' SALAHUDDIN PANHWAR, J.--Through instant Criminal Miscellaneous Application, applicants have assailed the order dated 08.11.2013, whereby learned Additional District and Sessions Judge, Tando Adam in Sessions Case No.236/2011 (Re-The State v. Nazeer and others) accepted application under section 337, Cr.P.C. Consequently, learned Judicial Magistrate was directed to record the statement of approver/accused Nazeer Ahmed under section 164, Cr.P.C.
2. Precisely, relevant facts are that accused Nazeer Ahmed submitted application through District Public Prosecutor, Sanghar in Crime No.250/2012 under sections 302, 34, P.P.C. Registered at P.S. Tando Adam for becoming approver as he intended to disclose true and real facts of the offence; whereby Irfan was murdered; pursuance to that learned D.P.P Sanghar approached to the trial Court through learned ADPP; said application was dismissed vide order dated 07.12.2012 by trial Court and that order was set aside by order dated 22.07.2013, with directions to record the statements of the legal heirs of deceased as well as to the co-accused and after hearing the parties pass an appropriate speaking order. Pursuance to that learned trial Court recorded the statements of legal heirs of deceased wherein they have pardoned the accused subject to make disclosure of full and true account of incident. Resultantly, application under section 337, Cr.P.C.
Was accepted.
3. Learned counsel for applicants inter alia contends that impugned order is against the principles of Criminal Administration of Justice; at the behest of complainant party accused Nazeer Ahmed has implicated co-accused persons with mala fide intention; statement of accomplice has no worth under Qanun-e-Shahadat Order, 1984.
4. Learned counsel for respondent No.3 as well D.P.G. Contended that impugned order is in accordance with law; trial Court pursuance to order passed by this Court have passed instant order hence there is no illegality.
5. At this juncture, it would be conducive to refer Paras Nos.6 and 7 of impugned order, which is as under:-
6. I have heard learned ADPP for the State assisted by learned counsel for accused Nazeer Ahmed, learned counsel for accused Altaf and Afzal, learned counsel for complainant and perused available record. Section 337, Cr.P.C. Provides that it is discretion of the court to tender pardon to any person supposed to have been directly or indirectly concerned in or privy to any such offence with a view of obtaining evidence and it could not be claimed by any accused as of right. It appears that legal heirs of deceased appeared before this Court and examined on Oath and they categorically deposed that they have forgiven the accused Nazeer Ahmed subject to disclosure full and true account of offence and according to Article 16 of Qanun-eShahadat 1984, accomplice is a competent witness against accused persons except in case of offence punishable with Hudd.
7. Since the legal heirs of deceased are so interested to record the statement of accomplice Nazeer Ahmed regarding their deceased father and they have forgiven him subject to making full and true account of offence, therefore, this application is hereby allowed, and the learned Judicial Magistrate having jurisdiction is directed to record the statement of accomplice Nazeer Ahmed under section 164, Cr.P.C. On 19-11-2013."
6. Before examining the competency of the present application to challenge an order, passed under section 337 or 338 of the Code, it would be conducive to examine the scope thereof. For such purpose reproduction of the relevant provision, being necessary, is referred as:-
337. Tender of pardon to accomplice: (1) In the 'case of any offence triable exclusively by the, High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years; or any offence punishable under Section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal Code namely, Sections 216.-A, 369, 401, 435 and 477-A, 'officer incharge of the prosecution in the district] may, at any stage of investigation or inquiry into or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor, in the commission thereof: ' Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victimor as the case may be of the heirs of the victim.
' A bare perusal of the above provision shows that 'to tender a pardon' under this Section rests with 'Officer Incharge of the prosecution in the district with a view to obtaining the 'evidence' of 'any person' supposed to have been directly or indirectly concerned in or privy to offence. The term 'any person' in place of 'any accused' appears to be meaningful. Thus the scope of the provision should not be limited to those only who have been sent as 'accused persons' in the relevant A column of the charge sheet/challan but requirement is only that such person is supposed to have been directly or indirectly concerned in or privy to the offence.
7. Let me make it further clear with reference to subsection (2) of the Section which reads as:-
(2) Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any.
' In the above subsection the term 'every person' is used and the scope of tendering pardon has not been limited to those alone who are sent as accused by enlisting in relevant column of the charge sheet/challan. The subsection (2) further explains that the one, whom pardon is tendered, shall dress himself as a 'witness' of prosecution. The prosecution or the victims/legal heirs cannot be, legally and reasonably, restrained from pardoning (forgiving one on its/her own condition(s)). The victims/legal heirs can competently compound an offence with any of the accused persons(s), which compounding, shall have no bearing on merits of the case for rest of the accused persons. A reference to section 494 of the Code is also relevant which is:
494. Effect of withdrawal from prosecution: Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,--
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
8. The line, causing difference between two provisions, is that withdrawal under Section 494, Cr.P.C.
Earns acquittal/discharge while Section 337 of the Code turns the status of one into 'witness of prosecution' under a condition of his making a full and true disclosure of the whole of the circumstances within his knowledge having nexus to the offence. An acquittal or discharge, if required to be challenged could be challenged through appeal or revision, as the case may be, however, pardon, tendered under section 337 or 338 of the Code, will not bar the trial of such person on failure of fulfilling the condition as is evident from section 339 of the Code the same is reproduced hereunder:--
339. Commitment of person to whom pardon has been tendered: (1) Where a pardon has been tendered under section 337 or section 388, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by willfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter.
' The above discussion makes it clear that it is the prosecution which has the sole prerogative to move/apply for tendering a pardon under section 337 of the Code as this relates to any stage of investigation or inquiry into or the trial of the offence. If the pardon is being tendered during course of an investigation it would not require any order/approval of the Court but such pardon would however, be subject to judicial scrutiny. This is so that the legislature while forming the section 337 of the Code, unambiguously vested such authority in 'Officer Inchage of the prosecution in the district' and the terms 'trial court' or a court, taking cognizance (normally Magisterial court) were omitted.
9. Since the provision of subsection (1A) of section 337 of the Code says that: (1-A) every Magistrate who tenders a pardon under subsection (1) shall record his reasons, for so doing and shall on application made by the accused, furnish him with a copy of such record.
' Hence, this should not result in any confusion because this was relating when committal proceedings were being carried out by the Magistrate(s) as is evident from subsection (2A) of the section 337 of the Code which is: (2-A) In every case where a person has accepted a tender of pardon and has been examined under subsection (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be- ' However, committal proceedings are no more available with the Magistrate, who, otherwise, per Section 190 of the Code is required to send the case to the Court of Session for trial, without recording any evidence.
10. In view of above discussion, the scope and object of the Section 337 of the Code if it is relating to any stage of the Investigation is outlined as under: i) it is the prerogative of the 'officer incharge of the prosecution in the district' alone to tender a pardon, which, however, would be subject to judicial scrutiny at the time of trial; ii) tendering of pardon in a matter of hurt or qatl however, would not be legal except with permission of the victim or as the case may be of the heirs of the victim; iii) this pardon, however, shall be for no other consideration except to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence; iv) this will not term an acquittal but will turn such a person into a 'witness' and will, however, free him from any punishment, IT he fulfills the condition of pardon;
11. However, where the tendering a pardon is being sought at any stage of the 'trial' then the course will be one provided under section 338 of the Code which is:
338. Power to grant tender of pardon: At any time before the judgment is passed the High Court or the Court of Session trying the case may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any such offence, tender, or order the [officer-in-charge of the prosecution in the district to tender a pardon on the same condition to such person: ' Provided 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. #TBS case, it would be the Court alone which would be competent for such I #TBE ' The underlined portion makes it clear that per this section, it is the competence of the Court, trying the case, to tender or order the officer in charge of the prosecution in the district to tender a pardon. In either purpose. The condition, however, shall be the same i.e. with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any such offence.
12. Now, I would like to make another aspect clear that since tendering a pardon causes an effect of turning one into a 'witness' therefore, regardless of 'stage' of the case/FIR the accused shall have a right to have a copy of the statement of such a 'witness'. The statement, if recorded, during the course of an investigation of such a person, as is evident from section 164 of the Code that:
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.
' Thus, if statement is being recorded after commencement of the inquiry or trial, the statement would be deemed to have been recorded by the Magistrate as one under section 337 of the Code as the Chapter XXIV is titled as 'General Provisions as to Inquiries and Trials'.
13. At this juncture, it would be relevant to examine the competency of the applicants/accused to challenge the legality of an order passed under section 337 or 338 of the Code. Since, it stood clear and unambiguous that a tender of pardon has the effect of. Dressing on up as a 'witness of the prosecution', who per Article 26 of the Qanun-eShahadat Order, 1984, is a competent witness against an accused. The Article reads as:
16. Accomplice.- An accomplice shall be competent witness against an accused person, except in the case of an offence punishable with Hadd and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice'.
' An accused legally has no right to question such consequence of tendering a pardon which is 'dressing a person as a witness of prosecution' nor an accused could question the competence of such a witness particularly when the law (Qanun-e-Shahadat Order, 1984) itself make such a person a 'competent witness'. The law, nowhere, makes any exception to the statement of such a person nor the law provides an exception to normal procedure of trial when the prosecution has a witness whom tendered has been granted. Thus, the credibility and veracity would be required to be examined by the Court. The accused, however, shall have every right to question the credibility of such a witness but at due stage and time. The accused shall have a fair opportunity of cross- examining such a person so as to shatter his credibility and even to question the character thereof. The legal position, being so, make me of the clear to say that an accused has no right to question the order passed under section 338 of the Code or where a tender has been granted under section 337 of the Code except where there is departure either from 'officer in charge of prosecution in district or the Court' in complying with providing clause i.e. 'permission of the victim in matter of hurt or as the case may be of the legal heirs of the victim' as one, likely to be effected from a statement, may challenge an order if the same is in deviation to mandatory requirement of law.
14. In view of above discussion, I am quite clear in my view that instant petition is not competent particularly when the mandatory requirement of consent/permission from Legal heirs, as ordered in earlier petition stood 'complied with. Accordingly, the instant application is dismissed.
15. While parting, it is needless to mention that impugned order was required to be passed under section 338 of the Code which has been passed under section 337 of the Code, however, this shall not prejudice the legality thereof as mere mentioning of wrong title (reference to a wrong provision), will not effect the order, if the same, otherwise qualified the requirement of law.