' The facts giving rise to this petition, wherein various sections of the Criminal Procedure Code, namely 435, 468 and 561 have been invoked, are that Falak Naz petitioner who has also been produced in this Court in custody in compliance with this Court's order dated 28th September, 1971, made a statement before the Sub-Inspector, Police Station Retra District Dera Ghazi Khan, on 9th March, 1971, in the course of investigation of the murder case of one Farooq, who like the petitioner, was a servant of Sardar Manzoor Ahmad Khan, an Ex-M.P.A. Of Dera Ghazi Khan District. In this elaborate statement the petitioner has shown himself to be an eye-witness of the murder of Farooq deceased allegedly committed in his presence by Zahoor Ahmad Khan son of Sardar Manzoor Ahmad Khan aforesaid and his relation Subha Sadiq alongwith a third unidentified person on the night between 24th/25th February, 1971, in the house of the accused. Having recorded this statement under section 161, Cr.P.C. The Investigating Officer produced the petitioner in the Court of Assistant Commissioner Taunsa, who recorded his statement afresh under section 164 of the Criminal Procedure Code and tendered him pardon on condition of making a full and true disclosure of the circumstances within his knowledge relevant to the offence of murder in terms of section 337, Cr.P.C. Having accepted pardon, the petitioner was detained in custody as provided in subsection (3) of section 337, Cr.P.C.
2. The investigation changed hands several times during these 9 months or so and appears to have been finally completed by Mr. Muhammad Aslam Bajwa, Deputy Superintendent Police, Crimes Branch, Lahore, who appeared in this Court on the last date of hearing and placed on the record a copy of the concluding report under section 173, Cr.P.C. Which purports to show that the two accused persons namely Zahoor Ahmad Khan and Subha Sadiq have been challaned in absentia, having been declared proclaimed offenders.
3. Falak Naz petitioner, while in detention, submitted an application from jail to the learned Sessions Judge, Dera Ghazi Khan challenging the validity of the order of learned Assistant Commissioner, Taunsa, dated 12th March, 1971, -whereby having recorded his statement the learned Magistrate tendered him pardon under section 337, Cr.P.C. It was further prayed that the proceedings culminating in the offer and acceptance of the so-called pardon may be quashed. He also moved a separate application for being released on bail.
4. It was contended on behalf of the petitioner before the learned Sessions Judge that on his own showing the petitioner not being one of the participants in the crime, could not be tendered pardon under section 337, Cr.P.C. And secondly that the so-called confessional statement of the ptitioner was recorded by a Magistrate who was not competent to do so or for that matter to tender pardon to him without the prior sanction of the District Magistrate. The second contention was repelled by the learned Sessions Judge on the basis of the statutory provisions contained in section 529 of the Criminal Procedure Code as also having regard to an order of Mushtaq Hussain Munir, J., passed in the bail application of the accused-persons in this case wherein too his Lordship did not countenance this argument. Regarding the question of bail, the learned Sessions Judge took the view that subsection (3) of section 337 of the Criminal Procedure Code operated as a bar to the petitioner's enlargement. Reliance was placed in this regard on Rehmat Masih v. The State PLD 1968 Lah.
1030. It was further held that the provisions contained in sections 497 and 498 had no relevancy to the case of the petitioner who was to be separately dealt with under section 337, Cr.P.C. And could not be treated either as a witness or an accused-person. In the above view of the matter the learned Sessions Judge, dismissed the petitioner's application vide the impugned order dated 13th August, 1971. The petitioner has also submitted another application under section 497/498, Cr.P.C.
Today registered as Criminal Miscellaneous No, 2542/B of 1971 praying for his enlargement.
5. In support of the petition, learned counsel for the petitioner submits firstly, that when the petitioner had made repeated representations to different authorities and is also crying from the housetop that he never made any statement, confessional or otherwise, expressing any knowledge of the circumstances of the murder of Farooq deceased and that he did not freely and voluntarily accept the pardon, the entire prosecution case collapses and as such proceedings should be quashed; secondly, it is contended that from the concluding report under section 173, Cr.P.C.
Submitted by the Deputy Superintendent Police, in charge of the investigation, it is abundantly clear that the so-called statement of the approver is completely devoid of any confirmatory circumstance to be treated as corroborative evidence and as such any further continuation of these proceedings would be tantamount to sheer abuse of the process of the Court when the acquittal of the accused is a foregone conclusion. Lastly it is submitted that in the circumstances, explained in the petition, the petitioner should not be treated as an approver, who would at best be a witness and as such as of right entitled to grant of bail.
6. As against this the learned Assistant Advocate-General, who was specially sent for to assist the Court and reinforce the State counsel Mr. Shahid Hussain Kadri, Advocate, contends that once it is established that the petitioner was produced before the Assistant Commissioner who recorded his statement under section 164, Cr.P.C. a presumption of correctness and regularity would attach to all proceedings culminating in the tender to and acceptance of pardon by the petitioner conferring on him the status of an approver. It is argued that if subsequently having succumbed to some pressure of his employer or other relations the petitioner resiles from the previous position, this would not convert him from an approver to a witness or for that matter an accused person. It is argued that in the circumstances the provisions contained in sections 497 and 498 of the Criminal Procedure Code will have no relevancy to his case and could not be invoked in support of the petition for his enlargement.
7. Having considered the contentions raised by the learned counsel for the parties I am inclined to think that the impugned order proceeds on good grounds and does not suffer from any illegality. It would he attributing too much to a responsible judicial officer to say that he merely played into the hands of the local police and either fabricated a statement attributed to the petitioner or really reiterated what the police had put into his mouth. It is well-settled that a presumption of correctness and regularity would attach under section 114 of the Evidence Act to all official acts done by a competent authority in the discharge of his official duty. Notwithstanding therefore, the fact of the petitioner having gone back on his previous position, his status shall remain that of an approver having voluntarily and freely made a statement before the Magistrate on the basis of which pardon was tendered to him.
8. However, there is another important aspect of the matter and that is whether in the circumstances where on the own showing of the Investigating Officer there is not an iota of evidence to support the so-called confessional statement of the approver, who too as stated earlier, is itching to resile from it, any useful purpose would be served by further continuation of these proceedings which, as contended by the learned counsel, shall amount to an abuse of process of Court, the acquittal of the accused persons being a foregone conclusion. The answer to this question would be obviously in the negative. Although this Court need not go into the evidentiary quality of the so-called confessional statement, yet it appears difficult to believe that it should have been necessary for a landlord of the status of Zahoor Ahmad Khan accused to be personally present at the time of and actually participate in the murder of his private servant allegedly committed in his own house, when there could be no dearth of hired assassins who would be readily available to him for the mere asking. Again, having already acted on the presumption of regularity of the proceedings adopted by the learned Assistant Commissioner in recording the confessional statement of the petitioner and tendering pardon to him as provided in section 114, Illustration (e), I cannot ignore a similar presumption attaching to the unworthiness of the credit of an approver unless it is corroborated in material particulars, as specifically mentioned in illustration 'b' of section 114. This corroboration has to be both in regard to corpus delicti as also to the identity of the accused ilirsons. This rule of prudence regarding insistence of Courts on corroboration of the testimony of an approver as by its universal obligation virtually becomes a rule of law, a departure from which has been equated with an error of law. On the own admission of the D.S.P. In the concluding report under section 173, Cr.P.C. Which could not be submitted till about nine months after the registration of the case, there is no corroboration whatever of the so-called confessional statement of the petitioner. Thus, where an approver, who according to his statement under section 164, Cr.P.C. Was an accessary before the fact has persistently denied having made such a statement which even otherwise appears to be inherently infirm, without an iota of corroboration whatever it would not be wrong to say that it is a case of no evidence. Authorities are not wanting where not only commitment orders have been quashed by the High Court under section 215 of the Criminal Procedure Code for want of evidence being considered tantamount to a point of law, but proceedings have also been quashed by the High Court even at earlier stages under section 561-A, Cr.P.C. It was held in Abdul Wali v. Emperor AIR 1933 Oudh 387 where Hakim Abdul Wali v. King Emperor 9 Lucknow 61 and Jogat Chandra Mazumdar v. Queen Express 26 Cal.
786 were relied upon that the High Court could quash proceedings on two contingencies firstly, where prosecution allegations, even when accepted as true, do not establish any offence against the accused and secondly where there is no evidence at all to support the allegations. In Girdhar Gopal v. Emperor AIR 1934 Oudh 114 it was held that it was open to the Court to quash criminal proceedings pending against an accused under section 417, P.P.C. Where the charge cannot succeed and the basis of the allegations is knocked out. I am thus clearly of the view that in the circumstances of the case the aforesaid authorities could be invoked with full force.
9. There is however, another relevant question to be considered, namely, whether at this stage when the challan has not yet reached the Court and is probably under scrutiny with the prosecution branch, this Court would be competent to quash the proceedings. In support of the contention that this Court will be fully competent to do so even at this stage, learned counsel has referred to me Yagoob Khan and another v. The State and 3 others 1971 P Cr. L J 266 a judgment by the present Chief Justice. Repelling a similar argument, his Lordships was pleased to observe:- "It was submitted by Mr. Abdur Razzaq on behalf of the respondents that the case has not yet been put in Court, but I find that on the authority of the King Emperor v. Khawaja Nazir Ahmad (217 IC 1) this Court has the power, in a suitable case, to quash the proceedings even at' the investigation stage."
' In view of the above position I am of the considered opinion that in the peculiar circumstances of this case no useful prupose will be served by prolonging these proceedings which would be merely an abuse of the process of Court. Accordingly, I allow this petition, quash the proceedings and direct that all proceedings for the arrest of the accused persons may be deemed to have been cancelled. Once the proceedings are quashed, the order of Assistant Commissioner tendering pardon to the petitioner also automatically falls and becomes non-existent justifying the release of the petitioner who may be set at liberty if not required in any other case.