TARIQ SALEEM SHEIKH, J.--This revision petition under Sections 435/439, Cr.P.C. is directed against order dated 29.8.2019 passed by the learned Additional Sessions Judge, Multan, whereby he dismissed the Petitioner's application under Section 338, Cr .P.C. and declined her request for grant of pardon.
2. Brief facts of the case are that Respondent No.2 lodged FIR No.452/2018 dated 26.8.2018 under Sections 302/34/109, P.P.C. at Police Station Makhdoom Rasheed, District Multan, regarding murder of his son Ali Raza. He stated that Ali Raza was married to Rabia Bibi (the Petitioner) from whom he had a daughter named Eman Fatima who was still a minor . On 23.8.2018 at about 10:30 a.m., they left their house on a motorcycle for Chak No.9/MR to see a relative. When they reached Chak No.6/T two unknown persons with masked faces came on a motorcycle and stopped them. One of the culprits took out his pistol and shot at Ali Raza in the head who fell down.
Meanwhile, two more persons riding another motorcycle came there. After satisfying themselves that Ali Raza had been critically injured they all left the scen e. Petitioner Rabia Bibi raised hue and cry which attracted many a people to the site, including PWs Muhammad Saleem and Khurram Shahzad, who took Ali Raza to the Nishtar Hospital where he expired on 26.8.2018. Two days later, Respondent No.2 appeared before the Investigating Officer, Tariq Hassan/SI (PW-10), and got his supplementary statement recorded in which he charged the Petitioner and Respondents Nos.3 and 4 for his murder . During investigation the police found that these persons had committed the of fence. Report under Section 173 Cr .P.C. was submitted accordingly .
3. On 3.6.2019 the learned Additional Sessions Judge indicted the Petitioner and Respondents Nos.3 and 4 who pleaded innocence and claimed trial. Thereupon the learned Court summoned prosecution evidence and recorded 10 witnesses. On 28.8.2019, just after the prosecution closed its evidence, the Petitioner moved. an application under Section 338, Cr.P.C. for grant of pardon undertaking that she would make full and true disclosure of the circumstances within her knowledge about the murder of Ali Raza. The learn ed Additional Sessions Judge dismissed that application vide order dated 29-8-2019. Hence this petition.
4. The learned counsel for the Petitioner contended that the impugned order was arbitrary and perverse. The learned trial Court had not exercised its discretion judicially while dismissing the Petitioner's application. He maintained that the evidence in the instant case was exiguous and if she was granted pardon and made an approver she would help to bring culprits to justice.
5. The learned counsel for Respondent No.2 (the Complainant) stated that neither Respondent No.2 nor other heirs of Ali Raza deceased had any objection if the Petitioner was allowed to become an approver . The learned Deputy Prosecutor General also supported the. Petitioner's request although his counterpart had opposed it before the trial Court. Respondents Nos.3 and 4 are, however , against it. Their learned counsel contended that the Petitioner'd application under Section 338 Cr.P.C. was not competent at this belated stage as the trial had concluded and her statement not only under Section 342 Cr.P.C. but also under Section 340(2) Cr.P.C. had been recorded. They further contended that grant of pardon would be an act of favour to her and prejudice Respondents Nos.3 and 4.
They , maintained that Section 338 Cr.P.C. being a means to securpe additional evidence could be invoked only on those considerations which underlie Section 540 Cr.P.C. The learned trial Court could exercise powers under that section only for the sake of justice and not with a view to acquit one accused and convict others.
6. Arguments heard. Record perused.
7. At times there are cases in which criminals commit an offence in such an organized or sophisticated manner that it becomes difficult for the prosecution to track them down or secure the quali ty of evidence that is required in the court of law to prove charge. Therefore, it is A constrained to seek the help of an accomplice. Article 16 of the Qanun-e-Shahadat, 1984 expressly declares that an accomplice is a competent witness. It stipulates:
16. Accomplice.---An accomplice shall be a 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.
8. However , neither the Qanun-e-Shahadat nor the Code of Criminal' Procedure, 1898 (Cr.P.C.), defines the term "accomplice". One may, therefore, have recourse to the Black's Law Dictionary (Tenth Edition) which describes it as follows: "(1) Someone who is in any way involved with another in the commission of a crime, whether as a principal in the first or second degree or as an accessory . (2) Someone who knowingly , voluntarily , and intentionally unites with the principal of fender in committing a crime and thereby becomes punishable for it."
Similarly , Corpus Juris Secundum (V olume 23 1349 at p.323) states: "The various definitions of an 'accomplic e' all convey the same idea, which is that an 'accomplice' is one who is concerned with others in the commission of a crime, is an associate in crime, or a partaker of guilt, one who aids or assists, or is an accessory . It is commonly said that an 'accomplice' is one who knowingly , voluntarily , and with common intent with the principal offende r, unites in the commission of the crime. Criminal intent is essential to render one an accomplice. Thus; to be an accomplice one must be an active partner in the intent to commit a crime. The term includes all who are conc erned in the crime, whether as principals in the first or second degree, or as accessories, or aiders or abettors, and under applicable statutory provisions the term includes principals, accessories, co-conspirators, and in fact all persons who are connected with the crime by unlawful acts, declarations, or omissions whether antecedent, to, contemporaneous with, or subsequent to,, the- main act constituting the crime."
9. The Hon'ble Supreme Court of Pakistan had the occasion to consider the afores aid term in Zulfikar Ali Bhutto v.
The State (PLD 1979 SC 53). After an in-depth review of the case-law cited at the bar it ruled (at p.193): "An accomplice, therefore, means a guilty associate or partner in crime, or, who in some way or the other , whether before, during or after the commission of the offence, is consciously connected with the offence in question, or who makes admissions of facts showing that he had a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. In other words, an accomplice is a particeps criminis, who is consciously so connected with the criminal act done by his confederate, that he on account of the presence of the necessary mens rea, and his participation in the crime in some way or the other , can be tried along with that confederate actually perpetrating the crime. A witness who could not be so indicted on accoun t of the absence of mens rea cannot be held to be an accomplice ...
Whether a person is or is not an accomplice depends on the facts of each particular case, considered in connection with the nature of the crime. The burden of showing that a witness is an, accomplice lies ordinarily upon the party alleging it, namely , the accused, though it is certainly the duty of the prosecution to bring all relevant facts having a bearing on this aspect of the matter to the notice of the Court."
10. From the above discussion it follows that an accomplice is one of the accused persons but he ceases to be so and becomes an approver when granted pardon.
11. The statutory provisions for tender of pardon are set out in Sections 337 to 339 Cr.P.C. which are supplemented by Chapter 14, V olume III of the Lahore High Court Rules and Orders.
12. Section 337 Cr.P.C. stipulates that in the case of any offence triable exclusively by the High Court or the Court of Sessions, or where the offence is punishable with imprisonment which may extend to 10 years, or when the offence is punishable under Section 211 P.P.C. with imprisonment which may extend to seven years, or where the offence falls within the ambit of Sections 216-A, 369, 401, 435 or 477-A, P.P.C., the officer-in-charge of the prosecution in the district may tender pardon to any person supposed to be direc tly or indirectly concerned in or privy to the offence on the condition that he would make a full and true disclosure of all the circumstances within his knowledge relative to the offence and the persons: involved in it. Such pardon may be tendered at any stage of the investigation or trial. However , this power cannot be exercised in offences of hurt or Qatl without the permission of the victim or, as the case may be, of the heirs of the victim and in every instance reasons must be recorded.
Section 338 Cr.P.C. empowers the High Court and the Sessions Court trying a case to exercise similar powers during the trial before the judgment is passed. The primary purpose of both the sections is to obtain more evidence in connection with the offence. Since section 338 Cr.P.C. is more relevant for the adjudication of this petition, it is reproduced hereunder for ready reference:
338. Power to grant or tender of pardon.-- At any time before the judgment is pass ed, 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 incharge 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.
13. In Lt. Commander Pascal Fernandes v. State of Maharashtra and others (AIR 1968 SC. 594), the question before the Supreme Court of India was whether an accused facing trial under Section 8(2) of the Criminal Law Amendment Act, 1952, could move the Special Judge for grant of pardon. It ruled that Section 338 "is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necess arily include a person arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the Section to show that the Special Judge must be moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case."
14. It is pertinent to point out that Section 338 Cr.P.C. has its own sway and the powers conferred on the Court thereunder are not circumscribed by the considerations that underlie Section 540 Cr.P.C. as the learned counsel for Respondents Nos.3 and 4 attempted to suggest. In the case of Lt. Commander Pascal Fernandes, supra, the Supreme Court of India explained: "There is no merit in the contention that S. 540 of the Code of Criminal Procedure governs either Ss. 337 or 338 of the Code or S. 8(2) of the Criminal Law Amendment Act. That section only confers powers on the Court to summon material witnesses at any stage of any inquiry or trial or other proceeding under the Code. That power is not to be confused with the power to tender pardon to an accused. The considerations for summoning witnesses as court witnesses are somewhat different from the considerations on which a tender of pardon should be made. It is no doubt necessary to bear in mind the interests of justice in either case but there the common factor ceases and other considerations arise. It is not, therefore, possible to read Section 540 with Sections 337 and 338 of the Code..."
15. Albeit Article 16 of, the Qanun-e-Shahadat, 1984, makes accomplice a competent witness, Article 129 provides a sort of rider thereto when it enacts that the Court may presume "that an accomplice is unworthy of credit unless he is corroborated in material particulars ." Rule 5 of Chapter 14, Volume-III, High Court Rules and Orders, also stipulates that since the evidence of an approver being that of an accomplice is prime facie of a tainted character , it should be scrutinized with utmost care and accepted with caution. It adds that "as a matter of law, pure and simple, a conviction is not bad merely because it proceeds upon the uncorroborated testimony of an accomplice but it has now become almost a universal rule that conviction should not be based on the testimony of an accomplice unless it is corroborated in material particulars. As to the amount of corroboration which is necessary , no hard and fast rule can be laid down. It will depend upon various factors, such as the nature of the crime, the nature of the approver's evidence, the extent of his complicity , and so forth. Corroboration is considered necessary not only in respect of the general story of the approver but also in respect of facts establishing the prisoner's identity and his participation in the crime." The principle that an approver's testimony requires corroboration was reiterated in a catena of cases some of which are The King v. Baskerville [(1916) 2KB 658], Mahadeo v. Emperor (40 CWN 1164), Sarwan Singh Rattan Singh v. State of Punjab (PLD 1957 SC (Ind.) 555), Rafiq Ahmad v. The State (PLD 1958 SC (Pak.) 317), Ramzan Ali v. The State (PLD 1967 SC 545), Hassu v. The Crown (1969 SCMR 621), Dr. Muhammad Bashir v. The State (PLD 1971 SC 447), Abdul Majid and another v. The State (PLD 19'3 SC 595), Abdul Sattar v. The State (PLD 1976 SC 404), Ali Muhammad v. The State (1985 SCMR 1834 ), and Mian Muhammad Nawaz Sharif v. The State (PLD 2009 SC 814). On the other hand, the question of nature and extent of corroboration required was discussed in Ishaq v. The Crown (PLD 1954 FC 335), Fazal Dad v. The Crown (PLD 1955 FC 152), Ghulam Qadir and another v. The State (PLD 1959 SC (Pak.) 377), Abdul Khaliq v. The State (PLD 1970 SC 166), Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (PLD 1972 SC 363), and Abdul Majid and another v. The State (PLD 1973 SC 595). The statement of law that can be deduced from these cases is that no strait jacket formula can be laid down as to the amount of corroboration but it must be in "material particulars".
16. Inasmuch as pardon is tendered on the condition that he would make a full disclosure, the approver is bound to keep his promise. If he fails to do so and the public prosecutor certifies that he has given false evidence or willfully concealed something essential, as per Section 339 Cr.P.C., he may be tried for the offence in respect of which the pardon was tendered and also for perjury subject to the sanction of the High Court under Rule 7 of Chapter 14, Volume-HI of the High Court Rules and Orders.
17. Having discussed the law on the subject, I proceed with the case in hand. As already noted, the prosecution has joined in the Petitioner's request while in this Court. However , Respondents Nos.3 and 4 have opposed it. Their objection regarding maintainability of her application deserves a short shrift being contrary to law. The mere fact that the trial has concluded is no ground to: reject it because the final judgment is yet to be pronounced. Section 338, Cr.P.C. unequivocally states that pardon can be tendered by the High Court or the Sessions Court trying a case at any time before the judgment is passed. The powers of the Court under Section 338 Cr.P.C. are circumscribed by two conditions: firstly , that the action must be with a view to obtain the evidence of any person supposed to have been directly or indirectly concerned in an offence or is privy to it. Secondly , pardon cannot be tendered to a person in an offence relatin g to hurt or Qatl without the permission of the victim or, as the case may be, his heirs. In the instant case, both these conditions are fulfilled.
18. An accomplice does not have any vested right to be tendered a pardon and made an approver .' In Mian Muhammad Nawaz Sharif v. The State (PLD 2009 SC 814), the Hon'ble Supreme Court of Pakistan observed that the "situations, the conditions, the offences and the requirements justifying reception of approver's testimony are all exceptional bordering on necessity and demands of public policy?" Therefore, the powers under Section 338 Cr.P.C. must be, exercised with great care and caution and only to advance the interest of justice. The Court should always bear in mind that in every pardon there is a risk that an offender would escape just punishment at the expense of the other accused.2 In order to determine whether in a particular case pardon should be tendered to an accused or not it should consider the quality of evidence available on record, the nature of additional evidence that he is likely to give, the nature of his complicity and the degree of his culpability in relation to the offence and to his co-accused. This list is, however , illustrative and not exhaustive.
19. Although Section 338 Cr.P.C. confers the power to grant pardon on the Court, in Lt. Commander Pascal Fernandes' case (supra) the {{FOOTNOTE}} Mushtaq Ahmad alias Shaqi v . The State and another ( 2003 MLD 1627 ).
2 Muhammad lqbal v . The State (1984 PCr .LJ 1 197). {{FOOTNOTE}} Supreme Court of India ruled that it should be exercised only when the prosecution joins in. It held: "Ordinarily it is for the prosecution to ask that a particular accused out of several may be tendered pardon. But even where the accused directly applies to the Special Judge, he must first refer the request to the prosecuting agency . It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony . It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender ."
The Supreme Court further said: "The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner . If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony , it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case. The learned Special Judge did not bear these considerations in mind and took or himself something from which he should have kept aloof. All that he should have done was to have asked for the opinion of the public prosecutor on the proposal. But since the Public Prosecutor , when appearing in the High Court, stated that the prosecution also considered favourably the tender of pardon to Jagasia we say no more than to caution Magistrates and Judges in the matter of tender of pardon suo motu at the request of the accused. This practice is to be avoided."
The above view was reiterated by the Supreme Court of India in Jasbir Singh v. Vipin Kumar Jaggi and others (AIR 2001 SC 2734) and is consistently followed by the Courts all over India.
20. I have examined the record of the instant case and found that the prosecution evidence primarily consists of extra-judicial confession of the Petitioner , the Wajtakar evidence and recovery of crime empty from the place of occurrence which the Complainant handed over to the Investigating Officer three days after the incident.
Circumstances show that the Petitioner , who has undertaken to make full disclosure if she is made an approver , can help to bring additional material on record which would advance the interest of justice. Since the State as well as the heirs of Ali Raza deceased are supporting this petition, there is all the more reason that it should be accepted.
21. One word more. Jurisprudence is well settled that co-accused have no right to object to tender of pardon to their cohort because they would have full opportunity to cross-examine him when he appears in the witness box as an approver . For this reference may be usefully made to Malik Mushtaq alias Black Prince v. The State and 11 others (2005 YLR 1728 ) and Force Commander , Regional Directorate ANF, Rawalpindi V. Judge Special Court (CNS) and others (2013 PCr.cLJ 279). The objections of Respondents Nos.3 and 4 are liable to be rejected on this score as well.
22. For what has been discussed above, this petition is accepted and the impugned order dated 29.8.2019 is set aside. The concerned officer-in-charge of the prosecution is directed to tender pardon to the Petitioner subject to the condition that she shall make full and true disclosure of all the circumstances within her knowledge relating to the Qatl-e-amd of Ali Raza deceased and every other person concerned with the commission of the said offence in any capacity whether as principal or abettor . In the event of breach of this condition, the consequences stipulated in Section 339, Cr .P.C. shall follow .