2013 PLP 71 (YLR)

KHALID MAHMOOD, J.

Shad Muhammad Khan seeks the constitutional jurisdiction of this Court praying for:- "That on acceptance of instant writ petition, the impugned order of Judicial Magistrate, Mansehra and that of Sessions Judge, Mansehra be declared to be without lawful authority and Judicial Magistrate Mansehra be directed to record the statement of Qari Mushtaq and his wife under section 164, Cr.P.C."

2. The facts, as mentioned in the petition, are that on the report of Mst.Sofia Niaz a case vide F.I.R. No.93 dated 24-4-2012 under sections 365-B/324/310-A/ 498-B/ 458/ 506/ 147/ 148, P.P.C. was registered at Police Station Lassan Nawab. It is averred in the petition that Qari Maulvi Mushtaq and his wife came to the spot and with their blessings the door of Madrassa was opened and Mst.Sofia Niaz was taken out by them and her mother and petitioner applied for recording of their statements but was declined by the Courts below.

3. Learned counsel for petitioner argued that Investigating Officer is under legal obligation to record the statements of witnesses, in case of refusal the Magistrate can record the statements of witnesses at the instance of aggrieved person but the Courts below have wrongly and illegally turned down the request of petitioner.

4. On the other hand, learned counsel for State opposed the contentions of petitioner and supported the impugned orders. Arguments heard and record perused.

5. Admittedly, the victim Mst. Sofia Niaz has mentioned in her report as well as in her statement recorded under section 164 Cr.P.C. that Qari Maulvi Mushtaq came to the spot on their request, the door of the Madrassa was opened and Mst.Sofia Niaz was taken out by them. In the facts and circumstances of the case, these are material witnesses and the Investigating Officer is legally bound to record their statements and in case of refusal the Judicial Magistrate can record their statements under section 164, Cr.P.C. Section 164 is reproduced as under:--

164. Power to record statements and confessions.

(1) "Any Magistrate of the First Class, and any Magistrate of the second class specially empowered in this behalf by the Provincial Government may, if he is not a police officer, record any statement or confession made to him in the course of an investi-gation under this Chapter or at any time afterwards before the com-mencement of the inquiry or trial." . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6. It is the duty of Investigating Officer to record the version of the accused party in every case if presented because the Investigating Officer is not only duty bound to collect evidence which favours the prosecution. Investigating Officer is obliged to conduct fair, impartial and honest investigation and to collect the evidence produced by the prosecution as well as on behalf of accused. Even under the Police Rules, the clear direction has been mentioned as a guideline for the purpose of investigation. The Police Rules Chapter-XXV, Rule 25(2) sub-clause-iii which reads as under:-- "It is the duty of Investigating Officer to find out the truth of the investigation. His object shall be to discover the factual facts of the case and to arrest offender or offenders. He shall not commit himself prematurely to any view of the against any person."

7. While in the present case, Qari Maulvi Mushtaq was given an affidavit and submitted an application before the Judicial Magistrate for recording of his evidence under section 164, Cr.P.C. which has been turned down by both the courts below. The accused is innocent till his guilt is proved after scrutiny of the trial. In the present case, Investigating Officer had refused to record the statement of Qari Maulvi Mushtaq on the ground that the same goes against the prosecution. In case of "Muhammad Sarfraz Khan v. The Crown", it was held by Hon'ble Justice Muhammad Munir and Hon'ble Justice Muhammad Sharif reported in PLD 1953 Lahore 495 "that the statement of witness is recorded not only at the instance of police but at that of the accused, the aggrieved person, or that of the witness himself." The dictum of the said judgment has been followed in case of Liaqat Ali v. The State (1998 PCr.LJ 216) case of "Mst. Amina Bibi v. Sessions Judge, Layyah" and case of "Mst. Mumtaz Akhtar v. Illaqa Magistrate, Chakwal and 2 others" 1997 MLD 3021 and the judgment of this court in case "Wilayat Khan and another v. Judicial Magistrate, Abbottabad and 2 others" (2005 MLD 960).

8. In light of the above stated facts, the recording of the statement of Qari Maulvi Mushtaq as laid down in the Police Rules is obligatory on the part of Investigating Officer. In case of failure of the Investigating Officer, the Judicial Magistrate was obliged under section 164, Cr.P.C. to have recorded the statements of Qari Maulvi Mushtaq to unearth the real controversy and to enable the court at the time of trial to come to the right and just conclusion. Equity and justice also demands that fair, independent, impartial and honest investigation should be conducted by the Investigating Officer and to collect all sort of evidence even if, the same evidence favours the accused. In the light of above stated reasons, the petition is allowed and the Investigating Officer is directed to record the statement of Qari Maulvi Mushtaq under section 164 of Cr.P.C. MWA/277/P Petition allowed.