' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant petition, Mst. Shabina Naz petitioner has called in question the vires of order dated 11-6-2010, passed by the. Learned Sessions Judge, Lahore; whereby, application made by the petitioner for recording her statement under section 164, Cr,P.C. Was declined.
2. The background of this petition for the purpose of adjudication is that reportedly the petitioner hails from Azad Jammu and Kashmir, she had entered into Nikah with Afzaal son of Muhammad Rafique without the consent of her family. As per record the Nikah was contracted at Rawalpindi within the local limits of Police Station Kahota. It is mentioned in the petition that on 4-1-2010 (although copy of the crime report is not placed on the record) due to registration of criminal case against the petitioner and her spouse has been registered, therefore, just to secure herself and her spouse, the petitioner moved application for recording of her statement under section 164, Cr.P.C.
Before the learned Sessions Judge, Lahore vide order dated 11-6-2010, the same was declined.
3. Learned counsel for the petitioner argued that though the petitioner is sui juris and she had entered into Nikah with Afzaal with her own free will and consent, therefore, no interference is called for and the same is just to infringe the constitutional rights granted under the Constitution of Islamic Republic of Pakistan, 1973. It is further argued that recording of statement under section 164, Cr.P.C. Of the petitioner is her legal right.
4. On the other hand, learned Additional Advocate General who has entered appearance on Court's call has vehemently controverted the contentions raised by learned counsel for the petitioner. While relying upon the reported case Fateh Shah v. Muhammad Hassan and 2 others (1983 PCr.LJ 1893), learned Additional Advocate General has argued that recording of statement beyond the jurisdiction of Judicial Magistrate under section 164, Cr.P.C. Is obligatory but at the same time if the learned Magistrate prima facie finds that there is some mala tide behind seeking such permission he has to keep in mind sections 12(1) and (2) of the Code.
5. Arguments advanced pro and contra have been heard. I have also gone through the impugned order dated 11-6-2010, passed by the learned Session Judge; Lahore and the law on the subject.
6. As the matter revolves around section 164, Cr.P.C, therefore, it would be advantageous to reproduce the relevant portion of the supra Section, which reads as under:-- "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.
(1A) 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 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 or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3)
' Explanation....
' From the bare perusal of the above section, one can easily assess that the power of the Magistrate to record statement is discretionary in nature. A Admittedly, this discretion requires to be exercised judiciously according to the facts and circumstances of the case and it should be based upon good reasons that the grant of such permission would advance the origin of justice.
However, if the learned Magistrate finds some mala fide behind seeking such permission he is under no obligation to record such statement Reference in this regard can be made to Mst.
Kalsoom Bibi v. District and Sessions Judge, Bahawalpur and another 2009 M LD 421 wherein it was held as under:-- "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 statements 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.
' Similar subject was dealt with in landmark judgment of the Allah Abad High Court, India in the reported case Nahar Singh v. Emperor (AIR 1921 Allahabad 61).
7. I may also mention here that the facts of the instant case are very peculiar as the petitioner is permanent resident of Azad Jammu and Kashmir and she contracted marriage at Rawalpindi.
Learned counsel for the petitioner has failed to advance any reason that why the petitioner wants to get record her statement at Lahore instead of Rawalpindi or Azad Jammu and Kashmir. In such a situation the refusal of the Magistrate by oral order and thereafter the order dated 11-6-2010, passed by the learned Sessions Judge, Lahore can be termed well reasoned as mala fide is squarely reflected from the act of the petitioner of recording her statement at Lahore.
8. Moreover, learned counsel for the petitioner has failed to point out any illegality/infirmity in the impugned order dated 11-6-2010 calling for interference by this Court in constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The instant petition being devoid of force is hereby dismissed.