' MISS AALIA NEELUM, J.---Through the instant petition filed in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the order dated 23-10-2013 passed by the learned Sessions Judge, Kasur whereby Criminal Revision filed by Nadia Aslam, respondent No,2 seeking permission for recording her statement under section 164, Cr.P.C. Was accepted.
2. The brief facts of this case are that father of respondent No,2, Muhammad Aslam got lodged case F.I.R. No,83 dated 21-5-2013, under sections 365-B/380, P.P.C., at Police Station, Theh Sheikhum, District, Kasur, against the petitioner and respondents Nos.3 to 6. Prior to lodging of F.I.R., alleged abductee, Mst. Nadia Aslam, respondent No,2 appeared before the learned Ex-Officio Justice of Peace/Additional Sessions Judge, Lahore and recorded her statement on 27-5-2013, wherein she categorically stated that she being sui juris has entered into marriage with one Majid Khan, present petitioner with her free-will and consent. She further stated that she is living with her husband and nobody had abducted her. Later on, the petitioner filed Writ Petition bearing No,13935-Q/2013 seeking quashing of F.I.R., which was disposed of on 27-6-2013, on the statement of learned Additional Advocate-General that the F.I.R. Has been recommended for cancellation. During the course of investigation of above said case F.I.R. No,83/2013, the alleged abductee Mst. Nadia Aslam was got recovered by the Investigating Officer and she was lodged in Dar-ul-Aman. Thereafter, the Investigating Officer along with lady Constable produced the alleged abductee, respondent No,2 before the learned Magistrate Section-30, Kasur and got her statement recorded under section 164, Cr.P.C., on 27-5-2013, wherein she categorically stated that she contracted marriage with the petitioner of her own free-will and accord and as such she did not support the version of the prosecution. In the meantime, the petitioner filed suit for restitution of conjugal rights on 3-6-2013 at Kasur, whereas the alleged abductee, Mst. Nadia Aslam also filed a suit for dissolution of marriage on 22-6-2013 before the Judge Family Court, Sheikhupura. During pendency of both the suits, the alleged abductee, Mst. Nadia Aslam respondent No,2 moved another application for recording of her statement under section 164, Cr.P.C. On 11-9-2013 but the same was dismissed by the learned Magistrate 1st Class, Kasur. Against the order of the learned Magistrate Ist Class, Kasur dated 11-9-2013, a revision petition was filed by said Nadia Aslam, respondent No,2 which was accepted by the learned Additional Sessions Judge, Kasur vide order dated 23-10-2013. Against order of the learned Additional Sessions Judge, Kasur, the petitioner has filed the instant Constitutional petition.
3. Learned counsel for the petitioner has contended that there is no bar for recording of second statement under section 164, Cr.P.C., however, it has to be seen in the light of the facts and circumstances of the case; that while recording of earlier statement under section 164, Cr.P.C.
Before the learned Magistrate, there is nothing on record to show that there was any element of coercion or threat to the alleged abducted; that neither the alleged abductee was produced by the petitioner before the learned Magistrate nor she was in his custody but she made her first statement voluntarily despite the fact that she was recovered by the Investigating Officer; that while living with her parents the alleged abductee admitted the factum of Nikah with the petitioner in her suit for dissolution of marriage.
4. The learned counsel for respondent No,2 submits that there is no prohibition under the law to record second statement under section 164, Cr.P.C., hence the instant petition be dismissed.
5. Learned Law Officer after going through the record of case F.I.R. No,83 dated 21-5-2013, registered under sections 365-B/380, P.P.C., submits that the alleged abductee was recovered on 25-5-2013 by the order of this Court and on the instruction of this Court, she was produced before the learned Illaqa Magistrate on 27-5-2013, where she got recorded her first statement under section 164, Cr.P.C. By stating that she left her house with her own free-will but neither she was abducted by anyone nor any valuables have been taken away and later on cancellation report was prepared in the above stated F.I.R. On 30-5-2013.
6. After hearing the learned counsel for the parties, it is observed that there is no bar in recording of second statement under section 164, Cr.P.C. Impliedly or otherwise but while granting permission, the entire facts and circumstances of the case should be kept in mind for consideration. Section 164, Cr.P.C. Is reproduced hereunder for ready reference:-- Section 164. 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 concession 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-A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused was, given an opportunity of cross-examining the witness making the statement.
(2) Such statement shall be recorded
(3) A Magistrate shall, before recording any such confession explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon question the person making it, he has reason to believe memorandum at the foot such record to the following
7. Bare reading of section 164, Cr.P.C. Does not indicate that second statement of a person cannot be recorded, if it already stands recorded. From the record it is revealed that statement under section 164, Cr.P.C. Of the alleged abductee Mst. Nadia Aslam is recorded when she was free agent as she was recovered by the order of this Court and on the direction of this Court, she was lodged in Dar-ulAman by the local police and thereafter she was produced before the learned Magistrate Section 30, Kasur for recording her statement under section 164, Cr.P.C. On 27-5-2013 wherein she categorically stated that she contracted marriage with one Majid Khan, petitioner with her own free-will and accord. She further states that neither she was abducted nor valuable articles were taken away by her. The petitioner has taken a defence of valid nikah with the said abductee Nadia Aslam whereas said Nadia Aslam had confirmed the said assertion regarding her marriage with the petitioner Majid Khan in her suit for dissolution of marriage filed on 22-6-2013 before the Judge Family Court at Sheikhupura wherein she categorically stated that she contracted nikah with the present petitioner on 20-4-2013 against a consideration of dower amount of Rs,1,00,000 which was not paid by the petitioner, however, has developed hate in her mind against the petitioner as he used to torture her. She further. Asserted in that suit that the petitioner is an addict person and used filthy language and for the said reason she prayed for a decree of dissolution of marriage on the basis of `khula'. It is astonishing that the alleged abductee was recovered by the Investigating Officer on 25-5-2013. Later on she made her statement before the learned Magistrate Section 30 on 27-5-2013. On her statement, aforesaid F.I.R. No,83/2013 was recommended for cancellation whereas during the proceedings of Constitutional petition bearing No,13945 of 2013 the Investigating Officer made a statement that the case was recommended for cancellation and the matter was disposed of on the statement of the learned Additional Advocate-General. During the entire proceedings, she did not raise any objection that her statement under section 164, Cr.P.C.
Was got recorded under coercion and pressure of the present petitioner. Moreover, after elapse of almost more than {{URDU TEXT } Since nikah with the petitioner is admitted by Nadia Aslam, the alleged abductee by filing the suit for dissolution of marriage on 22-6-2012 and same belied the prosecution story as narrated in the F.I.R., she cannot be permitted to change her stance by making false statement to achieve nefarious goal. All this shows that she wants to make another statement under section 164, Cr.P.C.
With some ulterior motive to entangle the petitioner in further litigation.
8. For what has been stated above, this petition is allowed by setting aside the order dated 23-10- 2013 passed by the learned Sessions Judge, Kasur.
Petition allowed.
2014 P Cr. L 907 [Sindh] Before Hasan Feroz, J FAROOQ---Petitioner versus Mst. ZAHABA BIBI and 2 others-Respondents Constitutional Petition No,S-1334 and C.M.A. No, .6712 of 2013, decided on 24th December, 2013.
(a) Criminal Procedure Code (V of 1898)- 491---Constitution of Pakistan, Art. 199-Illegal custody of minor-Powers vested under S. 491, Cr.P.C.
Were co-extensive to that of Art. 199 of the Constitution regarding illegal custody of children. [p. 910] A
(b) Islamic law--- ----Custody of minor---Mother---Right of hizanat---Scope---Preferential right of hizanat vested with the mother. [p. 910] B
(c) Criminal Procedure Code (V of 1898)--- ----S. 491---Habeas corpus petition---Scope---Illegal custody of minor---Matter of immediate custody of minor could be promptly settled under S. 491, Cr.P.C. [p. 910] C PLD 2010 Kar. 119 and 1999 CLC 1212 rel.
(d) Criminal Procedure Code (V of 1898)--- ----S. 491---Habeas corpus petition---Illegal custody of minor---Powers under S. 491, Cr.P.C., exercise of---Forum---Such power could be invoked by the District judge and also by the High Court. [p. 910] D
(e) Islamic law--- ----Custody of minor---Ailing mother---Right of hizanat---Scope--Ailing mother could not be deprived of her right of hizanat unless she transgressed the dictums of the superior Courts. [p. 910] E
(f) Constitution of Pakistan--- ----Art. 199---Criminal Procedure Code (V of 1898), S. 491---Constitutional petition--- Maintainability--- Alternate remedy not exhausted---Effect---Illegal custody of minor---Habeas corpus petition filed by mother against illegal custody of minor with the father---Father challenging legality of habeas corpus petition and order passed thereon by way of a constitutional petition under Art. 199 of the Constitution---Father instead of contesting the matter before the Sessions Court had approached the High Court under Art. 199 of the Constitution making several pleas, which were untenable as the District Court was already seized of the matter under habeas corpus jurisdiction---Plea of petitioner that he being the father had not kept the custody of minor illegally was a matter of habeas corpus wherein the matter with regard to illegality and improper custody would be determined by the concerned District Court---Father had invoked constitutional jurisdiction of the High Court under Art. 199(b)(1) of the Constitution, challenging the legality of proceedings before the Sessions Judge under habeas corpus jurisdiction without exhausting the adequate remedy available under Art. 199(1) of the Constitution---Powers under Art. 199 of the Constitution were subject to the satisfaction that no other adequate remedy was provided by law, whereas in the present case, District Court was (already) seized of the matter under habeas corpus jurisdiction (S. 491, Cr.P.C.)---Constitutional petition was dismissed accordingly. [p. 9101 F M.
Qadir Khan for Petitioner.
Saba Khan for Respondent No,1 with Respondent No,1 in person. Siraj Ahmed for the State.
Date of hearing: 6th December, 2013.
' HASAN FEROZ, J.---By this order I intend to dispose of Constitutional Petition No, S-1334 of 2013 under Article 199 of Constitution of Islamic Republic of Pakistan 1973 challenging the legality of Habeas Corpus Petition No,1038 of 2013 filed in the Court of IVth ADJ (West) Karachi and order passed thereon, with the prayer to suspended and set aside and the respondent be directed to adopt proper procedure as laid down under section 25 of Guardians and Wards Act 1890 in the proper Court.
2. The brief facts of the case of present petition are that the petitioner was married to respondent No,1 on 4-3-2007 and out of the said wedlock one male child was born namely Master Imran Khan now aged about 3 years. That after marriage the petitioner came to know that the respondent No,1 is a patient of Tuberculosis (T.B) and the petitioner started and continued the treatment of the said disease of respondent but the respondent could not recover till date and is unable to walk and move without any support and on the instigation of her parent the respondent left the house of the petitioner and did not bother to see her 3 years old child. After some months the respondent No,1, approached the District Court under section 491, Cr.P.C. Instead of procedural law under section 25 of G&W Act, 1890.
3. It has 'been contended by the learned counsel for the petitioner that the learned respondent No,3 without applying judicial mind to the facts of the case passed arbitrary orders on the said application under section 491, Cr.P.C. Which are laible to be set aside. The learned counsel for petitioner has relied upon 2001 SCMR 1782, 1997 SCMR 1480, PLD 2012 SC 758, 2013 MLD 562, 2011 PCr.LJ 594, PLD 1996 Lah. 462, 2005 YLR 1886 (LAH) and 2005 YLR 1614.
4. The learned counsel for respondent has contended that the allegations regarding the illness of the respondent are false and fabricated and her medical test report showing the alleged disease as "negative" and has also produced such copy of test report on record and further contended that respondent/Mother is moving on her legs who is present before this Court thus rebutting the allegations and further contended that the mother is entitled to Hizanat of her male child below the age of 7 years and with regard to Habeas Corpus petition he has contended that such petition is lawful right to seek custody of minor and debar her from the custody of the minor. The learned counsel for the respondent has relied upon PLD 1997 SC 852, 1992 MLD 1460, 2001 PCr.LJ 1724 and 1995 PCr.LJ 474.
5. I have in my consideration the facts contended by the learned Counsel for the petitioner as well as the contentions, objections/reply to the petition on behalf of the respondent.
6. I have in my consideration that upon issuance of notice to the petitioner on the application moved under section 491, Cr.P.C. By the mother in the Court of District and Sessions Judge, under section 491, Cr.P.C, this petition has been moved under Article 199 of Constitution of Islamic Republic of Pakistan 1973 by the father with the prayer to set aside the impugned order passed by the learned ADJ on the Habeas Corpus petition moved by the respondent mother. I have in my respectful consideration that the powers vested under section 491, Cr.P.C. Are coextensive to that of Article 199 of Constitution regarding illegal custody of the children and it is an acknowledged principle of law that preferential right of Hizanat vests with the mother and in a matter of immediate custody of minor can be promptly settled under section 491, Cr.P.C. I have in my respectful consideration the dictum of Superior Courts PLD 2010 Karachi 119, 1999 CLC (Lahore) 1212, wherein the mother has first right of Hizanat to the exclusion of everyone else. The powers vested under section 491, Cr.P.C. Can be invoked under the statute by the District Judge so also by this Court. The crux of the contention of learned counsel for the 'petitioner that the mother' is not entitled to the custody as she is ill and suffering from Tuberculosis (T.B) has been controverted by counsel for the respondent through a medical test report dated 27-11-2013 even otherwise an ailing mother, if it be presumed, cannot be deprived of her right of Hizanat unless she transgresses the dictums of the superior Courts, therefore, looking to the .Right of mother who has instituted a Habeas Corpus petition in the District Court and upon issuance of notice the present petition seems to be lacking in its entirety as no one can be deprived of the right available under the statute. The petitioner instead of contesting the matter before the Sessions Court has approached this Court under the Constitutional jurisdictions, making several pleas which are untenable at this stage as the matter already seized with the District Court under the Habeas Corpus jurisdiction which jurisdiction is unfettered in respect of illegal and improper custody of a person. The plea of the petitioner that he being the father has not kept the custody illegally is a matter of Habeas Corpus wherein the matter with regard to the illegality and improper custody would be determined by the concerned District Court. The petitioner has invoked the constitutional jurisdiction of this Court under Article 199(b)(1) of the Constitution, challenging the legality of proceedings before the Sessions Judge under Habeas Corpus jurisdiction which is without exhausting the adequate remedy available under the law under Article 199(1) of the Constitution as the powers under Article 199 is subject to the Constitution on the satisfaction that no other adequate remedy is provided by law whereas under the Habeas Corpus jurisdiction under section 491, Cr.P.C., the matter is seized with the District Court and, therefore, this petition is dismissed in limine. 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.