30/09/2022
جب کبھی پولیس کوئی ڈسجارج رپورٹ تیار کرتی ہے تو وہ یہ رپورٹ پولیس رولز کے تحت تیار کرتی ہے ، اور اس ڈسچارج رپورٹ سے اتفاق کرنا یا نہ کرنا مجسٹریٹ کا اختیار ہے اور یہ اختیار ہائی کورٹ رولز اینڈ آرڈر کے تحت استعمال کیا جاتا ہے ، مجسٹریٹ کا ہائی کورٹ رولز کے تحت پاس کیا گیا حکم ایک administrative order ہے اور یہ حکم نظر ثانی نہیں بلکہ ضابطہ فوجداری کے دفعہ 561-A کے تحت چیلنج کیا جائے گا
PLJ 2022 Cr.C. 1128
Whether the order whereby the learned Magistrate disagreed with the cancellation report submitted by police is amenable to the revisional jurisdiction or not. In order to better appreciate the above-mentioned legal question, it seems appropriate to have a look upon the legal provision whereby the police during investigation can prepare and submit report for the cancellation of a registered criminal case. As per Police Rules, 1934, a crime report registered under Section 154, CrP.C. can be cancelled through necessary implication of Chapter XXIV Rule 7 and Chapter XXV Rule 7. So far as, Rule 7 of Chapter XXV is concerned, it enables the police to cancel a criminal case if registered in a police station not having territorial jurisdiction to investigate it. Under 25.7 of Police Rules, 1934, the FIR after cancellation from one police station is registered in another where the crime scene is situated.
The other provision, empowering the police to submit cancellation report is 24.7 of Police Rules, 1934 .
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, 2013 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.
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.
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.
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.
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.
A Magistrate in his capacity as such generally exercises judicial powers but often passes an order in his administrative capacity. Only the judicial orders passed by the Magistrate can be challenged through a criminal revision whereas the administrative orders since are not delivered as a criminal Court thus are not revisable and their vires can be examined under Section 561-A, Cr.P.C. On the same premises, a distinguishing line is drawn in Rule 2 of Chapter 11-D of Rules and Order of the Lahore High Court through the use of words administrative and judicial orders. 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. rather in accordance with Lahore High Court Rules and Orders and Police Rules, 1934, thus, by no stretch can be termed as judicial in nature.
