1. The petitioner was the abductee in case F.I.R. No. 290 of 2001 dated 26/ 27-8-2001, got registered by nephew of the petitioner with Police Station Jalalpur Bhattian, District Hafizabad. The petitioner was recovered by the Investigating Officer and an application was moved to the Special Judicial Ilaqa Magistrate for recording her statement under section 164, Cr.P.C. But the, prayer of the Investigating Officer was turned down by the Judicial Magistrate vide impugned order dated 25-9-2001 with the reason that as the accused have not been arrested, therefore, the statement under section 164, Cr.P.C. Cannot be recorded without providing opportunity to, the accused for cross-examination of the witnesses produced by the Investigating Officer. The petitioner moved an application to the learned Sessions Judge, Hafizabad who also directed the. Judicial Magistrate for recording her statement but the Judicial Magistrate failed to comply with the order. Hence the instant Constitutional petition.
2. Report was called for from the Special Judicial Magistrate, Pindi Bhattian who has submitted report and taken the same stand that he had not recorded the statement as in his opinion, according to section 164 Cr.P.C. An opportunity was to be provided to the accused for cross-examining the witnesses.
3. After hearing the learned counsel for the parties and with their valuable assistance, I have examined the provisions of section 164, Cr.P.C. And case-law reported as Mst. Mumtaz Akhtar v.
4. Ilaqa Magistrate, Chakwal and two others 1997 M LD 3021 and Muhammad Ramzan v. The State 1981 PCr.LJ 1324 and an unreported judgment dated 10-2-2002 in Writ Petition No. 1935 of 2002, wherein the provisions of section 164, Cr.P.C. Have been interpreted and it has been laid down that the statement under section 164, Cr.P.C. Can be got recorded either by the P.W. Himself and on the application of the complainant or by the Investigating Officer and the Judicial Magistrate has to observe the legal formalities and precautions provided in section 164, Cr.P.C. The accused although has been given the right to cross-examine the witnesses but recording of statement cannot be deferred till the arrest of accused as the same may prejudice/damage the case of the prosecution.
5. Therefore, the order of the Magistrate to defer the recording of statement under section 164, Cr.P.C.
6. To be recorded at a later stage in presence of the accused so than he be able to cross-examine the witness is not legal or based on correct interpretation of law. Therefore, the petition is allowed and the impugned order dated 25-9-2001 is set aside and respondent No.2 is directed to record the statement of the witness as and when she appears before him.