PLJ 2022 Cr.C. 1128
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 154/169/173/435 & 561-A--Pakistan Penal Code, (XLV of 1860),
Ss. 506(ii)/427/148/149--Police Rules, 1934, Rr. 24.7 & 25.7--High Court Rules and Orders Vol. III, Chap. 11-D--Direction to submit report u/S. 173 of Cr.P.C. is administrative order--Judicial order can be challenged through criminal revision--Against Summoning order, revision petition is maintainable--Case after police probe was found and cancellation report was submitted in the court of magistrate, who did not concur with it and directed to submit report u/S. 173, Cr.P.C. on the prescribed proforma--criminal revision petition was allowed by the additional session judge--A crime report registered u/S. 154 of Cr.P.C. can be cancelled--Only Judicial order can be challenged through criminal revision whereas the administrative orders since are not delivered as a criminal court thus are not revisable and heir vires can be examined under section 561-A of Cr.P.C.--The order upon a cancellation report submitted by the police since is passed by the magistrate not in reference to some express provision of Cr.P.C.--If an order of summoning of the accused was passed, then the revision petition is maintainable--In this case while deciding the cancellation report, no order for the summoning of accused was passed and instead only a direction for submission of report u/S. 173 Cr.P.C. was issued--Petition is accepted and the order passed by the magistrate is restored.
[Pp. 1129, 1130, 1131 & 1137] A, B, C, D, E & F
1997 SCMR 304; PLD 2012 SC 179; 1993 SCMR 187; PLD 1985 SC 62; 2003 YLR 245; 2015 PCrLJ 1103; 2014 YLR 113 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435 & 561-A--Police Rules, 1934, Rr. 24.7 & 25.7--Summoning order is a judicial order---Direction to submit report u/S. 173 of Cr.P.C. is administrative order--Only Judicial order can be challenged through criminal revision whereas the administrative orders since are not delivered as a criminal court thus are not revisable and heir vires can be examined under section 561-A of Cr.P.C. [P. 1135] D
1997 SCMR 304; PLD 2012 SC 179; 1993 SCMR 187;
PLD 1985 SC 62 ref.
Mr. Muhammad Asad Hayat, Advocate for Petitioner.
M/s. Malik Altaf Hussain Kandwal & Ch. Afrsyab Khan Advocates for Respondent.
Ms. Memoona Ehsan-ul-Haq, Deputy District Public Prosecutor assisted by Mr. Irfan Ahmad Khan Niazi, Assistant Advocate General, Punjab for State.
Date of hearing 12.11.2021.
PLJ 2022 Cr.C. 1128
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Abdul Aziz, J.
Mian ANSAR HAYAT--Petitioner
versus
STATE and 10 others--Respondents
Crl. Misc. No. 1983-M of 2021, heard on 12.11.2021.
Judgment
Through this petition in terms of Section 561-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr.P.C"), Mian Ansar Hayat (petitioner) called in question the vires of order dated 31.07.2021 whereby learned Additional Sessions Judge, Chakwal while setting aside the order dated 01.06.2021 accepted the revision petition filed by respondents, agreed with the discharge report submitted by the police and acquitted them from case FIR No. 23/2021 dated 21.01.2021 registered under Sections 506(ii), 427, 148 & 149, PPC at Police Station Kallar Kahar, District Chakwal.
"I have not found any cogent reason or ground to agree with the opinion of the Investigating Officer. Ipsi-dixit of police is not binding upon the Court. Hence, opinion of the I.O. is not concurred with and this case FIR No. 23/21 based upon true facts and is not cancelled. It is directed that report under Section 173, Cr.P.C. be submitted on the prescribed proforma along with list of witnesses and accused persons till the next date i.e. 14.06.2021".
"The learned trial Court while disagreeing with cancellation report, ignored above mentioned facts, hence, committed irregularity and illegality. The learned trial Court not exercised the jurisdiction properly vested to it, therefore, impugned order dated 01.6.2021 is hereby set-aside and instant criminal revision is hereby accepted and while agreeing with discharge report, above mentioned criminal case registered under Sections 506, 427, 148 & 149, PPC is hereby cancelled and consequently, present petitioners/accused persons are hereby discharged from above said case. Copy of this order along with record be sent to the learned trial Court for information and necessary compliance."
3. It is contended by the learned counsel for the petitioner that the finding of Magistrate upon the cancellation report is not judicial order, thus, was not revisable; that the learned ASJ had no jurisdiction even to entertain a criminal revision against the order dated 01.06.2021 of learned Magistrate as it was executive in nature and the finding so given by him suffers from perversity; that if at all the respondents were dissatisfied from the order of learned Magistrate, they should have invoked the jurisdiction of this Court through a petition under Section 561-A, Cr.P.C. In support of aforementioned arguments, the learned counsel placed reliance upon Muhammad Sharif and 8 others v. The State and another (1997 SCMR 304) and Sakhawat Ali v. The State and another (2003 YLR 245).
4. Learned counsel for Respondents No. 4 to 11 while vociferously opposing the points agitated on behalf of petitioners argued that generally in case a cancellation report filed by the police is accepted by the learned Magistrate such order is administrative in nature thus can only be assailed through a petition under Section 561-A, Cr.P.C.; that since through the order dated 01.06.2021, the learned Magistrate disagreed with the cancellation report and summoned the accused hence by all means it was a judicial order and filing of criminal revision against it was the only legal remedy; that even otherwise the Magistrate failed to appreciate the opinion of police in true perspective, thus his findings in order dated 01.6.2021 are not sustainable. Learned counsel for respondents in support of his submissions placed reliance on cases reported as Iftikhar Hussain v. Senior Special Judge ACE and 3 others (2015 PCr.LJ 1103) and Ahsan Ullah v. Illaqa Magistrate and 5 others (2014 YLR 113).
5. On the other hand, learned Deputy District Public Prosecutor and learned Assistant Advocate General, Punjab supported the arguments so advanced by the learned counsel for the petitioner and submitted that the order dated 01.06.2021 was not a judicial order thus the criminal revision so filed against it was not maintainable.
6. Arguments heard record perused.
7. It divulges from the perusal of record that Respondents No. 4 to 11 were implicated in a case registered vide FIR No. 23/2021 at Police Station Kallar Kahar, District Chakwal with the allegation of having committed mischief and criminal intimidation in terms of Sections 427 & 506, PPC, respectively. During investigation, Respondents No. 4 to 11 were successful in securing a declaration of innocence and accordingly the case was recommended to be cancelled by the police. The learned Magistrate after dilating upon the facts of case vide his order dated 01.06.2021 opted not to concur with the cancellation report so submitted by the police. The order of the learned Magistrate impelled Respondents No. 4 to 11 to file a criminal revision under Sections 435 & 439 of, Cr.P.C. which met acceptance and the learned ASJ, Chakwal vide order dated 31.07.2021 allowed the cancellation report and ordered the discharge of all the accused.
When a case is transferred from one police station to another, the offence registered in the original police station shall be cancelled by the Superintendent and a First Information Report shall be submitted from the police station in the jurisdiction of which the case occurred.
Since the case in hand was not recommended to be cancelled by the police due to territorial jurisdictional deficiency, thus the provision of 25.7 of Police Rules, 1934 is having no applicability. The other provision, empowering the police to submit cancellation report is 24.7 of Police Rules, 1934 and is being quoted hereunder to examine its phraseology:
"Cancellation of cases. 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 Magistrate of 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 1st Class, for orders of cancellation. On receipt of such an order the officer-in- charge of the police station shall cancel the first information report cancelling the case with number and date of order. He shall then return the original order to the Superintendent's office to be filed with record of the case." (emphasis supplied)
The afore-quoted rule sheds no ambiguity that if an information of crime imparted under Section 154, Cr.P.C. is found false, or later it turns out that the wrong if any is non-cognizable or the alleged misdeed gives rise to a grievance amenable to the jurisdiction of civil Court, a cancellation report can be submitted. A wade through the record lifts veil that the police opined to cancel the instant case after reaching irresistible conclusion that the first information report was based on maliciously false facts. For obvious reasons, the cancellation report under consideration was dispatched to the Court of learned Magistrate through the enabling provision of 24.7 of Police Rules, 1934, thus is to be dealt with accordingly. The provision of 24.7 of Police Rules, 1934 is categorical in sense and it manifests therefrom that the cancellation report under the foregoing Rule is to be forwarded to the Court by Superintendent of Police and not by some of his subordinate. As a token of strict adherence to 24.7 of Police Rules, 1934, such cancellation report is to be countersigned by the Superintendent of Police. Article 18 of the Police Order, 2002 was substituted through Punjab Police Order (Amendment) Act, 2003 and thereby a supervisory officer not below the rank of Deputy Superintendent of Police was made responsible for verifying the correctness of investigation and accuracy of ultimate conclusion of police probe. Similarly, under 24.8 of Police Rules, 1934 the Superintendent Police of the District is mandatorily required to maintain a register of cognizable offence in the prescribed form, needless to mention for ensuring the just conclusion of investigation. In the instant case, the cancellation report upon scrutiny is found to have been signed only by the SHO, not containing the signatures of the Superintendent of Police or even the SDPO concerned. It is the salutary legal principle emanating from a maxim "a communi observantia non est recedendunt”, which means that if law provides a thing to be done in a particular manner, then it must be accomplished in the same way. It deciphers from the obligatory requirement of dispatch of cancellation report to the Court by none other than the Superintendent of Police that it is aimed at providing a supervisory tier to ensure fair investigation by maintaining check and balance upon the police working. Inexorably, the cancellation report in the instant case on account of afore-mentioned deficiency was in absolute disregard to the statutory requirement.
9. It will be in fitness of things to mention here that there is no specific provision in, Cr.P.C. regarding the concept of cancellation of criminal case registered under Section 154. The police derives powers for cancelling a case under 24.7 and 25.7 of Police Rules, 1934, whereas the fate of such report is decided by the learned Magistrate under Rules and Orders of the Lahore High Court, Vol.III, Chapter 11-D. For reference sake, Chapter 11-D which comprises upon four rules is being reproduced hereunder:
(1).Magistrate's power to cancel cases reported by police.-In regard to cognizable cases reported by the Police to the Magistrate having jurisdiction under Sections 157 and 173 of the Code of Criminal Procedure, it frequently becomes evident either (a) that the offence committed was really non-cognizable. Or (b) that the information given to the Police was false or unfounded, and the Police apply for magisterial authority to show such cases as "non-cognizable" or "false" as the case may be. The Magistrate dealing with the Police reports in such cases, that is, ordinarily, the Magistrate who is empowered to take cognizance of the offence upon Police report, in respect of the particular Police Station, under Section 159 or Section 173 of the Code of Criminal Procedure, as the case may be, may, for sufficient reasons, pass an order accordingly.
[2.Duty of Magistrate to satisfy himself before passing order.--When a Magistrate agrees with a Police report that the FIR/case should be cancelled, he acts in an administrative and not in a judicial capacity and the order he makes is not a judicial order. Such an order is not a revisable order and, therefore, the Magistrate is not required to give reasons for his order.
Though, Magistrates should exercise this discretion freely in making such order after satisfying themselves as to the grounds on which it is sought to be made, yet they should not treat the matter as one of ordinary routine. (See Rule 24.7 of the Punjab Police Rules, 1934 framed under Section 46 of the Police Act, 1861 and Bahedu vs. The State PLD 1985 SC 62).]
3.Magistrate dealing with the final Police report is competent to pass order .--In the event of the first and final report not coming before the same officer, the Magistrate dealing with the final Police report would be competent to pass the order.
4. Order of cancellation when to be passed and by whom.-- No Magistrate of the 2nd or 3rd class is competent to make such an order, but any Magistrate of the 1st class may do so. Such an order should only be made at the time of dealing with the police reports. No application from the Police for a direction of this character should be entertained if made otherwise than in the final report submitted under Section 173 of the Code of Criminal Procedure. But any Magistrate of the 1st, 2nd or 3rd class, may, of his own motion in the course of trying any case reported by the Police as cognizable, pass such an judgment, intimation of the order being given to the Police, (emphasis provided)
It can be extracted from the eloquent perusal of above quoted rules that the cancellation report so submitted by police warrants acceptance if the information recorded under Section 154, Cr.P.C. either relates to a non-cognizable offence or was not well founded during investigation. The order upon the cancellation report is to be passed by a Magistrate 1st Class having jurisdiction to take cognizance of the offence. Now this Court comes to the moot point of examining the vires of impugned order passed by learned ASJ in his revisional jurisdiction, whereby he set-aside the order of Magistrate not concurring with the cancellation report. The revisional jurisdiction of Sessions Judge stems from Section 435, Cr.P.C., which is essentially required to be looked as to how it is structured by the legislature, thus, is being referred hereunder:-
435. Power to call for records of inferior Courts. (1) the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending examination of the record, (emphasis provided)
The use of Inferior Criminal Court in Section 435, Cr.P.C. is self-explanatory in nature, leaving no room for discussion that only an order passed by a subordinate Court is amenable to the revisional jurisdiction of Sessions Judge. So far as, classes of criminal Courts are concerned these are defined in Section 6 of Cr.P.C. and are categorized as under:-
6. Classes of Criminal Courts and Magistrates:
(1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in
(i) Courts of Session;
(ii) Courts of Magistrates.
[(2) There shall be the following classes of Magistrate, namely:
(i) Magistrates of the first class;
(ii) Magistrates of the second class; and
(iii) Magistrates of the third class.]
"The High Court has taken the view, and we think rightly so, that under the Criminal Procedure Code, a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because as observed, 'Judges often administer and administrator often judge'."
The afore-mentioned view was further endorsed by the Hon'ble Apex Court in cases reported as Arif Ali Khan and another v. The State and 6 others (1993 SCMR 187), Muhammad Sharif and 8 others v. The State (1997 SCMR 304) and Sher Muhammad Unar and others v. The State (PLD 2012 Supreme Court 179). For the clarity of the proposition, an excerpt from Muhammad Sharif’s case (supra) is being referred below:
"The peculiarities enumerated above establish beyond any doubt that in so concurring with a report submitted under Section 173, Cr.P.C. he does not function as a Criminal Court. In view of this dictum, the order so passed by the Magistrate was held to be not amenable to the revisional jurisdiction under Sections 435 to 439, Cr.P.C."
In another case reported as Sakhawat Ali v. The State and another (2003 YLR 245) this Court while taking exception of an order passed by learned Additional Sessions Judge in his revisional jurisdiction regarding a cancellation report observed as under:
"The learned counsel for the petitioner is quite right in maintaining that even a revision petition was not maintainable before the learned Sessions Judge, Gujranwala against an order passed by a Magistrate refusing to discharge an accused person or to cancel an FIR as such an order is only an administrative order and not a judicial order amenable to the revisional jurisdiction."
11. In the light of what has been discussed above, this petition is accepted. Resultantly, the Impugned Order is set-aside and the order passed by learned Magistrate dated 01.06.2021 is restored, whereby the police was directed to submit report against Respondents No. 4 to 11 under Section 173, Cr.P.C.
(K.Q.B.) Petition accepted
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