Through this writ petition, the impugned order dated 30.10.2004 passed by the learned Judicial Magistrate, Vehari, Respondent No, 2, has been assailed whereby the statement of the petitioner Mst Naureen Bibi was refused to be recorded on the ground that the same was not in accordance with her free-will. The petitioner has prayed that the impugned order may be declared illegal, without jurisdiction, against law, having no authority in the eyes of law and be quashed/set aside.
She has further prayed that Respondent No, 2 be directed to record the statement of the petitioner under Section 164 Cr.P.C.
2. The facts in brief are that the petitioner was shown as abductee/witness in case FIR No, 315 dated 9.8.2004 registered under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at P.S. Luddan District Vehari on the complaint of Allah Yar with the allegation that Muhammad Hanif alongwith six others abducted the daughter of the complainant Mst. Naureen Bibi/petitioner herein for committing Zina. The petitioner filed an application on 7.10.2004 under Section 164 Cr.P.C. before Respondent No, 2 for recording her statement but Respondent No, 2 dismissed her application on 30.10.2000.
3. Learned counsel for the petitioner has placed reliance on Muhammad Yousaf us. State and 12 others (PLJ 2002 Lahore "533) and Mst. Mumtaz Akhtar vs. Ilaqa Magistrate, Chakwal and 2 others (1997 M LD 3021) to argue that statement under Section 164 Cr.P.C. can be got recorded even by the complainant or the witness himself or on the application of the I.O. to avoid the possibility that he may not be won over or influenced by the parties and that the same may be recorded not only at the instance of police but at the request of the accused, the aggrieved person or of the witness himself. He further contention the learned Judicial Magistrate has misinterpreted the provisions of Section 164 Cr.P.C. while passing the impugned order. He further contends that at the time when the impugned order was passed, the case was still under investigation and only the petitioner and her husband had been sent to judicial lock-up and incomplete challan to their extent had been sent up.
4. Conversely, the petition has been opposed by the learned Additional Advocate-General as well as learned counsel for Respondent No, 3.
5. I have heard learned counsel for the parties and gone through the impugned order and the case law referred to by learned counsel for the petitioner,
6. 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 no 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.