P L D 2022 Lahore 545Before Muhammad Amjad Rafiq, JMst. HIRA BIBI---PetitionerVersusThe STATE and others---RespondentsWrit 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.
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