QAISAR AHMAD HAMIDI, J.- A short summary of the facts will help to clear the points for determination.
2. It is the case of the prosecution that deceased Muhammad Hanif son of Manzoor Ahmad, the applicant, was abducted by Mushtaque Ahmad, the respondent No. 2, Gaman, the respondent No. 3 and one Sadique Shah (since acquitted) who was subsequently murdered. Applicant Manzoor Ahmad who is originally a resident of Tehsil Liaquatpur came to Karachi and lodged FIR on 5- 10- 1989 at Gulshan-e-Iqbal P.S (Crime No. 724 of 1989), which was registered under section 364/34 P.P.C. During the course of investigation all the three accused were arrested and at their pointation the deadbody of Muhammad Hanif was recovered from the jungle. After completing the investigation all the three accused were sent up to stand trial for the said offence. The trial commenced before VI Additional Sessions Judge (East) Karachi. On 11-11-1990 co-accused Sadique Shah was acquitted after the legal heirs of deceased Muhammad Hanif entered into compromise with him. The case proceeded before the trial Court when on 11-11-1991 an application under section 337/338 Cr.P.C, was moved by Mushtaque Ahmad, the respondent No. 2, for the grant of pardon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge about the murder of Muhammad Hanif. The applicants who are legal heirs of deceased Muhammad Hanif made a similar application. Both these applications were heard by learned VI Additional Sessions Judge (East) Karachi, who rejected the same for the following reasons ;-- "I have considered the material available on the record of this case in the light of the above principle and came to the conclusion that in this case the prosecution has cited as many as 11 witnesses out of which 6 have been examined and most of them have supported the case of the prosecution in so far as the accused Gaman and the applicant Mushtaque are concerned. There are also extra judicial confession on record against the accused Gaman and in this regard his own daughter Mst. Khurshid Bibi has been examined. There is also other material connecting both the accused with the commission of the offence and therefore it cannot be said that it is necessary to grant pardon to the accused as it is otherwise not possible to bring home the guilt to the co- accused. In these circumstances, I am unable to convince myself to grant this application and the same is, therefore, dismissed."
This order dated 2-2-1992 is the subject matter of the present revision application.
3. I have heard Mian Ghulam Jillani, learned counsel for the applicants and Mr. Aziz-ur-Rahman Shaikh, learned, counsel for the State. I have also heard respondent Gaman in person.
4. Section 337 Cr.P.C., relates "to the tender of pardon to accomplice by the District Magistrate or a Sub-Divisional Magistrate on the 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. Section 338 Cr.P.C., enables the High Court or the Court of Sessions trying the case to direct the District Magistrate to tender a pardon to an accomplice at any time before the judgment is announced.
5. From a bare perusal of sections 337-338 Cr.P.C., it is apparent that a pardon may be granted at any stage of the case. In the case of Mumtaz Ahmad alias Taji and another vs. The State, reported in PLD 1984 Lahore 48, the accused was allowed to turn approver during the course of trial, which question was examined by a learned Single Judge of Lahore High Court who was pleased to observe that there was nothing wrong with proceedings concerning tender of pardon during the trial.
6. The case of the prosecution against respondents No. 2 and 3 is based mainly on circumstantial evidence. Gaman, the respondent No. 3 is the father-in- law of deceased Muhammad Hanif. A conviction may be based on circumstantial evidence only, but in order that it may be relied upon it must be compatible with the guilt of the accused. In the case of such evidence failure of one link destroys the entire chain. By examining the respondent No. 2, as a witness, after turning him as approver, the prosecution wants to connect all links in order to exclude every hypothesis, but the one proposed to be proved. The application made by respondent No. 2 to this effect has the support of all the legal heirs of deceased Muhammad Hanif and in the circumstances of the present case the prayer ought to have been allowed, specially when it was not opposed by the State.
7. Having regard to the above legal position, I would allow the application made under section 337/338 Cr.P.C, directing the Additional Sessions Judge trying the case to grant such pardon on such terms and conditions as are necessary or order the District Magistrate (East) Karachi, to fender a pardon to Mushtaque Ahmad, the respondent No. 2 on the same conditions. The respondent No. 2 who is in custody shall remain in custody until the termination of the trial.
8. In the result the revision application is allowed.