By virtue of this constitutional petition under Article 199, the petitioner has questioned the vires of order dated 02.9.2015 whereby learned Magistrate Ist Class has agreed with the cancellation report prepared by the police in case FIR No.140/2015, dated 12.5.2015, under Section 365-B PPC, registered with Police Station Raja Jang, Kasur.
2. It has been contended by learned counsel for the petitioner that the order passed by learned Magistrate was illegal and not sustainable in the eye of law as the same is passed on the basis of statement of abdcutee namely Iqra Ashraf recorded under Section 164 Cr.P.C. By the Magistrate, which was recorded under some influence. The victim Iqra Ashraf is granddaughter of the petitioner. It has further been argued that record of the case has not been produced before the Court at the time of passing the order. It was strongly argued that second statement under Section 164 Cr.P.C. Was valid as the first statement was made under coercion and the second statement is fully equipped with sanctity and in accordance with law.
3. I have heard the arguments an perused the record.
4. Perusal of record transpires that case FIR No.140/2015, dated 12.5.2015, under Section 365-B PPC, Police Station Raja Jang Kasur was got registered by the petitioner Nawab Din son of Chogata, resident of village Mattah, Tehsil Kot Radha Kishan, District Kasur for the abdcution of her real granddaughter namely Iqra Ashraf aged about 12 years witht eh allegation that some unknown persons kidnapped her for the purpose of ransom and the case under Section 365-B PPC was lodged and the investigation was conducted.
5. It is also available on the record that after registration of case, the alleged abdcutee Iqra Ashraf appeared before the learned Judicial Magistrate on 16.5.2015 with a request to send her Darul Aman and recorded her statement in the following manner:- Keeping in view the above statement of Iqra Ashraf alleged abdcutee, the learned Judicial Magistrate send her to Darul Aman. Thereafter, on 20.5.2015 she moved another application for recording her statement under Section 164 Cr.P.C., which was allowed vide order dated 02.6.2015 and she stated that 'I do make statement that I am Sui Juris. I left the house of my parents. No person has abdcuted me. My grandfather namely Nawab Din has lodged the false FIR and liable to be canceled.'
6. On the basis of said statement, the Investigation Officer recommended cancellation of the case on 05.6.2015, and the Assistant Director Public Prosecution Kasur forwarded a cancellation report to Court for appropriate orders on 18.6.2015. Thereafter, on 23.6.2015, alleged abdcutee was produced before another Judicial Magistrate for recording her statement under Section 164 Cr.P.C. Wherein; she overturned her earlier version and implicated Dr.Aqeel, etc. As culprits of her abdcution. The learned Magistrate, while perusing the available record, agreed with the cancellation report submitted by the police.
7. At this stage, it would be appropriate to reproduce the provisions of Section 164 Cr.P.C. As under:- "Section 164. Power to record statements and confessions.
(1) Any Magistrate of this 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-examination the witness making the statement.
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as it, 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 statement or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tired.
(3) A Magistrate shall, before recording any such confessions 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 that it was made voluntarily: and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:--------"
8. The learned Judicial Magistrate while taking into consideration all the facts of the case by perusing the record and keeping in view the above quoted provision of law has rightly observed that it was a second statement under Section 164 Cr.P.C. Regarding the same cause of action, which has no legal sanctity in the eye of law. In this regard I respectfully refer the case of Majid Khan v. Sessions Judge, Kasur and 5 others (2014 P.Cr.L.J. 903) wherein it has been observed as under:- "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 goad. 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."
9. In view of the above mentioned circumstances, the learned Judicial Magistrate has also further observed that proceedings would amount to be a futile exercise, and thus agreed with the cancellation report submitted by the police through a well reasoned order. I do not find any illegality or irregularity in the order passed by learned Magistrate as the case has properly been investigated after recording the statement under Section 164 Cr.P.C. Of abdcutee before the Court of competent jurisdiction. Previously, she has made a statement to leave her house with her own sweet will by opting Darul Aman to be her place of abode with a request before learned Judicial Magistrate, and thereafter, she made her statement, whereupon; specific questions were asked to her by recording her statement in accordance with law. It is also noticed the alleged abdcutee has also concealed the fact from the Court at the time of recording her second statement under Section 164 Cr.P.C. That she also got recorded her statement under Section 164 Cr.P.C. Earlier.
In view of the above, the order dated 02.9.2015 passed by learned Judicial Magistrate Kasur has no illegality or perversity, therefore, this petition is dismissed in limine.