1996 P Cr (PLP)

S. 420/467/468/471/109

Criminal Procedure Code (V of 1898), S.173-- Constitution of Pakistan (1973), Art. 199

Constitutional petition

Police report for cancellation of case

Accused no doubt had been found innocent during investigation conducted by different Police Officers and the case against them had been found false and the cancellation report prepared by the S.H.O. had been submitted to the Magistrate, but the ipsi dixit of the police was not binding on the Magistrate who had to form his independent opinion from the material collected by the police exercising his discretion judiciously

According to the Magistrate investigation in the case had not been conducted properly and the police had formed its opinion on the basis of evidence given by the accused without hearing the complainant party

Magistrate had heard both the parties after having summoned them and he was legally justified not to accept the report for cancellation of the case

Said order of the Magistrate was neither illegal nor without jurisdiction, nor amounted to an abuse of process of law

Constitutional petition was dismissed accordingly. Syed Kabir Mahmood for Petitioner. Pir Bakhsh petitioner by means of this Constitutional petition has sought that the impugned order passed by Magistrate 1st Class, Pakpattan Sharif be declared illegal against the facts, without lawful authority, without jurisdiction and of no legal consequence on the ground that the impugned order was against the law and facts; that the Magistrate did not act judicially and that the report submitted under section 173, Cr.P.C. for cancellation of F.I.R. No.412/94, dated 2-12-1994 under section 420/467/468/471/109, P.P.C. of Police Station City Pakpattan Sharif, registered on the complaint of Khawar Javid against the petitioner and others was liable to be accepted and that the Magistrate was not authorised to join the complainant in the proceedings at the time of hearing of cancellation report. He further submitted that the Magistrate assumed the status of Investigating Officer and imported his own knowledge and that no evidence was available on the file to connect the petitioner with the commission of offence.

2. I have heard the learned counsel for the petitioner and have gone through the record and the impugned order.

3. No doubt the petitioner and other were found innocent during the investigation conducted by different Police Officers and the case was also found false and cancellation report prepared by the S.-I. submitted before tile learned Magistrate who summoned both the parties and heard them. Tile ipsi dixit of the police is not binding on the Magistrate. Law does not require that in case of submission of a cancellation report by the police, the Magistrate shall concur with it. Magistrate has to form his independent opinion from the material collected by the police during the investigation. He has to examine tentatively the basis of the opinion of the police. He has the discretion to concur or differ with the opinion formed by the police. Of course he has to exercise his discretion judiciously.

4. The learned Magistrate observed in the impugned order that investigation was not conducted properly and the complainant party was not heard. The police has formed its opinion on the basis of Half given by the accused. The method adopted by the police to declare the petitioner innocent cannot be appreciated at all. In my considered view the Magistrate was legally justified not to accept the petitioner for cancellation of the case. For what has been stated above, the impugned order can neither be declared illegal or without jurisdiction, nor it can be termed as the abuse of process of law. The impugned order is perfectly legal and is consequently upheld. This petition being without merits is dismissed. N.H.Q./P-1/L Petition dismissed.