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Writ Petition No. 3572 of 1983, decided on 16th May, 1984.

-- Art. 9-Penal Code (XLV of 1860), S. 368-Criminal Procedure Code (V of 1898), S. 164--Writ - Statement of abductee under S. 164, Cr. P. C. recorded by Magistrate after satisfying himself that she was giving such statement freely-Question whether statement was made freely or not a matter which could be raised at relevant time if and when statement introduced into evidence--Held, no justification existed for grant of a writ declaring statement to be of no legal effect particularly when facts leading to recording of such statement could at best be termed as disputed fact.

-- Art. 9-Penal Code (XLV of 1860), S. 376-Criminal Procedure Code (V of 1898), S. 164-Writ, issue of-Registration of case-- Accused Police Officer allegedly trying to arrange sexual intercourse with abductee while she was in police custody--Statement of abductee under S. 164, Cr. P. C. making no reference of any such incident-Proper evidence not forthcoming to establish such allega tions-Grant of a writ directing police to register case against such Police Officer, held, not justified in circumstances.

Nawab Saeed Ullah Khan for Petitioners.

Majid A. Bajwa and Shahid Hussain Qadri for the State.

Date of hearing: 16th May, 1984.

The learned counsel for the petitioners has pointed out and that Mst. Zahida Parveen petitioner No. 2 who is daughter of petitioner No. I was abducted by Ashraf respondent No. 1 and that a case was registered in that regard in which case the investigation has since been completed and said Ashraf and Mst. Zahida Parveen petitioner No. 2 have both been challaned. The grievance which has brought the petitioner to the High Court in a constitutional jurisdiction relates to firstly, the lack of medical examination of petitioner No. 2 through a Medical Officer and secondly, according to the learned counsel, the manner in which the statement of Mst. Zahida Parveen was recorded by the Magistrate 1st Class, Model Town under section 164, Cr. P. C. The petitioners also allege that after the recovery of Mst. Zahida Parveen petitioner No. 2 Muhammad Ashraf, S.I. Police Station Township and Mehdi Shah A. S.I. Police Station Township respondents Nos. 4 to 5 tried to arrange a sexual contact between Mst. Zahida Parveen petitioner No. 2 and Ashraf respondent No. 1 while Mst. Zahida Parveen was in police custody. It is submitted by the learned counsel that on account of the intervention of the residents of the area the persons of Mst. Zahida Parveen was not actually violated but since an attempt was made by Ashraf respondent No. 1 with the help of Muhammad Ashraf S.I. and Mehdi Shah A. S. I respondents Nos. 4 to 5 a direction be given to the S. H. O. for registration of a case in this regard against respondents Nos. 1, 4 and 5.

2. As regards the medical examination of Mst. Zahida Parveen it has since been conducted on the orders of a Magistrate. The grievance to that regard has, therefore, been met with. As regards the recording of a statement under section 164, Cr. P. C. by the Magistrate, learned counsel submits that the Magistrate, allowed no opportunity to the father of peti tioner No. 2 to meet her and that even though she was sent to Dar-ul-Aman on more than one occasions, he was escorted every time by the police with the result that Mst. Zahida Parveen, according to the learned counsel, made a statement under section 164, Cr. P. C. under the influence of the police. It is contended that the statement recorded by the Magistrate should be declared to be of no legal effect.

3. The fact of the matter is that 161st. Zahida Parveen was recovered during the investigation of the case. She was produced before a Magistrate on 28th July, 1983. The Magistrate sent her to Dar-ul-Aman on more than one occasions and then recorded her statement under section 164, Cr. P. C. on 1st August, 1983 after satisfying himself that she was making a state ment freely. Whether this statement was actually made freely or not is a matter which the petitioners can raise at the relevant time if and when the statement is introduced into evidence, but there is no justification for the grant of a writ declaring the statement to be of no legal effect parti cularly when the facts leading to the recording of the statement could ail best be termed as disputed facts. The prayer in the writ petition to that regard is, therefore, rejected.

4. As regards the registration of a case against the two polio officials and Ashraf respondent No 1 regarding the occurrence which allegedly took place while Mst. Zahida Parveen was in police custody, ill is enough to observe that in her statement under section 164, Cr. P. C. Mst. Zahida Parveen makes no reference of any such incident. In the presence of the statement of petitioner No. 2 before a Magistrate under R section 164, Cr. P. C. it cannot be assumed at this stage without proper evidence that the allegations have any basis. The petitioners are, however at liberty to substantiate their claim by way of a complaint in a criminal Court. The circumstances of the case do not justify the grant of a writ directing the police to register a case with regard to these allegations.

In view of the above considerations there is no merit in the writ peti tion. It is dismissed but there shall be no order as to costs.

M. Y. H. Petition dismissed.

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