2005 PLP 796 (YLR)

Malik Abdul Ghafar for the State and Gulzar Ahmad, A.S. ‑I. with Record. Date of hearing: 17th February, 2004. Through this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality of order, dated 26‑6‑2003 whereby the statement of Mst. Zahida Parveen was not recorded under section 164, Cr.P.C. at the request of the police and she was handed over to Ghulam Rasool real brother of Ghulam Yasiu.

2. The facts of the case, in a narrow compass giving rise to this Constitutional petition are that a case F.I.R. No. 94 of 2003 was registered under section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at the instance of the petitioner. It was averred in the petition that Mst. Zahida Parveen had contracted her marriage with her real cousin, namely, Muhammad Asgher on 12‑3‑2003; that thereafter she was abducted by Ghulam Yasin who contracted marriage with her in back date with the connivance of Nikahkahwan of the Union Council; that she was recovered from the custody of co accused and got recorded her statement under section 161, Cr.P.C. during the investigation; that on. 26‑6‑2003 she was produced before the Area Magistrate for recording her statement under section 164, Cr.P.C. who without observing requirement of law, firstly recorded the statement of the abductee in favour of the accused persons and then he observed that there is no need for recording her statement under section 164, Cr.P.C and her custody was handed over to the accused party i.e. Ghulam Rasool real brother of Ghulam Yasin which is illegal, unwarranted and is liable to be quashed hence this Constitutional petition.

3. Learned counsel for the petitioner vehemently argued that the impugned order passed by the learned Area Magistrate is against the law; that the learned Area Magistrate was not competent to hand over the custody of the abductee to Ghulam Rasool.

4. On the contrary the learned counsel for the State assisted by the learned counsel for the respondent opposed the contentions of the learned counsel for the petitioner contending that she was contracted her marriage on 3‑12‑2002, prior to her marriage with said Muhammad Asghar. Learned counsel for the respondent further contended that her statement before the Area Magistrate as well as the suit for jactitation of marriage filed by her also belie the contentions of the learned counsel for the petitioner.

5. Arguments heard. Record perused.

6. It evinces from the record that earlier W.P. No. 2354 of 2003 was filed and direction was given by this Court for change of investigation and it was changed and the same was conducted by D.S.P. Headquarters, `Layyah who submitted his report that Nikahnama, dated 3‑12‑2002 prepared by the respondent is a forged one. After disposal of the aforesaid writ petition the offences under section 420/468/471, P.P.C. were added against the accused persons. It has also come on the record that after recovery of abductee her statement under section 161, Cr.P.C. was recorded on 25‑6‑2003 wherein she has categorically stated that her Nikah with Muhammad Asghar was a genuine one, her signature on Nikahnama, dated 3‑12‑2002 were forcibly obtained and she had also implicated the accused persons in the offences complained. Strangely enough on the next date i.e. 26‑6‑2003 when she was produced before the Area Magistrate by the police for recording her statement under section 164, Cr.P.C. she had made a summersault and stated that she has not been abducted by Ghulam Yasin and has contracted her marriage with him with her sweet will. Be that as it may the contention of the learned counsel for the petitioner is correct for the reason being that the learned Area Magistrate has not complied with requirement of the law for the purpose of recording her statement under section 164, Cr.P.C. as such firstly he has recorded the statement of the abductee and thereafter he made an observation that there is no need for recording her statement under section 164, Cr.P.C. In a, way he has also acted beyond his jurisdiction by way of handing over the custody of the abductee to the accused party and had committed illegality for doing so because the matter before him was only for the purpose of recording her statement under section 164, Cr.P.C., and it was not the case for custody of the abductee before the learned Area Magistrate. In view of the above discussion, the contentions of the learned counsel for the petitioner hold good. Consequently, the impugned order passed by the Area Magistrate calls for interference by this Court which is not sustainable in the eye of law.

7. Resultantly, Constitutional petition is allowed and the impugned order passed by the learned Area Magistrate is hereby set aside. H.B.T./M‑654/L Petition allowed.