1998 PLP 1577 (MLD)

S. 247

Penal Code (XLV of 1860), S. 381

Absence of complainant-- Cancellation of case

Investigating Officer had recommended that case against accused was false and should be cancelled

On such recommendation of Investigating Officer, Magistrate issued notice to complainant to appear, but he remained absent, on date fixed

Magistrate in a short and non-speaking order cancelled case against accused as recommended by Investigating Officer-- Magistrate by disposing of case summarily, had not exercised its discretion in a proper and legal manner as in passing cancellation order Magistrate had not gone into depth of the case and had not satisfied himself before agreeing with Investigating Officer

Order passed by Magistrate was not tenable as it did not disclose any legal or judicial reason for agreeing with opinion of Inve9tigating Officer. Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref. Malik Muhammad Ali for Petitioner. Tahir Haider Wasti, Addl. A.-G. for the State. Date of hearing: 26th March, 1998. The grievance of the petitioner is that he got lodged F.I.R No.298 on 29-10-1996 under section 380, P.P.C. at Police Station Saddar Vehari for an occurrence which took place on the night between 9th and 10th of September 1996. The case was investigated and was reported that the same is false and recommended for cancellation, vide report dated 10-12-1996. The said cancellation report was placed before the learned Magistrate for approval who on 15-8-1997 issued a notice to the complainant for appearance on 29-9-1997 on which date again the complainant was absent and thereafter, on the said day the learned Magistrate purportedly agreed with the report of the police and approved the cancellation of the case. To substantiate his grievance the petitioner states that the order passed by the learned Magistrate is not a speaking order and the learned Court has not exercised its discretion in a legal manner. The order has been passed in a manner which indicates non-application of mind nor any cogent reasons have been recorded while agreeing with report of the Investigating Officer. Learned counsel has placed reliance on Hussain Ahmad v. Mst. Irshad Bibi and others (1997 SCMR 1503). The learned law officer present in Court, after going through the three line order of the learned Magistrate has an expression on his face which is complete answer to the question and is absolutely in such an uncomfortable situation where he has no reasonable stance to substantiate this order.

2. Learned Trial Court has not exercised its discretion in a proper and legal manner. These are not matter which can be summarily disposed of. The Court while passing any such order has to look into depth of the case and must satisfy itself before agreeing with the police report. Apparently, the impugned order is not tenable as it does not disclose any logical or judicial reason for the learned Magistrate to agree with the opinion of the police. The impugned order dated 29-9-1997 is, therefore, set aside and the case is remanded for decision afresh by the learned Trial Court after applying its mind in a legal manner. H.B.T./M-62/L Case remanded.