Dr. ASIF MAHMOOD JAN vs STATE and 2 others
This criminal petition challenged an order passed by the Sessions Judge, Lahore, who refused to direct a Judicial Magistrate to record a witness statement under Section 164 of the Code of Criminal Procedure 1898 in a case initiated under the Central Excise Act 1944. The petitioner sought to have the statement recorded to prevent the witness from resiling from his testimony. The core legal question was whether a statement under Section 164 of the Code of Criminal Procedure 1898 can be recorded by a Magistrate after the investigation has concluded, a complaint has been filed, and the accused have been summoned for trial. The Lahore High Court held that the petition was meritless. The Court reasoned that both Section 161(15) of the Customs Act 1969 and Section 164 of the Code of Criminal Procedure 1898 restrict the recording of such statements to the stages of investigation or enquiry. Once a final report or complaint has been submitted under Section 173 of the Code of Criminal Procedure 1898 and the trial has commenced, the statutory window for recording statements under Section 164 has closed. The petition was accordingly dismissed in limine.
- Can a statement under Section 164 of the Code of Criminal Procedure 1898 be recorded by a Magistrate after the submission of a final report under Section 173 of the Code of Criminal Procedure 1898?
- Is the recording of a statement under Section 164 of the Code of Criminal Procedure 1898 permissible after the accused have been summoned to face trial?
- Does Section 161(15) of the Customs Act 1969 authorize the recording of witness statements after the completion of enquiry proceedings?
- Section 9-A, Central Excise Act 1944
- Section 164, Code of Criminal Procedure 1898
- Section 161(15), Customs Act 1969
- Section 173, Code of Criminal Procedure 1898
ORDER
The facts giving rise to this petition are that the petitioner had filed a complaint under Section 9-A of the Central Excise 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 PW 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 sub-section (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 respondents has contested this petition with the `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 PW 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.