ALI JAN vs THE STATE And Another

ORDER SALMAN HAMID, J.-- Aggrieved and dissatisfied with order dated 13-5-2009, passed by the Judicial Magistrate, Mirokhan, in Summary Case No. 22 of 2009, (Crime No. 18 of 2009, of Police Station Mirokhan), under section 17(3) Offences Against Property (Enforcement of Hudood), Ordinance, 1979, whereby agreeing with the recommendation of the Investigating Officer, the learned Magistrate treated the F.I.R under point, under cancelled "C" class.

2. Essentially, the case. Of the applicant was that the learned Magistrate could have not disposed of the case under "C" class inasmuch as that the contents of the F.I.R, clearly disclosed that the offence was exclusively triable by the Court of Session, it being under section 17(3) Offences Against Property (Enforcement of Hudood), Ordinance, 1979. Therefore, the learned Magistrate was obliged under the law to have referred it to the Court of Session competent to try the offence. This having not been done, it was argued that the Order passed by the learned Magistrate was without jurisdiction. In support of his contentions, the learned counsel for the applicant relied upon the case of Soofi Abdul Qadir v. The State and others (2000 PCr.LJ 520), and the case of Rasool Buz Shaikh v.

The State and another (2010 PCr.LJ 733).

3. Appearing on behalf of the State, the learned counsel argued that since through the F.I.R the incident that was reported was about a month old and that the statement under section 161, Cr.P.C.

Having been recorded by the Investigating Officer of the independent witnesses of the locality and he having come to the conclusion that the case falls within cancelled class "C" and the Magistrate having disposed of the case as such, no interference of this court is required. However, the learned counsel could not convince this court, when it comes to answering whether a case which was exclusively triable by Court of Session could have been disposed of by the Magistrate.

4. Heard arguments and perused the record.

5. In the case of Soofi Abdul Qadir, Division Bench of this court held that Investigating Officer has the authority to dispose of a first information report as cancelled after having found the same as false, founded on a mistake of fact or law, a dispute of a civil nature or untraceable, after taking all necessary steps to the best of his endeavour and ability, but the order of cancellation of F.I.R, must be obtained from a Magistrate competent to take cognizance of the offence and to try the case or to send the matter for trial to a superior court.

6. Since, 17(3) is an offence against property (Enforcement of Hudood) Ordinance, 1979, exclusively triable by the "Superior Court"/Sessions Court, the Magistrate was not competent to take cognizance thereof and since the Magistrate was not vested with the jurisdiction to take cognizance of the offence, he while cancelling the F.I.R on police report had acted without jurisdiction.

7. In the present case impugned order gives details as to how the learned Magistrate reached to the conclusion and therefore he (Magistrate), ought to have sent his opinion/ conclusion to the court, competent to take cognizance and then it was for that competent court to decide whether cognizance is to be taken or otherwise.

8. The impugned Order is thus in the nature of recommendations and/or report or opinion for the competent court it being administrative determination. Therefore, the impugned Order passed by Magistrate is coram non judice to the extent of cancelling the F.I.R in "C" class and is set aside to such an extent. Impugned Order be sent by the Magistrate to the court, competent to try the case and/ or deal with it as per law..