Mst. ZAINAB BIBI vs S.H.O. And Others
This constitutional petition challenged an order passed by a Special Judicial Magistrate who refused to record the statement of an abductee under Section 164 of the Code of Criminal Procedure 1898. The Magistrate had declined the request on the grounds that the accused had not yet been arrested, reasoning that the statement could not be recorded without providing the accused an opportunity to cross-examine the witness. The Lahore High Court examined the legal position and held that the Magistrate's refusal was legally flawed. The Court clarified that while an accused possesses a right to cross-examine witnesses, the recording of a statement under Section 164, Code of Criminal Procedure 1898 cannot be deferred until the arrest of the accused, as such a delay could prejudice the prosecution's case. The Court emphasized that the statement may be recorded upon the application of the complainant, the witness, or the Investigating Officer, provided the Magistrate observes the necessary legal formalities. Consequently, the impugned order was set aside, and the Magistrate was directed to record the witness's statement.
- Can a Judicial Magistrate refuse to record a statement under Section 164, Code of Criminal Procedure 1898 on the ground that the accused has not yet been arrested?
- Is the presence of the accused or an opportunity for cross-examination a mandatory prerequisite for recording a statement under Section 164, Code of Criminal Procedure 1898?
- Who is authorized to move an application for the recording of a statement under Section 164, Code of Criminal Procedure 1898?
- Section 164, Code of Criminal Procedure 1898
ORDER
1. The petitioner was the abductee in case F.I.R. No. 290 of 2001 dated 26/ 27-8-2001, got registered by nephew of the petitioner with Police Station Jalalpur Bhattian, District Hafizabad. The petitioner was recovered by the Investigating Officer and an application was moved to the Special Judicial Ilaqa Magistrate for recording her statement under section 164, Cr.P.C. But the, prayer of the Investigating Officer was turned down by the Judicial Magistrate vide impugned order dated 25-9-2001 with the reason that as the accused have not been arrested, therefore, the statement under section 164, Cr.P.C. Cannot be recorded without providing opportunity to, the accused for cross-examination of the witnesses produced by the Investigating Officer. The petitioner moved an application to the learned Sessions Judge, Hafizabad who also directed the. Judicial Magistrate for recording her statement but the Judicial Magistrate failed to comply with the order. Hence the instant Constitutional petition.
2. Report was called for from the Special Judicial Magistrate, Pindi Bhattian who has submitted report and taken the same stand that he had not recorded the statement as in his opinion, according to section 164 Cr.P.C. An opportunity was to be provided to the accused for cross-examining the witnesses.
3. After hearing the learned counsel for the parties and with their valuable assistance, I have examined the provisions of section 164, Cr.P.C. And case-law reported as Mst. Mumtaz Akhtar v.
4. Ilaqa Magistrate, Chakwal and two others 1997 M LD 3021 and Muhammad Ramzan v. The State 1981 PCr.LJ 1324 and an unreported judgment dated 10-2-2002 in Writ Petition No. 1935 of 2002, wherein the provisions of section 164, Cr.P.C. Have been interpreted and it has been laid down that the statement under section 164, Cr.P.C. Can be got recorded either by the P.W. Himself and on the application of the complainant or by the Investigating Officer and the Judicial Magistrate has to observe the legal formalities and precautions provided in section 164, Cr.P.C. The accused although has been given the right to cross-examine the witnesses but recording of statement cannot be deferred till the arrest of accused as the same may prejudice/damage the case of the prosecution.
5. Therefore, the order of the Magistrate to defer the recording of statement under section 164, Cr.P.C.
6. To be recorded at a later stage in presence of the accused so than he be able to cross-examine the witness is not legal or based on correct interpretation of law. Therefore, the petition is allowed and the impugned order dated 25-9-2001 is set aside and respondent No.2 is directed to record the statement of the witness as and when she appears before him.
Cited by 3 cases
- Mst. Hira Bibi vs State etc 2022 PLJ Lahore 302, 2022 PLD Lahore 545
- Mst. Hira Bibi vs The State etc 2022 [M] CLR 611
- MUHAMMAD HAROON KHAN vs KHALIQ DAD KHAN and 5 others 2007 P Cr. L J 260