Majid Khan vs Sessions Judge Kasur etc.

Writ Petition No. 27698-2013

Majid Khan Sessions Judge, Kasur, etc.

2.19.11.2013. Ch. Muhammad Din Ansari, Advocate for the petitioner.

Mr. Ashfaq Ahmad Kharal, Assistant Advocate General with Ali Akbar, Inspector and Muhammad Rafique, SI.

Mr. Basharat Ali Janjua, Advocate for respondent No.2.

Through the instant petition filed in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the order dated 23.10.2013 passed by the learned Sessions Judge, Kasur whereby Criminal Revision filed by Nadia Aslam, respondent No.2 seeking permission for recording her statement under section 164 Cr,.P.C. was accepted.

2.The brief facts of this case are that father of respondent No.2, Muhammad Aslam got lodged case F.I.R. No.83 dated 21.05.2013, under Sections 365-B/380 P.P.C., at Police Station, Theh Sheikhum, District, Kasur, against the petitioner and respondents No.3 to 6. Prior to lodging of F.I.R., alleged abductee, Mst. Nadia Aslam, respondent No.2 appeared before the learned

Ex. Officio Justice of Peace/Additional Sessions Judge, Lahore and recorded her statement on 27.5.2013, wherein she categorically stated that she being sui juris has entered into marriage with one Majid Khan, present petitioner with her free will and consent. She further states that she is living with her husband and nobody had abducted her. Later on, the petitioner filed Writ Petition bearing No.13935-Q/2013 seeking quashing of F.I.R., which was disposed of on 27.6.2013, on the statement of learned Additional Advocate General that the F.I.R. has been recommended for cancellation. During the course of investigation of above said case F.I.R. No.83/2013, the alleged abductee Mst. Nadia Aslam was got recovered by the Investigating Officer and she was lodged in Dar-ul-Aman. Thereafter, the Investigating Officer along with lady Constable produced the alleged abductee, respondent No.2 before the learned Magistrate Section 30, Kasur and got her statement recorded under Section 164 Cr.P.C., on 27.05.2013, wherein she categorically stated that she contracted marriage with the petitioner of her own free will and accord and as such she did not support the version of the prosecution. In the meantime, the petitioner filed suit for restitution of conjugal rights on 03.6.2013 at Kasur, whereas the alleged abductee, Mst.Nadia

Aslam also filed a suit for dissolution of marriage on 22.06.2013 before the Judge Family Court, Sheikhupura. During pendency of both the suits, the alleged abductee, Mst. Nadia Aslam respondent No.2 moved another application for recording of her statement under Section 164 Cr.P.C. on 11.09.2013 but the same was dismissed by the learned Magistrate Ist Class, Kasur. Against the order of the learned Magistrate Ist Class, Kasur dated 11.09.2013, a revision petition was filed by said Nadia Aslam, respondent No.2 which was accepted by the learned Additional Sessions Judge, Kasur vide order dated 23.10.2013. Against order of the learned Additional Sessions Judge, Kasur, the petitioner has filed the instant Constitutional petition.

3.Learned counsel for the petitioner has contended that there is no bar for recording of second statement under Section 164 Cr.P.C., however, it has to be seen in the light of the facts and circumstances of the case; that while recording of earlier statement under section 164 Cr.P.C. before the learned Magistrate, there is nothing on record to show that there was any element of coercion or threat to the alleged abductee; that neither the alleged abductee was produced by the petitioner before the learned Magistrate nor she was in his custody but she

made her first statement voluntarily despite the fact that she was recovered by the Investigating Officer; that while living with her parents the alleged abductee admitted the factum of Nikah with the petitioner in her suit for dissolution of marriage.

4.The learned counsel for respondent No.2 submits that there is no prohibition under the law to record second statement under Section 164 Cr.P.C., hence the instant petition be dismissed.

5.Learned Law Officer after going through the record of case F.I.R. No.83 dated 21.05.2013, registered under Sections 365-B/380 P.P.C., submits that the alleged abductee was recovered on 25.5.2013 by the order of this Court and on the instruction of this Court, she was produced before the learned Illaqa Magistrate on 27.05.2013, where she got recorded her first statement under Section 164 Cr.P.C. by stating that she left her house with her own free will but neither she was abducted by anyone nor any valuables have been taken away and later on cancellation report was prepared in the above stated F.I.R. on 30.5.2013.

6.After hearing the learned counsel for the parties, it is observed that there is no bar in recording of second statement under section 164 Cr.P.C. impliedly or otherwise but while

granting permission, the entire facts and circumstances of the case should be kept in mind for consideration. Section164 Cr.P.C. is reproduced hereunder for ready reference:- Section 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 concession 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-----

(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 question the person making it, he has reason to believe memorandum at the foot such record to the following-------

7.Bare reading of Section 164 Cr.P.C. does not indicate that second statement of a person cannot be recorded, if it already stands recorded. From the record it is revealed that statement under section 164 Cr.P.C. of the alleged abductee Mst. Nadia Aslam is recorded when she was free agent as she was recovered

by the order of this Court and on the direction of this Court, she was lodged in Dar-ul-Aman by the local police and thereafter she was produced before the learned Magistrate Section 30, Kasur for recording her statement under section 164 Cr.P.C. on 27.5.2013 wherein she categorically stated that she contracted marriage with one Majid Khan, petitioner with her own free will and accord. She further states that neither she was abducted nor valuable articles were taken away by her. The petitioner has taken a defence of valid nikah with the said abductee Nadia Aslam whereas said Nadia Aslam had confirmed the said assertion regarding her marriage with the petitioner Majid Khan in her suit for dissolution of marriage filed on 22.6.2013 before the Judge Family Court at Sheikhupura wherein she categorically stated that she contracted nikah with the present petitioner on 20.4.2013 against a consideration of dower amount of Rs.1,00,000/- which was not paid by the petitioner, however, has developed hate in her mind against the petitioner as he used to torture her. She further asserted in that suit that the petitioner is an addict person and used filthy language and for the said reason she prayed for a decree of dissolution of marriage on the basis of ‘khula’. It is astonishing that the alleged abductee was recovered by the Investigating Officer on

25.5.2013. Later on she made her statement before the learned Magistrate Section 30 on 27.5.2013. On her statement, aforesaid F.I.R. No.83/2013 was recommended for cancellation whereas during the proceedings of Constitutional petition bearing No.13945/2013 the Investigating Officer made a statement that the case was recommended for cancellation and the matter was disposed of on the statement of the learned Addl. Advocate General. During the entire proceedings, she did not raise any objection that her statement under section 164 Cr.P.C. was got recorded under coercion and pressure of the present petitioner. More over, after elapse of almost more than three months she moved another application for recording of her second statement under section 164 Cr.P.C. wherein she took another stand that due to threat of life extended by the petitioner, she made earlier statement under section 164 Cr.P.C. whereas the record reflects that at the time of recording of first statement under section 164 Cr.P.C. the petitioner was not present before the learned Magistrate Section 30, Kasur. The record annexed to this petition shows that in her suit for dissolution of marriage she asserts in Paragraph 1 and 4 of the plaint which is interesting and the same is reproduced herein verbatim:-

Since nikah with the petitioner is admitted by Nadia Aslam, the alleged abductee by filing the suit for dissolution of marriage on 22.6.2012 and same belied the prosecution story as narrated in the F.I.R., she cannot be permitted to change her stance by making false statement to achieve nefarious goal. All this shows that she wants to make another statement under section 164 Cr.P.C. with some ulterior motive to entangle the petitioner in further litigation.

8.For what has been stated above, this petition is allowed by setting aside the order dated 23.10.2013 passed by the learned Sessions Judge, Kasur.

(Aalia Neelum) Judge Approved for reporting.

Judge Hamid/*