1. ' This revision petition is filed against the order passed by District Court of criminal jurisdiction.
2. Muzaffarabad on 28-5-2003, whereby the petitioner's request for acquittal under section 339-A, Cr.P.C. Is disallowed.
3. ' The facts necessary for the disposal of this revision petition are that the petitioner was arrested in a case under F.I.R. No,265 of 2001 registered at Police Station City Muzaffarabad on 20-9-2002 in offences under sections 302/460, A.P.C. And 17(4), E.H.O. He offered to become an approver in the case on which his statement under section 164, Cr.P.C. Was recorded by Sub-Divisional Magistrate, Muzaffarabad on 2-9-2002 and the District Magistrate, Muzaffarabad tendered pardon to him vide his order dated 2-9-2002. The petitioner thereafter got his statement recorded before the District Criminal Magistrate Muzaffarabad tendered pardon to him vide his order dated 2-9-2002. The petitioner thereafter got his statement recorded before the District Criminal Court, Muzaffarabad on 27-12-2002, and on 31-12-2002, he reaffirmed the earlier statement. He thereafter sent an application to the Court through jail authorities on 2-6-2003 stating that police forced him to make the confessional statement. He again sent an application from jail on 21-6-2003, resiling from the application dated 2-6-2003.
4. ' The learned Advocate appearing for the petitioner contended that as petitioner has fulfilled the requirements of section 337, Cr.P.C., hence he is entitled to be acquitted. The learned counsel referring subsection (2) of section 339-A contended that it is within the powers of the Court to acquit an approver at any time after the trial begins if he admits and fulfils conditions of pardon.
5. According to Advocate as the accused has fulfilled the conditions, he is entitled to be acquitted.
6. The learned counsel placed reliance upon AIR 1938 PC 266, PLD 1956 FC 7 and AIR 1940 Nagpur Court 1977.
7. ' The learned Advocates appearing for the State and complainant contended that the accused cannot be acquitted unless the trial of the case is concluded. They further contended that the accused has changed his position as is evident from his applications sent through Jail Authorities, hen'ce he is not entitled to any concession. They also referred to a judgment of the Shariat Court dated 1-4-2003 whereby bail is refused to him.
8. ' After hearing the learned Advocates for the parties I have gone through the record of the case, and law relied upon by the learned Advocates for the parties.
9. ' The petitioner was disallowed bail by the Shariat Court vide its order dated 1-4-2003 on the ground that under subsection (3) of section 337, Cr.P.C. He is to remain in custody till determination of the trial. The contention of the learned. Advocate for the petitioner is that as the accused has admitted his earlier statement and he has complied with the condition on which he was tendered pardon, hence he is entitled to be acquitted. The relevant provision on which the learned Advocate relies is as follows:-- [339-A. Procedure in trial of person under section 339.---(1) The Court trying under section 339 a person who has accepted a tender of pardon shall, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of the pardon was made.
10. ' If the accused does so plead, the Court shall record the plea and proceed with the trial, and shall, before judgment is passed in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it is found that he has so complied, the Court shall, notwithstanding anything contained in this Code, pass judgment of acquittal.] ' Irrespective of fact that the petitioner changed his position from the statement on the basis of which he was tendered pardon in view of his application dated 2-6-2003 filed through Jail Authorities, the section hereinbefore quoted does not entitle him to the relief he seeks.
11. ' Under subsection (2) of section 339-A, Cr.P.C. The approver is entitled to be acquitted before the final judgment is passed in the case, if the trial Court is satisfied that he has complied with the conditions on which he was tendered pardon and after the evidence of the witnesses for the prosecution is taken, not before that.
12. ' All the provisions of the Code of Criminal Procedure regulating trial of a criminal case till the stage of judgment have to be complied with and acted upon in accordance with that spirit even in such- like case as the approver is otherwise an accused who has accepted to become a witness of the occurrence against other accused persons being an accomplice in the case.
13. ' Under section 243, Cr.P.C. The Court is to take evidence of the prosecution and after examining him under section 342, Cr.P.C. Pass an order of his acquittal or conviction as the case may be, under section 245, Cr.P.C. And pronounce the judgment under section 366, Cr.P.C. After the termination of the trial. Same is the spirit of section 337(3) that the approver is to be kept in detention until the termination of the trial.
14. ' The approver remains an accused for all practical purpose till the trial is concluded in the case and he is entitled to acquittal within the terms of section 339-A, Cr.P.C. Before the final judgment in the case for the reason of his being approver, not for the reason that he is not guilty.
15. ' Hence, the trial Court has not committed any illegality in passing the impugned order. The authorities of law D referred by the learned Advocate for the petitioner have no relevance in view of the facts of the present case.
16. ' In view of above, this revision petition is hereby dismissed. Revision .