Muhammad Ramzan petitioner, who was tendered pardon under section 337, Cr. P. C. In a case of murder allegedly com--mitted on the night between 2nd and 3rd of September 1967, in Chak No. 169-J. B., Police Station Mochiwala, District Jhang, was heard by me in person during my inspection of the District Jail, Jhang on the 7th of April 1971. He stated that having been tendered pardon he was in detention since 14th of September 1967, there being no immediate prospects of the commencement of the trial. The Superintendent of the Jail was directed to forward his petition for bail to this Court which has now been received.
2. The reason for the inordinate delay in the disposal of the murder case is that on the recommendation of the District Magistrate, Jhang, the Commissioner, Sargodha Division, referred the case for trial by a Tribunal under section, 3 of the West Pakistan Criminal Law Amendment Act, 1963. The order of reference dated the 20th of March 1968, was challenged by the accused persons in appeal before the Home Secretary which was dismissed on the 11th of May 1968. This order was further challenged in the High Court by filing Writ Petition No. 1033 of 1968. It appears that the accused were not allowed bail during this period. The Writ Petition was, however, disposed of vide D. B. Order dated the 3rd of May 1971, as having abated in view v of the provisions contained in Punjab Ordinance VII of 1971 promulgated on the 26th of April 1971. The order reads as follows :- "The case of the petitioners was referred to a tribunal under the West Pakistan Criminal Law Amendment Act, 1963. All the references in pending cases have now been abated by means of the provisions of Punjab Ordinance (No. VII of 1971) promulgated on the 26th of April 1971. Since the reference in this case shall also automatically stand abated, no orders are called from this Court and the, writ petition is accordingly dis--posed of with no order as to costs. The file of the original case should be sent to the District Magistrate, Jhang.
On receipt of the bail, application of Muhammad Ramzan approver from jail notice was issued to the Advocate-General. The State is represented by Mr. A. W. Butt, Advocate.
3. An important question arises as to whether this Court would be competent to allow bail to the petitioner in view of the mandatory provision regarding the detention of the approver in custody till the termination of the trial, contained in clause (3) of section 337, Cr. P. C. Which reads : "Such person unless he is already on bail, shall be detained in custody until the termina--tion of the trial".
The adjectival clause "unless he is already on bail" was inserted by Act XVIII of 1923. It clearly indicates that the provision regarding obligatory detention of the person concern--ed would not be operative if he is already on bail. It has, however, been the subject-matter of soms judicial pronouncements which may be advantageously examined. In Muhammad Abdul Majid v. Emperor (AIR 1927 Sind, 173.) there was a difference of opinion between Percival, J. C. And Rupchand Bilaram, A. J. C. On the point whether clause (3) of-section 337, Cr. P. C. Controlled the general pro- -vision contained in section 498, Cr. P. C. Whereby the Courts were given discretion to allow bail in- certain circumstances even in cases punishable with death or transportation for life. Accord--ing to Pereival, J. C., section 337, Cr. P. C. Contained a special provision dealing with approvers and as such controlled the general provision contained in section 498, Cr. P. C. Even on merits, the learned Judicial Commissioner was not satisfied that there were sufficient grounds to justify the release of the approver on bait. Rupchand Bilaram A. J. C., however, took the view that a consistent and harmonious construction of different statutory provisions should always be preferred. It was observed:- "If clause (3) is interpreted in the manner suggested by me it is consistent with the provisions not only of section 498, but also to clause (5) of section 497, of the Code which provide for granting and cancellation of bail by superior Courts. At the same the it appears to me to be more consistent with the avowed intention of the Legislature than otherwise."
Dealing with the object of sub-clause (3) of section. 337, Cr. P. C. The learned A. J. C. Observed that contrary to the English concept where an accomplice was pernuitted to give evidence in the hope of a pardon he remained continuously to be an accused person until he had given his evidence. An accomplice according to the P. P. C. Got his pardon as a condition precedent to his giving evidence which was liable to subsequent forfeiture in case he did not fulfil the condition. Therefore, so long as he did not misbehave the ceased to be an accused person. The inference drawn from this was that in the absence of any express provision in that behalf an accomplice was entitled to his immediate release as soon as he got his pardon. But since an unconditional release was attended with serious risk of abscondence or being tampered with it was considered just and proper., that he should remain in custody, and it was with that object in view that sub-clause (3) of section 337. Had been enacted and not with the purpose of overriding the provisions of sections 497 and. 498, Cr. P. C. It was observed :- "And in my opinion, this clause goes no further and does not deal either with the question whether the accomplice may not be released on bail by a superior Court subsequent to the grant of pardon under section 498, or that if he is on bail that he may not be detained by order of the superior Court under section 497, clause (5). Clause (3) is an affirmative clause and though the use of the word `shall' is primarily obligatory it is less significantly comparative than the expression `must'. And I am not prepared to hold that this clause means that an accomplice who is in custody when he obtains his pardon must be detained in prison or that it implies the negative that he shall not be released from custody. If that was the intention of the Legislature, it should have been so expressed."
Since, however, both the learned Members of the Bench agreed as to the dismissal of the petition on merits .The conflict of views on the legal aspect was not referred to a third Judge.
4. The provision was also examined in Karuppa v. Kundaru (AIR 1952 Mad. 833). The view taken by the learned Judge was that the mandatory provision contained in section 337(3) was based on salutary principles of public policy and an approver who was not on bail at the the of his acceptance of pardon could not be released on nail before he had deposed at the trial truly and fully in accordance with the conditions of his pardon. It was held that an approver could not be put in the same position as an accused and the provisions of sections 497 and 498, Cr. P. C. Were not applicable. Reliance was placed on an observation made by Das and Panigrahi, JJ. In Khalil Behera v. State (16 Cut. L T 186): "A person who accepts a pardon also accepts the grave risk of departing from the truth and being charged with the offence if he abuses the privilege granted to him. The statement of an approver is not a confession and can be given in evidence against him under section 339(2), Criminal Procedure Code."
The learned Judge further observed:- "Like a lunatic who does an at constituting the crime but is not convicted and punished for it because he was of unsound mind at the the he committed the at, an approver is also a person who is directly or indirectly concerned in or privy to the offence under section 3370), Criminal Procedure Code, and is let of without conviction or punishment because he accepts the tender' of a pardon and makes a true and full disclosure of all the facts relating to the crime within his knowledge."
5. Another relevant authority from across the border is A. L. Mehra v. The State (AIR 1958 Pb. 72.) which is a D. B. Judgment. Accord--ing to the learned Judges the object of requiring an approver to remain in custody until the termination of the trial is not to punish the approver for having agreed to give evidence for the State, but to protect him from the wrath of the confederates he has chosen to expose, to prevent him from the temptation of saving his erstwhile friends and companions and to secure his person to await the judgment of the law". It was held that the argument that if an accused could be released on bail there was no reasons why a person who had been granted a pardon should not be accorded similar facility, was devoid of force, for the provisions of law could not be extended by analogy. It will be useful to reproduce the relevant observation "A pardon is an at of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is in substance and effect a contract between the State on the one hand and the person whom it is granted on the other. As the greater includes the less, a general power to grant pardons carries with it the right to impose conditions limiting the operation of such pardon.
It follows as a consequence that it is open to the pardoning power to annex to a pardon any condition, precedent or sub--sequent, and of any nature so long as it is not illegal, immoral or impossible of performance. When a pardon is granted on a condition precedent, it does not become operative until and unless the prisoner performs the condition in question. If the condition is not performed the prisoner stands precisely as though no pardon had been granted".
Reliance was placed on Muhammad Abdul Majid v. Emperor (AIR 1927 Sind 173). The learned Judges of the Division Bench, namely, Bhandari, C. J. And Tek Chand, J. In AIR 1958 Pb. 72 also examined the question of the invocation of the inherent power of the High Court to admit an approver to bail under section 561-A, Cr. P. C. It was held :- "The High Court has no inherent power to admit an approver to bail even if he is able to produce facts at the hearing sufficient to entitle him to bail. Further; the inherent power, if any, has been expressly taken away by the enactment of subsection (3) of section 337."
Their Lordships then proceeded to examine another aspect of the matter which is directly relevant to the case before me namely they delay in the commencement or conclusion .Of trial. It was observed:- "The use of the word `shall' in subsection (3) of section 337, indicates that the Legislature has imposed a statutory and an imperative obligation on the Court to detain an approver in custody until the conclusion of the trial even when section of the case has been unreasonably delayed to oppression of the prisoner and even when the delay is occasion--ed by the failure to present the challan or to deal with the case expeditiously."
But a little further, having regard to the practical difficulties faced by the prosecution in holding the trial expeditiously and taking a more realistic view the learned Judges observed as follows :- "Mr. Lal was unable to indicate the date on which this decision is likely to be implemented or the date 'on which the first case is -likely to be put in Court, for he stated that the sanction of Government to the prosecution of the prisoners under section 5(2) of the Prevention of Corruption Act has not-- been accorded so far. If the prisoners are to be brought to trial under section 5. Of the Prevention of Corruption Act or if there is no likelihood of such trial in the near future, or if their prosecution under that section is to be indefinitely postponed, it would in my opinion be a travesty of justice to keep the approver in confinement `until the termination of the trial.
It could not have been the intention of the Legislature that a person who has been granted a pardon in respect of a particular offence should be kept in confinement for an indefinite period particularly when Government have not been able to decide during the last fifteen months whether the prisoners should be prosecuted at all . . . . . . . . . .
Indeed the delay which is being occasioned in the decision of this important matter leaves one in reasonable doubt as to whether the detention of the approver is directed to achieve the object of law or merely to harass him for his part in the crime. It seems to me, therefore, that although the process of arrest was proper in its inception the complaint of the approver arises in consequence of subsequent proceedings. Subsection (3) of section- 337, implies that, there is a trial in progress and its object is to secure the evidence of the approver for such trial.
If there is ho such trial and no likelihood of such a trial then cessante ratione lex insa cessat. This is an eminently fit. Case in which the inherent powers of this Court to prevent the abuse of the process of the Court be exercised in favour of a person who has been in confinement for several months and who was recently released on parole at the urgent request of the Solicitor-General. I direct that the approver shall be released on bail on furnishing security to the satisfaction of the District Magistrate."
The above observation was relied upon by Shaukat Ali, J. In Bashir Ahmad v. The State (1968 P Cr. L J. 1367) earlier numbered as Criminal Miscellaneous No. 3692 of 1966..(Abdus Sattar v. The State).
6. In Wazir and others v. The State (PLD 1960 Kar.. 674), a D. B. Authority, in which the judgment was written by S. A. Haq, J., the present Chief Justice, the question of grant of bail was not directly relevant in the case before their Lordships. However, it appears that despite the availability of direct ocular evidence pardon was tendered to to instead of one approver both of whom were subsequently released on bail. While commenting on this their Lordships observed---- "Another remarkable fact about these approvers is that they were released on bail immediately after the tender of pardon on 6-8-1956 in contravention of the clear provisions of law con--tained in sub-clause (3) of section 337, Cr. P. C. Namely `such person, unless he is already on bail shall be detained in custody until the termination of trial'.
While we are not prepared to go all the way with Mr. Abdus Sattar Pirzada that the enlargement of the approvers on bail vitiates their evidence altogether, we consider that the grant of bail is certainly an element which weakens their evidence, as it seems to us to be a clear inducement or tempta--tion which must have offered to these to persons for becoming approvers."
As stated earlier, this observation of their Lordships is not direct--ly relevant to the point in issue before me. A similar question, however, arose before Nazir Ahmad Mahmood, J. In Abdus Sattar v.
The State (PLD 1966 Lah. 549). The petitioner who was approver in three cases, had represented before his Lordship that he had been in detention for more than a year under clause (3) of section 337, Cr. P. C. Although all the six accused in these cases had already been released on bail and were deliberately delaying the progress of the trial. He, therefore, prayed that he may be released on bail. The view taken by the learned Judge was that sections 497 and 48, Cr. P. C. Had no application to the case of an approver which was specifically dealt with under section 337, Cr. P. C.
The provision contained in sub-clause (3) ibid being mandatory in nature, the approver was bound - to remain in detention till the termination of the trial. The petition was accordingly dismissed.
7. A contrary view was, however, expressed by Shaukat Ali, J. In Abdus Sattar v. The State (Cr. M. No. 3692 of 1966) referred to earlier which was overruled by a subsequent D. B. Authority Rehmat Masih v. The State (PLD 1968 Lah. 1030) to which the conflict of opinion between Nazeer Ahmad Mahmood, J. And Shaukat Ali, J. Was referred for resolution. Khamisani, J. Who delivered the judgment in this case, took the view that with the acceptance of a pardon the approver ceased to be an accused and assumed the character of a witness the retention of his status being contingent upon the fulfilment of certain conditions such as the true dis--closure of the full facts of the case failing which he is again relegated to the position of an accused, and since sections 496, 497 and 498, Cr. P. C. Could be invoked only in the case of an accused person they had no relevancy to the case of an approver whose case was exclusively governed by sub-clause (3) of section 337, Cr. P. C. It was observed by his Lordship :- "The language of section 337(3), Cr. P. C. Has received the attention of numerous Courts and the consensus of opinion by all Courts is that an approver, as long as the trial of the case in which he has agreed to become an approver has not con--cluded, shall be kept in .Custody. In other words, the view taken is that an approver so long as the trial of the case in which he is an approver has not concluded, shall not be released on bail. The provision contained in section 337(3), Cr. P. C. Is mandatory and consequently cannot be set at naught, it being based on a very salutary principle of public policy and public interest."
Reliance was placed in this regard on Karuppa v. Kundaru referred to earlier. On the point of the non-application of sections 496, 497 and 498, Cr. P. C. To the case of an approver, their Lordships of the Division Bench placed reliance on the following authorities :-
(1) Shah Din v. The State and others PLD 1963 Lah. 342.
(2),Abdul Sattar v. The State PLD 1966 Lab. 549.
(3) Yasin v. Government PLD 1958 Azad J & K 46.
(4) Kundan Lal and others v. Emperor AIR 1931 Lah. 353.
(5) In re : Khairati Ram AIR 1931 Lah. 476.
(6) Mahomed Abdul Majid v. Emperor AIR 1927 Sind 173.
(7) A. L. Mehra v. The State AIR 1958 Pb. 72.
(8) Allauddin and others v. The State 1968 P. Cr. L J 92.
(9) In re : Dagdoo Bapu AIR 1922 Bom. 177.
(10) Karuppa Barvai v. Kundaru alias Muniandi Thevan AIR 1952 Mad. 833.
It 'may be respectfully observed in this context that an approver is rather in a unique position being initially an accused person who could be released on bail under sections 497 and 498, Cr. P. C.
Before accepting pardon as clearly envisaged by the excepting clause contained in sub-clause (3) of section 337, Cr. P. C. A sudden metamorphosis however takes place in his case as soon as he accepts pardon, when he assumes the character of a witness which again is not absolute but subject to further relegation to the original position of an accused in the event of the non-fulfilment of the conditions of a pardon. Thus, after he is made an approver he only technically becomes a witness. However, in view of the consensus of opinion expressed in the above authorities I have no hesitation in readily and respectfully accepting this view.
8. The next point considered by their Lordships of the Division Bench in Rahmat Masih v. The State was whether bail could he allowed to an approver in exercise of the inherent power of this Court under section 561-A, Cr. P. C. Despite the prohibition contained in section 337(3), Criminal Pro-- cedure Code. Relying on Jairam Das and others v. Emperor (AIR 1945 P C 94), Hidayatullah Khan v.
The Crown (PLD 1949 Lah. 2l), Gushtasab Khan v. The Crown (PLD1956FC117), Crown v. Khushi Muhammad (PLD1953FC170) and Mahmood Ali Kasuri v. The State (PLD 1963 SC 478) their Lordships took the view that inherent power vesting in the High Court was not. An independent or supplemental power conferred to fill' up vacuums or lacunas in law and that this power was ancillary in nature and could only be invoked to prevent abuse of the process of Court only to the limited extent where the power was in existence. The precise argument adopted was that since the power to grant bail to an approver was not only non-existent but had also been expressly taken away by section 337(3), Cr. P. C. The question of granting him bail under section 561-A, Cr. P. C. Did not arise which would otherwise mean completely setting at naught the provisions con--tained in section 337(3), Cr. P. C. Reliance was particularly placed on the following observations :- "It (section 561-A, Cr. P. C.) merely safeguards all existing inherent powers possessed by a High Court necessary to secure the ends of justice (AIR 1945 P C 94).
This Court cannot claim to exercise any inherent power to grant bail at any stage of the proceedings. The power must be derivable from the express terms of the Code itself." (PLD 1949 Lah. 21).
Inherent powers of the High Court (section 561-A, Cr. P. C.) could only be regarded as auxiliary or ancillary powers to make effective orders that could be passed under some provision of the Code, in the interest of justice (PLD 1963 SC 478)."
Their Lordships also took note of the situation where on account of non-production of witnesses an approver may be unnecessarily detained for inordinately long the or where the prosecution may conspire to make one of the accused as an approver and try to prolong the proceedings and have him, con--fined in custody with a view to harass him which would amount to great hardship on him. It was held that merely because detention of an approver had worked on him hardship the law could not be circumvented and powers which were not conferred on the High Court could not be accused as the law is always made for the general good and not for safeguarding exceptional situations. A significant observation made by their Lordships which would be more relevant to the facts of the case before me was :- "The prosecution can also say that the case is not likely to proceed which would mean that the trial in the case cannot be concluded and as such the condition laid down under section 337(3), Cr. P.
C. Being incapable of being fulfilled an approver cad go back to an original position of an accused and apply for bail under sections 496 to 498, Cr. P. C."
In this view of the matter, the reference made to their Lord--ships to resolve a conflict of opinion in Abdul Sattar v. The State and Criminal Miscellaneous No. 3692 of 1966, was answered as follows :- "An approver if he was in custody at the the when he was granted pardon cannot be granted bail under. Any provision of the Code of Criminal Procedure on account of prohibition contained in section 337(3), Cr. P. C."
9. The last authority available on the point is Nazir Ahmad v. The State (1970 P Cr. L J 865), wherein the D: B. Authority Rehmat Masih v. The State was followed by my learned brother Muhammad Afzal Zullah, J.
10. The ratio decidendi emerging from a review of the fore--going authorities of which AIR 1958 Pb.
72 and PLD 1968 Lah. 1030 are more elaborate besides being D. B. Judgments, is that in view of the prohibition contained in sub-clause (3) of section 337, Cr. P. C. As approver could not be allowed bail in exercise of the inherent powers provided .In section 561-A, Cr. P. C. Notwithstanding the positively and the forthright manner in which this view has been expressed there are certain observations made in both these judgments which appear to me be directly in point to the instant case and may be referred to once again even at the risk of repetition. In AIR 1927 Sind 173, the learned Judges had observed :- "It could not have been the intention of the Legislature that a person who has been granted a pardon in respect of a parti--cular offence should be kept in confinement for an indefinite period particularly when Government have not been able to decide during the last fifteen months whether the prisoners should be prosecuted at-all.
Indeed the delay which is being occasioned in the decision of this important 'matter leaves one in reasonable doubt as to whether the detention of the approver' is directed to achieve the object of law or merely to harass him for his part in the crime. It seems to me, therefore, that although the process of arrest was proper .In its inception the complaint of the approver arises in consequence of subsequent proceedings subsection (3) of section 337, implies that there is a trial in progress and its object is to secure the- evidence of the approver for such trial.
If there is no such trial and no likelihood of such a trial then cessante ratione lex ipsa cessat. This is an eminently fit case in which the inherent powers of this Court to prevent the abuse of the process of the Court be exercised in favour of a person who has been in confinement for several months.
I have already referred to a similar observation made by late Khamisani, J. In the case of Rehmat Masih v. The State wherein the view was expressed that when the commence--ment of the trial was not in sight despite the grant of a pardon an approver could still be technically dealt. With as an accused under sections 497 and 498, Cr. P. C: for the purpose of grant of bail. In all humility and respect, I would venture to say that the qualifying exceptional provision contained in the adjectival expression in sub-clause (3) of section 337, Cr. P. C. Namely "unless he is already on bail" clearly envisages a situation where an accused person before he accepts pardon can be allowed bail. The considerations which found favour with the law giver in taking away this liberty after the grant of pardon to a person, namely the chances of his abscondence, the hazards of intimida--tion or even of death at the hands of his confederates whom he decides to betray, the amenibility to extraneous influences to resile from his confessional statement etc. Would remain equally applicable to the case of a person already on bail and not detained after the grant of a pardon to him and so such apparent--ly there seem to be no good grounds for this artificial distinction.
However, it is not the function of this Court to criticise the wisdom of the law-giver and the law has to be interpreted as it stands, of course having particular regard to object of the legislation in question.
11. The inferences that I have been able to draw from the statutory provision considered in the light of the foregoing discussion are :- Firstly the prohibition contained in sub-clause (3) of section 337, Cr. P. C. Is not absolute but qualified and condi--tional. Secondly the objects of detention of the approver till the termination of a trial also include inter alia the safeguard of e his interest. Thirdly the prohibition would come into play only if the trial is either in sight or in progress. If however, the commencement of the trial had already taken several years and is still not within sight the authorities are agreed that bail could be allowed to an approver on the ground of abuse of the process of the Court, under section 561-A, Cr.
P. C. Inasmuch as the pro--hibition contained in subsection (3) of section 337, Cr. P. C. Would not be applicable.
12. Having regard to the circumstances of the case before, me, particularly the foot that the petitioner has already spent about four years in detention without any immediate prospects of the commencement of the trial, I direct that he be released on bail on furnishing security in the sum of Rs. 10,000 (Ten thousand only) with to sureties in the like amount to the satisfaction of the Assistant Commissioner, Jhang.
A copy of this order may also be forwarded to the District Magistrate, Jhang, for taking any further action as may be deemed necessary in the circumstances.