P L D 1969 Lahore 1071 (PLP)

ATAULLAH SAJJAD, J.‑--The appellant along with three others, namely, Abbas, Manzur and Mst. Nisar Fatima, was accused of the double murder of Mst. Aisha and her daughter Mst. Niaz Fatima. He has been convicted under section 302 of the Pakistan Penal Code and has been sentenced to suffer transportation for life and pay a fine of Rs.

500. In default of payment of fine he has been directed to suffer six months' rigorous imprisonment more.

2. According to the prosecution, the appellant was a servant of Mst. Aisha. She bad inherited two and a half squares of land from her husband which she intended to gift out to the son of her daughter Mst. Niaz Fatima. Sharaf Din a collateral of Mst. Aisha was expecting a substantial part of the property to devolve on him after the death of Mst. Aisha. After learning about the intention of Mst. Aisha to give away the property to his grand‑son, Mst. Nisar Fatima the wife of aforesaid Sharaf Din persuaded the present appellant to lend assistance in doing away with the life of Mst. Aisha and her daughter Mst. Niaz Fatima. The appellant agreed and the case of the prosecution is that Abbas and Manzur the co‑accused of the appellant came armed with knives in the house of Mst. Aisha on the night between 26th and 27th of July 1962. The appellant was also armed with a dang but did not take part in inflicting injuries to any person. The two co‑accused of the appellant first fatally injured Mst. Aisha. They strangulated Mst. Arshad Begum a maid‑servant of Mst. Aisha when she attempted to run away. She became unconscious. Mst. Niaz Fatima was sleeping on the roof. On hearing the alarm of Mst. Arshad Begum, the maid‑servant, she came down but received fatal injuries at the hands of the assailants.

3. During the investigation of the case, the appellant was tendered a pardon under section 337 of the Coda of Criminal Procedure. He made a statement before a Magistrate disclosing his own complicity and that of his co‑accused in the commission of the offence. When the case came up before the Inquiry Magistrate at Chunian on 20th of June 1963, the appellant denied all knowledge of the incident. He was declared hostile and was cross‑examined.

4. It appears that the prosecution thereafter, thought it fit to have resort to the provisions of the West Pakistan Criminal Law (Amendment) Act of 1963. The Commissioner referred the case to a Tribunal under the said Act. A Tribunal was constituted on 31st of October 1963, by the orders of the District Magistrate, Lahore. The appellant was also produced as a witness before the Tribunal where he stuck to the position that he did not know anything about the present incident the Tribunal found that Abbas and Manzur were guilty under section 302 of the Pakistan Penal Code and Mst. Nisar Fatima under section 302/109, P. P. C. The District Magistrate convicted all the three and sentenced them to fourteen years' rigorous imprisonment each and a fine of Rs. 10,000 each. In default of payment of fine they were to undergo a further imprisonment for 3J years R. I. each. The Tribunal had recommended that the appellant be prosecuted for going back on his undertaking to disclose the truth. The District Magistrate concurred with this recommendation and held that the appellant had violated the terms of the grant of pardon and should be challaned for the double murder to which he was a party.

5. The appellant was produced before a Magistrate to stand his inquiry. He was committed to the Court of Session and was convicted and sentenced by Mr. Masood Ahmad Ansari, the learned Additional Sessions Judge, Lahore, as described above.

6. In this appeal, a fundamental objection regarding the jurisdiction of the learned Additional Sessions Judge has been raised. The learned counsel has referred to the provisions of sections 339 and 339‑A of the Cr. P. C. and argued that under the law the certificate of the Public Prosecutor that the appellant had wilfully concealed the facts of the case and had not complied with the conditions of the pardon, was a sine qua non for the initiation of the proceedings against the appellant. It is submitted that no such certificate was produced either before the Committing Magistrate or at the trial.

7. The contention of the learned counsel must prevail. It has been consistently held by the Courts in this subcontinent that production of a certificate by the Public Prosecutor concerned is a condition precedent for initiating proceedings against an approver who is alleged to have forfeited his pardon. We may, in this connection, refer to Ali v. King Emperor (A I R 1925 Lah. 15), Emperor v. Maria Basoppa (A I R 1925 Bom. 135) and Juma and others v. The Crown (P L D 1954 Lab. 783). It was held in all these cases that the absence of a certificate of the Public Prosecutor vitiates the trial. It was further held in the last two mentioned cases that an approver cannot be prosecuted at the instance or suggestion of the Presiding Judge. In the case of Jumaand others v. The Crown, referred to above. It was held by a Division Bench that‑ "It is only the Public Prosecutor who can certify that in his opinion a person who has accepted a tender of pardon has, either by wilfully concealing anything essential or by giving false evidence, not complied with the conditions on which the tender was made and it was not within the province of the trial Judge to give such a certificate."

8. The learned counsel appearing for the State urged that the case had teen finally heard under the provisions of the West Pakistan Criminal Law (Amendment) Act, 1963, and the appellant could be prosecuted as an accused person after he was found to have failed to comply with the conditions of the pardon without compliance with the provisions of sections 339 and 339‑A of the Code of Criminal Procedure. There is no legal warrant for this proposition. An approver after the grant of pardon case to be an accused person and the law confers on him the status of a Witness, See Faqir Singh v. Emperor (A I R 1936 Lah. 353) and In the matter of khairati Ram (A I R 1931 Lah. 476). He cannot be divested of this status unless the statute provides for it. The Criminal Procedure Code does provide for that contingency under sections 339 and 339‑A, but in the West Pakistan Criminal Law (Amendment) Act there i; no provision to that effect. Sections 26 or the Criminal Law (Amendment) Act has adopted section 339 of the Criminal Procedure Code mutatis mutandis, but the contingency of an approver resiling from his statement and forfeiting his pardon has not been contemplated in the above Act. We asked the learned State counsel to seek instruc tions in this regard from the Law Department and we were told there was no amendment in the Act incorporating sections 339 and 339‑A of the Code. There is a clear lacuna in the law in this respect. It is not for the Courts to fill up the lacuna. There is no power with the State to prosecute an approver who while appearing before a Tribunal constituted under the West Pakistan Criminal Law (Amendment) act, resiles from his previous statement and refuses to abide by the terms of this pardon. Under subsection (4‑A) of section 8 of the Act, the Criminal Proce dure Code is not applicable to the Act except for those provisions which have been specifically applied. We cannot invoke the provisions of sections 339 and 339‑A of the Code when they have been left out. The Penal provisions are to be very strictly construed and it is not possible for us to hold that the District Magistrate had any power to direct the prosecution c.: the appellant on the ground that he had forfeited his pardon.

9. It was open to the prosecution to proceed against the appellant on the ground that he had forfeited his pardon when he refused to disclose the truth before the Inquiry Magistrate but the performance of the condition precedent prescribed under A section 339 of the Criminal Procedure Code having been omitted the proceedings against the appellant cannot be sustained.

10. We also find that the learned Additional Sessions Judge who tried the case did not strictly comply with the provisions of section 339‑A of the Criminal Procedure Code. Under subsection (2) of the above section he had to give a finding whether or not the appellant had complied with the conditions of the pardon and if it was found by him that he had so complied, the appellant was entitled to an acquittal. The learned Additional Sessions Judge has made a very brief reference in his judgment to this aspect of the case and has presumed that the appellant had forfeited the pardon. This is all that he has said about this aspect of the case :‑ "When the commitment proceedings started against the accomplices he resiled from his previous statement and thus did not make disclosure of truth. The privilege of pardon was forfeited and a separate trial was ordered." This brief verdict is not in strict compliance with the law which cnjoins that a clear finding should be given by the trial Court) as to whether or not an approver who is put on his trial had complied with the conditions of the pardon. It should give its own reasons for coming to that conclusion because no conviction, can be sustained without such a finding.

11. In view of the above facts, we set aside the conviction and sentence of the appellant and order that he should be released forthwith if he is not required to be detained lawfully in any other case.

12. This order will, however, operate as an order of discharge and it is left to the authorities concerned to consider whether any further action is necessary against the appellant. S. A. H. Appeal allowed.