Law: Pakistan Penal Code (PPC),1860

Section: 302, 109, 201, 202

Law: Code of Criminal Procedure (CrPC), 1898

Section: 164, 174, 337, 338, 339

Law: Constitution of Pakistan, 1973

Section: 13

REMARKS

A criminal case was registered upon the report of complainant wherein he stated that as per information conveyed to him by his mother Mst. Khadija Bibi, his father has committed suicide. Later on the possibility of suicide was ruled out and Mst. Khadija widow of deceased disclosed that her husband was murdered by accused Gulzeb (brother of the deceased) under abetment of Amir and Mst. Maira Gul. On such statement of Mst. Khadija, case was further investigated and accused were indicted. During course of trial, prosecution submitted application for production of Mst. Khajia Bibi accused as prosecution witness, which application was accepted by the learned trial Court. Said order of the learned trial Court was challenged by the accused facing trial through Criminal Revision. Held.
It is manifest from the conjoint reading of the aforesaid sections of law that sections 337 PPC and 338 PPC deal separately with the situations of tendering pardon by the Officer Incharge of the prosecution as well as the Court. The former section of law meets the situation when the case is in the investigation or inquiry or pending trial before a Magistrate, whereas the latter section of law deals with the situation when the trial is pending before the Court of Session or High Court. However, the proposition in this case relates to a stage as laid down in section 338 of Cr.PC i.e. a trial which is pending before the Court of Sessions, therefore, not only the officer incharge of the prosecution but the Court can tender pardon to the accused at any stage of the trial before the judgment is passed with a purpose of obtaining evidence and in this case it has been done by the learned Additional Sessions Judge but before passing such an order, it was essential that accused (Mst.Khadija) should have expressed her free consent and willingness to become approver in response to a request made by the complainant/ prosecution or by the Court itself, however, the impugned order is completely silent about the factum that whether Mst.Khadija (accused facing trial) had ever been given an option to exercise her discretion to become an approver and thereby agreed to record her statement with her free will and consent against her other principal and co-accused. In absence whereof, the requirement of the afore-stated sections of law could not be considered to have been duly and legally fulfilled.
So far as the bar contained in sections 337 PPC and 338 PPC that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victim or, as the case may be, of the heirs of the victim, is concerned, since as per the impugned order, the complainant Ahmed Khan (son/legal heir of the deceased) made request for production of Mst.Khadija as prosecution witness through the Assistant Public Prosecutor coupled with the factum that she has been charged only under sections 201/202 PPC, therefore, the aforesaid bar does not apply to the present case, however, admittedly before the learned trial court neither any application by Mst.Khadija (accused facing trial) qua grant of pardon containing an undertaking that she would make full and true disclosure of the circumstances within her knowledge about the murder of deceased Jehanzeb was moved nor her consent in black and white float upon the surface of the available record to show that she voluntarily opted to become an accomplice/approver against her co-accused (including petitioner herein) nor any section of law could be quoted by the learned trial court in the impugned order under which Mst.Khadija (one of the accused) is allowed to be produced as a prosecution witness because in case she is granted/tendered pardon, the same must be preceded by a condition that she would make full and true disclosure of the circumstances within her knowledge about the murder of the deceased and in case she fails to do so, she has to bear legal consequences thereof in light of section 339 Cr.PC etc.
(Revision allowed).

Summary:Two-Word Description:
Accomplice Pardon
The petitioner, Gulzeb, challenged the trial court’s order allowing Mst. Khadija Bibi—an accused in the same case—to be produced as a prosecution witness against co-accused. The Court analyzed the legal provisions regarding accomplices/approvers, tender of pardon, and consent of the accused. It held that the trial court’s order was legally infirm as Khadija’s consent and proper procedure under sections 337 and 338 Cr.P.C. were not recorded. The revision was allowed, and the trial court was instructed to follow the correct legal procedure if Khadija wishes to become an approver.