Sonara Khan @ Sonhara Khan vs State etc.

Form No.HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT

Multan Bench, Multan

JUDICIAL DEPARTMENT

Crl. Misc. No. 6968/B/2025

Sonara Khan alias Sonhara Khan Vs The State etc.

S.No. of Order/ Date of order/ Order with the signature of the Judge and that of the parties or counsel, where Proceeding proceeding necessary

09.10.2025 Malik Aamir Manzoor Awan, Advocate, for the Petitioner. Mr. Waheed Rafique, Deputy District Public Prosecutor, with Yousaf/SI.

Mr. Mumtaz Hassan Khan, Advocate, for the Complainant.

Tariq Saleem Sheikh, J. – Through this application, the Petitioner seeks post-arrest bail in case FIR No.757/2025 dated 12.07.2025 registered at Police Station Kot Mithan, District Rajanpur, for an offence under section 377-B PPC.

2.According to the FIR, the prosecution’s case is that on the evening of 12.07.2025, the Complainant’s 14/15 years old daughter, K.B., went to a nearby sugarcane field owned by Jam Haq Nawaz to collect fodder for their cattle. While she was reaping the grass, the Petitioner came there with co-accused Tahir. Finding her alone, they began harassing her and making obscene gestures. Accused Tahir caught her hand and pulled her towards himself, and then both accused touched her private parts. K.B. started screaming, which attracted the Complainant (Sharam Bibi), Saeed Ahmed, and Muhammad Hashim, who rushed to the scene. The accused fled upon seeing them.

3.In support of this application, Malik Aamir Manzoor Awan, Advocate, contends that the Petitioner is innocent and has been falsely implicated in this case. He argues that the Complainant’s version, as set out in the FIR is in conflict with K.B.’s statement recorded under section 164 of the Code of Criminal Procedure 1898 (the “Code” or “Cr.P.C”). She has narrated altogether different facts, which do not constitute an offence under section 377-B PPC. In the

circumstances, he argues that further inquiry within the meaning of section 497(2) Cr.P.C. is required to determine the Petitioner’s guilt. Hence, he may be admitted to post-arrest bail.

4.Mr. Waheed Rafique, Deputy District Public Prosecutor (DDPP), assisted by the Complainant’s counsel, has opposed this application. He submits that the Petitioner is involved in a heinous offence that attracts the prohibitory clause of section 497 Cr.P.C. The Complainant lodged FIR No.757/2025, narrating the incident in detail as it allegedly occurred. He further states that PWs Saeed Ahmad and Muhammad Hashim, who are eyewitnesses, recorded statements under section 161 Cr.P.C. that fully support the prosecution’s version. The DDPP maintains that K.B.’s statement under section 164 Cr.P.C. merely omits some details and is not inconsistent with the FIR or the statements of the aforenamed witnesses. He argues that the Petitioner seeks to rely on the brevity of that statement to cast doubt on the prosecution’s case, but such discrepancies, if any, are to be assessed at trial. At the bail stage, this Court is not required to undertake a detailed appraisal of evidence. He has prayed for the dismissal of the application.

5.I have heard the counsel and perused the record. Before considering the contentions of the counsel, it is necessary to examine section 164 Cr.P.C. It reads as follows:

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.

[(1A) 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.

Added by Law Reforms Ordinance, 1972, item 62.

(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:

Explanation.– It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case.

6.The object of section 164 Cr.P.C. is two-fold. First, it enables a confession to be recorded under judicial supervision with safeguards that ensure voluntariness and reliability. Second, it provides a mechanism for contemporaneously recording the statements of material witnesses during the investigation, including that of a victim, which creates an early record that may be used at trial. It guards against extortion, coercion, and subsequent retraction. In the present case, since K.B.’s statement under section 164 Cr.P.C. does not amount to a confession, the ensuing discussion is limited to the legal framework governing such statements.

7.Commenting on section 164 of India’s Code of Criminal Procedure, 1973, which is pari materia with Pakistan’s Code of 1898, Sarkar writes: “Though ordinarily section 164 is made use of when an accused desirous of making a confession is brought to a Magistrate for its record; it is not restricted only to confessions. The section says ‘any confession or statement’. It does not specifically mention any person whose confession or statement is to be recorded; it may be an accused, one who may ultimately be an accused, or a witness capable of providing useful information relating to the offence. Again, the ‘statement’ may be a confession or it may not amount to a confession, or it may be partly confessional and partly exculpatory.”2 In Muhammad Sarfraz Khan v. The Crown (PLD 1953 Lahore 495), a Division Bench of this Court explained that the phrase “in the course of an investigation” in section 164(1) Cr.P.C., when read alongside the succeeding words “or at any time afterwards before the S.C. Sarkar, The Code of Criminal Procedure, 2014 ed., Vol. 1, p. 762

commencement of the inquiry or trial,” refers to the period during which the investigation is ongoing. It was further held that a statement under section 164(1) may be recorded not only at the instance of the police but also at the request of the accused, the aggrieved person, or the witness himself. The Explanation to section 164 Cr.P.C. expressly states that it is not necessary that the Magistrate recording such a statement should have jurisdiction in the case.

8.The Legislature has used the word “may” in section 164(1) Cr.P.C., which indicates that the Magistrate’s power to record a confession or statement is discretionary. In Nazir Ahmad v. King Emperor (AIR 1936 PC 253), the Privy Council held that while the Magistrate is not bound to record every confession – such as one made by a person of unsound mind or one he considers incredible or irrelevant – he is nonetheless obligated to follow the method explicitly laid down in the Code. The Privy Council ruled that where a statute prescribes a specific procedure for the exercise of a power, that procedure must be followed exclusively. Sections 164 and 364 Cr.P.C. must therefore be read together, and the formalities provided therein are not optional. Although the Magistrate, when acting under these provisions, is not functioning as a court, he is still a judicial officer, and the procedural safeguards are essential to ensure fairness and reliability in the recording process. A similar view was taken in Kalsoom Bibi v. District & Sessions Judge, Bahawalpur, and another (2009 MLD 421), where this Court held that section 164 Cr.P.C. confers a discretionary power which must be exercised judiciously and only where its exercise would serve the ends of justice. If the Magistrate finds prima facie indications of mala fide in the request for recording a statement, he is under no obligation to entertain it. This rule was reaffirmed in Shabina Naz v. Special Judicial Magistrate and another (2011 MLD 722).

9.Even though a statement recorded under section 164 Cr.P.C. carries greater credibility because it is recorded by a Judicial Magistrate as compared to one by the Investigating Officer, it cannot be accepted as a gospel truth and requires verification through

investigation.3 In Vijaya Singh and another v. State of Uttarakhand (2024 INSC 905), the Supreme Court of India highlighted that relevancy, admissibility, and reliability are distinct concepts in the law of evidence. Therefore, the weight to be attached to a statement recorded under section 164 Cr.P.C. is a matter that the court should determine on a case-by-case basis. Its reliability may, to some extent, depend on whether the witness has adhered to or resiled from the statement, but that factor alone is not conclusive.

10.The earlier authorities consistently held that the statement of a witness recorded under section 164 Cr.P.C. is not substantive evidence, and can, like any other previous statement, be used only for contradicting or corroborating him4 under Articles 140 and 153 of the Qanun-e-Shahadat 1984 (QSO), respectively.5 The Law Reforms Ordinance 1972 inserted sub-section (1A) in section 164, which stipulates that any statement under section 164(1) may be recorded by the Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement. The said Ordinance also introduced Chapter XXII-A in the Code, which was substituted entirely by the Code of Criminal Procedure (Amendment) Act (XLIV of 1976). Sections 244-A and 265-J of the Code state that the statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (II of 1872) (Read: QSO). Section 244-A pertains to the trial of cases by Magistrates, and section 265-J to trials before High Courts and Courts of Session.

11.Sub-section (1A) of section 164 Cr.P.C. and sections 244-A and 265-J Cr.P.C. are a legislative innovation to elevate the Basu’s Commentary on Code of Criminal Procedure, 14 th Edition, p.1099.

See, for example, Anwar Hossain Talukdar and another v. Province of East Pakistan and others (PLD 1961 Dacca 155), and Abdul Ghani v. The State [PLD 1963 (W.P.) Lahore 445].

Sections 145 and 157 of the Evidence Act 1872.

status of the statements recorded during the investigation under judicial supervision and tested through cross-examination. In Abdul Hakeem and another v. The State (PLD 1982 Karachi 975), a Division Bench of the Sindh High Court held that section 265-J Cr.P.C. is a “glaring departure” from the normal rule of recording evidence, because it permits reception of the statement under section 164 Cr.P.C. as substantive evidence. However, this is permissible only where the statutory conditions are satisfied: (i) the statement was made in the presence of the accused, (ii) he had notice of it, and (iii) he was given an opportunity to cross-examine the witness.6 In Mst. Hira Bibi v. The State and others (PLD 2022 Lahore 545), it was held 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, but if it is recorded in the absence of accused, it can be used as previous statement for the purpose of contradiction and corroboration under Articles 140 and 153 of QSO, respectively.

12.Historically, courts have invoked sections 244-A and 265-J in exceptional circumstances, generally treating them as enabling provisions. This is because the provisions of sub-section (1A) of section 164 Cr.P.C., as well as sections 244-A and 265-J Cr.P.C., are discretionary. This is reflected from the use of the word “may” in section 164(1A) and “may, in the discretion of the court”. However, after the incorporation of Article 10A into the Constitution, which guarantees the right to a fair trial as a fundamental right, they hold that a witness who makes a statement under section 164 must still be produced and examined in court during the trial to convert that content into admissible substantive evidence. They regard section 164 as an investigative aid, not a substitute for trial evidence. It cannot serve as the basis for a finding of guilt or innocence. Muhammad Shoaib v. The State (2022 PCr.LJ 1564) is instructive. In that case, the trial court declined to allow the accused to cross-examine witnesses at trial on the ground that cross-examination had already Also see: Ghulam Muhammad v. The State (1985 PCr.LJ 829), Shadoo alias Shahzado v. The State (1989 PCr.LJ 1093), Muhammad Hafeez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and others (2001 PCr.LJ 199), Mir Ali Shah v. The State and another (2022 YLR Note 169), and Muhammad Rizwan and others v. The State and another (2022 YLR Note 210).

been conducted when their statements were recorded under section 164 Cr.P.C. The question before the Sindh High Court was whether the trial court had misdirected itself, and so the case should be remanded. It was held that there are two distinct stages in the criminal administration of justice: investigation and trial. The objective of the investigation is to unearth the facts and bring perpetrators to justice. On the other hand, a trial is the process through which a competent court adjudicates guilt or innocence in accordance with the law. Actions taken during investigation (such as recording a statement under section 164 Cr.P.C.) cannot displace the procedure mandated for trial, which includes recording evidence in court and affording the accused the right of cross-examination. Although section 164(1A) Cr.P.C. permits the presence of the accused and even cross- examination at the pre-trial stage, such cross-examination does not override or replace the accused’s right to cross-examine the witness in court during trial. The statement recorded under section 164 Cr.P.C., whether or not cross-examination was conducted, remains part of the investigative record.

13.Section 14 of the Anti-Rape (Investigation and Trial) Act 2021 (the “2021 Act”) modifies the general procedure of section 164 Cr.P.C. in relation to the statement of a victim. It states:

14.Statement under section 164 of the Code. – (1) Notwithstanding anything contained in any other law for the time being in force, as soon as practicable, a statement of the victim shall be recorded under section 164 of the Code only once. Explanation: – The statement under this sub-section shall be video-recorded, preserved and reduced in writing.

(2)An opportunity of cross examining the victim shall be given to the counsel for the accused and not the accused himself, or the Court may itself put questions to the victim or any questions framed by the accused may be given to the presiding officer of the Court who may put such questions, as found appropriate by him, to the victim.

14.The above provision introduces two distinct procedural safeguards: (a) that the victim’s statement under section 164 Cr.P.C. be video-recorded, and (b) that the accused, through counsel, be given an opportunity to cross-examine the victim or put questions through the court. These serve different purposes and must not be conflated. The requirement of video recording is primarily intended to protect

the victim from secondary trauma and to preserve the authenticity of the statement. In contrast, the requirement of cross-examination directly engages the accused’s right to a fair trial under Article 10A of the Constitution. Omission to observe it precludes the statement from being treated as substantive evidence under section 265-J Cr.P.C., although it may still form part of the investigative record for limited purposes such as contradiction or corroboration.

15.Section 29 of the 2021 Act states explicitly that the provision of the Code, to the extent not inconsistent with anything contained in this Act shall apply mutatis mutandis. Accordingly, section 164 Cr.P.C. is to be read subject to section 14 of the 2021 Act. While section 164 Cr.P.C. continues to govern the recording of statements of all witnesses and confessions of accused persons, the recording of a victim’s statement in a sexual offence case is regulated by a special procedure under section 14 of the 2021 Act.

16.Having discussed the relevant law and jurisprudence, I turn to the case at hand.

17.On 12.07.2025, the Complainant lodged FIR No.757/2025 against the Petitioner and co-accused Tahir based on the allegations detailed in paragraph 2 of this order. On the same day, the investigation of the case was assigned to Muhammad Yousaf Imran/SI, who recorded the statements of PWs Saeed Ahmad and Muhammad Hashim and the victim, K.B., under section 161 Cr.P.C. All of them supported the FIR. On 19.07.2025, K.B. recorded her statement under section 164 Cr.P.C. The relevant excerpt reads as follows:

“States that on Saturday, at about 05:00 p.m., I alongwith my mother went to sugarcane crop for cutting grass to feed our cattle. When I was in sugarcane crop, accused Sonara alias Sonhara alongwith co-accused Tahir came there and he caught hold me from my wrist and showed me money, on which I called my mother, who alongwith other family members came there and rescued me, but the accused persons fled away from the place of occurrence.”

18.K.B.’s above-mentioned statement under section 164 Cr.P.C. was recorded without a video recording and in the absence of the accused. As such, it does not comply with the procedural

requirements of section 14 of the 2021 Act. While the omission of video recording may prompt the accused to challenge the statement’s authenticity, the denial of the opportunity for cross-examination through counsel attracts section 265-J Cr.P.C. Consequently, it cannot be treated as substantive evidence. However, it remains part of the investigative record. It may be examined for limited purposes, including assessing internal consistency in the prosecution’s case and determining whether a case of further inquiry arises under section 497(2) Cr.P.C.

19.K.B.’s statement under section 164 Cr.P.C. is materially inconsistent with the version narrated in the FIR and her earlier statement under section 161 Cr.P.C., as well as those of the eyewitnesses Saeed Ahmad and Hashim. In the FIR and the 161 Cr.P.C. statements, the prosecution alleged that the accused persons made obscene gestures, physically touched K.B.’s private parts, and jointly committed an act amounting to sexual abuse. In contrast, her section 164 Cr.P.C. statement omits any reference to obscene gestures or touching of private parts. It instead alleges only that the Petitioner grabbed her wrist and offered money, following which she called out and was rescued by her mother and others. This inconsistency raises questions as to the nature and severity of the offence, and even mens rea.

20.The DDPP contended that K.B.’s statement under section 164 Cr.P.C. is not inconsistent with the earlier version in the FIR and the statements under section 161 Cr.P.C. However, this submission is not borne out by the record. Although it is for the trial court to scrutinize the divergence more closely, it cannot be brushed aside even at the bail stage.

21.Section 377-B PPC is attracted only where the offence of “sexual abuse” is established, which is defined in section 377-A PPC to include acts such as fondling, stroking, caressing, exhibitionism, voyeurism, or any obscene or sexually explicit conduct or simulation thereof, either independently or in conjunction with other acts, with or without consent, where the victim is under eighteen years of age. By

contrast, section 354 PPC criminalizes assault or the use of criminal force with the intent to outrage the modesty of a woman. While serious, this offence is bailable. The precise nature of the alleged act will be determined at trial upon the recording of evidence, but in view of the inconsistency between K.B.’s FIR version and her statement under section 164 Cr.P.C., the applicability of section 377-B PPC appears doubtful. As discussed in paragraph 19 above, although K.B.’s statement under section 164 Cr.P.C. cannot be treated as substantive evidence, it may still be considered for contradiction or corroboration.

22.The prosecution’s allegations against the Petitioner (and co-acused Tahir), whether contained in the FIR or in K.B.’s statements, are confined to physical harassment of a non-penetrative nature. Hence, neither a medical nor a forensic examination was either required or expected.

23.Considering the above facts and circumstances, further inquiry within the meaning of section 497(2) Cr.P.C. is required to determine the Petitioner’s guilt. Therefore, by a short order of even date, I admitted the Petitioner to post-arrest bail, subject to his furnishing a bail bond in the sum of Rs. 200,000/- (Rupees two hundred thousand) with one surety in the like amount, to the satisfaction of the trial court.

24.Before concluding, I may add a note. Section 164(2) Cr.P.C. mandates that the Magistrate shall record statements in the manner prescribed for recording evidence, as deemed best suited to the circumstances of the case. It has been repeatedly observed in cases before this Court that Magistrates record such statements perfunctorily, without engaging meaningfully with the witness. In many instances, the witness is unlettered or one who does not understand the purpose of the statement or the nature of the disclosure expected. The Magistrate, therefore, bears a duty to elicit all relevant information by asking explanatory questions and guiding the witness appropriately. Moreover, it is not uncommon for the statement to be recorded in formulaic language, rather than in the witness’s own

words, which defeats the object of faithful contemporaneous recording.

25.It is also noted that Magistrates frequently fail to comply with the mandatory requirements of section 14 of the 2021 Act. Statements of victims are often neither video recorded nor an opportunity is afforded to the accused for cross-examination through counsel, as required by law. In Salman Akram Raja and another v. Government of Punjab and others (2013 SCMR 203), the Supreme Court directed that statements of rape victims under section 164 Cr.P.C. should preferably be recorded by female Magistrates. This direction remains binding but is seldom implemented.

26.All Sessions Judges in the Punjab are directed to ensure that Magistrates entrusted with recording statements under section 164 Cr.P.C. discharge their responsibilities with due care and in accordance with law. They shall ensure that the requirements of subsection (2) of section 164 Cr.P.C. are observed in both form and substance, and that statements reflect a faithful and complete account of the witness’s narrative. In cases falling under the 2021 Act, strict compliance must be ensured with section 14. The directive in Salman Akram Raja regarding female Magistrates must also be kept in view.

27.Disposed of.

(Tariq Saleem Sheikh) Judge Naeem

Approved for reporting

Judge