2006 P Cr (PLP)

MUHAMMAD NAWAZ BHATTI, J.

Through this writ petition, the impugned order, dated 30-10-2004 passed by the learned Judicial Magistrate, Vehari, respondent No.2, has been assailed whereby the statement of the petitioner Mst. Naureen Bibi was refused to be recorded on the ground that the same was not in accordance with her free-will. The petitioner has prayed that the impugned order may be declared illegal, without jurisdiction, against law, having no authority in the eye of law and be quashed/set aside. She has further prayed that respondent No.2 be directed to record the statement of the petitioner under section 164, Cr.P.C.

2. The facts in brief are that the petitioner was shown as abductee/witness in case F.I.R. No.315 dated 9-8-2004 registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Luddan, District Vehari on the complaint of Allah Yar with the allegation that Muhammad Hanif along with six others abducted the daughter of the complainant Mst. Naureen Bibi/petitioner herein for committing Zina. The petitioner filed an application on 7-10-2004 under section 164, Cr.P.C. before respondent No.2 for recording her statement but respondent No.2 dismissed her application on 30-10-2000.

3. Learned counsel for the petitioner has placed reliance on Muhammad Yousaf v. State and 12 others 2002 YLR 397 and Mst. Mumtaz Akhtar v. Ilaqa Magistrate, Chakwal and 2 others 1997 MLD 3021 to argue that statement under section 164, Cr.P.C. can be got recorded even by the complainant or the witness himself or on the application of the Investigating Officer to avoid the possibility that he may not be won-over or influenced by the parties and that the same may be recorded not only at the instance of police but at the request of the accused, the aggrieved person or of the witness himself. He further contends the learned Judicial Magistrate has misinterpreted the provisions of section 164, Cr.P.C. while passing the impugned order. He further contends that at the time when the impugned order was passed, the case was still under investigation and only the petitioner and her husband had been sent to judicial lock-up and incomplete challan to their extent had been sent up.

4. Conversely, the petition has been opposed by the learned Additional Advocate-General as well as learned counsel for respondent No.3.

5. I have heard learned counsel for the parties and gone through the impugned order and the case-law referred to by learned counsel for the petitioner.

6. I have considered the above contentions and find that the learned Illaqa Magistrate misinterpreted the provisions contained in section 164, Cr.P.C. and hence made an erroneous order for which there is no justification under the law. The petition is accordingly allowed and the impugned order is set aside with the direction that the statement of the petitioner be recorded as prayed by her, if she is still willing to make a voluntary statement. H.B.T./N-93/L???????????????????????????????????????????????????????????????????????????????????? Petition allowed.