2018 PLP 977 (YLR)

FAHIM AHMED SIDDIQUI, J.

The petitioner through the instant application is seeking directions against the official respondents for submission of final report in respect of a criminal case registered against the petitioner and others. He is also seeking a verdict of this Court against the 'notice' dated 15.05.2017 issued by respondent No.4 (Judicial Magistrate-VI, Shikarpur). Facts of the instant petition are that the Respondent No. 3 lodged FIR against the petitioner and others with allegation against them that they while armed with pistols came to a snooker shop on 27.04.2017 at about 7.00 p.m. The main culprit namely Fayaz Mehmood Shaikh, after instigating the others, started firing upon Qadir Bux and the other accused also took part in firing upon him. After firing, all the accused persons succeeded in fleeing from the place of the incident. The said Qadir Bux was taken to hospital in injured condition and he succumbed to his injuries while he was shifting to Civil Hospital Sukkur. The father of main culprit filed an application before the DIG police who constituted a J.I.T but the respondent No. 3 filed an application before the learned Justice of Peace (Additional Sessions Judge-III), Shikarpur, who issued directions for transfer of investigation to the previous Investigating Officer of the case by setting aside the order of the formation of J.I.T. Subsequently, the investigation was carried out and meanwhile, the complainant of FIR filed an application before the learned Judicial Magistrate concerned (Respondents No. 4). In said application, he took a plea that the FIR was not recorded as per his verbatim and police is not recording the statement of some prosecution witnesses, who are not named in FIR. The learned Judicial Magistrate allowed the application by passing order dated 05.05.2017 and issued impugned notice. The learned counsel for the petitioner prefers his arguments at length. His contention is that the learned Justice of Peace is competent to transfer the investigation, but it is not fair to transfer the investigation to the previous investigating officer. He submits that the learned Additional Sessions Judge as Justice of Peace is not competent to issue directions that the investigating officer could not be changed without the permission of the court. The learned counsel for the petitioner also attacks upon the impugned notice issued by the learned Judicial Magistrate for recording the statement under section 164 of the Code of Criminal Procedure, 1898 (hereinafter mentioned as Cr.P.C). According to him, by issuing the impugned notice, the learned Judicial Magistrate is going to record the statements under section 164 of Cr.P.C. of those prosecution witnesses whose names have not been mentioned in the FIR. According to him the learned Judicial Magistrate is required to pass an order with cogent reason before issuing impugned notice. He submits that the statement under section 164, Cr.P.C. cannot be recorded without recording the statement under section 161, Cr.P.C. He submits that as per provision under Section 265-J, Cr.P.C, it is necessary that before recording the statement under section 164, Cr.P.C, all the relevant documents including statements under section 161, Cr.P.C. should be provided to accused to enable him or his counsel to conduct cross upon the witness, whose statement under section 164, Cr.P.C. is going to be recorded. He points out that the complainant and one of the witnesses are belonging to legal fraternity due to which a good number of lawyers used to appear before the Court and harassing the lawyers of accused. He submits that as per prayer clause (C), a direction be issued not to cause harassment to the family members and advocates of the accused by those lawyers who are appearing for in support of the complainant. As against the contention of the learned counsel for the petitioner, the counsel for respondent No. 3 submits that the respondent No. 3 file application before the learned Judicial Magistrate only because the police is not recording the statements of witnesses under section 161, Cr.P.C. According to him, the learned Judicial Magistrate is fully competent to record the statement of any witness who is acquainted with the incident irrespective of the fact that his name is mentioned or not in the FIR. He submits that the investigation was being carried out by the investigating officer properly but the petitioner hindered the investigation by approaching the DIG Police and succeeded in getting an order of formation of J.I.T. He further submits that the learned Additional Sessions Judge in the capacity of Justice of Peace is fully competent to transfer investigation and even re-transfer to the previous investigating officer. According to him, a criminal case can be investigated numbers of time and the investigating officer is fully competent to investigate the case repeatedly and even to record the statements of those persons whose names have not been mentioned in the FIR. He took reliance from Mst. Mumtaz Akhter v. Illaqa Magistrate, Chakwal and 2 others (1997 MLD 3021) and Mst. Mansab Mai v. The State (2005 YLR 1403). The learned A.P.G in his arguments supported the stance taken by the learned counsel for respondent No.

3. According to him, statement under section 164, Cr.P.C. could be recorded at the request of the investigating officer as well as anyone who is having information about the incident as well as any aggrieved person can approach the concerned magistrate for recording such statement. In this respect, he took reliance from Muhammad Yousuf v. The State and 12 others 2002 YLR

397. I have heard the arguments advanced at bar and have gone through the available material. Through the instant petition, the petitioner has called in question the impugned notice issued by the learned Judicial Magistrate which is given in connection with statements to be recorded under section 164, Cr.P.C. of the witnesses purported to be privy to the incident in which the son of the petitioner is said to be involved. It is forcefully argued on behalf of the petitioner that such a statement would be illegal as the same is going to be recorded without recording the statements under section 161, Cr.P.C. According to the learned counsel for the petitioner, the respondent No.3 intends to record the statements of those whose names have not been mentioned in FIR and the witnesses are subsequently shown as eye-witnesses with intention to involve some other persons in the case. It is worth noting that regarding the same issue case-law has already been developed and now it is settled legal position that a statement under section 164, Cr.P.C. could be recorded of any person who is acquainted with the facts and/or any aggrieved person including accused has a right to approach to the concerned magistrate for recording of such statement. In this respect, the learned counsel for the respondent No.3 as well as learned A.P.G have quoted case-laws based on the similar proposition. Section 164 appears in Chapter XIV of the Cr.P.C. under the heading "Information to the Police and their powers to investigate". In fact, Section 164 empowers Judicial Magistrate to record confession of the accused as well as the statements of witnesses in the course of investigation or at any time afterwards but before the commencement of the inquiry or trial. Ordinarily, the statement of a witness under Section 164, Cr.P.C. is recorded by Magistrate when the witness is sent by the Investigating Agency for the purpose of pinning him down when it is feared that he may resile afterwards or may be tampered with or won over. No doubt, the statement under section 164, Cr.P.C. is not a substantive piece of evidence but it can be used for the purpose of contradiction or corroboration as provided under Article 140 of the Qanun-e-Shahadat. In Section 164, Cr.P.C., the legislature has used word "may" in this section, which infers that the Magistrate has got discretion to refuse recording of the statement of the witness whether produced or appears. But that discretion must be applied judiciously. This section does not debar recording statement of a witness where he approached directly to the court without being produced through police but limitation is to the effect that it must be "in the course of the investigation under this chapter or at any time afterwards before the commencement of the inquiry and trial". It is settled law that there should not be interference by the court of law in the field and stage of investigation of a case which falls under the exclusive jurisdiction of the Investigating Agency. It cannot be ruled out that there are chances of such interference when a witness being in collusion with the accused try to get his statement recorded under section 164, Cr.P.C. to tilt the mode of free investigation and shut up the doors of finding truth. In such case the Magistrate must apply his judicial mind to exercise his discretion regarding acceptance or refusal in recording the statement of the witness. On the other hand, there might be cases where unscrupulous Investigating Officer is trying to suppress reality or truth by not examining the main and vital witness of the occurrence or record their statement according to his whims. In that case recording of statement under Section 164, Cr.P.C. should never, be refused rather that would make the investigation more fruitful. There might be hundreds of instances or causes or reasons on either side some of which might be even beyond imagination. Therefore, it is difficult to formulate the circumstances in which there must be refusal or acceptance for the purpose of recording statement of a witness under Section 164, Cr.P.C. Therefore, it emerges to the position that the Magistrate concerned should apply his judicial mind when a witness appears directly before him for the purpose of recording his statement under Section 164, Cr.P.C. to find out whether such recording would be just and proper and best fitted to the circumstance of the case or not. In doing so he may consult the case diary to find out the exact position and trend of investigation. But this discretionary power should always be used for the purpose of uplifting the criminal justice without being prejudiced by biases or whims. As it is the discretion of the Magistrate to record statement under Section 164, Cr.P.C, therefore no yardstick can be fixed to describe that when the statement may or may not be recorded. However, at the time of making a decision, along with others the following consideration may be kept in mind: (a) When witness/witnesses are produced by the Investigating Officer for recording statement under section 164, Cr.P.C. the Magistrate may not have much hesitation to record his/their statement if on the circumstances, the same appears to be proper and necessary, (b) When the witness/witnesses, themselves appear and pray for recording of his/their statement, the Magistrate must not readily accept the same but cautiously examine the position and circumstances, meaning thereby that degree of caution should be more in such cases to assess the motive behind the same. Now coming to the present case, the petitioner came forward with a prayer for restraining magistrate from recording statement of witness or witnesses under Section 164, Cr.P.C. on the ground that the witness is not produced by police after recording statement under Section 161, Cr.P.C. and the same are not named in the FIR. There is no cavil about it that during the course of investigation, the Magistrate enjoys some administrative functions and is fully authorize to go through the diaries of investigation etc. without hindering the investigation if it is being properly done. The matter is at the investigation stage and it will not be proper for High Court to interfere in investigation, without any just cause. In this respect, I would like to take reliance from the celebrated case reported as Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another (PLD 1971 Supreme Court

677. In the instant matter an application for recording of statement under section 164, Cr.P.C. was moved before the learned Magistrate. The Magistrate ought not to have kept the matter pending and he has to pass some order as he did in this case. By passing such order he could perhaps read the intention/ motive behind the prayer made so by the applicant. The learned Counsel for the petitioner argued that the Magistrate shall have to give cogent reasons before issuing notice for recording statement under section 164, Cr.P.C. In this respect my observation is that every judicial order needs mentioning of reasons and the discretionary power given under this section has got reservations as already mentioned. In fact, by issuing such directions, reasoning may follow automatically while applying discretion subject to limitation as discussed above and in such type of matters, detailed reasoning is unwarranted. As far as alleged harassment caused to the Advocates and relatives of the accused by some of the members of bar is concerned; they may approach the appropriate forum for the same. The consequential outcome of the entire cumulative discussion is that as the recording of statement of the witness or witnesses is under the discretion of the Magistrate and the learned counsel for the petitioner could not point out or show that the learned Judicial Magistrate has used his jurisdiction arbitrary or illegally, as such the instant petition is dismissed. JK/A-62/Sindh Petition dismissed.