Law: Criminal Procedure Code (V of 1898)

Section: 173(3)

Criminal Procedure Code, 1898 (V of 1898)-- ----S. 173(3)--Submission of report for cancellation of FIR--Allowed--Non-recording of opinion of magistrate--Right of audiance--Power of magistrate in his order--Non-application of conscious mind--Administration of justice--Direction to--Judicial Magistrate simply agreed with opinion of police officer and failed to record his own reasons for agreeing with police--Magistrate was not to act as pawns in hands of police and pass mechanical orders without application of their conscious mind to facts and material placed before them--Petition allowed.  PLD 1977 SC 451, PLD 1981 SC 617 and 2012 PCr.LJ 1451 ref. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 173(3)--Power of magistrate--Power conferred on Magistrate is not an arbitrary power and must proceed on relevant principles.   Basic Concept of Sharia-- ----One of basic concept of Sharia in administration of justice is hearing of both parties by Qazi or Judge passing order. Audi Alterm partem-- ----Principle of ‘audialtermparterm’ i.e. a person cannot be condemned unheard is a time honoured principle. Principles of Natural Justice-- ----Principles of natural justice have to be observed if the proceedings might result in consequences affecting ‘the person or property or other right of the parties concerned.  Ref. PLD 1959 SC (Pesh.) 45; PLD 1961 SC 537; PLD 964 SC 461. JUDGMENT Shakeel Ahmad, J.--This constitutional petition seeks annulment of order dated 21.01.2019 of the learned Judicial Magistrate-Ill, Balakot, whereby on the police report crime No. 167 dated 10.09.2018 under sections 380/109/34 of police station, Kaghan District Mansehra registered against the Respondents No. 4 to 6 was cancelled. 2. The fact of the case, in brief, are that on 10.09.2018 Crime No. 167 was recorded on the report of the petitioner/complainant Sardar Attique-ur-Rehman at police station, Kaghan District Mansehra against the Respondents No. 4 to 6 for committing theft of six LED’s and cash amount of Rs.90,000/-. Thereafter the Respondents No. 4 was arrested by the local police 18.09.2018, while the Respondents No. 5 , 6 were granted pre-arrest bail by the learned…

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