2013 P Cr (PLP)

Through this revision petition order dated 19-6-2012 passed by Mr. Zafar Iqbal Chaudhry, Judge Special Court (C.N.S.) Rawalpindi has been assailed whereby he dismissed an application of the Special Prosecutor (ANF) for declaring Dr. Abdul Rasheed Juma as approver and recording his statement as such.

2. The learned Special Prosecutor argued that his application has been dismissed on three grounds; (i) that the complete challan has not been submitted and the trial has not commenced so far; (ii) that the application pertaining to the pardon and declaring him as approver has not been moved by the Incharge of Prosecution; and (iii) that the proposed statement of the accused Prof. Dr. Rasheed Juma has not been appended with the petition. The learned Special Prosecutor goes on to submit that the statement of the said accused under section 164, Cr.P.C. as mentioned by the learned Special Judge (C.N.S.) cannot be equated with the statement of the approver as the former is to be recorded without oath being confession made by an accused whereas the later is to be recorded on oath as a witness. The learned Prosecutor contends that the statement of Dr. Rasheed Juma dated 16-6-2012 was placed on the record; commencement of trial was not the requirement of law and he being Incharge of the Prosecution was competent to move the said application so the impugned order is not sustainable in the eye of law and is liable to be set aside.

3. The learned counsel for the co-accused Makhdoom Shahab-ud-Din has opposed this revision petition on the ground that recording the statement of Dr. Rasheed Juma as an approver would seriously prejudice the rights of his client. The accused Dr. Rasheed Juma is also present along with his learned counsel who has supported the arguments advanced by the learned Special Prosecutor. He has also filed a Writ Petition No.1763 of 2012 with the similar prayer.

4. We have considered the arguments advanced from both the sides and have perused the record.

5. The impugned order is not based on sound reasoning. Dwelling upon the first objection of non-commencement of trial/non- submission of complete challan, it would suffice to say that the statement of an approver can be recorded during the investigation, inquiry and trial. So there is no condition precedent attached to the recording of the statement of approver under section 338, Cr.P.C. It can be recorded even during the investigation or during the trial at any time before judgment. The second reason which prevailed with the learned trial Court to decline the said application was that the same had not been moved by the Incharge Prosecution. Special Prosecutor (ANF) is undoubtedly the Incharge of the Prosecution and when a pardon had been tendered by the petitioner/competent authority the Special Prosecutor (ANF) being Incharge of the Prosecution was fully competent to move the said application. The third reason mentioned by the learned trial Court for not acceding to the request of the petitioner was that no statement of the accused Dr. Rasheed Juma has been appended with the petition. A perusal of the record shows that such a statement dated 16-6-2012 is available on the record so none of the reasons mentioned by the learned trial Court while disposing of the application of the petitioner/Special Prosecutor is borne out from the record. The impugned order is thus found not to be based on sound reasoning. The trial Court has failed to exercise the jurisdiction/discretion vested in it. As regards the objection of the learned counsel for the co-accused we would like to refer to 2005 YLR 1728 (Lahore) wherein it was observed by a Division Bench of this Court that if the approver/co-accused had been given pardon by the competent authority it could not be challenged by the other co-accused as they would be at liberty to cross-examine him.

6. In the light of the above discussion this revision petition is accepted, the impugned order is set aside and the learned trial Court is directed to proceed with the matter as per request of the Special Prosecutor for declaring the said Dr. Rasheed Juma as approver in the case on the conditions to be set out by the learned trial Court and to record the statement of the approver in accordance with law. MWA/F-30/L Petition allowed.