GUL HASSAN TAREEN J. The petitioner through this Criminal Revision Petition, filed under sections 435 and 439, the Criminal Procedure Code, 1898 ('Cr.P.C'), has assailed the order dated 23 June, 2023 of the learned Additional Sessions Judge, Loralai ('Trial Court') whereby, an application made by the petitioner under section 540, the Cr.P.C. for calling of the acquitted accused as a prosecution witness, was dismissed.
2. Facts of the case, briefly stated, are that, petitioner registered an FIR No. 07 dated 16 May, 2019 against unknown accused under sections 302 read with section 34, the Pakistan penal Code, 1860 at Levies Station Sinjavi, District Ziarat. The prosecution case as contained in the report is that, on 14 April, 2019 at about 11:00 a.m., the son of complainant namely Inayatullah, 16 years old, was found missing. He along with relatives went in search of his missing son. On 15 April, 2019, at about 07:00 a.m., the petitioner, Madad Khan, Naseebullah and other relatives saw the corpus of Inayatullah into a tube well. The corpus was taken out from the well and took it to the Civil Hospital Sinjavi for medical check-up. The duty doctor referred to for post mortem to the Civil Hospital Quetta. After necessary formalities, the corpus of Inayatullah was buried in their ancestral graveyard.
3. On such report, a formal FIR was registered and investigation was entrusted to Abdul Khaliq, Naib Tehsildar Levies. Subsequently, the case was entrusted to the Crimes Branch, Quetta. In the course of investigation, accused namely Paind Khan was apprehended who confessed his guilt before the Investigating Officer and confessed that he along with accused, Muhammad Imran (respondent No.2) had taken the deceased to a hut and the respondent No.2 strangulated the deceased. On his disclosure, the respondent No.2 was also apprehended, who also confessed his guilt before the Investigating Officer.
4. The complainant compounded the offence of Qatl-i-amd and forgiven the accused Paind Khan.
The Trial Court accepted the compromise an acquitted the accused Paind Khan. The prosecution examined thirteen witnesses, when complainant made an application under section 540, the Cr.P.C, to summon the acquitted accused, Paind Khan as a prosecution witness. The Trial Court vide impugned order dismissed the application.
5. Messrs Akbar Khan Kakar and Ghulam Wali Achakzai, learned counsel for the petitioner state that the acquitted accused Paind Khan confessed his guilt before the notables of the area and had also admitted his guilt during the course of investigation, therefore, being a participator of the Qatl-e- amd, he is an eye-witness, thus his testimony is relevant and would assisi, the Trial Court for reaching at a just conclusion. They referred to the Articles 16, 43 and 129(b), the Qanun-e-Shahadat Order, 1984 ('Q.S.O') and section 540, the Cr.P.C. and placed reliance on the following case laws: Raflullah v. 11th Additional District and Sessions Judge (West) Karachi and others 2020 MLD 942.
Wasiullah v. Ali Mohseen and 2 others 2016 PCr.L.J 1124. Siddiqullah v. The State and another PLD 2009 Peshawar 1.
Malik Muhammad Younas and another v. Umer Hayat and another 1998 MLD 1195.
6. Mr. Fazal-ur-Rehman, the learned State Counsel supported the contention of petitioner's counsel and placed reliance on the following case laws: Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 Mst. Rabia Bibi v. Additional Sessions Judge and 3 others PLD 2020 Lahore 690
7. Mr. Taimoor Shah Kakar, learned counsel for the respondent No.2 states that an accused of an offence may be examined as a prosecution witness; however, it cannot be done unless the prerequisites of sections 337 and 338, the Cr.P.C. have been fulfilled by the prosecution. He states that under section 540, the Cr.P.C, an acquitted accused cannot be summoned as additional witness; therefore, the Trial Court has rightly dismissed petitioner's application. The learned counsel referred to Articles 16 and 129 (b), the Q.S.O and placed reliance on the case of Abdur Rashid and another v. The State published in 1970 PCr.LJ 722.
8. Heard. Record gone through.
9. The Criminal Procedure Code, like all other procedural laws provides a complete mechanism regarding matters relating to remedy, mode of trial, the manner of taking evidence etc. The object of the Cr.P.C.is to provide a mechanism for the punishment of offenders against the substantive criminal laws. Evidence is a mode by which, an accused may be penalized. In criminal cases, burden to prove a charged offence is always on the prosecution (save in exceptional circumstances) and where prosecution fails to bring home charge against an accused beyond the shadow of reasonable doubt, the Court would be left with no option save, to acquit the accused. In this regard, the prosecution cannot take benefit of the fact, that either accused has not deposed on oath or has not led any evidence. Hence, in criminal case, the State is on one side and the offender is on the other. State cannot chose an accused where there are more than one, or an acquitted accused as its witness and ask the Court to summon such acquitted accused as a prosecution witness against his co-accused.
10. The Cr.P.C., however, provides exceptions to the general principle, that prosecution shall prove its case through its own evidence. Sections 337 and 338, the Cr.P.C. are instances of such exception.
According to section 337, the Cr.P.C, the District Public Prosecutor/Officer in-charge of the prosecution in the District, may at any stage of the investigation or inquiry into or the trial of the offence, tender a pardon to the participator/accused of offence as described in the said sections, with a view of obtaining evidence, on condition of his making a full and true disclosure of the whole of the circumstances relative to the offence. The accused who has accepted the tender under section 337 or section 338, the Cr.P.C shall be examined as a prosecution witness under section 337(2), the Cr.P.C. Under section 338, the Cr.P.C, the High Court or the Court of Sessions trying the case may, at any time before the judgment is announced, with the view of obtaining on the trial the evidence of any person supposed to have been concerned in, any such offence tender, or order the District Public Prosecutor to tender, a pardon on the same condition.
11. The second exception is section 494, the Cr.P.C. The public prosecutor may, with the consent of the Court 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. The effect of withdraw from prosecution is acquittal (if it is made after a charge has been framed). In such case, the accused against whom prosecution has been withdrawn, may be called as a witness against his co-accused except in cases where section 337 may be availed of. Other than these provisions, there is no corresponding provision in the Cr.P.C. for citing an accused as a witness against his co-accused. An accomplice becomes approver when given pardon. The law of sections 337 and 338, the Cr.P.C. has been founded on the doctrine of law of necessity and is based on public policy. The logic behind such law is that, instead of acquittal of all the accused, it is better to punish one or more accused on the evidence of his/their co-accused.
12. The Court may acquit an accused on the principle of benefit of doubt when the prosecution fails to prove the charge beyond shadow of reasonable doubt. The Court may acquit an accused when a compromise is allowed under section 345 (2), the Cr.P.C. and where the public prosecutor, with the consent of the Court withdraws from the prosecution of any person under section 494, the Cr.P.C. An accused acquitted for any of afore reasons, save section 494 ibid, cannot be compelled or permitted to appear as a prosecution witness against his co-accused. Reliance is placed on the case of Abdur Rashid v. The State reported in 1970 PCr.LJ 722. The relevant therein is reproduced hereunder: "The Criminal Procedure Code gives certain powers under which the evidence of an accused can be made available. He can be granted a conditional pardon by the Magistrate under section 337, Cr.P.C. or the Public Prosecutor with the consent of the Magistrate can withdraw, the char" against him under, section 494, Cr.P.C. The prosecution can exercise these powers when they consider that the evidence of an accused is necessary in a case and he should be examined as an accomplice under section 133 of the Evidence Act. Where section 337, Cr.P.C. is applicable, the better course is to