2017 PLP 259 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned miscellaneous applica-tion, applicant Shafiq Ahmed Kazi has impugned order dated 16.04.2016, passed by the Court of learned II-Civil Judge and Judicial Magistrate, Mirpur Mathelo in Crime No.43 of 2016, whereby application moved by applicant for recording the statement of his sister Mst. Shahida under section 164, Cr.P.C. was declined.

2. Relevant facts spelt out from instant application are that on 01.04.2016, at 1920 hours, applicant lodged F.I.R. alleging that accused Karamullah has been compelling his sister Mst. Shahida for illicit terms to which, she refused, whereupon he issued threats for dire consequences. On the fateful day, Mst. Shahida became sick and complainant took her to hospital at Daharki by riding his motorcycle while his uncle Abdul Rafiq was following them. When complainant party reached at Kori Khooh on NHW Road near SCARP tube-well, one white colour Car bearing No.806 intercepted them and they stopped their motorcycles. Accused Karamullah, Sher Muhammad, Tanveer Ahmed, Ashiq Ahmed, Abdul Hameed, Abdul Hafeez and Abdul Waheed alighted from said Car and overpowered applicant and his uncle Abdul Rafiq, while accused Karamullah, Sher Muhammad and Tanveer Ahmed grappled with Mst. Shahida and put their hand at her private parts of the body and started kissing her, whereupon the complainant party raised cries and accused persons fled away from the spot by boarding in their Car.

3. Learned counsel for applicant contended that after lodgment of FIR, matter was investigated by SIP Ali Hassan of Investigation Team, SSP Office, Gotki, who submitted interim challan before the Court of learned II-Judicial Magistrate; that applicant moved application for recording statement of victim under section 164, Cr.P.C, which was declined by learned trial Magistrate vide impugned order; that under section 164, Cr.P.C., Magistrate was bound to record statement of victim and he could not decline such application. Learned counsel relied on 2006 PCr.LJ 130, 2002 YLR 39 and PLD 1983 Lah. 488.

4. Learned APG contended that previously close relative of applicant namely Aijaz Ahmed had also lodged F.I.R. No.175 of 2014, under sections 452, 365-B and 34, P.P.C. at Police Station Daharki against accused persons and their family members regarding abduction of Mst. Shahida, which was ultimately disposed of under 'B' Class. Learned APG supported the impugned order and submitted that matter was reinvestigated under the orders of DIG, Sukkur, through Inspector Ghulam Ali Jumani and such report has also been placed on record through statement, which transpires that despite sufficient opportunities, applicant has failed to produce Mst. Shahida for recording her statement.

5. Mr. Liaquat Ali Shar advocate files Vakalatnama of his senior Mr. Syed Jaffar Ali Shah advocate on behalf of accused Abdul Hafeez along with statement of accused Abdul Hafeez, which is taken on record. Accused Abdul Hafeez aged about 55 years is also present in Court and submits that all the 7 accused are brothers and nephews and they are employs in different departments and posted at different places; that they have been malafidely implicated by the applicant in the case on the day of Sunday only to justify their availability.

6. Heard arguments advanced by learned counsel for the parties and perused the material available on record.

7. Perusal of record emanates that parties are relatives to each other and disputed over certain issues. Indeed, all the 7 accused are employees at different places i.e. Karamullah is posted as Safety and Security Officer, TNB Liberty Power Plant, Mirpur Mathelo, Sher Muhammad as ASIP posted in IT Branch SSP Office, Ghotki, Tanveer Ahmed as Patrolling Officer in Motorway Police at Daharki, Abdul Hafeez is Head Master Primary School Kamal Khan Mahar Taluka Mirpur Mathelo, Abdul Hameed as Primary Teacher, in Primary School village Arz Muhammad Mahar, Taluka Mirpur Mathelo, Abdul Waheed as Head Clerk in Government High School Mirpur Mathelo and Ashfaq Ahmed is a Shopkeepr in village Dino Mako. All accused belonging to same family and are brothers and nephews, thus the allegations leveled by the applicant that all accused alighted from car intercepted them at NHW and out of them 4 accused over powered applicant and his uncle Abdul Rafiq while rest 3 accused grappled Mst. Shahida and put their hands at the private parts of her body and started kissing her and when applicant raised cries, accused fled away by boarding in their car, could not convince the prudent mind particularly while considering their ages, official status and relationships, as such the alleged incident as narrated by applicant is a false and fabricated story which was managed in wake of animosity with sole object to teach lesson to the rival group. Conversely, one close relative of applicant namely Aijaz had also lodged F.I.R. No.175 of 2014, under section 365-B, P.P.C. against same accused and their family members alleging abduction of Mst. Shahida, which was ultimately disposed of under `B'-Class.

8. From perusal of section 164, Cr.P.C., it is crystal clear that word 'may' has been used by the legislatures and it is an exclusive prerogative of the learned Magistrate to record the statements of witnesses under section 164, Cr.P.C. or otherwise and he is not bound to accord such application made by the complainant or any witness but it is essential for the Magistrate to scan the entire material prudently while deciding the fate of said application by adjudging all the aspects of the allegations and same should not be declined as matter of routine.

9. While adverting to the merits of instant case, learned Magistrate has passed a just and proper order and applicant has failed to point out any illegality or material irregularity committed by the learned Magistrate while passing impugned order, which does not call for any interference and stands maintained.

10. Considering the above peculiar facts and circumstances of the case, instant criminal miscellaneous application stands dismissed being devoid of any legal substance. WA/S-114/Sindh Application dismissed.