P L D 2022 Lahore 545

Before Muhammad Amjad Rafiq, J

Mst. HIRA BIBI---Petitioner
Versus
The STATE and others---Respondents
Writ Petition No. 1556 of 2022, decided on 24th January, 2022.
(a) Criminal Procedure Code (V of 1898)---
----S. 164---Power to record statements and confessions---Scope---Word
"any Magistrate" means as explained in S. 164, Cr.P.C. includes Judicial
Magistrate and Special Judicial Magistrate as per definition of
"Magistrate" given in S.4(ma), Cr.P.C. even if they have no jurisdiction
in the case---Such Magistrates are authorized to record any statement
or confession during investigation or afterwards before the
commencement of the inquiry or trial.
Mst. Amna Shaheen v. State and others PLJ 2021 Lah. 645 and Mst.
Asma Bibi v. State and others (Writ Petition No. 2335 of 2021) ref.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 164, 36 & 37---Power to record statements and confessions---
Ordinary powers of Magistrates---Additional powers conferrable on
Magistrates---Scope---Investigation is a process of collection of
evidence wherever it may be found, a recurring offence in more than
one jurisdiction supply part evidence in a place and pieces are brought
together to complete the picture---Authorized Criminal Courts are
competent to inquire or try an offence as per scheme regulated under
Ss.177 to 189 of Cr.P.C.---Magistrates were given ordinary and special
powers to play a role in the processes like remand, issuance of arrest
warrants, search warrants, proclamation, inquest, bails, recording of
statements and confessions---Such ordinary and special powers are
entrusted under Ss. 36 & 37 of Cr.P.C.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 164, 6, 12 & 17---Power to record statements and confessions---
Classes of Criminal Courts---Subordinate Magistrates---Limits of their
jurisdiction---Subordination of Magistrates and Benches to District
Magistrate---Scope---Section 164, Cr.P.C. falls in Chap. XIV of Cr.P.C.
which encompasses Ss. 154 to 176, Cr.P.C., it entails steps relating to
investigation in which Magistrate performs different functions---Under
S. 6 of Cr.P.C. there are different classes of Magistrates under Code of
Criminal Procedure and such Magistrates can be appointed by the
Provincial Government in any district whose local areas are defined
within which they may exercise all or any of the powers they are
invested with under the Code---Under S. 12 of Cr.P.C. local limits of
their jurisdiction can also be defined which shall extend throughout
any district where they are posted---Sessions Judge of the area under S.
17 of Cr.P.C. can also frame rules or give special orders consistent with
the Code as to the distribution of business among such Magistrates
because they are subordinate to the Sessions Judge by virtue of said
section.
(d) Criminal Procedure Code (V of 1898)---
----Ss. 36, 37, 39 & 40---Ordinary powers of Magistrates---Additional
powers conferrable on Magistrates---Mode of conferring powers---
Powers of officers appointed---Scope---Ordinary powers of Magistrates
which they can exercise by virtue of their office as a Magistrate are
mentioned in S. 36 of Cr.P.C. and such powers are listed in the Third
Schedule of Cr.P.C.---Similarly, under S. 37, Cr.P.C., Magistrates can be
conferred upon additional powers as mentioned in Fourth Schedule of
Cr.P.C. and mode of conferring powers as mentioned in S. 39 of Cr.P.C.
is reflective of the fact that powers can be conferred by the Provincial
Government either by name or in virtue of their office or classes of
officials generally by their official title---Once the power is given, the
Magistrate shall unless the Provincial Government otherwise directs
or has otherwise directed, exercise the same powers in the local area
in which he is so appointed---Until the Provincial Government
withdraws all or any powers once conferred under the Code on any
Magistrate, he shall continue exercising such powers wherever he is
appointed as a Magistrate as ordained in S. 40 of Cr.P.C.
(e) Criminal Procedure Code (V of 1898)---
----Ss. 164 & 12---Subordinate Magistrates---Local limits of jurisdiction---
Power to record statements and confessions---Scope---Ordinary Powers
of Magistrate as enumerated in Third Schedule of Cr.P.C. include
power to record statement and confession under S. 164, Cr.P.C. which
fact is listed at Serial No. '7a' of said Schedule under ordinary powers
of a Magistrate of the First Class---Magistrate appointed in a district is
whenever approached for the purpose of recording statement of a
witness he cannot refuse recording thereof on the ground that case is
one which has not been registered in his local district---Section 12(2) of
Cr.P.C. means that a Magistrate working in a district can act as a trial
court and exercise ordinary powers as Magistrate within the precincts
of that district only---Magistrate appointed in a District 'A' and he while
posted as such cannot be called to District 'B' for exercising his
ordinary powers as Magistrate but if somebody approaches him from
any other district and solicits to exercise his ordinary powers like
recording of statement or confession, he cannot refuse to honour such
request when S. 164, Cr.P.C. authorizes him to forward such statements
or confessions to the Magistrate by whom the case is to be inquired
into or tried---Such is also in consonance with the Explanation
attached to S. 164, Cr.P.C. which says that it is not necessary that
Magistrate receiving and recording a confession or statement should
be a Magistrate having jurisdiction in the case.
Mst. Amna Shaheen v. State and others PLJ 2021 Lah. 645 ref.
(f) Criminal Procedure Code (V of 1898)---
----S. 164---Power to record statements and confessions---Scope---Scope
of investigation in a case usually extends to collection of different
pieces of evidence which can be gathered from wherever they may be
found either within the district or out of district---Some of the offences
have a recurring effect which starts in one district but ensued in
another; in such eventuality if a witness is found out of district or an
accused is arrested as such and police, in order to secure the evidence
cannot take risk of their transportation before the concerned district,
can produce them before the nearest Magistrate, so that evidence may
be recorded at every early possibility, that is the reason S. 164, Cr.P.C.,
contains word "any Magistrate", even if he has no jurisdiction at all---
Statements and confessions promptly recorded carry comparably
more evidentiary value because there remain remote chances to think,
concoct or fabricate the facts, even influence of external factors are
ruled out.
Lal Singh v. Emperor AIR 1938 All 625 and Mst. Amina Bibi v.
Sessions Judge Layyah, District Layyah and others 1999 PCr.LJ 2044
ref.
Muhammad Sarfraz Khan v. The Crown PLD 1953 Lah. 495 rel.
(g) Criminal Procedure Code (V of 1898)---
----Ss. 82, 84, 85, 86, 99 & 186---Where warrant may be executed---
Warrant directed to police-officer for execution outside jurisdiction---
Procedure on arrest of person against whom warrant issued---
Procedure by Magistrate before whom person arrested is brought---
Disposal of things found in search beyond jurisdiction---Power to issue
summons or warrant for offence committed beyond local jurisdiction--
-Magistrate's procedure on arrest---Scope---Some of the functions,
Magistrate performs during investigation, like when an accused is
required to be removed to tribal area for the purpose of investigation
where the FIR is registered; Magistrate, in whose district such accused
is available, is authorized to inquire and then order for removal out of
jurisdiction---Likewise, when a warrant is issued to a police officer, he
is authorized to execute it throughout Pakistan as per S. 82 of Cr.P.C.
and if he arrests the accused out of the district, he is required to
produce him before the Magistrate of that district as per Ss. 84 & 85 of
Cr.P.C. in order to regulate his custody so as to take security or release
him on bail as mentioned in S. 86 of Cr.P.C. or authorize his removal to
district concerned---If at that time police officer considers that
statement of accused or confession is to be secured, he can request
that Magistrate and it is not expected that Magistrate should refuse to
record his statement or confession simply on the ground of lacking
territorial jurisdiction---Under S. 99 of Cr.P.C. when in pursuance to a
search warrant, anything is found beyond jurisdiction, police officer is
required to produce that thing before the Magistrate of that
jurisdiction who authorizes its removal to the court concerned---Even
under S.186, Cr.P.C., when any person is arrested in his local
jurisdiction, Magistrate can attend to the case for transportation of
accused to the respective district for the purpose of trial. All such
functions are to facilitate the investigation of a case and not to deflect
it.
Shabina Naz v. Special Judicial Magistrate and another 2011 MLD
722; Fozia Shabbir v. Additional Sessions Judge, Lahore and 8 others
PLD 2006 Lah. 304; Fozia Perveen v. Judicial Magistrate Section 30,
Khushab 2007 YLR 2919; Manzoor Hussain v. Special Judical Magistrate
and 2 others 2008 YLR 2679; Salman Akram Raja and another v.
Government of Punjab through Chief Secretary, Civil Secretariat,
Lahore and others 2013 SCMR 203; Fateh Shah v. Muhammad Hassan
and 2 others 1983 PCr.LJ 1893 and Mst. Kalsoom Bibi v. District and
Sessions Judge, Bahawalpur and another 2009 MLD 421 ref.
(h) Criminal Procedure Code (V of 1898)---
----S. 164---Qanun-e-Shahadat (10 of 1984), Art. 102---Power to record
statement and confession---Evidence of terms of contracts, grants and
other disposition of property reduced to form of document---Scope---
No prejudice is caused nor statement recorded becomes useless
because when any such statement or confession is recorded by a
Magistrate out of the district, he is required to forward the same to the
Magistrate by whom case is to be inquired into or tried and it is not
necessary to call such Magistrate as witness in the trial in support of
statement recorded by him.
(i) Qanun-e-Shahadat (10 of 1984)---
----Arts. 102 & 91---Criminal Procedure Code (V of 1898), Ss. 164, 364 &
533---Evidence of terms of contracts, grants and other disposition of
property reduced to form of document---Presumption as to documents
produced as record of evidence---Non-compliance of provisions of
S.164 or 364---Scope---Article 102 of Qanun-e-Shahadat, 1984 provides
that anything that is required under the law to be reduced to the form
of a document, no witness is required to prove it but the document
itself---Statement of an accused or his confession, though is admissible
without calling the person who recorded it, but if it has not been
recorded as per provisions of S.164 or 364 Cr.P.C., then, court shall take
evidence that such person duly made the statement recorded and may
call the Magistrate but if confession or statement of accused has been
taken down in accordance with law, court shall presume its
genuineness under Art. 91 of Qanun-e-Shahadat Order, 1984.
(j) Qanun-e-Shahadat (10 of 1984)---
----Arts. 91 & 102---Presumption as to documents produced as record of
evidence---Evidence of terms of contracts, grants and other disposition
of property reduced to form of document---Scope---Presumption under
Art. 91 of Qanun-e-Shahadat, 1984, unless rebutted shall be a proof of
fact contained in the statement or confession---Such document shall
not preclude the admission of oral evidence as to the same fact as
mentioned in Explanation 3 of Art. 102 of Qanun-e-Shahadat, Order,
1984.
(k) Criminal Procedure Code (V of 1898)---
----S. 164---Power to record statement and confession---Presence of
accused---Scope---Objection is usually taken that statement of a witness
recorded out of district deprives the accused to cross-examine the
witness as per provision (1-A) of S. 164, Cr.P.C., because an opportunity
to cross-examine the witness is mandatorily to be given to him---Word
"may" used in the section makes it optional to record the statement in
the presence of accused or not.
Mst. Zainab Bibi v. S.H.O. and others 2003 YLR 3191 and Muhammad
Yousaf v. State and 12 others 2002 YLR 397 ref.
Rana Ali Imran Khan for Petitioner.
Muhammad Amjad Ansari, Assistant Advocate General.
Nisar Ahmad Virk, Deputy Prosecutor General.
ORDER
MUHAMMAD AMJAD RAFIQ, J.---This writ petition has been filed
against order dated 10.01.2021 passed by the learned Judicial
Magistrate Section-30, District Courts, Lahore, whereby he has refused
to record statement of the petitioner under Section 164, Cr.P.C. in case
FIR No.1156/2021 dated 30.12.2021 under Section 496-A, P.P.C. Police
Station Basti Malook, District Multan on the ground that he lacks
territorial jurisdiction as per section 12(2) of Code of Criminal
Procedure, 1898.
2. Learned counsel for the petitioner submits that statement under
Section 164, Cr.P.C. can be recorded by any Magistrate even if he has
no jurisdiction as is mentioned in the explanation attached to Section
164, Cr.P.C. He has placed reliance on case reported as "Mst. Amna
Shaheen v. State and others" (PLJ 2021 Lahore 645) and one
unreported case titled "Mst. Asma Bibi v. State and others" (Writ
Petition No. 2335 of 2021).
3. On the other hand, learned Deputy Prosecutor General supports
the contention of learned counsel for the petitioner.
4. Arguments heard. Record perused.
5. Dogma of statement recorded under section 164, Cr.P.C. carries
two views to its recording on the touch stone of territorial jurisdiction,
question has also been thrown in this case when a female witness
approached the learned Magistrate at Lahore telling him to record her
statement under section 164, Cr. P.C because she apprehends threats to
her life if go for the purpose at Multan where the FIR was registered.
She faced refusal, ground was missed jurisdiction, sin qua non for her
the concerned district of the case. Case has been examined in the light
of object for recording of statement under section 164, Cr.P.C. which
clearly is to secure the evidence for future use. It is to be recorded
during investigation or at any time afterwards but before the
commencement of inquiry or trial. Before throwing some instance of
processes which the Magistrates attend to during investigation and to
better appreciate the contention of learned counsel for the petitioner,
it would be appropriate to reproduce Section 164 Cr.P.C. which is 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 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: -
"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 word "any Magistrate" means as explained in section which
includes Judicial Magistrate and Special Judicial Magistrate as per
definition of "Magistrate" given in section 4(ma) of Cr.P.C., even if they
have no jurisdiction in the case. Such Magistrates are authorized to
record any statement or confession during investigation or afterwards
before the commencement of the inquiry or trial.
6. Investigation is a process of collection of evidence wherever it
may be found, a recurring offence in more than one jurisdiction
supply part evidence in a place and pieces are brought together to
complete the picture. Authorized Criminal Courts are competent to
inquire or try an offence as per scheme regulated under sections 177
to 189 of Cr.P.C. Therefore, Magistrates were given ordinary and
special powers to play a role in the processes like remand, issuance of
arrest warrants, search warrants, proclamation, inquest, bails,
recording of statements and confessions. Such ordinary and special
powers are entrusted under sections 36 and 37 of Cr.P.C. which are as
follows;
36. Ordinary Powers of Magistrates: All Magistrate have the powers
hereinafter respectively conferred upon them and specified in
the Third Schedule. Such powers are called "their ordinary
powers".
37. Additional powers conferrable on Magistrates: On the
recommendations of the High Court, the Provincial Government
may, in addition to the ordinary powers, invest any Magistrate
with any powers specified in the Fourth Schedule.
Section 164, Cr.P.C. falls in Chapter XIV which encompasses sections 154
to 176 Cr.P.C., it entails steps relating to investigation in which
Magistrate performs different functions. As per Section 6 of Cr.P.C.
there are different classes of Magistrates under Code of Criminal
Procedure and such Magistrates can be appointed by the Provincial
Government in any district whose local areas are defined within
which they may exercise all or any of the powers they are invested
with under the Code. As per Section 12 of Cr.P.C. local limits of their
jurisdiction can also be defined which shall extend throughout any
district where they are posted. Sessions Judge of the area under
Section 17 of Cr.P.C can also frame rules or give special orders
consistent with this Code as to the distribution of business among such
Magistrates because they are subordinate to the Sessions Judge by
virtue of said section.
7. As highlighted above, ordinary powers of Magistrates which they
can exercise by virtue of their office as a Magistrate are mentioned in
section 36 of Cr.P.C. and such powers are listed in the Third Schedule
of Cr.P.C. Similarly, under section 37, Cr.P.C., Magistrates can be
conferred upon additional powers as mentioned in Fourth Schedule of
Cr.P.C. and mode of conferring powers as mentioned in Section 39 of
Cr.P.C is reflective of the fact that powers can be conferred by the
Provincial Government either by name or in virtue of their office or
classes of officials generally by their official title. Once the power is
given, the Magistrate shall unless the Provincial Government
otherwise directs or has otherwise directed, exercise the same powers
in the local area in which he is so appointed. Until the Provincial
Government withdraws all or any powers once conferred under this
Code on any Magistrate, he shall continue exercising such powers
wherever he is appointed as a Magistrate as ordained in section 40 of
Cr. P.C.
8. Ordinary Powers of Magistrate as enumerated in Third Schedule
of Cr.P.C. include power to record statement and confession under
Section 164 Cr.P.C. which fact is listed at Serial No. '7a' of said schedule
under Ordinary Powers of a Magistrate of the First Class. So, it is clear
that Magistrate appointed in a district is whenever approached for the
purpose of recording statement of a witness he cannot refuse
recording thereof on the ground that case is one which has not been
registered in his local district. Section 12(2) of Cr.P.C means that a
Magistrate working in a district can act as a trial court and exercise
ordinary powers as Magistrate within the precincts of that district
only. A Magistrate appointed in a District 'A' and he while posted as
such cannot be called to District 'B' for exercising his ordinary powers
as Magistrate but if somebody approaches him from any other district
and solicits to exercise his ordinary powers like recording of statement
or confession, he cannot refuse to honour such request when section
164 Cr. P.C authorizes him to forward such statements or confessions
to the Magistrate by whom the case is to be inquired into or tried. It is
also in consonance with the explanation attached to section 164 Cr.P.C.
which says that it is not necessary that Magistrate receiving and
recording a confession or statement should be a Magistrate having
jurisdiction in the case, as has rightly been held in case reported as
"Mst. Amna Shaheen v. State and others" (PLJ 2021 Lahore 645) and
unreported judgment cited above.
9. Scope of investigation in a case usually extends to collection of
different pieces of evidence which can be gathered from wherever
they may be found either within the district or out of district. Some of
the offences have a recurring effect which starts in one district but
ensued in another; in such eventuality if a witness is found out of
district or an accused is arrested as such and police, in order to secure
the evidence cannot take risk of their transportation before the
concerned district, can produce them before the nearest Magistrate, so
that evidence may be recorded at every early possibility, that is the
reason section 164, Cr.P.C. contains word "any Magistrate", even if he
has no jurisdiction at all. It is trite that statements and confessions
promptly recorded carry comparably more evidentiary value because
there remain remote chances to think, concoct or fabricate the facts,
even influence of external factors are ruled out. Recording of
statement has not been objected to rather given effect by the court in a
case reported as "Lal Singh v. Emperor" (AIR 1938 All 625), wherein
FIR was registered in Agra District and accused was arrested in
Gwalior State which lies to south of Tahsil Bah separated from it by
river Chambal and a great area of ravine country, whose confession as
well as identification parade was conducted by same Magistrate G.B.
Dhekne (Ganesh Bapuji) of Gwalior State and court while relying on
such confession has convicted and sentenced the offender for offence
of dacoity. A statement recorded out of district was declared
admissible into evidence in a case reported as "Muhammad Sarfraz
Khan v. The Crown" (PLD 1953 Lahore 495). First Information Report
was of District Montgomery whereas statement was recorded at
Lahore. The Court has observed in the following terms:-
"Objection has been taken to the admissibility of her statement
recorded at Lahore on the ground that this statement was not
made "in the course of police investigation" and that, if so made
it was recorded by a Magistrate who had no jurisdiction to
record it. 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 "
Similar view was adopted by this court in a case reported as "Mst.
Amina Bibi v. Sessions Judge Layyah, District Layyah and others" (1999
PCr.LJ 2044).
10. Some of the functions, Magistrate performs during investigation,
like when an accused is required to be removed to tribal area for the
purpose of investigation where the FIR is registered; Magistrate, in
whose district such accused is available, is authorized to inquire and
then order for removal out of jurisdiction. Likewise, when a warrant is
issued to a police officer, he is authorized to execute it throughout
Pakistan as per section 82 of Cr.P.C. and if he arrests the accused out of
the district, he is required to produce him before the Magistrate of that
district as per sections 84 and 85 of Cr.P.C in order to regulate his
custody so as to take security or release him on bail as mentioned in
section 86 of Cr.P.C or authorize his removal to district concerned. If at
that time police officer considers that statement of accused or
confession is to be secured, he can request that Magistrate and it is not
expected that Magistrate should refuse to record his statement or
confession simply on the ground of lacking territorial jurisdiction. As
per section 99 of Cr.P.C. when in pursuance to a search warrant,
anything is found beyond jurisdiction, police officer is required to
produce that thing before the Magistrate of that jurisdiction who
authorizes its removal to the court concerned. Even under section 186,
Cr.P.C., when any person is arrested in his local jurisdiction, Magistrate
can attend to the case for transportation of accused to the respective
district for the purpose of trial. All such functions are to facilitate the
investigation of a case and not to deflect it. Though in case reported as
"Shabina Naz v. Special Judicial Magistrate and another" (2011 MLD
722) it has been held that it is discretionary with the Magistrate to
record the statement, and he can refuse when witness could not justify
recording of his statement out of district, but this judgment has also
impliedly expounded a rule that statement can be recorded by a
Magistrate out of a district. In a case reported as "Fozia Shabbir v.
Additional Sessions Judge, Lahore and 8 others" (PLD 2006 Lahore
304), this court has held that a statement under Section 164 Cr.P.C. can
be recorded more than once and there is no bar for its recording if
first statement of witness was recorded under coercion or was against
his/her will or consent. Similar was the view expounded in cases
reported as "Fozia Perveen v. Judicial Magistrate Section 30, Khushab"
(2007 YLR 2919) and "Manzoor Hussain v. Special Judical Magistrate
and 2 others" (2008 YLR 2679). The Hon'ble Supreme Court of Pakistan
while dealing with the question has issued an Obiter Dicta that
statements of victims of rape should be recorded under Section 164
Cr.P.C. preferably by a female Magistrate because victims of rape
usually show reluctance to appear before male Magistrate as they
cannot express their agony appropriately before them, therefore, it is
more appropriate if the statement of victim is recorded by a female
Magistrate wherever available. The word "wherever available"
connotes that it can be even out of the district. Reliance is placed on
case reported as "Salman Akram Raja and another v. Government of
Punjab through Chief Secretary, Civil Secretariat, Lahore and others"
(PLJ 2013 SC 107); equivalent citation (2013 SCMR 203).
11. In case reported as "Fateh Shah v. Muhammad Hassan and 2
others" (1983 PCr.LJ 1893) passed by this Court though it is mentioned
that in propriety and practice witnesses should have been directed to
appear before their Illaqa Magistrate for recording of their statements
under Section 164, Cr.P.C. but with utmost respect with this case law it
was not dealing with the question of recording of statement under
Section 164, Cr.P.C. rather it was a bail matter in which learned Court
has commented upon said section. Another judgment of this Court
reported as "Mst. Kalsoom Bibi v. District and Sessions Judge,
Bahawalpur and another" (2009 MLD 421) though reiterated the same
view but it has also been considered therein that statement under
Section 164, Cr.P.C. can be recorded out of the district when it is
beyond the control of maker of such a statement or confession to get it
recorded in the District concerned. Rule 4(f ) of Chapter 13 of Volume-
III of Lahore High Court Rules and Orders also supports the above said
view. Recording of confession and statements under section 164, Cr.P.C.
is also regulated under Rules 25.27 and 25.28 of Police Rules, 1934 and
more elaborately in Appendix No. 25.27 of said Rules.
12. As highlighted above, recurring offences like abduction or
kidnapping and some others as per Section 181 Cr.P.C. can also be
inquired into or tried by a Court within the local limits of whose
jurisdiction the person is kidnapped or abducted or conveyed or
concealed or detained. Similar is the explanation mentioned in Rule
25.30 of Police Rules, 1934 which is as under:-
Place of trial.---With regard to the place of trial of cases falling
under Sections 179-183, Code of Criminal Procedure, police
officers shall act solely with reference to the public convenience.
Ordinarily such cases shall be sent up for trial in the district in
which the witnesses can attend with the least inconvenience to
themselves.
In this case, same is the situation, the abductee is not in the district of
registration of FIR rather she is living at Lahore, therefore, her
statement should have been recorded by a Magistrate at Lahore, even
if it is unfavourable to the prosecution or otherwise.
13. No prejudice is caused nor statement recorded becomes useless
because when any such statement or confession is recorded by a
Magistrate out of the district, he is required to forward the same to the
Magistrate by whom case is to be inquired into or tried and it is not
necessary to call such Magistrate as witness in the trial in support of
statement recorded by him because Article 102 of Qanun-e-Shahadat
Order, 1984 says as under:-
"Evidence of terms of contracts, grants and other disposition of
property reduced to form of document: When the terms of a
contract, or of a grant, or of any other disposition of property,
have been reduced to the form of a document, and in all cases in
which any matter is required by law to be reduced to the form of
a document, no evidence shall be given in proof of the terms of
such contract, grant or other disposition of property, or of such
matter, except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible
under the provisions hereinbefore contained.
(Underlined supplied)
However, there is an exception to this Article with respect to
confession and statement of accused only which is reflected in section
533 of Cr. P.C, it is as under:-
"Non-compliance with provisions of Section 164 or 364: (1) If any
Court, before which a confession or other statement of an
accused person recorded or purporting to be recorded under
Section 164 or Section 364 is tendered or has been received in
evidence, finds that any of the provisions of either of such
sections have, not been complied with by the Magistrate
recording the statement, it shall take evidence that such person
 duly-made the statement recorded; and notwithstanding
anything contained in the Evidence Act, 1872, Section 91, such
statement shall be admitted if the error has not injured the
accused as to his defence on the merits.
(2) The provisions of this section apply to Courts of Appeal,
Reference and Revision."
(Underlined supplied)
Corresponding to erstwhile section 91 of Evidence Act, 1872, Article
102 of Qanun-e-Shahadat Order, 1984 is holding the field. The above
situation explains that under said Article of Qanun-e-Shahadat Order,
1984, any thing that is required under the law to be reduced to the
form of a document, no witness is required to prove it but the
document itself. However, statement of an accused or his confession,
though is admissible without calling the person who recorded it, but if
it has not been recorded as per provisions of section 164 or 364 Cr.P.C.,
then, court shall take evidence that such person duly-made the
statement recorded and may call the Magistrate but if confession or
statement of accused has been taken down in accordance with law,
court shall presume its genuineness under Article 91 of Qanun-e-
Shahadat Order, 1984.
91. Presumption as to documents produced as record of evidence:
Whenever any document is produced before any Court,
purporting to be a record or memorandum of the evidence, or of
any part of the evidence, given by a witness in a judicial
proceeding Or before any officer authorized by law to take such
evidence or to be a statement or confession by any prisoner or
accused person, taken in accordance with law, and purporting to
be signed by any Judge or Magistrate or by any such officer as
aforesaid, the Court shall presume- that the document is
genuine; that any statements as to the circumstances under
which it was taken, purporting to be made by the person signing
it are true and that such evidence, statement or confession was
duly taken.
(Underlined supplied)
Presumption under above Article unless rebutted shall be a proof of
fact contained in the statement or confession. But such document shall
not preclude the admission of oral evidence as to the same fact as
mentioned in Explanation 3 of Article 102 of Qanun-e-Shahadat, Order,
1984.
14. An objection is usually taken that statement of a witness
recorded out of district deprives the accused to cross-examine the
witness as per provision (1A) of section 164, Cr.P.C., because an
opportunity to cross-examine the witness is mandatorily to be given to
him. The word "may" used in the section makes it optional to record
the statement in the presence of accused or not. In a case reported as
"Mst. Zainab Bibi v. S.H.O. and others" (2003 YLR 3191), it has been
held that statement of abductee cannot be deferred till the arrest of
the accused. It is trite that if a statement is recorded under section 164,
Cr.P.C. and accused had cross-examined the witness, such statement is
treated as evidence, reference is made to sections 244-A and 265-J of
Cr.P.C. but if it is recorded in the absence of accused, it can be used as
previous statement for the purpose of contradiction and corroboration
respectively under Articles 140 and 153 of Qanun-e-Shahadat Order,
1984. Statement under section 164, Cr.P.C. can be recorded at the
instance of accused, complainant or witness even if moved through a
lawyer. The case reported as "Muhammad Yousaf v. State and 12
others" (2002 YLR 397), is referred in this respect.
15. For what has been discussed above, this writ petition is allowed;
petitioner can approach to learned Magistrate at Lahore to get her
statement recorded under section 164 of Cr. P.C.
SA/H-3/L Petition allowe
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