2003 PLP 1627 (MLD)

Altaf Ibrahim Qureshi for Petitioner. Through this petition under section 435/439, Cr.P.C. the petitioner seeks setting aside of order dated 23-4-2003 passed by the learned Additional Sessions Judge, Pak pattan Sharif, by which the A request of the petitioner for tendering pardon and declaring him as an approver under section 338, Cr.P.C. has been declined.

2. The brief facts of the case are that case F.I.R. No.27 was registered on 20-1-2002 under section 302/380, P.P.C. at the instance of Shahid Mumtaz Fareedi complainant against Tariq Sharif, Abdul Rauf alias Maroof and Boota son of Amir. Later on Mushtaq alias Shaqi the present petitioner was also introduced as an accused during the investigation. Muhammad Boota accused was declared innocent and was not challaned but Mushtaq alias Shaqi, Tariq Sharif and Abdul Rauf alias Maroof were challaned. Report under section 173, Cr.P.C. was submitted. A private complaint was also filed titled "Muhammad Hanif v. Tariq Sharif and others" which is pending before the learned Additional Sessions Judge, Pakpattan Sharif. All the accused including the petitioner were summoned and charge was framed under section 302/380, 109/34, P.P.C. On 15-4-2003 the petitioner moved an application to the learned trial Court for tendering pardon to him in the aforesaid case under section 338, Cr.P.C. which application has been dismissed.

3. Learned counsel for the petitioner contends that it is the right of an accused person to move to the learned trial Court for becoming an approver and the denial by the learned trial Court is illegal and unlawful. Relies upon Muhammad Iqbal v. The State (1984 PCr.LJ page 1197).

4. I have heard the learned counsel for the petitioner at length and also gone through the impugned order and the case-law cited by him. It is an admitted fact that the petitioner was not nominated as an accused in the statement got recorded by the complainant under section 154_ Cr.P.C. and subsequently he was introduced as an accused of abetment. During investigation the petitioner was found involved in the said case and in the trial Court the role ascribed to the petitioner was that oil abetment.-

5. The petitioner has moved this application claiming himself to be acquainted with the true facts and narrate the same against co-accused if he is pardoned. Under section 338, Cr.P.C. power to tender a pardon at any time before the judgment is passed no doubt rests with the High Court or the Court of Session trying the case with a view of obtaining on the trial, the evidence of any person supposed to have been directly or indirectly concerned in, or privy to any such offence, or order the Officer Incharge of the prosecution in the district for the same on the condition laid down under section 337, Cr.P.C. but it is not vested right of an accused to become an approver and claim for pardon. Moreover, it is moral obligation as well as the Injunction of Islam that truth should not be suppressed and if an accused person has the courage to confess his guilt, why he must not face the legal consequences instead of claiming for pardon.

6. Even the case-law cited by the learned counsel for the petitioner goes entirely against the contentions raised by him as in the said case the trial Court had accepted the application and directed the District Magistrate to tender pardon to one of the accused person, but this Court had declared the order as perverse and arbitrary in the circumstances while observing that it is well-settled that it can only in exceptional cases that the Sessions Judge should move to the District Magistrate to tender pardon to an accomplice .and one of such circumstance may be that it is otherwise not possible to bring home the guilt to the accused, and that this power has to be exercised with great care and caution and on ample grounds and with a clear recognition of the risk which it necessarily involves allowing an offender to escape just punishment at the expense or possibly an innocent person and the judicial discretion has to be exercised in case of extreme necessity and not on extraneous considerations. Rather it fortifies the opinion arrived at by me. In the presence of ocular-account the prosecution is likely-to examine at the trial no such extreme necessity for tendering pardon to an accused prima facie exists. for exercising discretion under section 338, Cr.P.C. I do not find any illegality or jurisdictional defect in the impugned order, which even otherwise is well-reasoned.

7. I am intentionally not commenting upon the possible mala fide intentions behind moving of this application by the petitioner so that the case of the prosecution may not be prejudiced as the trial is yet pending.

8. This petition has no merit and is dismissed in limine H.B.T./M-1958/L Petition dismissed.