2005 PLP 960 (MLD)

SHAHZAD AKBAR KHAN, J.

This Constitutional petition is presented for setting aside the order dated 18-10-2004 and 29-10-2004 respectively passed by respondents Nos.1 and 2, whereby the request of the petitioners for recording their statements under section 164, Cr.P.C. was rejected.

2. Short facts, relevant for the disposal of this writ petition, are that on the report of petitioner No.1, a case under sections 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was Registered wherein Mst. Shamshad Bibi, the wife of petitioner No.2, and Muhammad Nazir were charged for the offence. Subsequently, an application was moved for recording statements of petitioners under section 164, Cr.P.C. which was rejected by the learned Judicial, Magistrate/Civil Judge, Abbottabad, and so was the revision filed before Additional Sessions Judge‑II, Abbottabad.

3. The learned counsel appearing on behalf of the petitioners has contended that he would restrict his prayer for recording the statement of petitioner No.2 only as petitioner No.1 is the complainant and his version has duly been recorded in the concerned F.I.R. Carrying forward his arguments, he has submitted that both the Courts below were not justified in refusing the request of the petitioners for recording their statements under section 164, Cr.P.C. as there is no bar in the relevant provision of law for recording the statement of a witness. On making a reference to the relevant provision of law i.e. section 164, Cr.P.C., the learned counsel urged that 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 investigation under the relevant Chapter or at any time afterwards before the commencement of the inquiry or trial. It was maintained that the Magistrate is under the legal obligation to record the statement of any person appearing before him. He contended that the learned Additional Sessions Judge on his own whims made up his mind that the statement was to be recorded to save the skin of the accused. Such apprehension of the learned Additional Sessions Judge was having no foundation on the record. On the proposition, the learned counsel for the petitioners placed reliance on (1) 1993 SCMR 550, (2) PLD 1953 Lahore 495 and (3) 1999 PCr.LJ 2044.

5. The learned D.A.‑G. also did not oppose the request of the learned counsel for the petitioners, more so when the request is confined only to petitioner No.2.

6. In the above circumstances, we feel that the request of petitioner No.2 for recording his statement is valid as the recording of the statement will promote the ends of justice and will help in arriving at a correct conclusion by the Court.

7. Resultantly, this petition is allowed with the direction that statement of petitioner No.2 shall be recorded under section 164, Cr.P.C. when he appears before the Magistrate. However, it is made clear that the petitioner shall appear before the Judicial Magistrate within a week. H.B.T./357/P Petition allowed.