2014 PLP 113 (YLR)

MUHAMMAD QASIM KHAN, J.--Notice for today.

2. The learned Deputy Prosecutor-General present in Court accepts notice on behalf of the State and with concurrence of learned counsel for the parties, this matter is being deciding as a PACCA case.

3. Briefly the facts of the case are that respondent No.3/Mst. Razia Mai got lodged an F.I.R. No.248/2012 dated 8-10-2012 under sections 354/337-A(i)/337-F(iii)/148/ 149, P.P.C. at Police Station Wohwa, Dera Ghazi Khan, against Ehsan Ullah/ petitioner and others. After investigation, the police recommended for cancellation of the case, and when cancellation report was put up before the Ilaqa Magistrate, he vide order dated 4-4-2013 disagreed with the cancellation report and summoned the accused persons for facing the trial. This order of the learned Ilaqa Magistrate disagreeing with cancellation report and summoning of the accused is under attack in this writ petition.

4. The contention of learned counsel for the petitioner is that earlier the accused party had got lodged and F.I.R. No.198 of 2012 at Police Station Wohwa againts the complainant party, and just as a counterblast instand F.I.R. was got lodged by Mst. Razia against the petitioner and others. Further contended that during investigation one of the witnesses swore affidavit to the effect that he was not present at the time of alleged occurrence. The learned counsel concluded his arguments by contending that during investigation no material could be collected by the Investigating Officer to connect the petitioner or other accused with the commission of the offence, as such, rightly a cancellation report was prepared, but the same has wrongly been disagreed with the learned Ilaqa Magistrate.

5. The learned Deputy Prosecutor General opposed this petition and argued that ipse dixit of police had no binding force on the court and further as according to the learned Ilaqa Magistrate no solid and cogent proof in support of the conclusions drawn by the Investigating Officer, was produced before the Court, therefore, the order impugned in this petition, is fully justified.

6. I have heard the arguments of learned counsel for the parties and perused the file.

7. It is by now a settled proposition of law that while dealing with cancellation report, the learned Ilaqa Magistrate acts in his administrative capacity. When he concurs with the cancellation report submitted by the police, he would still be acting under his administrative status, as held by the Hon'ble Supreme Court of Pakistan in the case "BAHADUR and another v. THE STATE and another" (PLD 1985 SC 62), and such order can be challenged in writ petition. But, when the learned Ilaqa Magistrate disagrees with the cancellation report, he can take any of the following steps:-- (i) May direct the Station House Officer to submit report under section 173 on prescribed form, along with copies of statements of witnesses recorded under section 161 or 164 Cr.P.C. and inspection notes prepared by the Investigating Officer on his first visit to the place of occurrence, which is to be supplied to the accused under the Criminal Procedure Code; (ii) The learned Ilaqa Magistrate may direct the Station House Officer to submit calendar of witnesses; along with copies of statements of witnesses recorded under section 161 or 164, Cr.P.C. and inspection notes prepared by the Investigating Officer on his first visit to the place of occurrence, which is to be supplied to the accused under the Criminal Procedure Code; (iii) May direct the Investigating Agency under section 156(2) Cr.P.C, to further investigate the matter; or (iv) After taking cognizance and disagreeing with the cancellation report, he may also issue process for summoning of the accused. It is settled proposition of law that while dealing with cancellation report submitted by the police, the Magistrate acts in his administrative capacity and the order passed by him while agreeing or concurring with the cancellation report, is an executive order. The Magistrate, if disagrees with the cancellation report and directs the police to file report under section 173, Cr.P.C. on a prescribed form; directs submission of calendar of witnesses or directs the Investigating Agency for further investigation into the matter, all these orders would be the acts performed by the Magistrate in his administrative capacity and can be questioned only through writ jurisdiction of this Court. But, while dealing with cancellation report, the learned Ilaqa Magistrate when disagrees with the cancellation report and by the same order summons the accused person(s) to face trial, then his first step of disagreeing with the cancellation report (administrative in nature) would merge in his simultaneous order regarding summoning of the accused passed under section 204 Cr.P.C. which is squarely a judicial order. Thereofre, due to the merger of disagreeing order of the Magistrate into the ultimate and simultaneous order of summoning of the accused, the entire exercise by the Magistrate would become judicial action and undoubtedly such kind of order can be assailed through criminal revision, not under the constitutional jurisdiction of this Court.

8. By forming the above observations, I am fortified by the judgment "MAZNOOR AHMAD v. AHMAD YAR, and others" (1996 MLD 1867) and "Haji JAMIL HUSSAIN v. ILLAQA MAGISTRATE SECTION 30, MULTAN, and others" (2012 PCr.LJ 159). The instant writ petition, therefore, being not maintainable, is hereby dismissed. MH/A-120/L Petition dismissed.