1993 P Cr (PLP)

Nemo for Respondent No.2. Respondent No.3 present in custody. Date of hearing: 5th November, 1992. 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 Haheef 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 Liquatpur came to Karachi and lodged F.I.R. on 5-10-1989 at Gulshan-e-Iqbal Police Station (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 dead body of Muhammad Haneef 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 Haneef entered into compromise with him. The case proceeded before the trial Court when on I1-I1-1991 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 Haneef. The applicants who are legal heirs of deceased Muhammad Haneef 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 come 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-Rehman 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 Session 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 the bare perusal of section 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 v. The State reported in P L D 1984 Lah. 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 Nos. 2 and 3 is based mainly on circumstantial evidence. Gaman, the respondent No.3 is the father -in-law of deceased Muhammad Haneef. 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 Haneef 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 tender 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. AA./M-1772/L Revision accepted