FOZIA SHABBIR vs ADDITIONAL SESSIONS JUDGE, LAHORE and 8 others

ORDER

' SYED SHABBAR RAZA RIZVI, J.---The brief facts of this case are that allegedly respondent No, 4 kidnapped petitioner on 26-2-2005 but in the evening he allowed petitioner to go back to her home. Respondent No,4 filed a suit of conjugal rights in March, 2005, whereupon petitioner and her father came, to know that respondent No,4 had forged a Nikahnama. Respondent No,4 blackmailed the petitioner's parents and got Rs,2,00,000 for giving divorce to the petitioner.

However, after some time, on 5-11-2005 respondent No,4 again kidnapped the petitioner. On that,F.I.R. No, 490 of 2005 dated 5-11-2005 was registered against him under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Respondent No,4 was arrested on 6-11- 2005. However, his accomplices, respondent No,5 and 6 took the petitioner to Nankana city and under threat and coercion got petitioner's statement recorded under section 164, Cr.P.C. On 15-11- 2005. Respondents Nos.5 and 6 applied for bail before-arrest which was fixed before the learned Addl. Sessions Judge, Lahore. Petitioner's father was informed by the police who also came in the court to oppose the bail application of respondents Nos.5 and 6.When petitioner saw her father she ran towards him and narrated him the details of her abduction by respondents Nos.4, 5 and 6.

Police took the petitioner into custody and recorded her statement under section 161, Cr.P.C.

Thereafter, the police took her to the court of learned Magistrate for recording her statement under section 164, Cr.P.C. On 29-11-2005, the learned Magistrate recorded her version but refused to treat it as a statement under section 164, Cr.P.C. On the ground that already her statement under section 164, Cr.P.C. Was recorded on 15-11-2005. Against the order of learned Magistrate dated 29-11-2005, a revision petition was filed which was dismissed by the learned A.S.J., Lahore vide his order dated 4-2-2006. Against the above two orders present petition has been filed.

2. The learned counsel for the petitioner submits that there is no prohibition under the law to record second statement under section 164, Cr.P.C., particularly, in peculiar circumstances as narrated above. In this regard, the learned counsel refers to PLD 1984 Lah. 424 and W.P. No,4869 of 2004 decided by this Court.

3. Learned counsel representing respondents Nos.7 and .9 submits that apparently there is no bar for recording second statement under section 164, Cr.P.C., however, it has to be seen in the overall facts and context of this case. There was no element of coercion or threat when the petitioner got recorded her first statement under section 164, Cr.P.C.

4. I have heard both the learned counsel and also perused the orders of the learned Magistrate as well as that of the learned A.S.J. Neither the learned Magistrate in his order dated 29-11-2005 nor the learned A.S.J. In order dated 4-2-2006 advanced any cogent reason to refuse recording of second statement of petitioner under section 164, Cr.P.C. Reading of section 164, Cr.P.C. Does not indicate that statement of a person cannot be recorded under this section if it already stands recorded. Particularly, when, in the present case, the petitioner herself is urging that when she got recorded her first statement before the learned Magistrate she was not a free agent. She was abducted by the respondents and was in their custody. She was forced to make a statement which favored the respondents. The moment she got opportunity, she joined her father and narrated him whatever happened to her.

5. For the validity or genuineness of a statement under section 164, the first and foremost condition is, that it should be freely recorded. In the present case the petitioner claims that she was not a free agent when her statement was recorded under section 164, Cr.P.C. Apparently, in the facts and circumstances of the present case it seems that she was not a free agent and the statement was not made voluntarily by her. As she was being accompanied by respondents Nos.5 and 6 and after recording of statement petitioner remained with them, therefore, she cannot be deemed as a free agent and her statement cannot be treated as voluntary. Section 164, Cr.P.C. Does not expressly or impliedly prohibit recording of statement second time.

6. In view of the above discussion and reasons, this writ petition is allowed and orders of the learned Magistrate dated 29-11-2005 and the learned A.S.J. Dated 4-2-2006 are set aside. The concerned learned Magistrate is directed to record petitioner's statement under section 164, Cr.P.C.

As contemplated under the law, if she so desires.