' IMAM BUX BALOCH, J.---The petitioner in his petition has prayed as under:--
(i) To set aside impugned order dated 19-6-2010, with directions to the respondents Nos.2 and 3 to appoint an honest Investigating Officer in Crime No,366 of 2010 under sections 506, 380/34, P.P.C.
Registered at Police Station Sir Syed.
(ii) To pass direction to the respondent No,2 to take departmental legal action against the respondent No,4, who daringly ignored order of respondent No,2 vide Letter No,DIGP/OPS/WZ/R11/43230/18-6-2010.
2. The petitioner in his petition has stated that he has lodged F.I.R. No,366 of 2010 at Police Station Sir Syed Karachi under sections 380, 506/34, P.P.C. He further stated that the police after investigation submitted Final Report under section 173, Cr.P.C. Before Vth Civil Judge Judicial Magistrate, Karachi Central as "C" Class. The learned Magistrate after perusing the relevant record passed final order under section 173, Cr.P.C. And approved the recommendation of Investigating Officer. The main thrust of learned counsel for the petitioner was that the Magistrate has not considered true aspects of the case and only relied upon the recommendations of Investigating Officer and passed the impugned order.
3. We have heard learned counsel for the parties and have perused the record.
4. It appears that the petitioner has assailed the order passed under section 173, Cr.P.C. In this constitution petition. The proceeding under section 173, Cr.P.C. Are of administrative nature and could be challenged before this court by invoking inherent jurisdiction of this Court under section 561-A, Cr.P.C.
5 A Division Bench of this Court in case of Soofi Abdul Qadir v. The State (2000 PCr.LJ 52) has observed as under: --- "10. We now revert to the nature of the order passed by Executive Magistrates' in such eventualities and whether such order is revisable by this court in exercise of revisional jurisdiction in terms of sections 435 and 439, Cr.P.C. This question came up before a Full Bench of the Supreme Court in Bahadur v. State PLD 1985 SC 62 in which it was authoritatively laid down that though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. It was rule that the party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. On such assessm ent Supreme Court concluded, that these peculiarities establish beyond doubt that in so concurring with a report submitted under section 173, Cr.P.C, he 'does not function as a criminal Court. With reference to treatises on Justice and Administrative Law by different well- known authors, Supreme Court expressed the view that some of the powers of the Magistrate are administrative, executive or ministerial and he discharges these duties not as a Court but as a "persona designata". This view was followed in Arif Ali Khan v. State 1993 SCM R 187 and Muhammad Sharif v. State 1997 SCM R 304 which was also referred in the latest case of Hussain Ahmed v. Irshad Bibi 1997 SCM R 1503. Ratio decidendi in all the cases appears to be that since the Magistrate while concurring with a police report submitted under section 173, Cr.P.C. Does not act as a Criminal Court inferior to the Court of Session and the High Court, his order cannot be revised and modified under the provisions of sections 435 and 439, Cr.P.C. But in that case it is'amenable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Provided the order amounts to abuse of process of Court."
6. Likewise in the case of Muhammad Sharif v. The State (1997 SCM R 304) the Hon'ble Supreme Court has observed as under:-- "4. Sardar Muhammad Latif Khosa, learned counsel appearing on behalf of the appellants in both the appeals, referred us to the law laid down by this Court in the case of Bahadur and another v.
State and another (PLD 1985 SC 62) to contend that the High Court does not have the jurisdiction to quash the orders of a Magistrate concurring with the police report submitted under section 173, Cr.P.C., discharging the accused and cancelling the criminal case. The ratio deducible from the precedent case of Bahadur supra is that though a Magistrate in cancelling a registered criminal case is required to act judicially, in that, he has to act fairly, justly and honestly, a duty common to the exercise of all State powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself funcus officio. On the contrary, he is quite competent to entertain and deal with such a complaint on material presented to him. The prosecution enumerated above establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C.
He does not function aS a Criminal Court. In view of this dictum, the order so passed by the Magistrate was held to be not amenable to the revisional jurisdiction under sections 435 to 439, Cr.P.C."
7. The contention of learned counsel for the petitioner that the petitioner/complainant was not heard at the time of passing final order under 173, Cr.P.C, the learned Magistrate had passed an administrative order and for that purpose it is not necessary to hear the parties or their counsel.
8. In the instant case the police after fully investigating the case reached at the conclusion that the case falls under "C" Class and the Magistrate after going through the police papers agreed with the recommendations of Investigating Officer passed the final Order under section 173 Cr.P.C. If the petitioner/complainant has any grievance he may either to invoke the inherent jurisdiction of this Court or to file direct complaint but the petitioner has not done so and filed this petition seeking the relief for reinvestigation of the case/crime, which under the Police Order, 2002, only police officers are competent to order for reinvestigation of any case.
9. After considering the contentions of the learned counsel for the parties, we are of the considered view that this petition is not maintainable, which was dismissed by us by a short order dated 15-11- 2010 and above are the reasons of the same.