Law: Pakistan Penal Code (PPC),1860

Section: 406

JUDGMENT SHEET    ARBAB MUHAMMAD TAHIR, J. Through the instant writ petition, petitioner (Muhammad Nadeem) impugns the order dated 28.10.2021, passed by the learned Judicial Magistrate Section-30 Islamabad East, whereby while disagreeing with the cancellation report submitted by the police in FIR No. 495 dated 14.10.2019, under Section 406 PPC, P.S. Koral, Islambad, the case was accepted for regular hearing under Section 420-PPC and pursuant thereto, notices were ordered to be issued to the petitioner/accused.   Precisely, the relevant facts are that respondent No. 2/complainant (Faisal Naseer) got registered the subject FIR against the petitioner on the allegation that the former in order to sell two plots, obtained Rs. 1000,000/- but neither transferred the plots in his name nor returned the amount and that on inquiry, the particulars/details of the said two plots were found bogus and thus petitioner had committed fraud and criminal breach of trust.    After the registration of the subject FIR, police conducted investigation and also obtained legal opinion from the prosecution branch whereby it was opined that the matter is of civil nature while non-compliance of sale agreement does not constitute offence under section 406 PPC. On the basis of said legal opinion, a cancellation report was submitted before the learned Judicial Magistrate Section-30, Islamabad East who partly disagreed with the same in terms noted in Para No. 1 above, hence instant writ petition.   Learned counsel for the petitioner argued that under the law, the learned Judicial Magistrate is vested with authority only to agree or disagree with the recommendations of the police; that direction to proceed with the cancellation report under Section 420 PPC is against the law on the subject; that the impugned order is a non-speaking order; that power to add or delete any penal provision is vested with the investigating agency; that prior to commencement of the trial, the learned Judicial Magistrate had no jurisdiction to add or alter any section of law and that it was purely a civil dispute which had been converted into criminal, therefore, impugned order is liable…