' HAMID FAROOQ DURRANI, J.--- An F.I.R. No,1128 was lodged by the petitioner on 17-8-2006 at Police Station Cantt. Abbottabad under sections 302/324/34, P.P.C. Nominating therein Wasim Khan Jadoon, Aman Ullah Khan and Naeem Gul for causing the death of Muhammad Ghayoor Khan son of Ghulam Ghaus Khan and Javed Khan son of Samundar Khan also causing injuries to Junaid son of Hakam Dad Khan. The said Muhammad Junaid Khan was arrayed herein as respondent No,2 whereas Wasim Khan Jadoon, one of the accused in the F.I.R., was impleaded as respondent No,6 on 17-10-2006 upon his application for the purpose. During the investigation the statement of respondent No,2 Muhammad Junaid Khan was recorded under section 164, Cr.P.C. On 22-8-2006 wherein he charged respondent No,6 Wasim Khan along with two other unidentified persons for the murder of deceased. For the purposes of instant quashment petition it would be useful to reproduce the contents of the said statement which are as under:-- "Statement of Muhammad Junaid Khan son of Hakamdad Khan caste Jadoon resident of Mojahith aged about 26/27 years under section 164, Cr.P.C. On oath.
' On the day of occurrence Javed Khan was seated along with Haji Ghayour Khan in a car. I was seated on the rear seat. When we reached near Lady Garden Chowk I heard the voice of two fires.
As a result of which car was collided with electric pole, one Waseem Khan along with two unidentified persons appeared. Waseem gave Lalkara that today deceased should not be spared and again said Waseem and two other persons opened fired upon deceased. As a result of which both have died on the spot. ' x x x x Nil. Accused absent.
' RO&AC 22-8-2006 ' Muhammad Junaid Signature in English and thumb-imptession. 13101-4280068-3.
' Certified under section 164, Cr.P.C.
(Sd..) Mr. Abdul Salam Khan, J.M./MOD/C.J. Civil Judge-VI, Abbottbad."
2. An undated application was submitted before the learned Sessions Judge, Abbottabad by one Khaliq Dad Khan son of Rehmat Ullah Khan, paternal-uncle of respondent No,2, wherein it was stated that respondent No,2 was travelling in the same vehicle in which the two deceased named above were murdered on 17-8-2006. That after the occurrence, instead of Junaid Khan, the maternal-uncle of deceased Muhammad Ghayoor Khan namely Haroon Khan (petitioner) was made to lodge the F I.R. That Junaid Khan respondent No,2 was attributed a statement under section 16i Cr.P.C. And later his. Statement under section 164, Cr.P.C. Was also recorded. That both the said statements were in contrast to the actual events and were obtained through undue influence and under duress. Further, that the name of Waseem Khan (respondent No,6) was included therein at the insistence of local A.S.P. Namely Athar Waheed Thai Waseem Khan did not participate in the occurrence nor he was present on the spot at the relevant time but his name was included due to the stated facts. That Junaid Khan had admitted before his relatives/clan that the said statements were attributed to him while exercising undue influence upon him. It was prayed that an order for recording de novo the statement of Junaid Khan son of Hakam Dad Khan under section 164. Cr.P.C., be made. It is worth-noting that in the title of the said application, besides, the recording of statement of Junaid Khan under section 164, Cr.P.C. a relief by way of initiating an enquiry was also sought. It is also notable that the applicant Khaliq Dad Khan son of Rehmat Ullah Khan was neither a witness nor complainant in the case. The said application was marked by the learned Sessions Judge, Abbottabad to the Ilaqa Magistrate for disposal. The same was received by the latter on 9-9-2006 and after its registration the statements of applicant. Khaliq Dad Khan and Muhammad Junaid Khan were recorded the same day. In addition, notices to the prosecution, the Investigating Officer and the complainant for appearance on 14-9-2006 along with the complete record , was also ordered. The contents of the said two statements are reproduced hereinbelow for the sake of ready reference:-- "Statement of Khaliq Dad Khan son of Rehmat Ullah Khan/petitioner on oath: ' Stated that on 17-8-2006 one Ghayoor Khan alias Manna and Javaid Khan were murdered. Both the deceased were accompanied by one Junaid Khan son of Hakam Dad Khan who later on recorded his statement under section 164, Cr.P.C. Before Court against Waseem Khan etc. That the subject statement was recorded on the instance of complainant and on the pressure of local police. The witness Junaid Khan is ready to record his statement before Court without any coercion and pressure against the statement he already recorded, as the accused Waseem etc. Are innocent and falsely charged by the complainant and local police.
' RO&AC 9-9-2006 (Sd.) SCJ/JM. Abbottabad.
' (Sd.) Khaliq Dad Khan son of ' Rehmat Ullah, 13101-0942684-5 (Sd.) SCJ/JM, Abbottabad.
' Statement of Muhammad Junaid Khan son of Hakamdad Jadoon resident of Mujahid Havelian, 13101-4280068-3, Abbottabad on oath.
' Stated that on the day of occurrence I was present along with deceased Ghayoor Khan alias Manna, who was murdered on 17-8-2006 near Lady Garden, Abbottabad. After the occurrence one Haroon Khan real maternal-uncle of deceased Ghayoor charged Waseem/accused etc. Later on my statement under sections 161 and 164, Cr.P.C. Was recorded by the local police due to pressure and coercion of the complainant. Actually Muhammad Waseem was not present at 'the time of occurrence neither I saw him participating in the occurrence. x x x x x (Reserved) RO&AC 9-9-2006 Muhammad Junaid Khan son Junaid/thumb-impression. (Sd.) SCJ/JM, Abbottabad of Hakamdad Jadoon, (Sd.)
(Sd.) Tahir Mehmood Khan SCJ/JM, Abbottabad.
3. On 14-9-2006 the learned Judicial Magistrate while initiating enquiry, ordered for submission of lists of witnesses by the parties and the matter was posted for evidence to 23-9-2006. No proceedings were taken on the said date due to transfer of the learned Judicial Magistrate while on 28-9-2006 the case was adjourned to 5-10-2006 upon an objection by counsel for the complainant regarding initiation of enquiry proceedings.
' The petitioner/complainant, on 30-9-2006, filed the petition in hand praying for quashment of proceedings pending before the Senior Civil Judge/J.M. Abbottabad.
4. Learned counsel for the parties were heard at length and the available record was gone through with their valuable assistance.
5. It was argued by the learned counsel for the petitioner that the learned Sessions Judge as well as the learned Judicial Magistrate were not competent to have proceeded with the enquiry upon the application submitted by respondent No,1, as the investigation in the case was already initiated by the concerned agency. While referring to the contents of section 164, Cr.P.C., the learned counsel emphatically stated that the said provision did not cater for recording a statement only to favour the accused. The recording of second statement by the same witness/person was also not permissible under the said enactment, the learned counsel maintained. It was further added that the learned Judicial Magistrate/SCJ/respondent No,4 was not empowered by any stretch of law or procedure to act as a Court of appeal in terms of recording a subsequent statement under section 164, Cr.P.C. After the earlier having been recorded by his predecessor. That the exercise undertaken by the applicant/respondent No,1 by way of application for initiation of enquiry was only an attempt to collect evidence favouring the accused through the process of law which was never the spirit of law itself. The said exercise and proceedings thereon were, therefore, in clear derogation of the law and were not sustainable, he added.
6. Learned counsel, while impugning the assumption of jurisdiction by the learned Sessions Judge in the matter, maintained that there was no provision in the Code of Criminal Procedure justifying the entertaining and processing of an application like the one impugned. The assumption of jurisdiction by the said Court upon an invalid application could only be termed as abuse of process of law, the learned counsel concluded. To substantiate his arguments the learned counsel for the petitioner relied on judgments reported as PLD 2005 Lah. 480, PLD 1971 SC 677, 2005 PCr.LJ 1524, PLD 1961 SC 61, PLD 1975 SC 275 and 2003 SCMR 68.
7. Learned counsel for respondent No,6, while questioning the maintainability of the petition under section 561-A, Cr.P.C. In the matter at the outset, went on to argue that the application for initiation of enquiry proceedings etc. Was filed by respondent No,1 before the learned Sessions Judge, Abbottabad in his capacity a ex-officio Justice of the Peace. The said learned Court, in turn, marked the application to the Judicial Magistrate for recording of statements to which the latter was fully competent under the provisions of section 164, Cr.P.C. At the same time the learned counsel contended that even otherwise any Magistrate of the 1st Class or of the 2nd Class, as notified, was empowered to record statement of any person in respect of a case before the conclusion of its investigation and submission of challan before the trial Court. The learned counsel further contended that the powers exercised by the learned Sessions Judge in the instant case, being in his capacity other than a Judicial Officer, the same were not amenable to the inherent jurisdiction of this Court through the petition in hand. To support the said limb of his arguments learned counsel for respondent No,6 relied on judgments reported as 2005 PCr.LJ 357, 1996 SCMR 186, 2005 YLR 2325.
8. It was also argued by the learned counsel that while exercising the powers under section 22-A, Cr.P.C. a Sessions Judge, as an ex-officio Justice of the peace, could legally refer the application in question to the Judicial Magistrate for disposal. The Judicial Magistrate was competent to record a second statement of the same person regarding the same case which was not prohibited expressly through section 164, Cr.P.C. Further, while referring to the said provision of law the learned counsel emphasized that any aggrieved person besides any witness in the case, could approach the Judicial Magistrate and get his statement recorded in furtherance of a case under investigation. In this regard the learned counsel relied on PLD 2006 Lah. 304, 1997 MLD 3021, 2003 YLR 3191, PLD 1953 Lah. 495 and PLD 2005 Lah.
470.
9. Mr. Shabbir Hussain Shah, Advocate, the other learned counsel appearing on behalf of respondent No,6, contended that the investigation agency did not record the statement of respondent No,2/Junaid Khan while he was available in the hospital in injured condition immediately after the occurrence. This fact smacked of mala fide on the part of the police, he maintained. Further, that the complainant while lodging F.I.R. Had not mentioned that he gained knowledge of the occurrence from respondent No,2 Junaid Khan. The learned counsel proceeded further in order to identify the contradictions between the first statement of Junaid Khan recorded under section 164, Cr.P.C. And the contents of F.I.R. It is observed here that the submissions of learned counsel were not very useful and relevant for the purpose of deciding the petition in hand as the same touched the merits of the case which are to be adjudicated upon by the learned trial Court at the proper stage.
10. Mr. Sajjad Afzal Khan, Advocate appearing on behalf of respondents Nos.1 and 2 adopted the arguments advanced by Mr. Saeed Akhtar Khan, Advocate counsel for respondent No,6.
' Learned counsel for the petitioner, while rejoining the arguments on behalf of respondent No,6, submitted that the statutory law, vested in this Court, the power to exercise jurisdiction in the matters like the one in hand, where there was apparent abuse of the process of Court as the purpose behind the provisions of section 561-A, Cr.P.C. Was to secure the ends of justice. In this regard any precedent speaking otherwise would not prevail upon the provisions of the statute. He further contended that even if the jurisdiction assumed by the learned Sessions Judge in the present case is accepted to be under section 22-A, Cr.P.C., the same could not have been legally delegated to the Judicial Magistrate. In such a case, the inherent powers of a High Court were to be availed of as there was no other specific remedy provided in the Code of Criminal Procedure itself.
At this juncture the learned counsel referred to a judgment of this Court in Criminal Miscellaneou'
(Q) No,17 of 2006 "Ejaz Ahmed v. State" decided on 10-10-2006 wherein jurisdiction was assumed under section 561-A, Cr.P.C. And the orders of Sessions Judge/ex-officio Justice of Peace were quashed. Another judgment reported through PLD 2005 Kar. 621 was also referred in the same context by the learned counsel.
11. It is a matter of record that the impugned application by respondent No,1 was not addressed to the Justice of Peace under section 22-A(6), Cr.P.C. Nor the same was treated by the learned Sessions Judge as such. The said application was instead marked "for disposal" to Ilaqa Magistrate on the day it was presented to the former who, in turn, rzeorded the statements of respondents Nos.1 and 2 under section 164, Cr.P.C. Though in a mechanical fashion. The arguments of learned counsel for respondent No,6 regarding validity/maintainability of the impugned application stood self-contradicted when he referred to the provisions of section 164, Cr.P.C. And stated that there was no bar in the Code regarding the recording of more than one statement by a person related to the investigation as a witness or complainant or for that matter by any other person.
12. There can be no cavil with the proposition that a Magistrate of 1st Class or of a Second Class especially empowered in that behalf by the Provincial Government can record any statement or confession during the course of investigation at any time before the commencement of enquiry or trial. The recording of second statement by the same person does not appear to be prohibited under the said provision albeit the voluntariness, truthfulness and credibility of the same is to be left for the trial Court to determine. In the circumstances of the instant case the filing of an application for the purpose before the ex-officio Justice of the Peace, therefore, can only be dubbed as an exercise in futile.
13. ' Adverting to the powers and functions of a Sessions Judge acting as ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. It can be clearly observed that the same have limited scope.
An ex-officio Justice of Peace, deriving jurisdiction under section 25, Cr.P.C., has the power to issue appropriate direction to the police authorities concerned, on a coma Taint, re ardin non-re istration of criminal case, transfer of investigation from one Police Officer to another and neglect, failure or excess committed by the police authority in relation to its function and duties. It is thus, clearly depicted from the said powers, as provided in section 22-A(6), Cr.P.C. And read in juxtaposition to the contents of section 25 (ibid) that, the powers resting with an ex-officio Justice of the Peace cannot be delegated to a Magistrate by the Justice of the Peace himself or by any other authority.
The requirement of law is that only the Sessions Judges and the Additional Sessions Judges nominated by them are to act as ex-officio Justices of the Peace for the Districts in which they are serving. Here, it is seen that the powers exercised by the learned Sessions Judge even as ex-officio Justice of the Peace while endorsing the impugned application "for disposal" to the Judicial Magistrate, were beyond the ambit of relevant provisions of law as the same amounted to delegation of his powers to a Judicial Magistrate.
14. By now it is also well-settled that no Court can exercise power of supervision and control over the investigation agencies. The Court cannot sit as an investigator and stop the investigation of the caces because the determination of the guilt or innocence ' of the accused depends upon the entire body of facts and circumstances revealed during the trial. In the present case the respondent No,1 did have remedies under the relevant law available to him for redressal of his grievance, if at all he had any. The exercise upon his application by respondent No,1, as undertaken by the Judicial Magistrate/SCJ in terms of initiating a pretrial enquiry, can only be termed as interference with the investigation of the case. It is also noted that while dealing with the said application the learned Sessions Judge as well as the Judicial Magistrate/SCJ acted mechanically and in the process lost sight of the fact that the application was filed by a person alien to the case stating therein that one of the accused/respondent No,6 was not present at the time of occurrence and did not participate in the event. The said application was though countersigned by respondent No,2.
15. In the wake of above discussion it would not be unsafe to hold that the impugned enquiry proceedings undertaken by the learned Judicial Magistrate/SCJ, Abbottabad were without any legal backing and were also beyond the scope of jurisdiction of the said Court as provided in the Code. The same, therefore, warrant striking down by this Court while exercising its inherent powers under section 561-A, Cr.P.C.
' As regards the statements of respondents Nos.1 and 2 recorded on 9-9-2006 by the learned J.M./SCJ, Abbottabad suffice it to say that the learned Judicial Magistrate was within his competence to have recorded the same but under the provisions of section 164, Cr.P.C. To scrutinize the propriety, validity and admissibility of said statements would be the prerogative of the learned trial Court at the first instance.
' The petition in hand was partially accepted through a short order, dated 21-11-2006 and above are the reasons for the same.