' MUHAMMAD ASHRAF BHATTI, J.---Mst. Kalsoom Bibi, the petitioner has approached this Court to seek its indulgence in exercise of its revisional powers for issuance of direction to respondent No,2 (the learned Special Judicial Magistrate, Bahawalpur) to record her statement under section 164 of the Criminal Procedure Code (hereinafter referred as Code). She had moved an application for this purpose before Mr. Ahsan Mehmood Malik, Judicial Magistrate, Bahawalpur on 9-1-2008, stating therein, that being sui juris, she had contracted marriage with Muhammad Razzaq, her first cousin, on 28-11-2007, but her father got registered a false criminal case vide F.I.R. No, 432, dated 16-12- 2007 at Police Station Shahr-e-Noor Jehan, North Nazim Abad, Karachi under section 363, P.P.C.
Against her husband and others, whereas, she had come from there with her real uncle (Chacha)
Ghulam Muhammad of her own free-will and that nobody had abducted her. Reason given for getting her statement recorded at Bahawalpur was that she apprehended threat to her life, if gone to Karachi for this purpose.
2. .The learned Magistrate did not decide the said application on merits nor recorded her statement. Instead he referred it to the learned District and Sessions Judge, Bahawalpur on 12-1- 2008 in the light of an Office Order No,2126-EB, dated 29-9-2007 circulated in the district, whereby Mr. Muhammad Tariq Javed, the learned Special Judicial Magistrate, Bahawalpur had been authorized to record statements, under section 164 of the Code, of the persons residing out of the territorial limits of District Bahawalpur. It was placed before the learned Sessions Judge, Bahawalpur, who dismissed it on 24-1-2008. The operative part of his order runs as under:- "The Ilaqa Magistrates in each District have been allocated work of their concerned Police Stations.
It would be irregular for the Magistrate of this District to record the statement of the witness of a case registered in other District. The propriety demands that witness of a case registered in other District should appear before the Illaqa Magistrate of the concerned Police Station to get recorded his/her statement under section 164, Cr.P.C. Reliance has been placed on "Fateh Shah v.
Muhammad Hassan and two others" (1983 PCr.LJ 1893 Lahore)."
' Hence, this criminal revision to challenge the vires of aforesaid order of learned Sessions Judge, dated 24-1-2008 (wrongly mentioned as "19-12-2007" on the "opening sheet" of this Criminal Revision) whereby he declined to entrust this matter to the authorized Magistrate for recording statement of the petitioner under section 164, Cr.P.C. It was opposed by Ghulam Rasool, complainant of the aforesaid case F.I.R. No, 432/07. Both the parties heard the available record perused.
3. It is noteworthy that Ghulam Rasool father of the petitioner/complainant of afore-mentioned case F.I.R. Was arrayed as respondent No,2 along with Muhammad Ramzan, real brother of the petitioner in her petition, moved to the learned Sessions Judge, Bahawalpur under section 22-A of the Code for issuance for issuance of direction to the Station House Officer, Police Station Saddar, Bahawalpur to restraining him from causing illegal harassment at their instance. But amazingly, she did not implead them as a party to her application before the learned Magistrate nor did she make a move to array them as party before the learned Sessions Judge, after the reference, as afore-mentioned was made to him.
4. The complainant with permission of this Court placed some documents on record, as reflected in the order of this Court of even date, to challenge the contentions of the petitioner raised in her aforesaid application.
5. Learned counsel for the petitioner while having relied upon "Muhammad Sarfraz Khan v. The Crown" (PLD 1953 Lahore 495) submitted that it was obligatory upon the learned Magistrate to record statement of the petitioner and that refusal on the part of the learned Sessions Judge vide his impugned order was also illegal in as much as he was duty bound to refer the case to Magistrate authorized to record such statements as per his Office Order, mentioned above.
6. Before embarking upon the issue in hand it may be mentioned that Chapter XIV of the Code as indicated by its title lays down a comprehensive procedure for investigation of criminal cases, by the police to collect evidence to see as to whether or not the accused of a case is, in any manner, connected with the omission of an offence and if so, a report be submitted under section 173, Cr.P.C. To the Court of competent jurisdiction for trial of such accused. It is in this context that section 164 finds a place in the said Chapter and that is why its marginal note talks about "Power to record statements and confessions" obviously, in relation to the investigation conducted by the Investigating Officer under the supervision of the concerned area Magistrate.
7. Now, it is to be seen as to whether or not a Magistrate, before whom such an application or prayer is made, would take it as his statutory duty or obligation to record statement under section 164, Cr.P.C. The learned counsel for the aforesaid complainant submitted that it is not obligatory for him to do so. He relied upon "Fateh Shah v. Muhammad Hassan and others" (1983 PCr.LJ 1893); "Gul Ghameer v. Jene Alam and others (1999 Cr.LJ 388); and "Mst. Shehnaz v. The State and others(1995 PCr.LJ 868), to strengthen his point. He also referred to the afore-mentioned operative part of order, dated 24-1-2008, which is based upon the principle laid down in Fateh Shah's case (supra) and so, urged that the only purpose of this petition was to create a so-called defence with mala fide intention to defeat the case of the complainant registered at Karachi. He also took exception to the very maintainability of this criminal revision contending that the impugned order of the learned Sessions Judge was of administrative nature that could only be challenged through writ petition and not criminal revision as is the case here.
8. For facility of reference it would be appropriate to re-produce the following relevant part of section 164 of the Code:-- "Power to record statements and confessions.---(1) Any Magistrate of the first class and any Magistrate of the second class specially 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 the commencement of the inquiry or trial., (1-4) Any such statement made 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 statements 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 or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) .Explanation.---It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case."
9. Plain reading of the above provisions of law read with its marginal note denotes that the power given to the Magistrate is of discretionary nature and if such a statement is recorded by him, it becomes admissible in evidence at the trial under Article 140 of the Qanun-e-Shandat Order, 1984 whereby the maker of the statements, complainant or a witness, may exonerate or implicate a person with regard to commission of an offence. Of course, this discretion has to be A exercised judiciously according to the facts and circumstances of each case and based upon good reason that the grant of such permission would advance the cause of justice. In the present case there was no good reason given by the petitioner nor her application was supported by an affidavit. In a similar case, this Court in "Mst. Shehnaz v. The State" (1995 PCr.LJ 868) had declined to interfere with the order of the learned Magistrate. The petitioner's assertion that she apprehended threats at the hands of her father and brother, making it impossible to go to Karachi to record her statements, is nullified by the fact that she managed to get a copy of the First Information Report registered against Muhammad Razzaq and others. If she could manage to procure copy of the First Information Report and was also having the protection of her real uncle (Chacha) and the aforesaid cousin, apprehension of threat in itself appears to be baseless. Further, the copies of Nikah Nama and other documents placed on record by father Ghulam Rasool reveal that real sister of petitioner's father, namely, Mst. Naseem Mai's hand was also given to Muhammad Razzaq with whom she has allegedly contracted marriage. Though it is disputed on the ground that Muhammad Razzaq lad divorced Mst. Naseem Mai; but this controversy is to be taken care of by the Investigation Officer and the Court concerned after the trial is concluded. But the fact remains that there is serious allegation levelled against Muhammad Razzaq that at one and the same time he has contracted marriage with Mst. Kalsoom Bibi, who falls in prohibitory degree, being real niece of Mst. Naseem Mai.
10. Therefore, if the learned Magistrate prima facie finds that there is some mala fide behind seeking such permission, he is under no obligation to record the statement. It is, however, felt that a practice has developed over the years that statements are sought to be recorded in other District of the same or other Province and if the statement is favourable, it is placed before the trial Court without giving an opportunity to cross-examine its maker by the complainant or the accused, as the case may be.
11. Moreover, it is not yet known as to whether the petitioner would be a witness of this case or be implicated as an accused later on. If she is considered to be a witness. It was obligatory upon her to implead the complainant of the case, her real father as party to her application given to the Magistrate so as to give him a chance to cross-examine her because aim behind her move was to exonerate Muhammad Razzaq from being prosecuted in the criminal case registered against him at Karachi but she did not do so, as mentioned above, obviously with a motive to get her statement recorded detrimental to the interest of the complainant of the case. It gives the impression that she had gone to the learned Magistrate with mala fide intentions. Therefore, refusal to accede to her request on the part of the learned Sessions Judge, is justified on the principle laid down in Fateh Shah's case (supra). So the impugned order does not suffer from any infirmity or illegality. The petitioner, therefore, in her own interest could have gone to Karachi to record her statement before the Investigation Officer or the concerned learned Area Magistrate or any other Magistrate in the concerned District of Karachi having jurisdiction and powers in the matter.
12. In "Nahar Singh v. Emperor" (AIR 1921 Allahabad 61) in an appeal before the Division Bench somewhat similar question arose. The appellant had got recorded his confession before a Magistrate under section 164, Cr.P.C. But it was retracted at a later stage by him suggesting that the same was extracted from him by torture. Since the Magistrate, who recorded his confession was examined as a witness, identified that the accused was the same person who had made the statement before him, the appeal was dismissed mainly on that score alone. But the learned members of the Beach too examined whether it was a confession recorded within the meaning of section 164 of the Code. In this case the Magistrate, having local jurisdiction in "Jhansi", had recorded that statement of the accused under section 164 of the Code in the State of Gwaliar and the learned Sessions Judge had expressed the opinion that the fact that the Magistrate took down the confession out side British India did not make the confession according to law. In this regard both the Judges made specific observations with regard to the territorial jurisdiction of the Magistrate, who is appointed under section 12 of the Code and invested with all or any of the powers to be exercised under the Code within the local area assigned to him by the competent authority, Rafiq, J observed as under:-- "In my opinion it is very doubtful whether a Magistrate taking down a confession outside British India is recording a confession within the meaning of section 164 of the Criminal Procedure Code.
My reason for thinking so is that the status of a Magistrate is provided in sections 10, 11 and 12 (amongst others) of the Criminal Procedure Code and these sections make provision for the Local Government appointing subordinate Magistrates and defining areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code, and except as otherwise provided by such definition made by the Local Government, "the jurisdiction and powers of such persons shall extend throughout such District." My view is that the jurisdiction and powers of such a person are limited to the District in which he is appointed and that this is a power which can be exercised is such a District only. It so happens that the act of a Magistrate in recording a confession under section 164 of the Criminal Procedure Code is described in the marginal note to section 164 as a "power to record statements or confessions". Were it not for this I should have said it was an act which could have been exercised at any time or place."
' The other learned Member (Ryves, J) generally agreed with the above view and observed as under:-- "The only difficulty is whether a Magistrate of the first class with jurisdiction in the Lalitpur District could record a confession under section 164 of the Criminal Procedure Code, with all the formalities required by that section, in a place outside British India. It seems to us very doubtful. The Code after all only runs throughout British India and the powers of a Magistrate under section 12 of the Criminal Procedure Code seem to be limited to the particular territory in which he has been appointed."
13. So, therefore, keeping the appointment of a Magistrate by the competent authority under section 12 of the Code in view, exercise of his jurisdiction with regard to this powers is manifestly limited to his local area and if the same is not defined, it is exercisable in the whole of the District of his appointment/posting. It also makes abundantly clear that the power of recording confession or other statements under section 164 of the Code is directly related to the investigation of case to be governed and regulated by Chapter XIV of the Code and so, the jurisdiction of the Magistrate regarding such statement will have to be construed in the same context.
14. In the light of the above, ordinarily statements under section 164 of the Code are to be recorded by a Magistrate of the District, where a case is registered and preferably by a Magistrate having territorial jurisdiction in the matter in terms of section 12 of the Code unless it is beyond the control of the maker of such a statement or confession to get it recorded in the District concerned. The learned Sessions Judge had rightly advised the petitioner to approach the concerned Ilaqa Magistrate to get recorded her statement. So no exception can be taken to the impugned order.
15. As to the maintainability of this revision petition, there is no cavil to say that the impugned order was passed by the learned Sessions Judge on administrative side and could only be challenged through a Writ Petition as no right of revision is available there against. Hence, on this score too the petitioner has no case and this revision petition is found to be not maintainable.
16. Resultantly, this Criminal Revision fails and the same is dismissed.