ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. App. No. S – 359 of 2020

Applicant : Hussain Bux Rajpar

Through Mansoor Hussain, Advocate

Date of hearing : 20.07.2020

Date of order : 20.07.2020

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O R D E R

Adnan-ul-Karim Memon, J: The Applicant Hussain Bux has challenged the order dated: 1.7.2020, passed by the learned Judicial Magistrate Bhiria District Naushahro-feroze, through which the cancellation report of case FIR No. 7 of 2020 19.2.2020, for offences under Sections 337-H(ii),506/2,147,148,149 PPC, registered with Police Station Bhiria Road, submitted by the Investigating Officer was accepted and the said FIR was cancelled.

2. Learned counsel for the Applicant has argued that it is evident from the impugned order that the Applicant was never summoned and the impugned order was passed in a clandestine manner behind the back of the Applicant, therefore, the order, being illegal, be set aside. He next contended that police has already mixed-up with the private Respondents and wrongly submitted summary for cancellation of FIR; that Investigating Officer has not conducted a fair investigation; that the order passed by the learned Magistrate is not a speaking order and he failed to apply his judicial mind as such the impugned order is not sustainable in the eyes of law and is liable to be set-aside.

3. Arguments heard and record perused.

4. There is no provision in the Code of Criminal Procedure, 1898 for the cancellation of an FIR, rather this is provided in Rule 24.7 of the Police Rules, 1934, according to which a Magistrate is empowered to cancel an FIR, if the Magistrate agrees with the cancellation report, forwarded to him by the Investigating Officer. A Magistrate, when passing an order for cancellation of an FIR, is not acting in his judicial capacity and the order passed by him is an administrative one. It has been held by the Hon’ble Supreme Court of Pakistan in “BAHADUR and another. v. THE STATE and another, PLD 1985 S.C 62” that though the Magistrate is not acting in his judicial capacity but still he is required to judicially examine the report under Section 173 Cr.P.C pending before him for his decision/approval to cancel or not cancel the FIR.

5. In the case in hand, prima-facie the offences mentioned in the FIR were not supported by the statements of witnesses on the premise that no such incident took place, and F.I.R was registered without any reliable evidence with commission of any offence. The learned Magistrate endorsed the view of the Investigating Officer with certain reasoning.

6. In view of the above factual position of the case, I do not find any merit in the instant application. Accordingly, Criminal Miscellaneous Application along with listed applications stands dismissed with no order as to costs, however, the applicant is at liberty to avail remedy of private complaint as provided under Section 200 Cr.P.C and if the same is filed within a period of one week from the date of receipt of this order, the same shall be looked into by the concerned Magistrate in accordance with law.

J U D G E