2002 PLP 397 (YLR)

Rai Bashir Ahmad for Petitioner. Ch. Muhammad Nasim Sabir, Addl. A. -G . Through the instant Constitutional petition order dated 18-6-2001 passed by Judicial Magistrate section 30, Nankana, has been assailed whereby statement of Muhammad Yousaf, petitioner who is allegedly injured eye-witness of the occurrence of case F.I.R. No.45 of 2001 under sections 302/324/148/149, P.P.C. registered with Police Station Mangtanwala, was refused to be recorded mainly on the ground that the application has been moved through a Lawyer representing the complainant, therefore, possibility that he was tutored and could not make his statement with his free-will cannot be ruled out. Learned counsel for the petitioner has placed reliance on PLD 1989 Karachi 144, 1993 SCMR 550 and 1993 SCMR 654 to argue that statement under section 164, Cr.P.C. can be got recorded even by the complainant or witness himself or on the application of the Investigating Officer to the possibility that he may not be won over or influenced by either of the parties. Conversely, the petition has been opposed by learned counsel for A.A.-G. Heard. Record perused. I have gone through the impugned order and the case-law referred to by the learned counsel for the petitioner and the judgment reported as 1997 MLD 3021 (Mst. Mumtaz Akhtar v. Illaqa Magistrate, Chakwal and 2 others), wherein it has been laid down that the statement under section 164, Cr.P.C could be recorded not only at the instance of the police but at the instance of the accused, aggrieved person or the witness himself. Likewise, in case reported as 1981 PCr.LJ 1324 titled Muhammad Ramzan v. The State, the order of the Magistrate to defer the recording of 'statement under section 164, Cr.P.C to be recorded at a later stage in presence of the accused so that he be able to cross-examine her and sent her to Darull, Amaan, was set aside. The consensus of the law .laid down by the superior Court is that statement under section 164, Cr.P.C. can be recorded either at the instance of the complainant, the witness himself or at the instance of the accused or the Investigating Officer, therefore, the impugned order passed by the Magistrate is erroneous and based on misinterpretation of section 164, Cr.P.C. The petition is, therefore, allowed, the order dated 18-6-2001 passed by Judicial Magistrate section 30, Nankana is set aside and the Judicial Magistrate is directed to record the statement of the petitioner in accordance with law after notice to the accused and observing the legal formalities provided under section 164, Cr.P.C. H.B.T./M-1049/L Petition allowed.