1. ' ABDUL QADEER CHAUDHARY, J.-This Acquittal Appeal has arisen out of the folio king facts. It is the case of the prosecution that on 17-5-1976 the deceased Sahib Dad aged about 20 years accompanied by the respondents/ accused Abdul Samad son of Abdurehman and Abdullah son of Safar Khan and P. W. Abdul Majid, had seen the last film show at Paradise Cinema, Quetta. All these 4 persons were residing at Killi Ismail, Quetta. After the film show on their return journey to home, the accused persons near the Company Bagh expressed their intention to have carnal intercourse with Sahib Dad against the order of nature. The deceased Sahib Dad did not accept the suggestion. Abdul Majid also tried to pursuade them not to indulge in the evil act but the accused-persons insisted that they would commit the act. In the meanwhile, the party had reached the Buarani Nulla. It was on the bridge of this Nulla when the accused-persons caught hold of Sahib Dad and pushed him down and tried to force their will upon the deceased by extending threats which he resisted and then he tried to run away from there but accused Abdul Samad caught bold of him. Accused Abdullah also joined him and they finally pushed him down the bridge. The accused Abdul Samad hit the deceased with a big stone, whereafter, both the accused strangulated the deceased with Chadar Exh. P/7. The First Information Report was lodged by P. W. William Jhon Barkat S. H.
0. Bijli Road, Quetta who saw the dead body lying under the railway bridge near old Killi Ismail, Quetta. The case was registered against unknown persons. 'The investigation was conducted by P.
2. W. Wiliam Jhon Barkat himself. He sent the dead body for post-mortem examination. He arrested Abdul Majid on 18-5-1976. This Abdul Majid was subsequently made an approver and the pardon was granted to him by the District Magistrate.
3. ' At the trial, the prosecution examined 13 witnesses. The learned trial Judge examined Abdul Majid P. W. I. The examination-in-chief was concluded but at the stage of cross-examination the defence counsel objected that the statement of approver Abdul Majid could not be admissible in evidence.
4. The learned trial fudge by means of his order dated 31-10-1977 maintained the objection raised by the defence. The order passed in this behalf shows that the Special Public Prosecutor conceded that Abdul Majid did not fulfil the qualifications of the approver. However, he requested that be may be treated as an ordinary witness and his statement may be held admissible. The learned trial Judge did not accept this contention and he agreed with the defence counsel that the statement of P. W. Is inadmissible in evidence. The reason which prevailed with the trial Court was that the condition of pardon is available only to a person who seems to have directly or indirectly played some part in the commission of offence. The examination of only such a person would be necessary who is fully covered by the provisions of subsection (1) of section 33/ and not of a person whose position is otherwise. He, therefore, discarded the statement of P. W. Abdul Majid and thus cross-examination of this witness was not done by the defence counsel.
5. ' After assessing the evidence on record, the learned trial Court came to the conclusion that no case has been made against the accused and, therefore, he acquitted them of the charge.
6. ' We have heard the learned Assistant Advocate-General on behalf of the ' State and Malik Karam Ellabi for accused Abdul Samad. Accused Abdullah has appeared in person.
7. ' A preliminary objection was raised by Malik Karam Ellahi that the present appeal is not maintainable. He relies on Malik Firoz Khan Noon v. The State (1). According to this authority the insertion of section 411-A in the Criminal Procedure Code has merely enlarged the appellate powers of the High Court and has not created a new Court to which the Judge exercising original criminal jurisdiction is inferior or subordinate. Section 411-A confers limited appellate powers on the High Court and does not give to that Court full powers of appeal from judgment of a Judge exercising original criminal jurisdiction. At page 335 of the report the following observation has been made by the learned Chief Justice :- "The Court that functions in exercise of the original criminal jurisdiction or in exercise of the appellate jurisdiction under section 4II-A is the same Court viz. The High Court and not two different Courts, the respective powers possessed by the Judges while functioning in two different capacities being the powers of the same Court and the distribution of those powers being no more than an internal arrangement among the Judges of the same Court. The records of both the benches are records 'of the same Court and not of two different Courts. There are of course two judgments in such a case one by the original Judge or judges and other by the appellate Judges but they are both judgments of the same Court though by law the judgment of the appellate bench in case of reversal or modification overrides."
8. The above-quoted authority does not say that an appeal against the judgment of a Single Judge is not competent or that the appeal could not be heard by the appellate/Revisional Bench. The authority has clarified the position that as the Judge who had tried a case on the original side of the High Court et is not a subordinate Court, therefore, the case cannot be remitted to that Court.
9. Nowhere it is stated that no appeal lies or judgment cannot be pronounced by the appellate bench. At page 356 of the report the following, passage is relevant : "If the original Bench is not subordinate, the case cannot be remitted to it for retrial. The remittal must be to some other competent Court because after the trial of a case in exercise of the extraordinary criminal jurisdiction of the High Court the original bench being functus officio, ceases to exist, and can be reformed only by an order of the Chief Justice if the case after having been remitted to another subordinate Court of competent jurisdiction is again intended to be tried on the original side of the High Court."
10. ' The facts of the reported case are that an appeal was filed to the Supreme Court for expunction of the remarks made against Malik Firoz Khan Noon in the judgment of the High Court. The judgment was pronounced by a Judge of the High Court on the original side. It was observed that the appellate/revisional of bench the High Court had no power to expunge any remarks or passage from his judgment. The learned Assistant Advocate-General has submitted that he has made no such prayer that if this appeal is accepted the case must be remanded to the same trial Judge. It may be remanded to the Sessions Judge for trial. There is force in the contention raised by thel learned Assistant Advocate-General and, therefore, we do not see any substance in the contention that the present appeal is not competent. It is: {{FOOT NOTE}} PLD 1958 SC 33 {{FOOT NOTE}} ' provided in section 411-A that except in cases in which an appeal lies to the Supreme Court under Article 158 of the Constitution any person convicted on a trial held by the High Court in the exercise of its original criminal jurisdiction may appeal to the High Court against his conviction. The learned counsel for the respondent then contended that only convicted person has a right to appeal. This argument has also no force because subsection (2) of section 411-A specifically provides that an appeal may be presented to the High Court from any order of acquittal passed by the High Court in the exercise of its original jurisdiction. We are, therefore, of the opinion that the present appeal is maintainable and the judgment can be pronounced by the bench and the case can be remitted to lower Court for trial or retrial.
11. ' Malik Karam Ellahi the learned counsel for the respondent then raised another objection, that the appeal is barred by time. This objection is equally without substance, as Article 157 of the Limitation Act prescribes a period of 6 months for filing appeal against the order of acquittal. The time begins to start from the date of the order appealed from. The judgment was pronounced on 27-9-1978 and the appeal was filed on 24-1-1979, therefore, the appeal was filed within time.
12. The learned Assistant Advocate-General has argued that the view taken by the learned trial Judge that once a pardon is granted to a person then he D could not be examined as a witness is not correct. We find sufficient force in this contention. The term "Witness" has not been defined either in the Code of Criminal Procedure or in the Evidence Act but the "Evidence" has been defined in the Evidence Act and it means and includes all statements which the Court permits or requires to be made before it by witness in relation to matters of fact under inquiry such statements are called oral evidence and all documents produced for inspection of the Court are called documentary evidence. Under section 118 of the Evidence Act all persons are competent to testify unless the Court considers that they are prevented from understanding the questions, put to them or from giving rational answers to those questions. Under section 337 of the Code of Criminal Procedure the District Magistrate, a Sub-Divisional Magistrate or any Magistrate of the 1st Class may, at any stage of the investigation or inquiry into, or trial of the offence with a view to obtaining 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 relating to the offence and to every other person concerned whether, as principal or abettor, in the commission thereof. Section 337, Cr. P. C. Starts with the word "tender of pardon to accomplice". Accomplice has not been defined any where in the Code itself. Broadly speaking accomplice is a person who participates in the commission of an offence.
13. In jaganath v. Emperor (1), the meaning of the word "accomplice" has been stated in these words :- "The word 'accomplice' has not been defined by the Evidence Act, and should, therefore, be presumed to have been used in its ordinary sense. An accomplice means a guilty associate or partner in crime or who, in some way or other, is connected with the offence in question or who makes admissions of facts showing that he had a conscious band 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. The fact that he did not make a report to the police soon after the occurence or the following morning by {{FOOT NOTE}}
(1) AIR 1942 Oudb 221 {{FOOT NOTE}} ' itself does not make him an accomplice. An accomplice confesses himself a criminal who has been concerned in the commission of a crime participates criminals, whether he is concerned in the strict legal propriety as principal in the first or second degree, or merely as accessory before or after the fact. All accessories before the fact, if they participate in the preparation for the crime are accomplices, but if their participation is limited to the knowledge that a crime is to be committed they are not accomplices. Whether a person is or is not an accomplice depends upon the facts in each particular case considered in connection with the nature of the crime, and persons to be accomplices must participate in the commission of the same crime as the accused-persons in a trial are charged."
14. The word "accomplice" has been ably defined in this authority and a person who has no nexus or connection with the offence charged cannot be terms as an accomplice. In fact the abovequoted observation is applicable to the facts of the present case. In /Mural Amin and others v. Emperor (1), it has been observed that the mere fact that a witness did not reveal the knowledge of the intending crime to the proper authorities is not sufficient to make him an accessory or an accomplice so as to vitiate his evidence. In Narain Chand Biswas and others v. Emperor (2), it was held that 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 ; as it is well-settled that all accessories before the act, if they participate in the preparation for the crime are accomplices, but if their participation is limited to the knowledge that crime is to be committed, they are not accomplices. The question, therefore, arises whether a person to whom pardon has been granted and later on it reveals that he was not connected in any way with the commission of any offence ; can be examined as a witness ? The learned trial Judge is of the opinion that once a pardon has been granted to a person and if that person is not connected with the offence he cannot be examined as a witness. With utmost respect to the learned Single Judge, we are unable to find any basis for such a view. Even if pardon has been granted to a person but in fact, he had no direct or indirect concern in or privy to the offence ; his statement as a witness cannot be disallowed merely on the ground G that he was granted pardon by a competent Magistrate. The learned Assistant Advocate-General has referred to the statements of this witness under section 161 and section 164, Cr. P. C. In support of his plea that from the very beginning it was clear that he was not an accused, but a witness. The Investigating Officer and the District Magistrate have not properly applied their minds to the facts of the case and they did not care to read the statement of this witness carefully.
15. The pardon could not be given to the witness Abdul Majid as he had no connection with the offence. There is hardly any difference between any approver and an ordinary witness, so far theft examination in a Court of law is concerned. After all an approver is to be examine as a witness at the trial and not in any other capacity. Under section 133 of the Evidence Act an accomplice is a competent witness. There is no provision of law and we do not find anywhere in Cr. P. C. And the Evident Act that a person who had seen the incident could not be examined simple because rightly or wrongly pardon was granted to him. The value or the appreciation of the evidence of such a witness is a different thing. Who weight is to be attached to the evidence of a particular witness is distinguishable from the examination of any witness- ? The authority placed before the learned Single Judge and referred to in his order, is distinguishable. In the {{FOOT NOTE}}
(1) AIR 1939 Cal. 335 (2) AIR 1936 Cal. 101 {{FOOT NOTE}} ' reported case the approver was examined as a witness but the trial Judge was of the view that approver ,was not properly given a pardon and his place was dock rather than the witness-box. He held that the statement of the approver could not be used as evidence as he was in the eye of a law a co-accused of the person who stood their trial. The High Court in that case did not accept the contention of the trial Judge and it was held that the action of the trial Judge in not treating the approver as a witness was entirely erroneous. It was observed that it was open to the trial Judge to disbelieve the approver, but that there was no provision of law under which it was open to him to say that he will not treat the witness as a witness and order that he be tried as an accused. It has been said in the authority that once a pardon has been given to a person he cannot be examined as a witness for the prosecution. In this context we will refer the following passage from Palti Rai and others v. King Emperor (1): "A tender of pardon was made to Palati Rai but when the Magistrate started recording his statement, Palati Rai declared that he knew nothing. Here there was no acceptance of pardon. A pard on would be accepted when the person to whom it is tendered does volunteer to make some statement with reference to the crime. In this Palati Rai expressed complete ignorance and stated that he was indifferent whether pardon was granted to him or not. I agree with the lower Court that Palati Rai did not accept the tender of pardon."
16. It is, therefore, clear that pardon can be granted to an accused and not a witness, therefore, merely because pardon has been granted to Abdul Majid, it cannot be said that he had accepted the pardon. According to his version he was not associated with the accused in any way. In Farid Muhammad v. The State (2), it has been observed that even if defence characterises a prosecution witness's statement as that of an accomplice, such statement cannot for that reason be rejected altogether ; and the test to hold a person accomplice is whether such person sustained to the criminal act that he or she can be jointly indicted with the accused whom he or she implicates. In Crown v. Ghulam Rasool and others (3), it was observed that accomplice means a guilty associate or partner in a crime; a person who is connected with the offence, or who makes admission of facts that he had a conscious hand in it. The conclusion is irresisiable that Abdul Majid P. W.'s statement should have been recorded by the trial Court in this case. As the cross-examination of this witness was not done and the entire statement was excluded by the trial K Court, a material illegality has been committed in the proceedings which vitiates the judgment, for the simple reason that the statement of Abdul Majid was not considered at all by the trial Court.
17. ' The learned Assistant Advocate-General has referred to another illegality, that is the non- examination of the accused in accordance with the provisions of section 342, Cr. P. C. Under section 342, Cr. P. C. All the pieces of evidence brought on record by the prosecution have to be put to the accused. In the instant case the accused were asked only single question "you have heard the prosecution evidence. What have you to say. The learned counsel for the respondent has submitted that the purpose of section 342 is to enable the accused to explain his position in the light of prosecution evidence and as no prejudice has been caused to the accused, therefore, even if the examination of the accused is not proper, the entire trial does not vitiate and {{FOOT NOTE}}
(1) AIR 1924 All. 564 (2) PLD 1959 Pesb. 12
(3) PLD 1950 Lab. 129 {{FOOT NOTE}} ' thus irregularity is curable under section 537, Cr. P. C. It is further contended that it is a case of no evidence. The learned A. A.-G. Has not accepted this proposition and states that the prosecution has been prejudiced as some pieces of evidence have not been put to the accused under section 342, Cr. P. C. According to him whatever be the worth of that evidence it had to be put to the accused. The learned counsel for the State submits that the accused should have been asked to explain the recoveries made in this case at his instance, the blood found on some of the articles and other such pieces of evidence. The learned A. A.-G. Has referred to the State v. Barkat Ali (1), wherein it has been observed :- "The wording of section 342 of the Criminal Procedure Code, 1898 makes it perfectly clear that after all the prosecution evidence is examined, it is necessary for the Court to examine the accused and thus give him an opportunity to explain away the circumstances appearing against him, in the evidence. The examination of the accused under section 342 will be essential even if the Magistrate eventually decides to acquit the accused. Failure to comply with the mandatory provisions of section 342, Cr. P. C. Is an illegality which vitiates the whole trial."
18. ' In A. M. Nur Allan v. Mokhlesur Rehman Almansuri and another (2), it is observed that the purpose of examination of accused under section 342, Cr. P. C., is not intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth, and it constantly happens that the accused's explanation, or his failure to explain, is the most incriminating circumstance, against him.
19. From the perusal of the record it is clear that some incriminating pieces of evidence have not been put to the accused. The I non-examination of the accused on such material points prejudiced the prosecution. In our view this irregularity is not curable.
20. The learned A. A.-G. Has pointed out another irregularity in the proceedings. He has submitted that P. W. Imam Dad was not examined on oath. The age of this witness was about 15 years at the time of examination. It was, therefore, imperative that oath should have been administered to this M witness, and thus the provisions of section 5 of the Oaths Act 1873 have been violated. This contention has also force. Examination of this witness, on oath, was a legal requirement under section 5 of Oaths Act 1873 which can be dispensed with only if the witness is a child under 12 years and does not understand the nature of an oath of affirmation ; but witness Imam Dad was about 15 years and, therefore, his statement should have been recorded on solemn affirmation. We, therefore, accept this appeal, set aside the order of acquittal passed against the two respondents and remand the case to they learned Sessions Judge, Quetta, with the following directions :- "(1) He should call upon the defence to cross-examine P. W. Abdul Majid.
(2) He should re-examine P. W. Imam Dad on solemn affirmation.
(3) After the examination of the witnesses, he should examine the accused under section 342, Cr. P.
21. C. And put all the pieces of evidence available against the accused.
(4) After the examination of the defence if produced, pronounce the judgment."
22. ' The respondents/accused have furnished surety bond for their appearance in this Court and for appearance in any other Court. They will continue {{FOOT NOTE}}
(1) PLD 1960 Lab. 140 (2) PLD 1967 Dacca 503 {{FOOT NOTE}} ' on bail on these bail bonds till their appearance before the learned Sessions Judge, who may pass necessary orders as he deems fit in the circumstances of the case. The accused are directed to appear before the learned Sessions Judge, Quetta on 27-4-1980. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.