10. The Hon’ble Sindh High Court in case reported as “Mst. Eram and 4 others Vs. Muhammad Adnan Choudhry and another” (2010 YLR 1580) observed as follows:-
“In Muhammad Daiem's case (supra), it has been held that while reaching conclusion the Magistrate is required to judicially examine documents and report submitted under section 173, Cr.P.C. It was held that it should not be disposed of in a slipshod manner, simply by saying that he has gone through the entire record. It was further observed that Magistrate being Judicial Magistrate is required to express himself and should explain his opinion. The above discussion leads me to the conclusion that a Magistrate while exercising his powers under section 173, Cr.P.C. does not act in a mechanical manner. His order must show his application of mind, his opinion must be supported by reasons and his conclusion must be laced with evidence that judicial mind has been applied. Though he is required to apply his judicial mind but the order passed by him is not a judicial order, it is an administrative order. Inspite of being an administrative order it must be a judicious order. This brings up to the answer of the question. Even if the Magistrate is not competent to take cognizance of the offence he must apply his mind and thus pass a speaking order. Further this speaking order shall have only effect of recommendation and thereafter the matter should be sent to the Court competent to take cognizance, who can pass final order either concurring with the Judicial Magistrate or disagreeing with the Judicial Magistrate.”
Part of judgment
IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT)
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