1976 P Cr (PLP)

(7) An abrasion 1' x " on the back of right elbow. (8) An abrasion 1/8" x 1/8" on the back of left elbow. (9) An abrasion 1/8" x 1/8' on the right hypochondrium. (10) An abrasion 1 "x1" on the outer side of right buttock. (11) An abrasion 1 " x 1' on the front of right knee. (12) An abrasion 5" x 2" on the outer aspect of right leg 1' below the knee joint. (13) Two ligature marks 2 " x " and 3" x 1" on the back of right leg from below upward in the lower part near the ankle joint. (14) Two ligature marks from above downward 3"x 1' on the back of left leg in the lower part near the ankle joint. (15) Three abrasions on the front of left leg from above downwards in an area of 6" x 2 " measuring 1 " x 1/4' biggest and 1/4" x 1/4" smallest. (16) Multiple abrasions on the back of right buttock in an area of 8" x 6" measuring 3" x " biggest and " x 1/4" smallest. (17) An abrasion 1/4"x 1/4' on the back of right buttock in the upper part. On examination of thorax body of thyroid cartilage and both cornue were found fractured. The liver spleen and kidneys were congested. In the opinion of the doctor death was due to asphyxia caused by strangulation. The probable duration between injuries and death was 5 to 20 minutes and that between death and post‑mortem 24 to 48 hours.

7. To support its case the prosecution examined thirteen witnesses in all. Mst. Sabhai who was produced to give an eye‑witness account of the occurrence supported the prosecution in the committing Court and in her examination in chief in the trial Court but in cross‑examination she stated that she was tortured by the police to make that statement. She way: cro5s examined by the Public Prosecutor with the permission of the Court and her statement before the committing tMagi5trate was transferred to the Sessions file under section r88, Cr. P. C. The prosecution also relied on the circum stantial evidence furnished by Sher Muhammad (P. W. 9) Ramzan (P. W. 10) and Sher Muhammad (P. W. 11). 8 The appellants pleaded not guilty to the charge and denied the pro secution allegations against him. They stated that they had been falsely, implicated due to enmity with the P. Ws. No evidence was led in defence.

9. The learned trial judge believed the ocular account furnished by Mst. Sabhai before the committing Magistrate and in her examination‑in‑chief in the trial Court and found its corroboration in the evidence of Sher Muhammad (P. W. 9), Ramzan (P. W. 10), Sher Muhammad (P W. 11) and Khadim Hu3sain A. S. I. (P. W. 13) and on the basis of this evidence found the appellants guilty of murder.

10. The learned counsel for the appellants contended that there was absolutely no proof of any pardon having been tendered to Mst. Sabbai therefore, she being a co‑accused of the appellants was not at all a competent witness and tier evidence in both the courts below is inadmissible.

11. When Mst. Sabbai appeared In the witness‑box the learned defence counsel objected to her production as a P. W. on the ground that she was not tendered pardon in accordance with the provisions of section 337 of the Criminal Procedure Code therefore being an accused person she should not he a competent witness against her co‑accused unless she was discharged or the charge against her was withdrawn. The learned trial Judge after giving a tote that the objection wilt be disposed of at the time of arguments examined her as a P. W. Hr discussed the contentions of the counsel for the parties on this point in his judgment and repelled the objection. The relevant portion of the judgment is reproduced below:‑

"

7. Before discussing the evidence on the record, I would dispose of the objection raised by the learned Defence counsel regarding the exami nation of Mst. Sabhal approver as a prosecution witness. He con tended that she was not tendered pardon in accordance with the provisions of section 337, Cr. P. C. and therefore she was just an accused person, who was not a competent witness against her co- accused unless she was discharged or the charge against her was withdrawn. In support of his contention he referred to 1970 P Cr. L J

722. On the other hand the learned Public Prosecutor argued that it was abundantly clear from the statement of Mr. Bashir Ahmad Magistrate 1st Class that the statement of Mst. Sabhai was recorded by him under section 164, Cr. P. C. after seeing tile order passed by the Assistant Commissioner, Mianwali tendering pardon to her. It is true that the prosecution neither ten dered in evidence the aforesaid order of the Assistant Commissioner Mianwali, nor he was examined as a witness but in my opinion it has not been provided in section 337, Cr. P. C. that pardon can only be granted in writing and therefore it can be oral as well. From the perusal of Exh. P. Q., Exh‑ P. Q/1, Exh. P. O. and Exh. P.Q/3, it is quite clear that Mst. Sabhai had been granted pardon. I therefore overrule the objection of tile learned defence counsel and bold that Mst. Sabhai is an approver and thus a competent witness against both the accused." We do not feel persuaded to agree with the learned trial Judge that a pardon can be tendered orally. It is nobody's case that Mst, Sabbai was tendered pardon verbally. Mr. Bashir Ahmad Khalid Magistrate First Class who recorded the statement (Exh. P. O.) of Mst. Sabhai stated in cross-examination that he was shown an order passed by the Assistant Commis sioner Mianwali according to which pardon was tendered to Mst. Sabhai and that order was taken back by Assistant Sub‑Inspector Khadim Hussain. This statement is not borne out from the record which rather speaks otherwise. The record shows chat on 13th June 1972 Khadim Hussain A. S. I. made and application for tendering pardon to Mst. Sabhai and recording her statement under section 164, Cr. P. C. Oil the same day the Prosecuting Inspector forwarded this application with the following endorsements :‑

"Forwarded please. Necessary formalities as envisaged by section 337, Cr. P. C. may also be directed to be observed." The application came up before the Assistant Commissioner, Mianwali who forwarded it to Mr. Bashir Ahmad Khalid, Magistrate First Class (P. W. 2) with the following order:‑‑‑ It was on this application that Mr. Bashir Khalid recorded the statement (Exh. P.O) of Mst. Sabhai. If the Assistant Commissioner, Mianwali had forwarded the application to Mr. Bashir Ahmad after tendering pardon to Mst. Sabhai he must have mentioned this fact in the forwarding note referred to above. It is an admitted fact that no order tendering pardon to Mst. Sabhai was produced by the prosecution nor the Assistant Commis sioner, Mianwali was, examined as a witness to state that he had tendered pardon to her. We are of the view that the approach of the learned Sessions Judge to question involve, is completely wrong and his finding that pardon can be granted orally is wholly unwarranted. Section 337 (1) of the Criminal Procedure Code empowers the District Magistrate a Sub‑Divisional Magistrate a Magistrate of the First Class to tender pardon to art accomplice in case of offences triable exclusively by the court of Session and some other major offence; with a view to obtain rig evidence of the crime and on con dition of his making a full and true disclosure of the circumstances within this knowledge relative to the offence, Subsection (1A) of section 337 of the Code of Criminal Procedure which provides that a Magistrate who tenders pardon under subsection (1) shall record his reasons for so doing presupposes the existence of such an order in writing section 337 of the Criminal Procedure Code thus makes it abundantly clear that an order tendering par don roust by in writing. There is nothing on the file to show that Mst. Sabhai was tendered pardon and in this view of the matter she was not a competent witness and her statements in the two Courts below arc in admissible in evidence.

12. After excluding the statement of Mst. Sabhai there remains no other evidence to connect the appellant with the commission of crime. The remaining evidence which consists of the statements of Sher Muhammad son of Nur (father of Mst. Sabhai), Ramzan (maternal uncle of the deceased) and Sher Muhammad son of Fateh Muhammad only shows that the deceased left his house in the company of Mst. Sabhai and both of them took water at the Dera of Ramzan P. W. and that Mst. Sabhai was later on seers by Sher Muhammad son of Fateh Muhammad in the company of the appellants. The evidence is not sufficient to wart ant the conviction of the appellants. We are therefore of the view that the, prosecution has failed to bring horse the guilt to both the appellants and ides are entitled to acquittal.

13. For the foregoing reasons we accept this appeal set aside the con viction and sentence of the appellant and acquit them of the charge against then, They shall be set at liberty forthwith if they are not requited to be detained in any other case. The death sentence of Nur Shah appellant is not confirmed. Repeal accepted.