TARIQ SALEEM SHEIKH, J. This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, assails the vires of order dated 2.9.2021 passed by the Judicial Magistrate, First Class, Lahore.
2. The facts giving rise to this petition are that on 3.8.2021 Muhammad Fayyaz lodged FIR No.2462/2021 under section 365-B, P.P.C. at Police Station Chung, Lahore, against unknown persons regarding abduction of the Petitioner, his 21-year-old daughter. On 8.8.2021 the Petitioner appeared before the Investigating Officer, Nawaz/ASI, and stated that Respondents Nos.5 and 6 and Zafar Hayat son of Muhammad Abdullah had abducted her. The Investigating Officer recorded her statement under section 161, Cr.P.C. and the following day produced her before the Judicial Magistrate for her statement under section 164, Cr.P.C. who fixed the matter for 12.8.2021 and also summoned Respondents Nos.5 and 6. On 12.8.2021 the Judicial Magistrate recorded her statement and Respondents Nos.5 and 6, who were produced in custody, cross-examined her. On 30.8.2021 the Petitioner moved an application before the Judicial Magistrate for recording her statement under section 164, Cr.P.C. again which was dismissed vide order dated 2.9.2021 on the ground that there was no justification therefor. Hence, this petition.
3. The learned counsel for the Petitioner contended that section 164, Cr.P.C. neither expressly nor impliedly prohibited recording of statement for second time. Even if it was assumed that the Magistrate had a discretion in the matter it had not been properly exercised in the instant case.
The Petitioner's first statement was not voluntary as it was maneuvered by Nawaz/ASI who was working hand in glove with the accused.
4. The learned Assistant Advocate General and the learned counsel for Respondents Nos.5 and 6 vehemently opposed this petition. They argued that a person's second statement under section 164, Cr.P.C. could only be recorded in exceptional circumstances. A Magistrate was obligated to act judicially while considering such requests. In the present case, the Judicial Magistrate had given good reasons for declining the Petitioner's application so the impugned order dated 2.9.2021 should be upheld.
Discussion 5.. Section 164, Cr.P.C., which is required to be interpreted in this case, reads as follows:
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 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.
(IA) Any such statement may 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) 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 questioning the person making it, he has reasons 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: ... ...
Explanation.---It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case.
6. Section 164, Cr.P.C. empowers the Magistrates of the First Class and those of the Second Class, who are specially invested with such power by the Provincial Government, to record any confession or statement of a person made in the course of investigation by the police or (when the investigation has been concluded) at any time afterwards but before the commencement of the inquiry or trial. The Explanation clarifies that the said Magistrates may exercise these powers even if they do not have jurisdiction in the case. While commenting on section 164 of India's Code of Criminal Procedure, 1973, which is part materia with Pakistan's Code of 1898, Sarkar writes: "Though ordinarily section 164 is made use of when an accused desirous of making a confession is brought to a Magistrate for its record, it is not restricted only to confessions. The section says 'any confession or statement'. It does not specifically mention any person whose confession or statement is to be recorded; it may be an accused or one who may ultimately be an accused, or a witness capable of giving useful information relating to the offence. Again, the 'statement' may be a confession or it may not amount to a confession, or it may be partly confessional and partly exculpatory."[1]
7. The object of section 164, Cr.P.C., is to protect a person against extortion or oppressions[2] or to fix him to it when it is feared that he may resile afterwards or may tamper with it.[3] Inasmuch as this case involves a Statement not amounting to confession, I would restrict myself to it.
8. The Magistrate is required to take down the statement in the manner prescribed by the Code for recording evidence as, in his opinion, is best fitted for the circumstances of the case. It may be recorded in the presence of the accused and he may be afforded an opportunity to cross-examine the maker. In Muhammad Sarfraz Khan v. The Crown (PLD 1953 Lahore 495) a Division Bench of this Court held that a statement under section 164 Cr.P.C. may be recorded not only at the instance of police but also at the request of the accused, the aggrieved person, or the witness himself. This view was reiterated in Mst, Mumtaz Akhtar v. Illaqa Magistrate, Chakwal and 2 others (1997 MLD 3021); Mst. Amina Bibi v. Sessions Judge; Layya h, District Layya h and others (1999 PCr.LJ 2044); Muhammad Yousaf v. The State and 12 others (2002 YLR 397); Mst. Mansab Mai v. The State (2005 YLR 1403) and Abdul Sattar and another v. The State and 3 others (2018 YLR 977).
9. A statement under section 164, Cr.P.C. cannot be accepted as gospel truth as it requires verification through investigation.[4] In Brij Shushan Singh v. Emperor (AIR 1946 PC 38) the Privy Council held that a statement under section 164, Cr.P.C. is not a substantive piece of evidence. It can be used to "cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of court under section 164 is true." A Division Bench of the High Court expressed the same view in Abdul Ghani v.
The State [PLD 1963 (W.P.) Lahore 445]. It held that "164 statements are not substantive evidence in the case and the limited purpose for which the same could be used is to negative the evidence of the witnesses by bringing out contradictions after confronting the witnesses with their previous statements and having those portions of the statements properly proved on the record." The Sindh High Court reiterated this principle in' Abdul Sattar and another v. The State and 3 others (2018 YLR 977). It is, however, pertinent to point out that section 2654, Cr.P.C., which was introduced by the Law Reforms Ordinance, 1972, mandates that the statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity to cross-examine the 'witness, the court may in its discretion if such witness is produced and examined, treat it as evidence in the case for all purposes subject to the provisions of the Qanun-e-Shahadat, 1984 ("QSO").
10. The Legislature has employed the word "may" in subsection (1) of section. 164, Cr.P.C., which clearly shows that the power conferred on the Magistrate is discretionary. In Nazir Ahmad v. King Emperor (AIR 1936 PC 253) the Privy Council held that recording is a matter of duty and discretion and not of obligation. "A Magistrate would not be obliged to record a confession if it were that of a self-accusing mad man or for any other reason he thought it to be incredible or useless for the purpose of justice, e.g. when he is not satisfied about its voluntary native." It follows that the Magistrate is not obligated to entertain every request for recording a statement but has to act judicially and accept it only if would advance the cause of justice. In Mst. Kaisoom Bibi v. District and Sessions Judge, Bahawalpur, and another (2009 MLD 421) this Court held: "Plain reading of the [section 164; Cr.P.C.) denotes that the power given to the Magistrate is of discretionary nature ... Of course, this discretion has to be 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 ... 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."
The above view was reiterated in Shabina Naz v. Special Judicial Maristrate and another (2011 MLD 722).
11. Section 164, Cr.P.C. does not prohibit the Magistrate from taking down the statement of a person if he has got one recorded earlier. However the person making the request must give good reasons for it and the Magistrate may decline it if he is not satisfied. In Fozia Shabbir v. Additional Sessions Judge, Lahore and 8 others (PLD 2006 Lahore 304), the High Court held that the first statement must be voluntary if it is to stand in the way of the second. On the facts of the said case the Court found that F was not a "free agent" at the time of her first statement so it allowed her to get it recorded again. In Fozia Perveen v. Judicial Magistrate Section 30, Khushab, and another (2007 YLR 2919) the Court passed similar order because it appeared that the girl had made her first statement under duress. In Manzoor Hussain v. Special Judicial Magistrate and 2 others (2008 YLR 2679) permission for second statement was granted as there were serious allegations of misconduct against the Investigating Officer and the Magistrate's Reader. However, in Majid Khan v. Sessions Judge, Kasur, and 5 others (2014 PCr.LJ 903) the High Court refused permission as the circumstances reflected that the request was mala fide. N wanted to entangle M in further litigation. The analysis of these authorities leads to an ineluctable conclusion that the decision depends on the facts of each case. Nevertheless, it may be emphasized that where a person alleges that his previous statement was involuntary or procured through coercion, the onus is on him to prove that it was so.
12. In the present case, on 9.8.2021 the Investigating Officer produced the Petitioner before the Judicial Magistrate to get her statement recorded under section 164, Cr.P.C. who fixed the matter for 12.8.2021 and summoned Respondents Nos.5 and 6 for that date. In her statement recorded on 12.8.2021 the Petitioner stated that on 3.8.2021 Respondents Nos.5 and 6 abducted her when she was on the way to Noorpur Jacket, took her to a village near Sargodha and confined her in a room.
The next morning they coerced her to sign Nikahnama with Respondent No.5 (Amanullah) and some other documents. As soon as she got, an opportunity she escaped from their custody and reached her, parents. The Petitioner categorically stated that the accused did not violate her chastity. She was cross-examined at length by Respondents Nos.5 and 6 who were present in custody. The Petitioner subsequently filed a suit for jactitation of marriage against Respondent No.5 in the Family Court at Lahore and moved an application before the Judicial Magistrate for recording her statement under section 164, Cr.P.C. again alleging that Respondent No.5 had, in fact, raped her and she deposed to the contrary at the instance of the Investigating Officer, Nawaz/ASI.
According to her, he had suggested that she should conceal that fact as nobody would marry her if she disclosed it Even if the Petitioner is believed, the element of coercion or duress is conspicuously missing.
Whatever she stated before the Judicial Magistrate was of her own volition and, more importantly, it was on oath. She cannot be permitted to change her stance and aggravate the offence with which Respondents Nos.5 and 6 are charged.
13. The Judicial Magistrate has rightly held that permission for recording second statement of a person cannot be accorded mechanically. There should be exceptional circumstances to justify it which do not exist in the instant case. The learned counsel for the Petitioner has-failed to point out any legal infirmity in the impugned order which may call for interference by this Court. This petition has no merit and is, therefore, dismissed.
1. S.C. Sarkar, The Code of Criminal Procedure (2014), Vol. 1, p. 762
2. Basu's Commentary on Code of Criminal Procedure, 14th Edition, P. 1099
3. S.C. Sarkar, The Code of Criminal Procedure (2014), Vol. 1, p. 770
4. Basu's Commentary on Code of Criminal Procedure, 14th Edition, p.1099