Case Law on investigation after cancellation of FIr
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
W.P. No.9158 of 2024.
Muhammad Aslam Khan.
Vs. Judl. Magistrate, etc.
S.No. of
order/
Proceedings
Date of
order/
Proceedings
Order with signature of Judge, and that of
parties of counsel, where necessary.
31.05.2024. Mr. Touseef Zada Khan, Advocate for the petitioner.
Mr. Fazaullah, AAG with Abdul Rehman SI.
Mr. Najeeb Faisal Ch., Advocate for respondent No.6.
This petition impugns the order dated 09.01.2024 passed
by Magistrate whereby he agreed with case-cancellation
report submitted by the police.
2. Learned counsel for the petitioner states that deception
practiced by respondents No.4 to 6, cocked the petitioner to
bring the matter for a criminal action which took a course
through FIR bearing No.1781/2023 under sections 420, 468,
471 PPC Police Station Ferozwala District Sheikhpura with
the account that he entered into an agreement to sell with
respondent No.5 of one acre land situated at Mouza Goya,
Ferozwala District Sheikhupura in consideration of
Rs.1,20,00,000/- through respondent No.4 (property dealer);
respondent No.5 paid Rs.1,00,00,000/- (one crore) to him
through pay order and Rs.10,00,000/- (ten lacs) in cash and
got his signatures on different papers, however, on demand
of remaining amount of Rs.10,00,000/- (ten lacs) and copy
of agreement to sell, respondent No.5 provided him a copy
of agreement bearing No.BP-LHR-3824B23FFEA187E1,
but no payment; perusal whereof transpired an agreement to
sell of his whole land measuring 77 kanals and 04 marlas in
favour of respondent N0.6 with whom petitioner neither
executed agreement to sell nor obtained any amount. After
investigation, police recommended the case for cancellation
because no fraud was committed however, a civil dispute
was already on the platform of civil Court.
W.P. No.9158 of 2024
2
3.
Learned counsel for the petitioner contends that
before agreeing with the cancellation report, learned
Magistrate has not given notice to the complainant/petitioner
and so much so in the impugned order expression was given
of non-appearance of complainant in response to notice so
issued which is not correct. On merits, he submits that in
first investigation accused/respondents were found involved
in the commission of offence and in second investigation,
they were declared innocent, therefore, petitioner was
constrained to file an application for change of investigation
which was pending but in the meantime, police in
connivance with respondents No.4 to 6 proceeded to file
cancellation report before the learned Magistrate who in a
haste agreed with the said report without observing the
procedure properly.
4.
On the other hand, learned counsel for respondent
No.6 opposed the contentions of learned counsel for the
petitioner and states that part payment has been conceded by
the complainant/petitioner because it was sent to him
through banking channel, therefore, rest of the amount, if
disputed, could only be resolved through civil proceedings
for which respondents have filed suit for specific
performance, whereas, petitioner has also filed suit for
cancellation of document/ agreement. Learned counsel for
the petitioner states that suit for specific performance filed
by the respondents was dismissed and appeal also met the
same fate.
5.
Heard.
6.
First question which is to be met is the notice to
complainant before agreeing with the cancellation report.
There is no cavil that officer incharge of police station is
bound to give information to the complainant of any action
taken by him during investigation, the relevant part of
section 173 Cr.P.C is reproduced as under;
“(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
.”
W.P. No.9158 of 2024
3
(Section 173 (1) (b) of Cr.P.C.)
Same is the command of Police Rules, 1934; according to
Rule 25.57 which deals with final report mentions 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)
Magistrate must ensure observance of above provision of
law and rules when he receives case-cancellation report and
if notice had not given by the police officer, he shall send a
notice to this effect to the complainant. It is mentioned in the
impugned order that notice was given to the complainant but
he did not appear and it is said that presumption of truth is
attached to such observation as per Article 129 (e) of Qanune-Shahadat Order, 1984 but of course such Article could
only be focused during a trial or regular inquiry but not in
the present proceedings, therefore, it is directed that any
adverse inference by such observation would not affect the
case of complainant/petitioner.
7. Police after thorough investigation recommended the
case for cancellation while following the process mentioned
in Rule 24.7 of Police Rules, 1934, which says when
information or other intelligence is recorded under section
154, Criminal Procedure Code, 1898 and after investigation,
is found to be (i) maliciously false or false owing to mistake
of law or fact or (ii) to be non-cognizable or (iii) matter for a
civil suit, case can be cancelled by the order of Magistrate.
Before framing of Police Rules, 1934 the grounds for
cancellation of case were being dealt with under High Court
Rules & Orders (1931) Volume-III, which identifies only
two grounds, i.e., (i) offence being non-cognizable (ii) case
false or unfounded, as reflected from 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,
W.P. No.9158 of 2024
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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)
But through police Rules, 1934 more expressive grounds
were introduced that encompass a third category as well, i.e.,
matter for a civil suit. The duty of Magistrate for agreeing
with cancellation report is explained more clearly in High
Court & Rules & Orders Volume-III, which is reproduced;
2. Duty of Magistrate to satisfy himself before
passing order: -When a Magistrate agrees with a
Police report that the F.I.R./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)
It is true that 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, in that he has to act fairly, justly and honestly,
a duty common to the exercise of all state power. Reliance is
on case reported as “BAHADUR AND ANOTHER Versus
THE STATE AND ANOTHER” (P L D 1985 Supreme
Court 62). Order of Magistrate, in the circumstance is well
reasoned: Thus, on merits no interference is required in the
impugned order.
8. Coming to the contention that an application for
change of investigation was filed well before the Magistrate
agreeing with the case-cancellation report, it is trite that
W.P. No.9158 of 2024
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police can validly take up such application for consideration
and if reach to the conclusion that there are grounds for
change of investigation, senior police officer can direct the
concerned investigator to seek permission from the
concerned Magistrate to reinvestigate the matter, then
Magistrate can pass appropriate order. Reliance in this
respect is placed on following cases reported as;
“WAZIR Versus THE STATE” (PLD 1962 (W.P.)
Lahore 405): “DIN MUHMAMMAD SHAKIR alias D.
M. SHAKIR versus D.S.P., ICHHRA, LAHORE” (PLD
1977 Lahore 180): “MEHDI HUSSAIN SHAH Versus
Malik KHIZER HAYAT KHAN AND ANOTHER” (1983
P Cr. L J 1601): “ASGHAR ALI Versus THE STATE”
(1983 P Cr. L J 2187):
If the permission is declined then cancellation report agreed
by the Magistrate shall be deemed as final and
complainant/petitioner is at liberty to recourse to alternate
remedy by initiating a private prosecution as held in a case
reported as “BAHADUR AND ANOTHER Versus THE
STATE AND ANOTHER” (P L D 1985 Supreme Court 62)
with following expression;
“The party is left free to institute a complaint on the
same facts, and the same Magistrate does not even
after passing such an order render himself functus
officio. On the contrary he is quite competent to
entertain and deal with such a complaint on material
presented to him”
9.
With the above observations and direction, this writ
petition stands disposed of.
(MUHAMMAD AMJAD RAFIQ)
JUDGE
Approved for reporting
Judge
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