' This order will dispose of Writ Petition No,15825 of 2001 as well as Writ Petition No,15727 of 2001 as similar and identical question of law is involved in both the petitions.
2. The petitioner has moved this writ petition which has arisen on account of various amendments made in the procedure and also by introduction of devolution plan. Judiciary has been separated from executive and the Civil Judges are performing the functions of Civil Courts as well as Criminal Courts. Previously, any application which was of executive nature or quasi-judicial was used to be moved before the District Magistrate/Additional District Magistrate and. He could mark the same to any of the Magistrate to record the statement under section 164, Cr.P.C. Or the confessional statement as the case, may be. After abolition of the office of the D.M. And A.D.M. These powers, of course, have been conferred upon the Sessions Judge but the fact remains that he being the Principal Judicial Officer of the District may not perform the functions of executive or quasi-judicial nature as successor of D.M. However, the Senior Civil Judge who has been invested with the powers of Judicial Magistrate being senior to all Civil Judges, the application for getting statement recorded under section 164, Cr.P.C. May be moved before him who may record the statement himself or may mark the same to any of the learned Civil Judge with powers of Judicial Magistrate.
2. Although the learned Additional Advocate-General, Punjab has opposed the prayer on the ground that no writ can be issued directing a Magistrate to record statement under section 164, Cr.P.C. Because it is discretionary with the Magistrate to record the same or not to record the same.
In support of his contention, he has cited Mst. Shehnaz v. The State and 3 others 1995 PCr.LJ 868 (Lahore) and Mst. Ishrat Bibi v. S.H.O. And another 1996 PCr.LJ 1019 wherein it was held that there is no vested right with any person to get his/her statement recorded under section 164, Cr.P.C. May be that is true but in order to obtain a true or credible version, the statement under section 164, Cr.P.C.
Has always been treated as a voluntary statement made before a Magistrate and its authenticity against statement under section 161, Cr.P.C. Has always been considered to be of higher value.
3. Both the writ petitions are, therefore disposed of with the observations made above.