SAEEDUZZAMAN SIDDIQUL CJ.-- The above mentioned Criminal Revision Applications under Section 439 read with Section 435 Cr.P.C, are filed by the two accused persons who are facing trial alongwith others before the Special Court (Suppression of Terrorist Activities), Karachi, in a case challaned under section 365-A/120-B P.P.C, to challenge the propriety and legality of the order of trial Judge dated 22-8-1991, whereby the learned Judge refused to stay the recording of the evidence of an approver Atif Manzoor in the case on the ground that the question of admissibility of the evidence of Atif Manzoor will be considered at the time of final arguments in the case.
M/s. Yahya Bakhtiar and M.I. Memon, the learned counsel for the petitioners in Cr. Revision No.54 and 56 of 1991 respectively, have raised the following contentions in support of the petitions: i) That sections 337, 338 and 338-A of Cr.P.C, having been declared against the Injunctions of Islam by the Supreme Court (Shariat Appellate Bench), in the case of Federation of Pakistan Vs. Gul Hassan Khan (PLD 1989 SC 633),the grant of pardon to the co- accused by the State was wholly without jurisdiction.
Ii) That the evidence of an approver in a criminal case against the co- accused is not admissible under the Islamic System of administration of Justice in view of the decision of Federal Shariat Court in Shariat Petition No.17/1 of 1989 (Haider Hussain Vs. Govt, of Pakistan-) decided on 23-5-1991, declaring section 16 of Qanoon-e-Shahadat as repugnant to Injunctions of Islam.
Iii) That the grant of pardon to Atif Manzoor on 24-1-1991 by the District Magistrate (South) Karachi, was illegal as on that date the trial of petitioners and other accused persons in the case had already begun and as such, only the trial court was competent under the law to grant pardon to the accused Atif Manzoor in the circumstances; and iv) That Atif Manzoor being the main culprit in the case could not be granted pardon by the State.
Mr. Shafi Muhammadi, the learned counsel for Respondent Ali Bux Palari in the' above petitions also supported the petitions and contended that in order to determine the admissibility of the evidence of the approver in the case it is necessary for the court first to determine the nature of the offence alleged against the accused persons, as even in cases of Tazir arising out of Hadd cases the evidence of approver and co-accused is rendered inadimissible. The learned counsel further contended that as the offence under section 365-A PPC is same as the offence of 'Harba' defined under section 15 of the Offences Against the Property (Hadood) Ordinance, the offence alleged against the petitioners and others fell under 'Hadd' and therefore, evidence of Atif Manzoor is inadmissible against the petitioners and other accused persons in the cases on the principles enunciated in Shariat Petition No. 17/l of 1989 decided on 23-5-1991 by the Federal Shariat Court.
2. Mr.K.M.Nadeem, the learned Asstt: Advocate General, Sindh on the other hand contended that the decision in the case of Federation of Pakistan Vs. Gul Hassan Khan has not affected the right of State to grant pardon to an accused person in a criminal case except in cases of 'Jurh' and 'Qatl' where the court ruled that pardon cannot be granted to the accused without reference to and consent of the victim in case of 'Jurh' and the heirs of victim in cases of 'Qatl', and therefore, grant of pardon to Atif Manzoor by the District Magistrate (South) Karachi, in a case which was neither a case of 'Jurh' nor a 'Qatl' was valid; that the grant of pardon to co-accused Atif Manzoor by the District Magistrate (South) on 29-1- 1991 was legal and commencement of trial by the Court of Special Judge (Suppression of Terrorist Activities,), Karachi, did not affect the jurisdiction of District Magistrate under section 337 Cr.P.C, to grant pardon to the accused; that the evidence of approver Atif Manzoor in the case against the petitioners is not rendered inadmissible by virtue of decision of Federal Shariat Court in Shariat Petition NO.17/1 of 1989 as the offences alleged against the petitioners neither fall under the category of 'Hadd' nor 'Qisas'. We have heard the learned counsel for the parties at length.
The case against petitioners and others has been challaned before the Special Court (S.T A.)
Karachi, under section 365-A read with section 120-B PPC. Atif Manzoor, who was a co-accused alongwith the petitioners and others in that case was granted pardon by the District Magistrate (South) Karachi on 24-1-1991. Examination-in-chief of Atif Manzoor in the above case was recorded before the trial Court on 6-8-1991 and thereafter, the case was adjourned to 12-8-1991 and then to 13-8-1991 for further proceedings. On 13-8-1991, copies of the statements of Atif Manzoor recorded under section 164 Cr.P.C, were supplied to the petitioners and the case was adjourned for 7 days as provided in section 241 Cr.P.C. On 22.8.1991 the petitioners applied for stay of proceedings before the trial Court and prayed that the cross-examination of Atif Manzoor be deferred until such time his status as a witness competent to depose in the case is determined by the court. The trial Judge rejected the application with the following observations:- "All the contentions raised by the learned counsel for the accused relate to the appreciation of evidence and procedural legality of granting pardon to the approver and his status as a witness or approver. All these contentions cannot be considered at this stage as they can conveniently be raised at the final arguments of the case. If the said Contentions raised by the defence counsel are found favour, the evidence of the approver can be excluded from the consideration. If the application is granted at this stage it will hamper the proceedings of the case, as prosecution had already undertaken to . Conclude the proceedings within two months before the High Court".
3. The petitioners have challenged the above order in the above Cr. Revision Applications. The above order passed by the learned trial Judge neither suffers from any illegality nor any impropriety. All the contentions now raised by the petitioners before us were also agitated before the trial Judge, but he deferred consideration of these contentions until final arguments in the case on the grounds that, firstly, the evidence of witness Atif Manzoor has been partly recorded in the case without any protest from the petitioners and in view of the order of this court for expeditious disposal of the case it will be improper to determine the question of admissibility of the evidence of witness, his status as a witness, and (he procedural legality of granting pardon to him at this stage which will delay the proceedings and secondly, all those points can be more conveniently decided at the time of final argument in the case and if the contentions of the petitioners are upheld the evidence of the witness/approver can be excluded from consideration at that stage. The learned counsel for the petitioners, nevertheless very vehemently argued that the evidence of Atif Manzoor can neither be recorded nor considered in the case in view of the decision of Supreme Court in the case of Federation of Pakistan Vs. Gul Hassan Khan (PLD 1989 SC 633) and Shariat Petition No.17/1 of 1989 (Haider Hussain Vs. Government of Pakistani delivered by Federal Shariat Court on 23-5-1991 and, therefore, it should not be allowed to go on record.
4. The contention of Mr. Yahya Bakhtiar and Mr.M.I, Memon, Jointly, is that the Supreme Court (Shariat Appellate Bench) in the case of Federation of Pakistan Vs. Gul Hassan Khan (PLD 1989 SC 633) has struck down the provision of sections 337 to 339-A of Cr.P.C, as opposed to Injunctions of Islam and as such the grant of pardon to co-accused Atif Manzoor in the case by the State was wholly without jurisdiction.
The relevant part of the order of the court in the case of Federation of Pakistan vs. Gul Hassan Khan is as follows:- "Sections 337 to 337-A of the Code of Criminal Procedure are declared to be repugnant to the Injunctions of Islam insofar as they permit tender of pardon to an offender without reference to and without permission of the victim wherever this is required under the Injunctions of Islam in case of Jurh and of the heirs of the victim in cases of Qatl."
After reading of the above observations of the Court we are of the view that the provisions of sections 337 to 339-A Cr.P.C, have not been declared repugnant to the Injunctions of Islam in their entirety. These provisions were found against, the Injunctions of Islam only to the extent they permitted grant of pardon to an offender by the State without reference to and without permission of the victim in case of 'Jurh' and of the heirs of the victim in cases of 'Qatl'. Therefore, in cases other than those of 'Jurh' and 'Qatl' the right of State to grant pardon, on principle of public policy was not affected. Our above conclusions find support from the following observations of Federal Shariat Court in the case of Haider Hussain Vs. Govt. of Pakistan (Shariat Petition No.17/1 of 1989) decided on 23-5- 1991: "86. Tendering pardon to an accomplice and make him approver on the condition to disclose all the facts and parts played by his co- accused as provided in section 337, 338 and 339 of Criminal Procedure Code, according to Islamic Law, is not permissible in an offence liable to hadd as hadd cannot be waived, reduced, enhanced or altered in any case by anyone. But as far as tendering pardon to him in case of Tazir is concerned, it is permissible if it is based on "public interest" because ta'zir can be waived by a ruler, legislature or Judge if he seems it necessary in the circumstances of a particular case. Allama Shami, as quoted earlier, has written in his book Radd Al-Muhtar that "the difference between hadd and tazir is that contrary to ta'zir no recommendation can be accepted in Hadd and that a ruler cannot waive it and it is (also) dropped by the delay ( ).
(Shami, Ibn Abidin, Radd Al-Muhtar, Vol: III page 194). He further writes, "so far as pardoning of an accomplice in matter of ta'zir is concerned, it is only permissible when ta'zir relates to the right of Allah and thus it will not be permissible if ta'zir relates to the right of an individual unless the victim himself pardons him. (ibid page 239) like the offence of murder and hurt."
The second contention of the learned counsel for the petitioners jointly is that section 16 of the Qanoon-e-Shahadat which made the evidence of an accomplice against his co-accused in a case admissible has been declared repugnant to Injunctions of Islam in Shariat Petition No.17/1 of 1989 (Haider Hussain Vs. Government of Pakistani and as such the evidence of Atif Manzoor who is co- accused with the petitioners in the case pending before the Special Court (S.TA.) Karachi, is wholly inadmissible against the petitioners. The relevant part of the order passed by the Federal Shariat Court in Shariat Petition No.17/1 of 1989 reads as follows:- "Article 16 of the Qanoon-e-Shahadat Order, 1984 is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (SA.W) insofar as it provides that an accomplice is competent witness against an accused person in all matters other than Hadd, even if his evidence is uncorroborated. We are of the view that the offence punishable with Qisas, like Hadd, is also to be excepted. Insofar as the uncorroborated testimony of an accomplice in an offence liable to ta'zir is concerned, the conviction solely based on his evidence would be illegal, unless there is corroborative evidence to support the conviction."
The ratio of the above decision of Federation Shariat Court is that an accomplice is not a competent witness against his co-accused in cases where offence alleged is punishable either with 'Hadd' or 'Qisas'. However, in cases punishable with "Tazir" the evidence of an accomplice is admissible but the conviction based on such uncorroborated testimony of accomplice would be illegal. In our view the legal position which emerges from the above noted two decisions in respect of grant of pardon by the State to an accomplice and admissibility of the evidence of an accomplice against a co-accused under the Islamic system of administration of justice in criminal cases may be summarized as follows:-
(i) That the State cannot grant pardon to an accomplice in lcases of 'Jurh' or 'Qatl without reference to and without permission of the victim or the heirs of the victim as the case may be, but such right of the State may be exercised in cases where the punishment for the offences is only Tazir and rights of a private individual is not involved in the case.
(ii) That the evidence of an complice against a co-accused is inadmissible only in cases of Hadd and Qisas: and
(iii) That evidence of an accomplice through admissible in cases relating to offences liable to Tazir' only but conviction in such cases cannot be based solely on the uncorroborated testimony bf such accomplice.
In the light of the above stated legal position we now proceed to examine that whether the grant of pardon to Atif Manzoor in the Case by the State was valid and that whether the evidence of approver Atif Manzoor is admissible against the petitioners in the case pending before the Special Court (S.TA) Karachi, under section 365-A/120-B P.P.C. At this stage we may mention the contention raised by Mr. Shafi Mohammad, learned counsel for Ali Bux Palari in the above cases. Mr. Shafi Mohammadi, contended that in order to determine the admissibility of the evidence of Atif Manzoor in the case the Court should first address itself to the nature of the offence alleged.
Against the accused persons/petitioners as the admissibility or otherwise of the evidence of Atif Manzoor will rest upon such determination only, It is contended by the learned counsel that if upon ultimate analysis the court reaches the conclusion that the offence alleged against the petitioners is liable to punishment of 'Hadd' or 'Qisas' then the evidence, of Atif Manzoor who is an accomplice will be rendered inadmissible in view of the law laid down in the cases of Federation of Pakistan Vs. Gul Hassan Khan and Haider Hussain Vs. Government of Pakistan . The contention of Mr .Shaft Mohammad appears to be correct. In Shariat Petition No.17/1 of 1989 (Haider Hussain Vs. Government of Pakistani the Federal Shariat Court while declaring section 16 of Qanoon-e- Shahadat against the Injunctions of Islam held that an accomplice cannot be a competent witness against his co-accused in cases in which punishment is either Hadd or Qisas. It is, therefore, quite clear that the admissibility of the evidence of an accomplice is co-related to the nature of offence.
5. The offences alleged against the petitioners in the case pending before Special Court (S.TA)
Karachi are under section 365-A PPC read with section 120-B PPC. Section 365-A PPC reads as follows:- "365-A Kidnapping or abducting for extorting property, valuable security, etc.-Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted shall be punished with imprisonment for life and shall also be liable to forfeiture of property."
From reading of the above section it is quite dear that the offence alleged against the Petitioners neither falls under category of 'Jurh' nor Qatl' Mr .Yahya Bakhtiar, the learned counsel for the petitioner in Petition No.54/1991, contended that as 'Jurh' is equivalent to hurt, therefore, the offence of Kidnapping for ransom as defined under section 365-A will be covered by the meaning of hurt.
We are unable to accept the contention of the learned counsel. 'Jurh' is an Arabic word. In the Arabic dictionary, the word is defined as causing bodily injury, or wound. The above meaning of word 'Jurh' cannot in our view include the act of kidnapping for ransom. The learned counsel for the petitioners is unable to show that the word 'Jurh' has been used in any other sense.
We have already reproduced section 365-A PPC which prescribes punishment for offence of kidnapping for ransom. The punishment prescribed (or the offence of kidnapping for ransom neither falls in the category of 'Hadd' nor 'Qisas' and therefore, the decision in Shariat Petition No.17/1 of 1989 rendering the evidence of an accomplice inadmissible in cases of 'Hadd' and 'Qisas' against a co-accused is not attracted. Mr. Shafi Mohammadi, the learned counsel for Respondent Ali Bakhsh Palari, however, contended that, the offence of kidnapping for ransom is same as the offence of Harabah' as defined in section 15 of Offences against the Property (Hudood) Ordinance, and therefore the evidence of Atif Manzoor should be declared as inadmissible in the case. Section 15 of Offences against the Property (Enforcement of Hadood) Ordinance is as follows: - "15. Definition of harabah.-When any one or more persons, whether equipped with arms or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt, such person or persons are said to commit harabah."
After reading sections 365-A PPC alongwith section 15 of Offences against the Property (Enforcement of Hadood)Ordinance, 1979, We are unable to agree with the learned counsel that both the offences are same. It may be mentioned here that Offence against Property (Enforcement of Hadood) Ordinance, 1979, was promulgated on 9-2-1979 and came into effect on 10-2-1979.
Section 365-A was added by the legislature in the Code of Criminal Procedure on 3rd September, 1989, by Ordinance IX of 1989. The legislature was fully aware of the definition of 'Harabah' as given in section 15 and the punishment of Haraabah' as prescribed in section 17 of Ordinance VI of 1979, but inspite of that they introduced section 365-A in the Code of Criminal Procedure to prescribe a different punishment for the offence of kidnapping or abduction for extorting property, valuable security etc. No redundancy can be attributed to the legislature. We are, therefore, of the view that the legislature by providing punishment for offence of kidnapping or abduction for extorting property, valuable security etc. Prescribed punishment for an offence for which no punishment previously existed. As the punishment prescribed for offence under section 365-A, neither falls in the category of 'Hadd' nor 'Qisas', the decision of Federal Shariat Court in Shariat Petition No.17/1 of 1989 did not render the evidence of Atif Manzoor in the case admissible against the petitioners.
6. The next contention of the learned counsel for the petitioner is that the grant of pardon to Atif Manzoor on 24-1-1991 by the District Magistrate Karachi (South) was illegal as on that date the trial of the petitioners and others had already begun before the Special Court (S.TA) Karachi, and therefore it was only that court which could grant pardon to the accused Atif Manzoor. Learned Counsel for the petitioner relied on section 338 of the Cr.P.C, in support of their contention. Sections 337 and 338 of the Cr.P.C, are as follows:- "337. In the case of any offence triable exclusively by the High Court or the Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal Code, namely, sections 216-A 369,401, 435 and 477-A (District Magistrate or a Sub-Divisional Magistrate) may, at any stage of investigation or inquiry into, or the trial of the offence, with a view to obtaining the 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 relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; (1A) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons for so doing, and shall, an application made by the accused, furnish him with a copy of such record: Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(2) (Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any).
(2-A) In every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he 4s satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the court of Sessions or High Court, as the case may be).
(3) Such person, (unless he is already on bail), shall be detained in custody until the termination of the trial) ......
338. At any time before the judgment is passed, the High Court or the Court of Sessions trying the case may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the District Magistrate to tender, a pardon bn the same condition to such person).
From reading of section 337 reproduced above it is quite dear that the power to grant pardon to an accused in a case conferred by section 337(1) on the District Magistrate or a Sub-Divisional Magistrate can be exercised at any stage of the investigation or enquiry into or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, in cases of offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment for ten years or any offence punishable under Section 211 of the PPC with imprisonment for seven years or any offences punishable under sections I6A, 369,401,43S and 477A. The above power conferred on District Magistrate or Sub-Divisional Magistrate to grant pardon to an accused person is not controlled by section 338 Cr.P.C, the learned Asstt: Advocate General, Sindh, relied on the case of AJ. Poiris Vs. State of Madras (AIR 1954 SC 616) in support of his contention that the District Magistrate was competent to grant pardon to co-accused Atif Manzoor inspite of the fact that the trial had begum before the Special Court (S.TA.) Karachi. In the cited case pardon, was granted by the District Magistrate after the trial had commenced before the Sessions Judge and it was argued before the Supreme Court of India that in such circumstances only the Sessions Court was competent to grant pardon. The Supreme Court of India repelled the contention as follows:- "(10) The second contention is also devoid of substance. By section 338, Criminal Procedure Code, power is no doubt given after the commitment to the court to which the commitment is made to tender pardon, before judgment is passed, to any person supposed to have been directly or indirectly concerned with any offence or order the Committing Magistrate or the District Magistrate to tender the pardon. The section vests the court, to which commitment is made, with power to tender pardon or order the Committing Magistrate or the District Magistrate to tender pardon during the trial of the case but it does not take away the power conferred under the proviso to section 337(1) of the Criminal Procedure Code the material portion of which is as follows: "In the case of any offence triable exclusively by the High Court or Court of Sessions,............... The District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the fust dass may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the 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 relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof: Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial,.... "
(11) The proviso contains an additional provision which empowers the District Magistrate to tender pardon where the offences are under inquiry or trial. The present case is covered by the proviso to section 337 and not by section 338 of the Criminal Procedure Code. We hold, therefore, that the tender of pardon by the District Magistrate on August 28,1952, was valid. It is significant that in the courts below no objection was raised to the validity of the pardon tendered by the District Magistrate."
We are, therefore, of the view that grant of pardon to accomplice Atif Manzoor by the District Magistrate Karachi (South) did not suffer from any illegality.
7. The last contention of the learned counsel for the petitioners in the case is that Atif Manzoor being the main culprit in the case could not be granted pardon by the State. In support of above contention the learned counsel has relied on the case of Mohammad Banaras Vs. The State (1968 Pak. Cr.LJ. 906). Learned Counsel specifically relied on paragraph 20 of the judgment which reads as follows:- "20. We shall be failing in our duty if we do not point out that grant of pardon to Muhammad Azam approver was absolutely uncalled for. The evidence against him was as much as against Muhammad Munir. There is not the slightest distinction between the evidence against Muhammad Munir and Muhammad Azam. The evidence as we have discussed above was so over-whelming and connected the links so compactly that there was no scope for any view conceivably being taken that the case of the prosecution would not succeed if one of the culprits was not made an approver. Muhammad Azam appears to us to have been granted pardon in this case for reasons other than the reason of the success of the case. Somebody who was concerned is being instrumental in getting him pardon under section 337 Cr.P.C, intended only to save his life. By granting pardon to Muhammad Azam the principle underlying under section 337 Cr.P.C, for which pardon is granted has been totally defeated in this case. Sections 337 to 339, Cr.P.C, clearly envisage and contain a principle settled over ages that pardon shall be granted only in cases where without the pardon being granted the case of the prosecution would fail. These sections also envisage that pardon shall be granted to a person against whom the case of the prosecution is already weak. In this particular case, however, the case of the prosecution against Muhammad Azam appears to us to be proved and evidence on record against him leaves no scope for his acquittal."
From reading of the above postage it is quite clear that the learned Judges in the cited case found that grant of pardon to Muhammad Azam was improper as there was enough evidence on record to establish the case against accused persons in the case. It was for this reason that the learned Judges observed in the above case that Muhammad Azam was not granted pardon for the reason that the prosecution would not have succeeded if he would not have been made approver, but some other reasons persuaded the State to grant pardon to Muhammad Azam. In our view the case cited by the learned counsel need not be discussed any further here aa the point whether the grant of pardon to Atif Manzoor and making him approver was justifiable in the circumstances of the case has been left open by the learned trial court to be considered at the trial of the case. We would therefore, refrain from making any observations in this regard at this stage as this point is open to be considered by the trial court at the conclusion of evidence in the case. For the aforesaid reasons we find no merits in the Cr. Revision Applications which are accordingly dismissed. The stay granted earlier in the case is accordingly vacated.