' Miftahuddin, respondent herein was allowed bail by the learned Additional Sessions Judge-I, Charsadda on 2-12-1989 in a case under section 302, P.P.C. Reported in Police Station Tangi by Haji Muhammad Shoaib complainant on 23-5-1987 under F.I.R. No.150. The petition in hand filed by the State seeks recall of the said bail.
2. The facts relevant for the purposes of the petition in hand are that Muhammad Shafi brother of the complainant was murdered by a sharp-edged weapon by an unknown assailant on 23-5-1987.
The respondent herein, alongwith some other accused, was charged and arrested for the offence on the strength of evidence of two persons Mst. Zenaba widow of the deceased and Haji Muhammad Shoaib complainant. The respondent made an application to the S.D.M. Tangi on 29- 5-1989 and volunteered to become an approver. He was granted pardon and his detailed statement was recorded on 29-5-1989. Subsequently the respondent submitted another application whereunder he repudiated his becoming approver but the same was rejected by the learned S.D.M. And his Revision Petition was also dismissed by the learned Additional Sessions Judge. The respondent then filed Writ Petition No.355 of 1989 in this High Court which was accepted and he was allowed to change his status. He then submitted an application for bail to the learned Additional Sessions Judge which was accepted on 2-12-1989.
2-A. The learned Additional Advocate-General contended that although the respondent had changed his status from approver to that of an accused but his statement recorded under section 337, Cr.P.C. Could still be taken into consideration against him as his admission and as such he was improperly allowed bail by the learned Additional Sessions Judge. The learned Additional Advocate-General was also of the opinion that the said statement of the respondent could be treated as a confession.
3. In so far as the first contention of the learned Additional Advocate-General is concerned it may be stated that the statement of an accused recorded under section 337, Cr.P.C. After he has been granted pardon can be considered on its face value when an accused person keeps intact his status 0f an approver and appears as a witness in the trial but if he is allowed to change his status and again becomes an accused person then the statement recorded under section 337, Cr.P.C.
Neither assumes the testimony of an approver nor it tantamounts to an admission of the accused of his guilt. The said statement is recorded in a different context and the approver can also be charged and convicted on the basis of the said statement if the Court comes to the conclusion that the approver has misused the tenckr of pardon or has not made a clean breast of all the circumstances of the offence and is guilty of suppression of facts. However, when the approver is allowed to regain his former status of an accused person, then his statement recorded under section 337, Cr.P.C. Assumes a different proportion and cannot be considered as an admission of guilt. There is another aspect. The perusal of the aforesaid statement of the respondent would also disclose that it is exculpatory. He has put the blame on his co-accused and has not assigned any active role in the commission of the offence to himself. As such the said statement cannot even be considered as an admission.
4. In so far as the second contention of the learned Additional Advocate-General is concerned, I cannot see eye to eye with him for the reason that the statement recorded under section 337, Cr.P.C. Cannot be treated as a confession recorded under section 164, Cr.P.C. Because the Magistrate recording a statement under section 164, Cr.P.C. Has to observe many statutory and legal formalities before recording the confession of an accused person and those legal formalities are not. Observed in recording statements under section 337, Cr.P.C. The element of caution which is a prerequisite for recording any confession of an accused is non-existent in the case of a statement recorded under section 337, Cr.P.C. As such the statement of the respondent recorded as an approver could not be given the status of a confession.
5. At present there is no other material on the record to reasonably connect the respondent with the commission of the offence, except the bare and uncorroborated statements of the aforesaid two witnesses. The said two witnesses were examined six days after the commission of the offence and one of them is the complainant and brother and the other is widow of the deceased. Had the complainant known the assailants he would have disclosed their names at the time of recording the F.I.R. Presently there is no sufficient material on the record to definitely connect the respondent with the commission of the offence complained of against him. The learned Additional Sessions Judge exercised his discretion properly in allowing bail to the respondent and that judgment does not call for any interference by this Court. The petition in hand is dismissed.