MUMTAZ AKHTAR Versus ILLAQA MAGISTRATE, CHAKWAL

ORDER

The petitioner is cited as one of the accused in the case registered vide F.I.R. No. 11 dated 21‑1‑1997 under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. She was brought before the Ilaqa Magistrate, Chakwal, and made a petition on 20‑3‑1997 alleging therein that she was not an accused in the case for which she had been allegedly making repeated statements before the Court concerned and also before the Superintendent, Central Jail, Jhelum. She also submitted in the petition that she was deceitfully taken away by the accused persons namely Farooq, Mst. Perveen and Zafar for the purpose of Zina. She was allegedly taken to different places and was kept in hiding. She took up a plea in the petition that after her confinement in the Jail, she now wants to give a statement of her own free‑will which may be recorded.

2. Learned Magistrate turned down the prayer of the petitioner on the ground that she being an accused does not want to get her confessional statement recorded, hence she is not entitled to make a statement in view of the provisions contained in section 164, Cr.P.C.

3. Learned counsel for the petitioner has submitted that there is no bar under section '164, Cr.P.C. against the accused to make any statement. It is alleged that even otherwise, the petitioner was initially cited as a prosecution witness, but later on she was made an accused in the case. In such a situation, her request for recording her statement before the learned Magistrate should have been acceded to. Learned Assistant Advocate‑General has not disputed the above proposition in view of the principle laid down in Muhammad Sarfraz Khan v. The Crown (PLD 1953 Lahore 495) wherein it was held that the statement under section 164, Cr.P.C. may be recorded not only at the instance of the police but at that of the accused, the aggrieved person or that of the witness himself.

4. I have considered the above contentions and find that the learned Ilaqa Magistrate misinterpreted the provisions contained in section 164, Cr.P.C. and hence made an erroneous order for which there is not 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. The petitions is accordingly disposed of.

N.H.Q./M‑335/L Petition allowed.