' MUHAMMAD SADIQ LAGHARI, J.--- The facts leading to this order are that Aftab Ahmed in capacity of Acting Secretary Shamsi Cooperative Housing Society lodged F.I.R. No,165 of 2005 with AlFalah Police against applicant Ch. Muhammad Ashraf. The allegations in the F.I.R. Were that the petitioner/accused Chaudhry Muhammad Ashraf prepared forged documents in respect of the amenity plot of the society of Shamsi Cooperative Housing Society reserved for Girls School and then encroached upon the plot and started construction on the old construction already available there. When prevented by the employees of the society he issued threats asking them to keep quiet. After investigation the Investigating Officer submitted report under section 173, Cr.P.C. Before the Vth Judicial Magistrate, Karachi (East) on 14-11-2005 requesting for disposing of the case in B- Class. The Magistrate passed the order as under:- "The report submitted by Investigating Officer in B.Class is rejected in the interest of justice. Issue the direction to Investigating Officer to submit challan according to law."
2. That order has been assailed through present miscellaneous application invoking the jurisdiction of this Court under section 561-A, C r. P. C .
3. After issuance of notice to the State the arguments have been heard at Katcha Peshi stage for deciding the application. It has been argued by Mr. Mahmood A. Qureshi, learned counsel representing the applicant that although the Magistrate is competent to pass any order but that power is not to be exercised arbitrarily. He is required to pass fair or judicious order considering the material collected during the investigation. Referring to the impugned order Mr. Qureshi stated that it does not indicate that the learned Magistrate did consider any material.
4. Mr. Sardaruddin Qureshi, Advocate for the State agrees with the contention of Mr. Mahmood A.
Qureshi, Advocate for the applicant.
5. Undisputedly, the Magistrate is competent to pass any order on the report submitted by the Investigating Officer and take cognizance of the offence or even order further investigation into the matter. However, any order means judicious and just order and not an arbitrary order without reasons and justification. The Magistrate is required to consider the report under section 173, Cr.P.C.
In the light of the material collected during the investigation and then pass an order. It is true that sometimes the Investigating Officers do not investigate the matter properly and sincerely and submit unjustified reports even then it is not expected to disagree with it by a non-speaking order without any indication about considering the material collected during the investigation.
6. Although the power conferred upon the Magistrate is administrative in nature and the order passed by him is also an administrative order yet that has to be just and judicious one and not an arbitrary. The order impugned through present application is surely an arbitrary one as it does not indicate that the learned Magistrate did bother to consider the material collected during the investigation. Nor does it contain any reason for disagreeing with the opinion of the Investigating Officer.
7. The other part of the order is the issuing of direction to the Investigating Officer for submission of challan. That too does not seem to be the requirement of law, firstly every report under section 173, Cr.P.C. Has to be on the pro forma prescribed by the Government it may be for taking cognizance of the offence and trial of the accused or for disposal of the case as false one etc. Therefore, if the Magistrate decided to take cognizance of the offence then he should take the cognizance directly on the report in respect of asking for yet another report or challan. If Investigating Officer does not submit the report on the pro forma specified by the Government the Magistrate can ask him to submit the report on the pro forma, before entertaining it and passing an order. However, the direction for submission of challan by itself will not effect the legality on further proceedings. It is now well-settled that the administrative orders if find arbitrary, can be quashed by this Court in exercise of its inherent jurisdiction under section 561-A, Cr.P.C. The case of Hussina Ahmed reported in 1997 SCM R 1503 can be referred to in support of this view.
8. In view of the above, the order assailed through present application deserves to be quashed and is hereby quashed in exercise of power under section 561-A, Cr.P.C. The report submitted by the Investigating Officer is to be considered by the Magistrate and proper order be passed by him.
However, considering the way in which the Vth Judicial Magistrate Karachi (East) passed impugned order the learned Sessions Judge Karachi (East) is advised to assign the jurisdiction in respect of the report under section 173, Cr.P.C. In present case to some other Magistrate. With this order the application is accepted.