' Briefly stated facts of the case are that the petitioner Mst. Amina Bibi, daughter of Sher Muhammad alias Shera was engaged with one Nausher but her brothers were not happy on the said engagement and wanted to sell her to an old person due.To monetary purposes. She performed her Nikah with Nausher on 22-8-1998 in which the deferred dower was fixed as Rs,5,000 while the prompt dower was fixed four Toklas of gold ornaments. On 4-9-1998 father of the petitioner lodged F.I.R. No,364 of 1998 at Police Station Koror Lal Ban, District Layyah, under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, alleging that Shamir and others had abducted her. During the course of investigation the petitioner expressed that she was never abducted by anybody and that she had rather performed her Nikah with her free consent and in order to bring on record her version she made a written application to respondent No,2, the Judicial Magistrate, Karor, to record her statement under section 164, Cr.P.C. Instead of recording her statement the learned Magistrate is stated to have not even entertained her application and returned the same to her counsel Mr. Muhammad Suleman Gujjar, Advocate. On 23-9-1998 the petitioner made an application to the learned Sessions Judge, Layyah for a direction to the learned Magistrate to record her statement under section 164, Cr.P.C. But the same was dismissed vide order, dated 23-9-1998 by the learned Sessions Judge with the observation that the learned counsel had not been able to show any provision of law under which the Ilaqa Magistrate Judicial Magistrate, Karor may be directed to record the statement under section 164, Cr.P.C. The petitioner has now come to this Court invoking the Constitutional jurisdiction.
2. The arguments have been heard at length on both sides.
3. In this case the point for consideration will be as to whether it is only the police through whom a witness is to be produced and only then his statement under section 164, Cr.P.C. Is to be recorded or the witness can himself appear before the Magistrate for recording his statement. To appreciate this point reference to section 164, Cr.P.C. Is necessary and the same is reproduced as under:-- "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.
(1-A) 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 statements 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 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, questioning 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-- ' I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed)
A.B., Magistrate.
Explanation. It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case."
' The bare reading of the above section shows that the power is conferred on two classes of Magistrates, (1) Magistrate of the First Class and (2) Magistrate of the Second Class especially empowered in this behalf by the Provincial Government.
4. The next important point is that the stage when such a statement can be recorded is the stage "in the course of an investigation under this Chapter" (Chapter XIV) "or at any time afterwards before the commencement of the inquiry or the trial". This means that before the beginning of the investigation and after the commencement of the inquiry or trial a statement under section 164, Cr.P.C., cannot be recorded. Another important thing is that by the addition of subsection (1-A) in section 164, Cr.P.C., such a statement may be recorded by such Magistrate in the presence of accused and the accused may be given an opportunity of cross-examining the witness making the statement. Now the question is as to whether such a statement can be recorded only at the instance of the police. It has been made clear by this Court in the case. Muhammad Sarfraz Khan v.
Crown PLD 1953 Lah. 495 by a Division Bench comprising of their Lordships Muhammad Munir, Chief Justice and Mr. Justice Muhammad Sharif, before whom an objection was taken to the admissibility of the statement recorded at Lahore on the ground that the statement was not made in the course of police investigation and that if so made, it was recorded by the Magistrate who had no jurisdiction to record it and their Lordships observed:-- "In our view the words 'in the course of an investigation' in section 164, Cr.P.C. As would appear from the succeeding words 'or at any time afterwards before the commencement of the inquiry' mean ' while the investigation is in progress', and a statement under that section may be recorded not only at the instance of the police but also at the instance of the accused or the aggrieved person or at the request of the witness himself. The authority to record statements in the course of police investigation does not exclusively vest in the Magistrates competent to take cognizance of the offence. The section itself expressly states that it is not necessary that the Magistrate recording such statement should, have jurisdiction in the case, and there is a series of cases in which confessions recorded under that section by Magistrate in Indian States and foreign jurisdictions have been admitted in evidence. In any case we have no doubt that that portion of Mst. Gulzar Begum's statement in which she alleged that the police was compelling her to make a particular statement was in the nature of a complaint which is admissible under section 157 of the Evidence Act because it was made shortly after the fact, the relevant fact in the present case being that pressure was being exerted upon her not to speak the truth and to make a false statement in Court. We are fully satisfied that the evidence of this witness is true and that she has neither suppressed any material facts no: exaggerated her story."
' In the same case an objection was taken by the learned counsel for the appellant to the admissibility of the statement of a witness recorded by a Magistrate who was incompetent to record it. Their Lordships observed:-- "Under section 164 of the Code of Criminal Procedure the statement of a witness can be recorded in the course of police investigation only by a Magistrate of the First Class or by a Magistrate of the Second Class if he has been especially empowered for the purpose. In the present case the recording Magistrate was only a Third Class Magistrate, and, therefore, the question which requires determination is whether the statement of a witness recorded by an incompetent Magistrate immediately after the occurrence can be used to corroborate his subsequent testimony in Court. If Saeed Ahmad had died, the statement, on the authority of Sulaiman v. The King AIR 1941 Rang. 301, Rehman v. Emperor AIR 1932 Lah. 14, Chandigarh v. Emperor AIR 1930 Lah. 60, Nur Muhammad v.
Crown (Criminal Appeal No,319 of 1939), would have been admissible as a dying declaration even though it was recorded by a Third Class Magistrate. The point sought to be made by Mr. Saleem is that from the Privy Council decision in Nazir Ahmad's case ILR 17 L 629 it must follow that no statement recorded by a Magistrate during police investigation can be admitted as a dying declaration if it has not been recorded by a Magistrate of the First Class or by a specially empowered Magistrate of the Second Class. The case before the Privy Council was one of an improperly recorded confession. Now the law itself provides that when a confession has to be recorded by a Magistrate in the course of police investigation, the Magistrate, before he proceeds to record the confession, must warn the prisoner that he is not under any obligation. To make a confession and that the concession, if made, may be used as evidence against him, and it is only after he has given this warning that he can proceed to record the confession, and that too if after questioning the prisoner he is satisfied that the confession he is going to make would be made voluntarily. The classes of Magistrate who are competent to record confessions are specified and the lowest class declared competent for the purpose is class II if specially empowered for the purpose. No such procedure, however, has been prescribed by law where the statement to be recorded is not a confession but a statement of ( witness. It is true that under section 164, Criminal Procedure Code, the only Magistrate who is competent to record the statement of a witness is a First Class Magistrate or a specially empowered Second Class Magistrate and that the statement has to be taken down in the manner prescribed by the Code of Criminal Procedure. But a Magistrate recording a statement under that section is not required to give any such warning as is necessary in the case of a confession and it is this difference in the recording of the confession of an accused and the statement of a witness that Courts subsequently, to the Privy Council decision in Nazir Ahmad's case have held that even where the statement of a dying man is recorded by incompetent Magistrate in the course of police investigation, the case is not governed by the principle of that authority, and that the statements of deceased persons though recorded by an incompetent Magistrate in the course of police investigation are admissible as dying declarations.
We do not wish to differ from that view detailed reasons for which are given in the unpublished Division Bench judgment of our own Court in Nur Muhammad v. Crown (supra). In England such statements are admissible to whom soever made, and we are unable to discover any valid reason for their exclusion when they are made in the course of police investigation to a Magistrate of an inferior class. It is not contended that if a statement is made during investigation by an injured person to another person who is not a Magistrate, it would be inadmissible like a confession made to such person during police investigation. That being the position we do not see why such statement should be inadmissible merely because the person who heard and recorded it happened to be a Magistrate. The contrary view, if accepted, would deprive the Court of very valuable information about crime and in the absence of a clear statutory direction we are not disposed to give effect to it.
' If we are right in the view we take of the admissibility of dying declarations made to incompetent Magistrates during police investigation, it must follow that statements of witnesses recorded by such Magistrates in the course of Police investigation must become admissible under section 152, Evidence Act, provided the other essential conditions of that section are satisfied. In the present case the statement was made immediately after the occurrence when the facts to which the statement related were fresh in the mind of the witness and, therefore, the statement is admissible, not substantive but as corroborative evidence, and if it is so admissible it is a complete corroboration of Saeed Ahmad's evidence at the trial."
5. The return of the application of the petitioner with refusal to record her statement under section 164, Cr.P.C. By the Judicial Magistrate, Karore seems to be due to miss appreciation of the law. The language of section 164, Cr.P.C. Empowers, a Magistrate of First Class and a Magistrate of Second Class especially so empowered, to record the statement under that section. Section 30, Cr.P.C.
Empowers the Provincial Government to invest any Judicial Magistrate or any Magistrate of First Class with powers as a Magistrate to try all offences not punishable with death.
6. Part II of the Code of Criminal Procedure deals with the Constitution and Powers of Criminal Courts and Offences. Chapter II of this Part deals with the Constitution of Criminal Courts and Offences and under Head "A" of Chapter 11, Classes of Criminal Courts are mentioned while Heading "B" deals with territorial Divisions, Heading "C" deals with Courts and Offices, Heading "D" which dealt with Courts of Presidency Magistrates had been omitted and heading "E" deals with Justice of the peace. In total 'there were 22 sections (sections 6 to 27) out of which sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 22, 22-A, 22-B and 25 are on the statute book while the other sections have been omitted by various amending statutes from time to time.
7. Section 6 reads as under:-- "6. Classes of Criminal Courts and Magistrates.--- (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:
(i) Courts of Sessions;
(ii) Courts of Magistrates.
(2) There shall be the following classes of Magistrates, namely: (i) Judicial Magistrates--
(1) Magistrates of the First Class.
(2) Magistrates of the Second Class.
(3) Magistrates of the Third Class.
(4) Special Judicial Magistrate. (ii) Executive Magistrates:--
(1) District Magistrates.
(2) Additional District Magistrates.
(3) Sub-Divisional Magistrates.
(4) Special Executive Magistrates.
(5) Magistrates of the First Class.
(6) Magistrates of the Second Class.
(7) Magistrates of the Third Class.
' It shows that the Judicial Magistrates are of four classes. (1) Magistrate of First Class (2)
Magistrate of Second Class. (3) Magistrate of ' ' 'Third Class and (4) Special Judicial Magistrate.
' Section 12 reads as under:-- "12. Subordinate Magistrates.--- (1) The Provincial Government may appoint as many persons as it thinks fit to be Magistrates of the first, second or third class in any District and may from time to time define local areas within which such person may exercise all or any of the powers with which they may respectively be invested under this Code.
(2) Local limits of their jurisdiction.--- Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such District.
' Section 14 deals with Special Judicial and Executive Magistrates and reads as under:-- "14. Special Judicial and Executive Magistrates.--- (1) The Provincial Government may on the recommendation of the High Court, confer upon any person all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate in respect to particular cases or to a particular class or particular classes of cases, or in regard to cases generally in any local area.
(2) Such Magistrates shall be called Special Judicial Magistrates, and shall be appointed for such term as the Provincial Government may, in consultation with the High Court by general or special order, direct.
(3) The Provincial Government may also appoint Executive Magistrate for particular areas or for performance of particular functions and confer upon them or any of the powers conferred or conferrable by or under this Code on an Executive Magistrate.
(4) Such Magistrates shall be called Executive Magistrates, and shall be appointed for such term as the Provincial Government may, by general or special order, direct; ' Provided that no powers shall be conferred under this subsection on any Police Officer below the grade of Assistant Superintendent, and no powers shall be conferred on a Police Officer except so far as may be necessary for preserving the peace, preventing crime and detecting apprehending and detaining offenders in order to their being brought before a Magistrate, and for the performance by the officer of any other duties imposed upon him by any law for the time being in force.
(5) The Provincial Government may delegate subject to such limitations as it thinks fit, to any officer under its control the powers conferred by subsection (3)."
' Section 17 makes it clear that Judicial Magistrate and Benches shall be subordinate to the Sessions Judge. It reads as under:-- "17. Subordinate of Judicial Magistrates and Behches to Sessions Judge.- (1) All Judicial Magistrates appointed under sections 12 and 14 and all Benches constituted under section 15 shall be subordinate to the Sessions Judge, and he may from time to time, make rules or give special orders consistent with this Code and any rules framed by the Provincial Government under section 16, as to the distribution of business among such Magistrate and Benches.
(2) Subordination of Executive Magistrate to District Magistrates.--- All Executive Magistrates appointed under sections 12, 13 and 14 shall be subordinate to the District Magistrate and he may, from time to time, make rules or give special orders consistent with this Code and any rule framed by the Provincial Government under section 16, as to the distribution of business among such Magistrates.
(2-A) Subordinate of Executive Magistrates to Sub-Divisional Magistrate---.Every Executive Magistrate (other than a Sub-Divisional Magistrate) in a Sub-Division shall also be subordinate to the Sub-Divisional Magistrate, subject, however, to the general control of the District Magistrate.
(3) Subordination of Assistant Sessions Judges to Sessions Judge.-- All Assistant Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction, and he may, from time to time, make rules consistent with his Code as to the distribution of business among such, Assistant Sessions Judges.
(4) The Sessions Judge may also when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge and such Judge shall have jurisdiction to deal with any such application."
8. The above survey of the relevant sections makes it clear that the Judicial Magistrate being a Magistrate of the First Class was competent to record statements and confessions during the police investigation under section 164, Cr.P.C. And in the light of the judgment in Muhammad Sarfraz Khan's case (supra) a witness can also go to a Magistrate for getting his statement under section 1(4. Cr.P.C. In the course of an investigation and it is not necessary that the witness should have been produced by the police. A duty was cast upon the learned Magistrate to exercise the power honestly, fairly and justly. Not to touch the application of the petitioner was not proper on the part of the Magistrate. He should have entertained it and thereafter, if he was of the view that he has not to record the statement refusal must be made through a written order and that too with cogent reasons. The reason is that the law has not left the discretion without supervision. The learned Sessions Judge was also not justified in dismissing the application on the ground that the learned counsel has not been able to show him any provision of law under which the Ilaqa Magistrate or Judicial Magistrate, Karor might be directed to record the statement under section 164, Cr.P.C.
9. In the case of Nazir Ahmad v. King-Emperor AIR 1936 PC 253 it was observed by their Lordships:-- "It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well-recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way and not at all. This doctrine has often been applied to Courts--- 1 Ch. D 426 (19) at p.431--- and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to section 164."
Discretion is discerning between right and wrong, and therefore, whoever has power to act at discretion, is bound by the rule of reason and law and though there be a latitude of discretion given to one, yet he is circumscribed that what he does be necessary and convenient, without which no liberty can defend it. Discretion must be exercised honestly and in the spirit of the statute. It is not to be arbitrary, vague and fanciful but legal and regular, to be exercised not capriciously but on judicial grounds and for substantial reasons.
10. Part VII, Chapter XXXI of the Code of Criminal Procedure deals with appeals. Section 404 makes it clear that no appeal shall lie except as provided for by this Code or by any other law for the time being in force. There is no cavil with the proposition that section 164, Cr.P.C. Relates to all affairs during the course of investigation and prior to the trial. It does not deal with an affair which is prior to the beginning of the investigation and after the end of the investigation. Chapter XXXII deals with Reference and Revision. Section 435 reads as under:-- "435. Power to call for records of inferior Courts.--- (1) The High Court or any Sessions Judge my call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
' Explanation. All Magistrates shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection."
' Section 439-A, Cr.P.C. Reads as under:- "439-A. Sessions Judge's power of revision.--- (1) In the case of any proceedings before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439.
(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Sessions Judge."
' Section 439, Cr.P.C. Reads as under:--
439. High Court's powers of revision.--- (1) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defense.
(3) Where the sentence dealt with under this section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Magistrate of the First Class.
(4) Nothing in this section shall be deemed to authorize a High Court:--
(a) to convert a finding of acquittal into one of conviction, or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A.
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction."
The provisional power is conferred to see the propriety, correctness and legality of every proceedings before a lower Court by a higher Court. A proceeding under section 164, Cr.P.C., is, therefore, revisable and the learned Sessions Judge should have been aware of his own powers under the Code. His remarks while dismissing the application of the petitioner are, therefore, unwarranted and the impugned order of the learned Sessions Judge is, therefore, set aside and the conduct of the Magistrate is also not approved. He is directed to entertain the application of the petitioner and proceed strictly in accordance with law. The petitioner is directed to appear before the Magistrate on 20-10-1998.