2002 PLP 2449 (YLR)

"It is enjoined from the last Zimni recorded by the I.O. that the case is a false one. This being so, the file of the case is sent to the Court of the learned Allaqa Magistrate for today. The learned Allaqa Magistrate should evaluate the proceedings of the investigation and then pass the orders today as to the cancellation or otherwise of the case. The petitioner and the learned counsel for the petitioner are directed to put in their appearance in the Court of learned Allaqa/Duty Magistrate today before the close of the Court hours. Bail application be put up again after the wait of the decision of the learned Allaqa Magistrate." One the same date i.e. on 6‑12‑1997, in compliance with the orders of the learned Additional Sessions Judge, Narowal, the learned Magistrate Section 30 Narowal passed the following order:‑‑ "Police file was produced before the under signed on the direction of learned Additional Sessions Judge, Narowal for making appropriate order regarding the cancellation of case or otherwise. I perused the record and last Zimni dated 5‑12‑1997 reveals that no theft was committed. The case is false and complainant got registered case on the enmity that he was sent to jail by the accused, due to non‑payment of arrears of Government Revenue. From the perusal of whole record am of the view that case is false hence the case is hereby cancelled and accused is discharged from the case." After the learned Magistrate Section 30, Narowal had passed the aforesaid order, the file of the bail application alongwith the record was again put up before the learned Additional Sessions Judge, Narowal and who then passed the second order on 6‑12‑1997 which is as follows:‑‑ "The file has again been put up. The learned Judicial Magistrate has cancelled the case. Therefore, this bail application is disposed of as having become infructuous. As the complainant of the case Kana Muhammad Salim son of Fazal Muhammad ventured to frivolously file a false case against a public servant who put his hand on him just in discharge of the public duties, consider it pertinent that he should be tried under section 476, Cr.P.C. for the offence defined in section 211, P.P.C. Accordingly the learned Judicial Magistrate is called upon to summon the complainant Rana Muhammad Salim in his Court on 15‑12‑1997 and then try him under section 476, Cr.P.C. for the offence defined in section 211, P. P. C. Copy of this order be immediately sent to the learned Judicial Magistrate for action and compliance. "

2. Aggrieved of the said order of the learned Additional Sessions Judge, Narowal, the present writ petition has been filed by Rana Muhammad Saleem petitioner.

3. I have carefully considered the arguments and have also perused the copies of the record appended with the writ petition. As it appears from the orders mentioned above, the Police had not submitted any report under section 173, Cr.P.C. before the learned Magistrate and the learned Magistrate had passed the order, dated 6‑12‑1997 for the cancellation of the case merely under the direction of the learned Additional Sessions Judge, Narowal and by perusing the last Zimni (entry of case diary) dated 5‑12‑1997. It was held in the case of Mehmood Ali v. State (1994, PCr.LJ 842 (Lahore) that the learned Ilaqa Magistrate should have waited for the final report of the police under section 173, Cr.P.C. before passing the order of discharge of the respondents and that anomalous situation would arise if on the mere observation of one Investigating Officer without‑proper verification by the competent Authorities, the accused are discharged in a case of serious nature. It was held in the case of Muhammad Alam and another v. Additional Secretary, Government of N. W.F.P. and others (PLD 1987 SC 103) that although application of Investigating Officer to the Deputy Commissioner was under section 169, Cr.P.C. and was also not in form prescribed for report under section 173, Cr.P.C., the presumption would be that the Investigating Officer intended the application to be the second report under section 173, Cr.P.C., which was permissible under the law and that the report under section 169, Cr.P.C., otherwise too, was not proper course in the circumstances and order of the Additional Deputy Commissioner releasing the petitioner and discharging him of his bond, could be made under section 173, Cr.P.C. and not under section 169, Cr.P.C. and that cancellation of case also, if validly made, would have to be under section 173, Cr.P.C.

4. In this case, the learned Additional Sessions Judge, Narowal had acted in a very strange manner and probably for the learned Magistrate there was left no other alternative but to comply with the orders of the learned Additional Sessions Judge, Narowal and to proceed to cancel the case and to discharge the accused by pursuant to the last entry of the case diary. The procedure so adopted was clearly illegal and irregular and as such the order of the learned Additional Sessions Judge, Narowal whereby he had directed the learned Magistrate to pass an order after going through the proceedings of the investigation and his subsequent order of the same date directing the learned Magistrate to try the petitioner under section 476, Cr.P.C. for the offence defined in section 211, P.P.C. and also the subsequent order passed by the learned Magistrate Section 30 whereby he had cancelled the case and had discharged the accused cannot be legally sustained as the said orders are without lawful authority and as such are liable to be set aside. 4‑A. In view of what has been stated above, the writ petition is accepted and the impugned orders dated 6‑12‑1997 passed by the respondents Nos.1 and 2 and consequent cancellation of case F.I.R. No.223 of 1997 of Police Station City, Narowal are set‑aside. The S.H.O. of Police Station City, Narowal is directed to put up a proper report under section 173, Cr.P.C. on the basis of the investigation conducted in relation to F.I.R. No.223 of 1997 of his police station before the learned Illaqa Magistrate who shall pass fresh order, applying his independent mina regarding the cancellation or otherwise of the case. Order accordingly. H.B.T./M‑1400/L