PLJ 1998 Cr. C. (
Present: M.A. QAZI, J. MUHAMMAD AYYUB-Petitioner
versus
STATE etc.-Respondents
Criminal Appeal No. 4 of 1996, dismissed on
9-2-1998.
—S. 182 read with Rule 24.7 of Police Rules, 1934-Registration of FIR u/S. 324/506/148/143 PPC-Cancellation thereafter-Proceedings against complainant u/S. 182 PPC--Acquittal of Complainant on application u/S. 249-A Cr.P.C.--Challenge to-Complainant produced four witnesses before I.O. who supported his case but complainant clearly stated that parties are closely related, elders of family had patched up differences and matter had been compounded, so he did not want to pursue-against accused/appellant-Inspite of this statement, DSP observed in case diary that case according to his investigation was found to be false-SHO was directed to report for cancellation of case and to take action against com- plainant-Nowhere an order from a Court of law on cancellation report prepared by I.O. as required by law, (Rule 24.7 of Police Rules 1934) is available-In absence of such order, case could not deem to have been cancelled nor further proceedings against complainant u/S. 182 PPC could be held to be maintainable-Kalandra and trial on basis thereof u/S. 182 PPC held to be without lawful authority and jurisdiction-Appeal dismissed being not competent. [Pp. 825 & 826] A to C
Muhammad Islam, Advocate for Appellant. Syed Shifaat Hussain, Advocate for State. Date of hearing : 9-2-1998.
judgment
Sh. Muhammad Younas respondent got
registered FIR No. 581 at Police Station Mumtaz Abad,
2. Feeling aggrieved by this order Muhammad Ayyub filed the present appeal and also filed Crl. Misc. No. 1/96 praying for condonation of delay in filing the said appeal. Crl. Misc. No. 1/96 was listed for hearing today but learned counsel for the parties agreed to argue the main appeal as well, so the same has been got listed for hearing today.
3. With the assistance of learned counsel for the parties, record of the case has been perused and scrutinised. Apart from the fact that the impugned order was passed on 20.11.1995 and the appeal against the said order was filed on 3.1.1996, it could have been conveniently dismissed on the ground of limitation as the appellant has not for each day's delay given any cogent reason justifying why the delay was occasioned. Anyhow in the larger interest of justice the application for condonation of delay is accepted and the appeal is proceeded to be heard for deeper and better appreciation of the merits of the case.
4. On perusal of the police file it transpired that the complainant produced four witnesses before the investigating officer on 28.11.1994 who supported his case. On 20.12.1994, the parties appeared before the DSP/SDPO where Sh. Muhammad Younas very clearly stated that the parties are closely related, the elders of the family had patched up the differences and the matter had been compounded and that now he did not want to pursue the case against the accused. Inspite of this statement, the DSP in the case diaiy dated 2.2.1995 observed that the case according to his investigation was found to be false and the accused were innocent. The SHO Mumtaz Abad was directed and instructed to report for cancellation of the case and to take action against the complainant under Section 182 PPC and that the record of the case be also produced before the Special Court. The last case diary dated 14.2.1995 on the file indicates that the Inspector/SHO prepared the cancellation report in the light of order given by the DSP/SDPO and also prepared Kalandra on the same day against Sh. Muhammad Younas complainant and submitted the same before the DSP Legal who forwarded it to the learned trial Court. Police rule 24.7 Chapter XXIV of the Police Rules 1934 is reproduced :--
"24.7 Unless the investigation of a case is transferred to another police station or district, no first report can be cancelled without the orders of a Magistrate of the 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 the first 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 by drawing a red line across the page, nothing the name of the magistrate 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 the record of the case".
and in light of this rule and with the assistance of learned counsel for the parties, each and every paper submitted by the investigating officer in the. Kalandra and also the case diaries have been minutely examined butjgjj nowhere an order from a court of law on the cancellation report prepared by the investigating officer, as required by law, is available and in the absence of such an order upholding the cancellation report prepared by the police, the case could not dem to have been cancelled nor in absence of any such order further proceedings against the complainant under Section 182 PPC could be held to be maintainable. Both the learned counsel are in complete agreement on this point. The learned trial court has somehow been oblivious of this fact. It has not either been properly assisted by counsel for the parties appearing there or has not properly applied its mind. So for the said reason alone submission of the Kalandra and the trial on the basis thereof are held to be without lawful authority and jurisdiction, hence this appeal is not competent. It is hereby dismissed.
(MYFK) Appeal dismissed.