The petitioner herein, through this petition under section 561-A, Cr.P.C. Has sought the quashment of pardon proceedings and consequent statement of the petitioner recorded as an approver in case F.I.R. No.66, dated 8-5-1991 under section 302, Qisas and Diyat Ordinance, 1991 read with sections 201/404/34, P.P.C., Police Station Lora, Tehsil and District, Abbottabad.
2. The dead body of Zahoor-ur-Rehman with his Suzuki carry No.-3473/RIP was found from a ravine on 4-2-1991 and it was presumed that he had died due to the accident and consequently was buried. Subsequently, the complainant, from different sources came to know that he was killed by Shaukat Ali s/o Yar Mohammad on account of money dispute and the incident was given a colour of an accident. Hence he made an application to the Senior Superintendent of Police, Abbottabad on 1-4-1991 for exhuming the dead body of his deceased brother and conducting post-mortem thereon and taking legal action against the accused, which was marked to SHO Lora for immediate legal action, who after conducting an inquiry under section 156(3), Cr.P.C. Registered FIR No.66 on 8-5-1991 on the basis of the said application and started investigation of the case. After the arrest of the accused the CIA. Police moved an application to the District Magistrate, Abbottabad on 29- 9-1991 stating that accused Sadaqat Ali has volunteered to disclose the facts of the case and intends to become an approver and in this regard he (accused) also made an application, these applications were marked to Sub-Divisional Magistrate for disposal, who allowed the applications by granting him pardon vide his order dated 29-9-1991 and recorded his statement as an approver.
3. The learned counsel for the petitioner contended that the petitioner was kept in police custody for a long time prior to the date of arrest which has been shown on record as 25-9-1991 and every type of torture was exercised on him and he was made to believe that he can only save his skin if the offers himself as an approver in the case. He submitted that the entire proceedings under section 337, Cr.P.C. Were carried out after applying third degree methods by the police and the extracted statement cannot be said to be an independent and credible one. He also assailed the legality of section 337, Cr.P.C. And contended that since sections 337 and 338, Cr.P.C. Have been declared by the Federal Shariat Court to be repugnant to the injunctions of Holy Quran and Sunnah to the extent that not tendering of pardon to an accomplice can be made in case of offence punishable with `hadd' and `tazir' which relate to `Haqul-Abd', the right of an individual. He further contended that the said sections have been amended by Criminal Law (Amendment) Ordinance, 1991 wherein it has been provided that no person shall be tendered pardon who is involved in an offence relating to `hurt' or `Qatl' without the permission of the victim or, the heirs of the victim. He submitted that there is no legal obstacle in the way of the petitioner to repudiate his status of an approver and to revert back to the position of an accused. He referred to Articles 13 and 14 of the Constitution which provide that no person, accused of an offence be compelled to appear as a witness and no person shall be subjected to torture for the purpose of extracting evidence. Relies on 1979 PCr.LJ Note 48 at p.31 PLD 1991 FSC 139 and unreported judgment of Peshawar High Court in writ petition No.355 of 1989 which was approved by the learned Supreme Court of Pakistan in Civil Petition No.353-P of 1989 and Civil Review Petition No.14-P of 1990.
4. The learned counsel, for the complainant vehemently opposed this petition and submitted that petition under section 561-A, Cr.P.C. Is incompetent and unmaintainable. He contended that the petitioner has given a statement as an approver at his own free will which is apparent from his own application, as such he cannot be allowed to repudiate from his position at this stage. He contended that his statement was recorded after having obtained the consent of the legal heirs of the deceased who have granted him pardon and in view of the Criminal Law (Amendment)
Ordinance, 1991 the requirement of permission of victim or heirs of the victim have been fulfilled, therefore this evidence cannot be gone into at this stage and it is only for the trial Court to adjudge the same at the time of trial, and the petitioner at the present cannot be allowed to repudiate from the position of an approver.
5. The learned State counsel also adopted the arguments of the learned counsel for the complainant and submitted that the petitioner cannot be permitted to change his position at this stage.
6. I have given due consideration to the submissions made by the learned counsel for the parties and have gone through the record of the case.
7. The main ingredients of section 337, Cr.P.C. Are that in the case of any offence triable exclusively by the High Court or Court of Session, on any offence punishable with imprisonment which may extend to ten years or seven years, the District or a Sub-Divisional Magistrate may, at any stage of the investigation or inquiry into, or 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.
8. Under section 338, Cr.P.C. The High Court or Court of Session, can exercise the powers to grant pardon at any time before passing of the judgment and can tender pardon either themselves or can order the District Magistrate to tender the pardon to any person supposed to have been directly indirectly concerned with such offence.
9. It may be noted that sections 337 and 338, Cr.P.C. Have already been amended by Criminal Law (Amendment) Act, 1991 wherein it has been provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victim or the heir of the victim. Herein the requirement has been accomplished by obtaining the permission of the heirs before the tender proceedings. Section 339, Cr.P.C. Provides that where pardon has been tendered and the Public Prosecutor certifies that in his opinion the evidence is false and the conditions of pardon have not been complied with then such person may be tried for such offence or offences for which he had been tendered pardon and that he shall not be tried jointly with the other accused and shall be entitled to plead at such trial he has complied with the conditions upon which such tender was made. It follows that the requirement of section 337, Cr.P.C. Is only to tender the pardon to approver and then to detain him in custody until the termination of trial and he can only be examined at the trial and if found by the Public Prosecutor that. He is not giving the truthful narrations of the offence then he can be tried for the offence for which he had been tendered pardon. Here in the instant case this procedure has not been adopted and followed. The record shows that two applications were made one by the police and the other by accused before the District Magistrate who referred them to Sub-Divisional " Magistrate for disposal. The Sub-Divisional Magistrate after granting the pardon recorded the statement of the accused/approver under section 164, Cr.P.C. And kept. The same in Court for necessary action. Any way at this stage I would refrain to comment about the legality and admissibility or otherwise regarding the statement of the approver recorded by the Sub-Divisional Magistrate. Section 339, Cr.P.C. Has dealt with the eventuality of prospective repudiation by the approver that in the event of his giving false evidence or concealing anything, he may be treated and tried as an accused for the offence in respect of which the pardon was tendered. It implies that if on account of giving false evidence he can be reverted back to the position of an accused at the later stage of trial the question arises that if an approver at an early stage totally disowns the tender of pardon then in that event, why cannot he repudiate his status of being an approver and be treated as an accused at any stage before the trial. This question was dealt with in Mohammad Naeem v. Assistant Commissioner, Jhang 1979 PCr.LJ Note 48 at p. 31 wherein it was held that in view of Fundamental Rights (Articles 13 and 14 of the Constitution), the accused can repudiate his status as an approver whether the permission and the tender of pardon and his own readiness to be an approver was initially there or not, for by denying him such a right the protection afforded to him by these fundamental rights would, in substance be denied to him. This judgment was followed by the learned DB of Peshawar High Court in Writ Petition No.355/89 and was approved by the learned Supreme Court of Pakistan in Civil Petition No.353-P of 1989.
10. Clause (b) of Article 13 of the Constitution of Islamic Republic of Pakistan provides that no person accused of an offence shall be compelled to be a witness against himself and Article 14(2) provides that no person shall be subjected to torture for the purpose of extracting evidence. Here the petitioner's case is that he was taken into custody by police long before 25-9-1991 and was subjected to high degree of torture and was induced to make a statement according to their wishes else he was threatened of dire consequences. In law too, there seems to be no bar for the accused to repudiate from his status of an approver because this right is available to him if he does not speak the truth in the opinion of the Public Prosecutor at the trial then he can be treated as an accused and' tried as such. If this right is available at a subsequent stage for not telling the truth, he can avail the same right when he disowns the tender of pardon and repudiates his status' as an approver and can consequently revert back to the position of an accused as he under the Constitution cannot be forced to give evidence at the trial ,against his desire.
11. As for the objection that a petition under section 561-A, Cr.P.C. Is not competent, suffice would be to say that the High Court has been invested with unlimited powers to make any order to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Inherent powers of the High Court are very wide and undefined. It can make all such orders which may render real and substantial justice. In the instant case not only the abuse of the process of the Court appears to have taken place but the question of violation of guaranteed fundamental rights is also involved, therefore, in such circumstances the jurisdiction under section 561-A, Cr.P.C. Could be pressed into service to secure the ends of justice.
12. The upshot of the above discussion is that this petition is allowed to the extent that the petitioner can repudiate his status as an approver, he shall hence onward be treated as an accused in the case. The prayer of grant of bail is refused. The trial Court may, however, consider the question of bail in accordance with law, if an application is moved in this behalf.