MUHAMMAD ASIF J. Through the instant petition, the petitioner has impugned the order dated 10.02.2025 passed by the Judicial Magistrate Sec-30, Islamabad-West, whereby the cancellation report filed by the SHO, Police Station Aabpara was accepted.
2. The learned counsel for the petitioner argued that the cancellation of FIR No. 117/2025 of Police Station Aabpara is based on perfunctory and non-transparent investigation process, devoid of due diligence required in matters involving threats to life; that the impugned order passed by the learned Judicial Magistrate suffers from non-application of mind and is in violation of the principles settled by the Superior Courts regarding fair investigation and the duties of the Magistrate under Section 173 Cr.P.C. that the cancellation report dated 04.02.2025 was prepared, submitted, forwarded and approved in an exceedingly hasty manner, despite the fact that the alleged occurrence took place on 27.01.2025 and FIR was registered on 29.01.2025. The cancellation report was prepared on 04.02.2025, forwarded by the prosecution branch on 06.02.2025, and ultimately approved by the Judicial Magistrate, Sec-30 Islamabad-East, on 10.02.2025 at his own, throughout this entire process, the complainant was neither informed nor listed at any stage, and was excluded from any part of the proceedings; that it was the duty of the investigating officer to collect the necessary evidence; however he failed to make any efforts in this regard and instead directly applied for cancellation; that the petitioner was not issued any show-cause notice, summons or hearing opportunity before the submission or acceptance of the cancellation report, thereby violating the principle of audi alteram partem, rendering the proceedings arbitrary, and unlawful; that the impugned order of the judicial Magistrate has failed to consider the serious implications for public security and the protection of high profile citizen; hence instant petition may be allowed.
3. The learned State Counsel, assisted by the DSP (legal), repelled the above submission and argued that no irregularity or illegality had been found in the order impugned passed by the Judicial Magistrate Sec-30. The cancellation report by the Police was filed due to the non- cooperation of the complainant; hence, the instant petition is liable to be dismissed.
4. Arguments heard, record perused.
5. Perusal of the record reveals that the petitioner being a security officer of Bahria Town, reported the matter to the Police regarding threats received to the Ex-Chairman of Bahria Town Malik Riaz and his family members through email and suspicious surveillance of his daughter's residence wherein, an FIR No. 117 of 2025 under Section 506 (ii) PPC and 25-D Telegraph Act 1885 at police station Aabpara was registered against the Unknown persons.
6. The first and foremost requirement is to issue a notice to the complainant before accepting the cancellation report. It is undisputed that the officer in charge of the police station is obligated to inform the complainant of any action taken during the course of the investigation. This obligation is clearly stated in Section 173(b) of the Criminal Procedure Code (Cr.P.C.), which reads as follows: "(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given." This requirement is further reinforced by the Police Rules, 1934.
Specifically, Rule 25.57, which pertains to final reports, reiterates this duty is reproduced as under:- "If the informant is present when the final report is prepared, he shall be informed verbally of the result of the investigation, and, after noting this fact in the final report, his signature or thumb mark shall be taken on it. If the informant is not present, he shall be informed in writing by postcard or by the delivery of a notice by hand, and the fact that this has been done shall be noted in the final report. (Sub-rule (3) of Rule 25.57)
7. The Magistrate is required to ensure compliance with the aforementioned legal provisions and rules upon receiving a case-cancellation report. If the police officer has not issued a notice to the complainant, the Magistrate must issue such a notice himself. Although the impugned order states that a notice was served to the complainant, who then failed to appear, and such a statement is presumed to be true under Article 129(e) of the Qanun-e-Shahadat Order, 1984, this presumption applies only during trial or formal inquiry proceedings. As the current matter does not fall within that scope, it is directed that no adverse inference be drawn from that observation against the complainant/petitioner,
8. After conducting a thorough investigation, the Police recommended cancellation of the case in accordance with the procedure outlined in Rule 24.7 of the Police Rules, 1934. This rule provides that when information is recorded under Section 154 of the Criminal Procedure Code, 1898, and the investigation reveals that the case is: (i) maliciously false or false due to a mistake of law or fact;
(ii) non-cognizable; or (iii) a matter suitable for civil litigation, the case may be cancelled by order of the Magistrate. Prior to the enactment of the Police Rules, 1934, the grounds for case cancellation were governed by the High Court Rules & Orders (1931), Volume III, which recognized only two grounds for cancellation: (i) the offence being non-cognizable and (ii) the case being false or unfounded, as outlined in the following rule.
1. Magistrate's power to cancel cases reported by Police: - In regard to cognizable cases reported by the Police to the Magistrate having jurisdiction under section 157 and 173 of the Code of Criminal Procedure, it frequently becomes evident either (a) that the offence committed was really non- cognizable, or (b) that the information given to the Police was false or unfounded, and the Police apply for magisterial authority to show such cases as "non-cognizable" or "false" as the case may be. The Magistrate dealing with the Police reports in such cases, that is, ordinarily, the Magistrate who is empowered to take cognizance of the offence upon Police report, in respect of the particular Police Station, under section 159 or section 173 of the Code of Criminal Procedure, as the case may be, may, for sufficient reasons, pass an order accordingly. (Chapter-11: Part D, Rule-1)
9. However, the Police Rules, 1934 introduced more comprehensive grounds for cancellation, adding a third category--namely, that the matter is appropriate for a civil suit. The role of the Magistrate in approving a cancellation report is more explicitly outlined in the High Court Rules & Orders, Volume III, which is reproduced below:
2. Duty of Magistrate to satisfy himself before passing order: -When a Magistrate agrees with a Police report that the FIR/case should be cancelled, he acts in an administrative and not in a judicial capacity and the order he makes is not a judicial order. Such an order is not a revisable order and, therefore, the Magistrate is not required to give reasons for his order. Though, Magistrates should exercise this discretion freely in making such order after satisfying themselves as to the grounds on which it is sought to be made, yet they should not treat the matter as one of ordinary routine. (See Rule 24.7 of the Punjab Police Rules, 1934 framed under section 46 of the Police Act, 1861 and Bahadur vs. The State PLD 1985 S.C. 62).
(Chapter-11: Part D, Rule-2)
10. It is true that the Magistrate is not required to give reasons for his order because he is not functioning as a criminal court however, while cancelling a criminal case, he is required to act judicially, fairly, justly and honestly, a duty common to the exercise of all state power.
11. In the present case, the alleged occurrence took place on 27.01.2025, and FIR was registered on 29.01.2025. The cancellation report was prepared on 04.02.2025 and forwarded by the prosecution branch on 06.02.2025 to the learned trial Court, the same was fixed before the learned Judicial Magistrate, Sec-30 Islamabad-West, for hearing on 08.02.2025, and notice was issued to the complainant for 10.02.2025 and on the same date, on basis of non-appearance of the complainant, the learned trial Court agreed with the cancellation report and passed the impugned order.
Furthermore, the summons issued to the complainant was not duly served, resulting in the complainant's absence before the Court; however, instead of affording the complainant an opportunity to appear, the Court proceeded to pass the impugned order. This aspect of the matter raises the question as to what urgency existed in the matter that prompted the concerned SHO to file the cancellation report and led the Court to pass an impugned order in such a hasty manner.
The whole story indicates that the due process was not adopted by the Investigation agency as well as by the trial Court.
12. In light of the foregoing discussion, the instant writ petition is accepted, and the impugned order dated 10.02.2025, passed by the learned Judicial Magistrate Sec-30 Islamabad-West, is hereby set aside. The matter is remanded to the investigating agency for submission of a fresh report under Section 173 Cr.P.C. in accordance with the law. It is further expected that the investigating agency and prosecution will adhere to the mandatory legal provisions in the future.