2012 P Cr (PLP)

SYED IFTIKHAR HUSSAIN SHAH, J.

The petitioners Syeda Azra Ali and Syed Sabtain Raza Naqvi have assailed the legality of order dated 30-3-2010 passed by the learned Judicial Magistrate Section 30, Lahore whereby he disagreed with the report seeking discharge of the petitioner and the cancellation of the case against them through this constitutional petition.

2. Succinctly, the facts giving rise to this constitutional petition are that a case F.I.R. No.283 of 2007 was registered against the petitioners on 7-5-2007 under section 380, P.P.C. at Police Station Gowalmandi, Lahore against unknown persons regarding the commission of theft of gold ornaments, cash, prize bonds and documents etc., however the petitioners were involved in this case through supplementary statement dated 8-5-2007. During investigation the petitioners were found innocent and a cancellation report was prepared and submitted before the learned Judicial Magistrate Section 30, Lahore, who vide order dated 30-3-2010 declined the same on the ground that it transpired from the case diary No.2 dated 7-5-2007 that both the petitioners had themselves made confession qua the commission of alleged offence before the Investigating Officer.

3. Learned counsel for the petitioner has contended that the learned Judicial Magistrate Section 30, Lahore had passed the impugned order dated 30-3-2010 without minutely considering the report and going through the record; that he has relied upon the entries of case diary No.2 dated 7-5-2007 wherein it was mentioned that the petitioners have admitted their guilt, therefore, the impugned order is not sustainable in the eye of law.

4. On the other respondent No.2 herself argued the case and stated that sufficient incriminating material was available on record against the petitioners; that the police, which is in league with the petitioners had prepared cancellation report which has rightly been rejected by the learned Judicial Magistrate Section 30, Lahore.

5. I have heard learned counsel for the petitioner, respondent No.2 and the learned Assistant A.-G. and also gone through the record.

6. Learned Judicial Magistrate Section 30, Lahore while disagreeing with the discharge report of the petitioners vide order dated 30-3-2010 has observed that the petitioners have admitted their guilt before the Investigating Officer of this case on 7-5-2007 and this fact has been incorporated in case diary No.2.

7. A Judicial Magistrate is competent to refuse the cancellation of case and can pass an order for further investigation of the case or to take the cognizance on the basis of police report under section 190(1)(b), Cr.P.C. but while passing the said order, the learned Magistrate is required to judiciously examine the report and is supposed to act fairly, justly and honestly. He is supposed to go through the material collected during the investigation, see its admissibility in evidence and then to pass an order in accordance with law but in this case the learned Judicial Magistrate Section 30, Lahore has not considered the material on record judiciously and has relied on the case diary No.2 wherein the petitioners have allegedly admitted their guilt before the police/I.O. Under Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984 confession before police officer is inadmissible. While agreeing or disagreeing with the cancellation of the case, the Magistrate should have gone through all the available evidence collected by the police and thereafter he should have passed an order. The impugned order is patently illegal, the same is declared void.

8. In this view of above discussion, the petition in hand is allowed and the impugned order dated 30-3-2010 is set aside and the learned Judicial Magistrate Section 30, Lahore is directed to pass the order afresh after hearing both the parties and after going through the record in accordance with law. N.H.Q./A-234/L Petition allowed.