' Through this writ petition Mst. Mansab Mai petitioner being aggrieved by the order dated 14-12- 2004 passed by the Learned Addl. Sessions Judge, Muzaffargarh has sought two fold direction, first against police officials to get her medically examined and secondly to the learned Ilaqa Magistrate concerned to record her statement under section 164, Cr.P.C.
2. Briefly the facts of the case are that Azhar Hussain husband of the petitioner got registered case F.I.R. No,115 of 2004 dated 29-10-2004 under section 16 Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 with Police Station, Rangpur District, Muzaffargarh regarding abduction of Mansab Mai-petitioner against Muhammad Ashraf, Ghulam Hussain, Allah Baksh and Ahmad Nawaz. On the other hand plea of the petitioner is that facts narrated in the said F.I.R. Are not correct.
According to her, at early hours in a morning when she was returning to her house after easing herself. Muzaffar Khan armed with pistol, Ghulam Shabbir and Muhammad Ayub empty-handed abducted her forcibly and committed her rape. Thereafter they sold her to Ghulam Hussain and Allah Bakhsh, Ghulam Hussain also secured her thumb-impression on blank papers and also had been committing Zina with her. She became pregnant and accused persons also caused her abortion.
' Finding an opportunity, she managed to escape and reached her house. The petitioner tried her level best to lodge criminal case against the culprits but she failed to get a case registered. Then she got an order from the Court of learned Ilaqa Magistrate on 4-12-2004 directing the S.H.O. To get her medically examined but S.H.O. Did not comply with said order. Then the petitioner again approached Ilaqa Magistrate for recording her statement under section 164, Cr.P.C. Her application was dismissed vide order dated 7-12-2004. Being aggrieved by this order petitioner made an application under section 22-A, Cr.P.C. To the learned Addl. Sessions Judge but said application was also dismissed vide order dated 14-12-2004 on the ground that her statement under section 161, Cr.P.C. Stood already recorded by the police, hence this petition.
'3. Learned counsel for the petitioner submitted that provisions of section 164, Cr.P.C. Expressly reveal that a statement under this section can be recorded not only at the instance of police but also at the instance of the accused or the aggrieved person or at the request of the witness himself during the course of investigation. That the victim was the best witness to disclose the real facts, background and the manner in which her abduction was caused but her statement was not recorded by the learned Ilaqa Magistrate. That the allegations contained in the 'F.I.R. Were false and the events narrated in the application made to the D.P.O. Learned Magistrate or Sessions Court contained true facts and as such the refusal to record the statement of the victim/petitioner was violative of the provisions of section 164, Cr.P.C. He has relied on " Muhammad Sarfraz Khan v. The Crown" PLD 1953 Lahore 495 wherein it has been held that statement under section 164, Cr.P.C. May be recorded not only at the instance of police but at that of the accused, the aggrieved person or that of the witness himself.
4. Learned counsel appearing on behalf of Muhammad Ashraf accused, who has been declared innocent by the police during investigation, at the very out set submits that there is no legal bar for recording the statement under section 164, Cr.P.C. And has relied on "Mumtaz Akhtar v. Illaqa Magistrate, Chakwal and 2 others" 1997 MLD 3021.
5. I have heard the learned counsel for the parties and carefully perused the record. Learned Ilaqa Magistrate had turned down the request of the petitioner for recording her statement on the plea that she had refused to get her medically examined. The proposition regarding the same is very clear and having respectfully relying on the above citations, I have affirmed view that there is no legal bar for recording the statement of petitioner under section 164, Cr.P.C., which reads as under:- -
(1) "any Magistrate of first class and any Magistrate of the second class empowered in this behalf by the Provincial Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before commencement of the inquiry or trial; (1-A) any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement;
(2) such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements of confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried."
6. Even bare reading of section 164 of the Code of Criminal Procedure reveals that the statement may be recorded not only at the instance of police but at that of the accused, the aggrieved person, or that of the witness himself. In this case, Mst. Mansab Mai was implicated as one of the accused but after her recovery, she has produced herself to be the victim. Whatever, may be the status of the petitioner, she has a right to get her statement recorded under section 164, Cr.P.C. She had earlier refused to get her medically examination but now she has also prayed for this purpose.
7. For what has been discussed above I am of the considered view that the learned Illaqa Magistrate misinterpreted the provisions contained in section 164, Cr.P.C. And hence made an erroneous order for which there is no justification under the law. Similarly learned Additional Sessions Judge had wrongly dismissed application of the petitioner vide order dated 14-12-2004.
Instant writ petition is accordingly allowed and the impugned order is set aside with the direction that statement of the petitioner be recorded as per provisions of section 164, Cr.P.C. Petitioner has already been medically examined by the Medical Superintendent on 12-2-2005, therefore, there is no need for her fresh medical examination. However, this order shall not affect the investigation, which is directed to be conducted strictly in accordance with law.