before the Full Bench of this Court in WAZIR[1]. The Honourable Full Bench ruled that the power of cancellation of FIR is available under section 173(3), Cr.P.C., because it is inherent in section 173 read with section 190, Cr.P.C., although the language of subsection (3) does not specifically envisage it. The prestigious Supreme Court of Pakistan approved the above observation of the Full Bench of this Court in the celebrated case of BAHADUR[2].
6. Rule, 24.7 of the Police Rules, 1934 (hereinafter 'the Rules') prescribes a self-explanatory procedure for submitting a cancellation report of a criminal case. It is specified that if after collecting information and evidence the Investigating Officer is of the opinion that the report is maliciously false or false owing to a 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. After considering those documents, the Magistrate will pass the final order. For better comprehension Rule 24.7 of the Rules has been reproduced hereinafter: - "24.7. 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 1st 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 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."
(Underlined for emphasis)
This Rule provides not only the mode of submission of the cancellation report of a criminal case but also the grounds on which such a report should be prepared by the investigating officer. Reliance in this regard can be placed on IRFAN AKBAR KHAN[3] and MUHAMMAD DAIEM SHATTARI.[4]
7. The words used in Rule 24.7 'Superintendent shall send' clearly indicate that it is mandatory and requires due compliance. Consequently, it becomes abundantly clear that no subjective, as well as objective, discretion has been left with the investigating agency to deviate from the above-referred Rule and submit the cancellation report of a criminal case through SHO or even DSP/SDPO. Rules have a force of law and have not been replaced despite the enforcement of Police Order, 2002 (hereinafter 'the Order'). Cancellation of an FIR is not provided in the Cr.P.C. but it has been provided in Rule 24.7 of the Rules.[5] Chapter 11, Part D, Vol. III of The Rules and Orders of The Lahore High Court, Lahore, also provides guidelines to the Magistrates dealing with the cancellation reports and adherence to Rule 24.7 of the Rules has also been provided therein. It shall not be out of place to clarify that the preparation of a cancellation report after a thorough investigation of a criminal case is altogether different from the case in which investigation can be dispensed with or where investigating officer sees no sufficient ground for investigation as envisaged under proviso
(a) and (b) to section 157(1), Cr.P.C. In the present case, cancellation report was prepared under Section 173 read with Section 169 of the Cr.P.C. after a thorough investigation.
8. The rationale underlying the aforementioned Rule is that a cancellation report in a criminal case should be filed through the senior supervisory officer to preclude the possibility of malpractice and arbitrariness on the part of the investigating officer. This precautionary measure has been provided in the Rules to ensure fairness and impartiality in the investigation process because if a cancellation report of a criminal case is agreed with by the concerned Magistrate, it amounts to the termination of that criminal case. Unlike any other report under section 173, Cr.P.C.. a cancellation report shall be sent through the concerned Superintendent of Police for the safe administration of the Criminal Justice System To send the cancellation report under section 173, Cr.P.C., through the Superintendent of Police concerned, is B neither a formality nor that office is merely a post office, instead he must forward that cancellation report after applying his independent mind, otherwise, the very purpose of Rule 24.7 of the Rules shall be defeated.
9. Learned counsel for respondent No. 4 vehemently argued that after the amendment[6] brought in the Order and promulgation of Article 18(10), the Deputy Superintendent of Police is fully competent to send a cancellation report to the Magistrate concerned. This Court is of the considered view that the Order provides a complete structure, guidelines and a detailed mechanism for the effective and smooth functioning of the police department. In the year 2013, Police Order (Amendment) Act, 2013, was introduced and that amendment has some relevance to the proposition at hand. Article 18(10) of the Order has been reproduced hereinafter:- "A supervisory officer not below the rank of a Deputy Superintendent of Police may verify the correctness of the investigation and accuracy of conclusions of investigation by writing a case diary before submission of report in the Court."
A bare perusal of the aforementioned provision of taw reveals that a "Supervisory Officer" has been introduced in the new system of investigation for timely "completion" and "verification" of investigations. The said officer i.e., Deputy Superintendent of Police (DSP) may call upon investigating officer to review the case and if it is deemed appropriate, he can Write a police diary in that regard. This enhanced level of supervision is bestowed upon DSP as a check on the investigating officers to improve the quality of investigations as well as to clog up aberrant investigations. On the other hand, by virtue of Rule 24.7 of the Rules, which in unequivocal terms exclusively deals with the subject of cancellation report, it is the Superintendent of Police who is solely authorized to send the cancellation report of a criminal case to the Magistrate concerned.
The use of the word 'may' in Article 18(10) of the Order and the word 'shall' in Rule 24.7 of the Rules clearly reflects the legislature's intent and the mandatory nature of the Rule.
10. It is a time honoured principle as early as the decision in Taylor[7] that where a statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. It was further reiterated in Nazir[8] by the Privy Council ruling as under: "....The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain may the thing must be done in that way or not at all. ......."
It was observed by the prestigious Supreme Court of Pakistan in AJMIR SHAH[9] that "where a law requires doing of something in a particular manner it has to be done in the same manner and not otherwise." Further reliance can be placed on ATTA MUHAMMAD QURESHI[10] and FEDERATION OF PAKISTAN through Secretary Finance, Islamabad and another."[11] In the latter, the concepts of rule of law and right to, be treated in accordance with the law have been elaborated in Para No.24 of the judgment as infra:- "The rule of law constitutes the bedrock of governance. When the law stipulates that something has to be done in a particular manner that is how it should be done. And any person who exercises authority must do so in accordance with law. The right to be treated in accordance with law was invigorated and bolstered when the Constitution was amended to provide an additional Fundamental Right by adding Article 10A to the Constitution stipulating that, 'For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
11. Furthermore, in the present case, after the submission of the cancellation report, the learned Magistrate passed the impugned order in sheer violation of the principle of natural justice (audi alteram partem) in a slipshod manner. The order sheet reflects that after the submission of the cancellation report, on the very next date, it was agreed with without providing an opportunity of hearing to the complainant. Although the notice was issued to the complainant, but on the very next date, the impugned order was passed without receiving any report from the process server in that regard. The principle of natural justice (audi alteram partem) is enshrined in our Constitution and forms the bedrock of any decision-making process which affects the right of any party. The right to be heard is read as an integral part of every statute affecting the rights of a person, especially after the insertion of Article 10-A of the Constitution. All the pre-trial proceedings including investigation are covered under the right to a fair trial as guaranteed under Article 10-A of the Constitution. The fundamental right to have a fair trial and due process should be read into every statute affecting the rights of a person.[12] Reliance can also be placed on a comprehensive judgment rendered by the revered Supreme Court of Pakistan in NAVEED ASGHAR and 2 others
13. wherein it was observed as under: - "It may be pertinent to underline here that the principles of fair trial have now been guaranteed as a Fundamental Right under Article 10-A of the Constitution and are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of, or criminal charge against, any person."
12. In the present case the learned Magistrate, while exercising the powers bestowed upon him by virtue of his office, should not have passed the order in a hasty manner. In fact, after the insertion of section 24-A of General Clauses Act, 1897, it casts an affirmative duty upon Court/Authority/Forum to pass an order or judgment with reasons[14] by giving all the parties an opportunity to present their submissions. Even otherwise, Honorable Supreme' Court of Pakistan in a pile of judgments endorsed the principle of "audi alteram partem"[15]. Consequently, a Magistrate when receives the cancellation report, duly forwarded by the Superintendent of Police, is not only duty bound to hear both the parties but also pass a speaking and well-reasoned order.
13. In the sequel to the foregoing discussion, the instant constitutional petition is allowed and the impugned order dated 30.06.2022, passed by respondent No.2, is set aside. The investigating agency shall file the fresh cancellation report, if it wishes to do so, strictly in accordance with the law as discussed above. It is further directed that the learned Magistrate concerned shall pass a speaking order, in case the cancellation report is received from the investigating agency in due course, after affording an opportunity of hearing to all the stakeholders.
1. Wazir v. The State PLD 1962 (W.P.) Lahore 405
2. Bahadur and another v. The State and another PLD 1985 SC 62
3. Irfan Akbar Khan, Secretary, AIR Eagle (Pvt.) Ltd. Rawalpindi v. State through Station House Officer, Police Station Airport, Rawalpindi and 3 others 2021 PCr.LJ 1038.
4. Muhammad Daiem Shattari v. The State 2007 YLR 2038
5. Muhammad Ismail Tariq v. The State and 3 others 2005 PCr.LJ 1187
6. The Punjab Police Order (Amendment) Bill, 2013 passed by The Provincial Assembly of Punjab on 29th August, 2013 and assented to by the Governor of the Punjab on 10th September, 2013.
7. Taylor v. Taylor [(1876) 1 Ch. D. 426]
8. AIR 1936 PC 253 (2) Nazir Ahmad v. King Emperor
9. Ajmir Shah. Ex-Sepoy v. The Inspector-General, Frontier Corpse Khyber Pakhtunkhwa and another 2020 SCMR 2129
10. Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61
11. Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021.
12. Wajid Ali v. Rent Registrar/Special Judge Rent, Lahore and another PLD 2010 Lahore 463
13. Naveed Asghar and 2 others v. The State PLD 2021 SC 600
14. Muhammad Amin Muhammad Bashir Ltd., Karachi v. Government of Pakistan through Secretary, Ministry of Finance Central, Secretariat, Islamabad and others - PLJ 2015 SC 535 and Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others - 2010 SCMR 511
15. The Latin principle is the basic and foundational principle of natural justice.