PLJ 2022 Lahore 302
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164--Non-recording of statement of abductee by magistrate u/S. 164, Cr.P.C.--Jurisdiction--Abductee was not resides at district where FIR was logged--Requirement for magistrate--Abductee is not in district of registration of F.I.R. rather she is living at Lahore, her statement should have been recorded by a Magistrate at Lahore, even if it is unfavourable to prosecution or otherwise--No prejudice is caused nor statement recorded becomes useless because when any such statement or confession is recorded by a Magistrate out of district, he is required to forward same to Magistrate by whom case is to be inquired into or tried and it is not necessary to call such Magistrate as witness in trial in support of statement recorded by him--Petition allowed. [P. 309] B & C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 186--Arrest in local jurisdiction--When any person is arrested in his local jurisdiction, Magistrate can attend to case for transportation of accused to respective district for purpose of trial--All such functions are to facilitate investigation of a case and not to deflect it. [P. 308] A
2011 MLD 722, PLD 2006 Lahore 304, 2007 YLR 2919 and
2008 YLR 2679 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 164—Recording of statement--Statement u/S. 164, Cr.P.C. can be recorded at the instance of accused, complainant or witness even if moved through a lawyer. [P. 311] D
Ref. PLJ 2002 Lahore 533.
Rana Ali Imran Khan, Advocate for Petitioner.
Mr. Muhammad Amjad Ansari, Assistant Advocate General.
Mr. Nisar Ahmad Virk, Deputy Prosecutor General.
Date of hearing: 24.01.2022.
PLJ 2022 Lahore 302
Present: Muhammad Amjad Rafiq, J.
versus
STATE etc.--Respondents
W.P. No. 1556 of 2022, decided on 24.1.2022.
Order
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, PPC 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 versus State, etc” (PLJ 2021 Lahore 645) and one unreported case titled “Mst. Asma Bibi versus State, etc” (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 u/S. 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 u/S. 164, Cr.P.C. because she apprehends threats to her life if go for the purpose at
“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 Section 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 & confessions. Such ordinary and special powers are entrusted u/S. 36 & 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 versus State, etc” (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 versus The Crown” (PLD 1953 Lahore 495). FIR was of District Montgomery whereas statement was recorded at
“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 versus 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 F.I.R. 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 & 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 
11. In case reported as “Fateh Shah versus 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 versus 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 u/S. 164, Cr.P.C. is also regulated under Rule 25.27 & 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.
“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.
15. For what has been discussed above, this writ petition is allowed; petitioner can approach to learned Magistrate at
(Y.A.) Petition allowed
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