2005 P Cr (PLP)

The learned counsel for the petitioner has filed this writ petition which relates to F.I.R. No.40/02 dated 30-1-2002, against the petitioner, his wife, son, brother, his brother's wife and the nephew. The said F.I.R. has been registered under sections 380 and 457, P.P.C. at Police Station Satellite Town, Gujranwala. The said F.I.R. has been investigated at five different levels up to the level of D.I.-G., Gujranwala. At all levels the version of respondent No.3 was found to be false and the case was recommended for cancellation. It might be pointed out that the investigation by the D.I.-G., Gujranwala was conducted at the direction of this Court. After having found F.I.R. baseless the concerned police officer moved for cancellation of F.I.R. No.40/02 to respondent No.2. Respondent No.2 disagreed with the cancellation without appreciating the record and material presented to him in support of the cancellation report. The respondent No.2 directed respondent No.4 to submit the challan. The petitioner has challenged the order of the respondent No.2 dated 22-1-2004.

2. There is no doubt that opinion of Investigation Officer or the police is not binding on the Court, the Court decides on the basis of evidence produced before him. However, the opinion of a Police Officer/Investigation Officer has its value and importance particularly, when it is supported by sufficient and unbiased material. The Police Officer/Investigation Officer forms opinion after visiting place of occurrence. He inspects scene of occurrence immediately after the occurrence and records statements of those persons who saw the occurrence. He gets opportunity to examine other circumstantial evidence. He also gets opportunity to effect recoveries, etc. Therefore, if a police officer/Investigating Officer performs his functions honestly and efficiently, he forms his opinion on basis of material which is not available to any other person. Therefore, despite the fact that his opinion A is not binding still it has a lot of relevancy and becomes a basis for important decision. Similarly, when a police officer/Investigating Officer recommends cancellation of an F.I.R., he reaches to this conclusion after a thorough/complete investigation. In the absence of any mala fide, bias, etc., the cancellation report should be given a due consideration. It should only be rejected when there are reasons to believe that the cancellation report has been prepared under any extraneous influence or on the basis of bias, prejudice, etc. For further guidance, Altaf Hussain v. State PLD 2002 Lah. 216, may be referred.

3. In the impugned order, the learned Magistrate has recorded that opinion of police is not based on sound and cogent reasons. He further states that accused persons are nominated in F.I.R., there is sufficient material available on the record which, prima facie, connects the accused with the commission of the offence. Nevertheless, the learned Magistrate has not referred to any material to which he considers sufficient material. I have also gone through cancellation report which contains sufficient and convincing material. The learned Magistrate should have pointed out material on basis of which he has disagreed and rejected the opinion of the concerned police/Investigating Officer.

4. Police Rules, 1934 have a force of law and have not been replaced despite enforcement of Police Order 2002. Cancellation of an F.I.R. is not provided in the Code of Criminal Procedure but it has been provided in Rule 24.7 of Police Rules, 1934. The relevant rule is reproduced as under:-- "Unless the investigation of a case is transferred to another police station or district, no first information report can be cancelled without the orders of a Magistrate of the 1st class. When information or other intelligence is recorded under section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction and being a Magistrate of the first class, for orders of cancellation. On receipt of such an order the officer incharge of the police station shall cancel the first information report by drawing a red line across the page, noting the name of the Magistrate canceling the case with number and date of order. He shall then return the original order to the Superintendent's office to be filed with the record of the case." The underline portion reads that the Superintendent shall send the first information report and any other papers on record in the case with a final report of a Magistrate having jurisdiction and being Magistrate of the 1st Class, for orders of cancellation. These words do not provide expression `shall' and 'may'. Therefore, in my opinion it is difficult to say that whether it is mandatory for a Magistrate to follow the cancellation report sent by a Superintendent of Police and cancel the F.I.R. or it is discretionary for him to cancel or refuse the cancellation of the F.I.R. However, the purpose of rule 24.7 is to empower a Magistrate to cancel an F.I.R. when it is so recommended by the concerned police authorities. Therefore, normally an F.I.R. should be cancelled when it is so recommended unless there are strong reasons to be recorded for the refusal to cancel the F.I.R. The learned Magistrate has passed a brief order without giving his reasons and without referring to the material categorically to which he referred to a "sufficient material". In view of the above discussion, this writ petition is allowed, the order of the learned Duty Magistrate dated 22-1-2004 is set aside. However., the matter is remanded back, the Magistrate should reconsider the cancellation report which was submitted to him to decide it de novo without any prejudice considering the material already on the file and in the light of observations made above. He may seek more material and information to satisfy himself before passing a fresh order. N.H.Q./M-1042/L Petition accepted.