' This Constitutional petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, seeking a direction to respondent No,4, Area Magistrate, Model Town, Lahore, for recording the statement of the petitioner under section 164, Cr.P.C. As the learned Magistrate was not under the law, competent to refuse the same and the refusal also made be declared as having been made without any lawful authority.
2. Brief facts giving rise to the instant petition are that case F.I.R. No,109/94, dated 9-3-1994 under section 10/11 of the Hudood Ordinance, 1979 was registered with Police Station Chak Jhumra, District Faisalabad against Zafar Iqbal, Muhammad Iqbal, Mst. Ghulam Fatima and Mst. Zainab Bibi, at the instance of one Gul Sher brother of the petitioner. Mst. Shahnaz in the instant case is alleged to have been abducted by aforesaid persons. She was subjected to Zina as she is not wedded wife of any of the accused person. The petitioner filed an application through a counsel in the Court of Illaqa Magistrate, Model Town, Lahore to get the statement recorded under section 164, Cr.P.C. This application is without any date. The request made in the application was statedly declined. Hence this petition.
3. Learned counsel for the petitioner submits that Illaqa Magistrate Model Town, Lahore was under statutory obligation to record the statement of the petitioner as he could not under the law refuse to record the same. In support of it, he maintains that whosoever approaches any Illaqa Magistrate of any area, to get the statement recorded either he is an accused person or a witness of any case, registered in any police station, the Magistrate is left with no choice except to record the statement of the petitioner. He vehemently argues that the petitioner has allegedly been abducted and the contents of the application indicate that she was not abducted by anybody and the case has falsely been registered. Though she has not approached the Investigating Officer to get her statement recorded yet she is entitled to make statement before the Illaqa Magistrate and he is under a statutory obligation to record statement of the petitioner.
4. On the other hand, the learned counsel for the State opposes the petition with full force and states that subsection (1) of section 164, Cr.P.C. Clearly indicates non-mandatory provision and the word "may" is not in all circumstances, be read as "must". He further states that the abductee is co- accused in this case and instead of associating with the investigation she has come to Lahore to get her statement recorded under section 164, Cr.P.C. Straightway whereas, the case was registered at Police Station Chak Jhumra, Faisalabad. He further states that neither any application was presented to the Magistrate nor any order was passed on it. No writ of mandamus can he issued in these circumstances.
5. I have heard the learned counsel at full length and have also gone through the facts of the case as well as the provisions of law.
6. Admittedly, the above said case was registered with Police Station Chak Jhumra and petitioner statedly submitted an application before Illaqa Magistrate Model Town, Lahore for recording her statement. The plain reading of the application indicates that there is nothing to show as to whether the application was presented before the Magistrate as no endorsement is available on the photo copy of the application annexed with the petition. It has also not been mentioned as to whether the matter is still at investigation stage or the trial has commenced. Learned counsel for the petitioner has not placed on the record any order refusing to record the statement by the Magistrate. It also does not transpire from the contents of the application that the petitioner had gone to the Investigating Officer to get her statement recorded or she has ever offered herself to associate with the investigation. It does not appear from the details of the application that there was any affidavit filed by the petitioner in support of her contentions made in the application.
6. The statement of the abductee may be very important in connection with the abovesaid crime but it must be recorded before the Investigating Officer first who has been collecting the evidence against the accused persons. It is yet to be established that either the petitioner is an accused person or a witness to the crime. I am afraid how an abductee who is an accused person in the case will be able to secure evidence in defence which she might lead in defence later on at the time of trial.
7. It is true that in some cases the Investigating Officer refuses to record statement, and as a result of his refusal the witnesses or other persons have to approach the Magistrate to record their statements. In the present case no order in writing has been passed by the Magistrate refusing to record the statement of the petitioner. No affidavit to this effect has also been sworn and attached with the application, annexed with this petition. Progress of the case has also not been given. In these circumstances when a private party seeks to invoke the jurisdiction of the Magistrate under section 164, Cr.P.C. He has ample powers to act or refuse to act. Learned Magistrate has not unwisely refused to use his discretionary powers. A simple application under section 164, Cr.P.C.
Addressed to the Magistrate for recording statement which may be necessary for inquiry or trial, does not make obligatory upon the Magistrate to record the statement.
8. For what has been discussed above, no case has been made out for interference in extraordinary constitutional jurisdiction of this Court. Petition fails and is dismissed. 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.