This is a petition filed under section 561-A, Cr. P. C. For expunction of certain remarks made by the Additional Sessions Judge, Multan, against the petitioner in his order, dated 25th July, 1979 and also for setting aside the order requiring the petitioner to bear the expenses of keeping Mst. Khalida Perveen to Darul Amon, Multan, as ordered by the petitioner on 21st July, 1979.
2. Briefly stated the facts giving rise to the present petition arc that in case F. I. R. No. 117, dated 25th June, 1979, registered under sec--tion 363, P. P. C. At P.S. Burj Wala, District Sahiwal, Mst. Khalida Perveen alleged to have been kidnapped was recovered by the Police and produced before Ch. Iltaf Hussain, Magistrate First Class, Sahiwal on 2July, 1979. In her statement recorded under section 164, Cr. P. C. Mst, Khalida Perveen disclosed that she had not been kidnapped or abducted by any person and that she bad contacted marriage with one Muhammad Rafiq of her own free will and that she was living with him as his were. As the complainant was not satisfied with the investigation of the case by the local Police, the Deputy Inspector-General of Police, Multan, transferred the investigation of the case to the Assistant Superintendent of Police, Khanewal. In the course of investigation of the case conducted under the supervision of A. S. P., Khanewal, Mst.
Khalida Perveen was produced by Ghulam Muhammad A. S. I., P. S. Khanewal on 21July, 1979 before the petitioner, who is posted as Magistrate First Class, Khanewal, for recording her statement under section 164, Cr. P. C. The petitioner, after going through the police file, noticed that the statement of Mst. Khalida Perveen was first recorded by Ch. Iltaf Hussain Magistrate First Class, Sahiwal on 2July, 1979 and that in her statement she had expressed the desire to go and live with her husband Rafiq, The petitioner, therefore, considered it necessary to record the statement of Mst.
Khalida Perveen in the presence of Rafique accused so as to give him an opportunity to cross-nd st nd examine her, He accordingly directed that Mst. Khalida Perveen be sent to Darul Amon and should be produced in Court on 28th July, 1979 for her statement which would bra recorded in the presence of Rafiq and other accused persons. He also directed that the expenses of her stay in Darul Amon would be paid by the person with whom she would be sent in accordance with her statement, The aforementioned order was challenged in revision by Noon Muhammad father of Mst: Khalida Perveen and the learned Additional Sessions Judge, while allowing the petition made certain observation against the petitioner which have been considered derogatory and disparaging by the petitioner. The learned Additional Sessions Judge hap also required the petitioner to bear the expenses of Mst. Khalida Perveen's stay in Darul Amon, Multan. The petitioner has contended that the learned Additional Sessions Judge was not justified in passing derogatory remarks against him particularly when no opportunity, was afforded to him to explain his position.
According to the petitioner he had acted in good faith when he had directed that Mst, Khalida Perveen should be kept in Darul Amon. The learned Additional Session Judge had no jurisdiction to direct the recovery of expenses of her stay in Darul Amon from the petitioner.
3. I have heard the parties' counsel and perused the order, dated 21July, 1979 passed by the petitioner and order, dated 25th July, 1979, whereby the aforementioned order was set aside.
Subsection (1-A) of section 164. Cr. P. C. Which was added by the Law Reforms Ordinance, 1972, provides that any statement made to a Magistrate in the course of investigation or at any time before the commencement of the inquiry or trial may be recorded by him in the presence of the accused and that the latter may be given an opportunity of cross-examining the witness making the statement. The object of the above provision is that the statement of a witness recorded in the presence of the accused after allowing him an opportunity of cross-examining the witness may be used as evidence in the case for all purposes subject to the provision of the Evidence Act, 1872, as provided in section 265-J, Cr. P. C. So when Magistrate postpones the recording of statement of a witness under sec--tion 164, Cr. P. C. Till such time as the accused appears before him and is allowed an opportunity to cross-examine the witness, he acts in accor--dance with law in view of the provision of subsection (1-A) of section 164, Cr. P. C. Thus the petitioner's order that the statement of Mst. Khalida Perveen would be recorded by him on 28July, 4979 in the pre--sence of the accused so that he may be able to cross-examine her is a legal c order. His further direction that Mst. Khalida Perveen be kept to Darul Aman till 28th July, 1979, was no doubt open to question because in the absence of any request being made by the police or by any other person including Mst. Khalida Perveen there was no justification for her being sent to Darul Aman to be kept there till her production in Court on 28th July, 1979. It appears that the petitioner's anxiety was that Mst.
Khalida Perveen should not be exposed to the influence of any person before making statement in Court and it was with that object in mind that he had decided to send her to Darul Aman. Since Mst.
Khalida Perveen's statement was to be recorded as a witness and not n as confession of an accused the petitioner should not have worried that she should make the statement voluntarily particularly when he had directed that' her statement should be recorded in the presence of the accused who should have an opportunity to cross-examine her also. The learned Additional Sessions Judge has rightly found that the peti--tioner's order of sending Mst. Khalida Perveen to Darul Aman is not warranted by law but it appears that the petitioner's direction that the statement of Mst. Khalida Perveen should be recorded in the presence of the accused who should also be given an opportunity to cross-examine her has led him to draw inference that the petitioner was looking to the interest of the accused. The above surmise of the learned Additional Sessions Judge, however, is without any basis because the petitioner's order that the statement of Mst. Khalida Perveen should be recorded in the presence of accused so that he may also cross-examine her is a legal order and no motive could be attributed to him for making such order His direction that Mst.
Khalida Perveen should be kept at Darul Aman was also not issued with the object of protect--ingst th the interest of the accused because, as noticed above, the petitioner was under some misconception about the nature of Mst. Khalida Perveen's statement. The learned Additional Sessions Judge jumped to an hasty conclusion in observing that the petitioner had been approached by the accused before he passed the order for sending Mst, Khalida Perveen to Darul Aman and postponed the recording of her statement. The petitioner had not tried to hamper the investigation of the case and had not acted in bad faith as observed by the learned Additional Sessions Judge There was no material before the learned Additional sessions Judge to have attributed any motive to the petitioner when he passed order, dated 21st July, 1979. In my view the following remarks made by the learned Additional Sessions Judge in para 4 of his order, dated 25July, 1979, are not justified. These remarks do not form integral part of the order as the conclusion arrived at by the learned Additional Sessions Judge in the aforementioned order is not affected by the expunction of these remarks: "My impression is that some foreign body from the accused side bad contacted him earlier otherwise there was no justification to hamper the Police investigation.
I am clear in my mind that a Magistrate is not expected to be an agent of or an instrument for the Police. However, the circumstances of this case have depicted that intentional effort has been made by Mr. Muhammad Ramzan, Magistrate 1st Class, Khanewal, to inter--fere in the Police investigation and to watch the interest of the accus--ed party. In this respect I make bold in expressing that he has acted in bad faith. At this stage it is proper to refer to a part of the impugned order wherein it is mentioned that Mst. Khalida Perveen shall be retainers to Darul Aman, Multan, and the expenses of her diet, etc. Shall be borne by that party with whom later on she would show her desire to accompany. It shows that Mr. Muhammad Ramzan, Magistrate Ist Class, Khanewal, was watching the interest of the accused party without legal occasion and I am unable to approve such a judicial conduct. The grievance of the complainant party that the local Police of District Sahiwal had been influenced by the accused party entailing him to invoke the help of D. I.- G., Multan who transferred the investigation finds strength and stands established if the bent of mind of Mr. Muhammad Ramzan, Magistrate 1st Class. Khanewal is looked into and analysed who was also influenced from the background. The only irresistible conclusion which can be drawn from the above state of affairs, analysis of circumstances and discus--sion would be that the order dated 21st July, 1979, passed by Mr. Muhammad Ramzan, Magistrate Ist Class, Khanewal, District Multan, cannot be sustained."
4. The learned Additional Sessions Judge's direction that the expenses of keeping Mst. Khalida Perveen in Darul Aman, Multan, should be recovered from the petitioner is also not warranted by law because the petitioner was not a party to the proceedings and he should not have been penalised for passing an order which in revision was found defec--tive or illegal. I accordingly set aside the aforementioned order of the learned Additional Sessions Judge. Since the above direction contained in para. 6 of the order of Additional Sessions Judge is also couched it, terms which are disparaging and derogatory to the petitioner, it shall also be expunged. Para 7 of the order in which the learned Additional Sessions Judge hay observed that a copy at his order be sent to the learned Sessions Judge. Multan and the learned District Magistrate, Multan, is also ordered to be deleted, as alter the expunction of the remarks made against the petitioner it is no longer necessary to send the copy of the order to them for recording the confidential reports of the petitioner. The present petition stands disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.