Dr. ASIF MAHMOOD JAH, DIRECTOR CUSTOMS INTELLEGENCE AND INVESTIGATION vs THE STATE and 2 others
This petition challenges an order passed by the Sessions Judge, Lahore, who refused to direct a Judicial Magistrate to record the statement of a witness under Section 164 of the Code of Criminal Procedure 1898. The petitioner, a Customs official, sought this recording after a complaint had already been filed and the accused summoned for trial. The core legal question was whether a statement under Section 164, Code of Criminal Procedure 1898, can be recorded by a Magistrate after the investigation or inquiry stage has concluded and the trial has commenced. The Court held that the petition lacked merit and dismissed it in limine. The ratio of the decision is that the power to record statements under Section 164, Code of Criminal Procedure 1898, is strictly confined to the stages of investigation or inquiry. Once a final report or complaint under Section 173, Code of Criminal Procedure 1898, has been submitted and the accused has been summoned to face trial, the statutory window for recording such statements under Section 164, Code of Criminal Procedure 1898, is closed.
- Can a statement under Section 164 of the Code of Criminal Procedure 1898 be recorded after the submission of a final report under Section 173 of the Code of Criminal Procedure 1898?
- Is the power to record a statement under Section 164 of the Code of Criminal Procedure 1898 available once the accused has been summoned for trial?
- Does Section 161(15) of the Customs Act 1969 permit the recording of a statement under Section 164 of the Code of Criminal Procedure 1898 after the inquiry stage has concluded?
- Section 9-A, Central Excises Act 1944
- Section 164, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
- Section 161(15), Customs Act 1969
ORDER
' The facts giving rise to this petition are that the petitioner had filed a complaint under section 9-A of the Central Excises Act 1944 against Wasim-ur-Rehman and 22 others before the Court of Special Judge Customs and Taxation Lahore and after recording of the preliminary evidence the accused stand summoned. In the meanwhile one Abbas Ali Khan son of Kishwar Ali Khan had revealed some incriminating facts to the petitioner which were reduced in writing as a statement and apprehending that the accused might not subsequently influence the said P.W. To resile from his evidence in the Court, an application was moved on 10-11-2003 before Special Judge Customs, Lahore with the prayer that Illaqa Magistrate be-directed to record his statement under section 164, Cr.P.C. And the said Court had ordered accordingly. When the Investigating Officer 'produced the witness before the Illaqa Magistrate for recording of his statement under section 164, Cr.P.C. The latter instead of recording the statement directed the Investigating Officer to appear before the learned Sessions Judge Lahore for seeking his permission who vide impugned order, dated 15-11- 2003 disposed of the application of the Investigating Officer as under:- "The learned Special Judicial Magistrate should have not to entertain the directive order and then to forward it to this Court, since the matter relates to Customs Act, which is special enactment, this Court cannot depute any Judicial Magistrate for said purposes."
2. The above order of the learned Sessions Judge Lahore has been assailed through this petition and it has been argued that the order of the learned Sessions Judge is not legally tenable as it has tended to thwart the process of law and that it is also violative of section 161 subsection (15) of the Customs Act, 1969 which stipulates that any Magistrate of First Class may record any statement or confession during enquiry in accordance with the provisions of section 164 of the Cr.P.C.
3. The learned Addl. Advocate-General appearing on behalf of the respondent has contested this petition with arguments that the statement under section 164, Cr.P.C. Could only be recorded during course of an investigation or enquiry whereas in the present case the petitioner after completion of the enquiry had submitted the final complaint in the shape of report under section 173, Cr.P.C. Before the competent Court and the accused stand summoned to face trial, and therefore, the stage for recording of the statement of Abbas Ali Khan. P.W under section 164, Cr.P.C.
Had already passed.
4. It is borne out from the contents of the petition itself that after enquiry the complaint in the shape of report under section 173, Cr.P.C. Had already been submitted and the accused summoned to face the trial. Section 161(15) of the Customs Act, 1969 provides for recording of statement under section 164, Cr.P.C. Only during enquiry proceedings whereas section 164, Cr.P.C. Itself stipulates that a Magistrate may record the statement or confession made to him in the course of an investigation under Chapter XL. Thus it is obvious that statement under section 164, Cr.P.C. Can only be recorded by a Magistrate of the First Class during enquiry or investigations and not after the submission of complaint in the shape of report under section 173, Cr.P.C. Leading to summoning of the accused and the commencement of their trial. There is no force in this petition. It is accordingly dismissed in limine.