P L D 1993 Quetta 70 (PLP)

6. On the question whether an approver can be released on bail I issued notice to M/s. Muhammad Aslam Chishti and Ehsanul Haq as amicus curiae.

7. Heard the counsel for the parties and amicus curiae.

8. Learned amicus curiae Mr. Muhammad Aslam Chishti had prepared himself to argue whether Deputy Commissioner was competent to release one of the culprits on bail in this case in which he had no jurisdiction to try the accused persons for offences committed under Hudood Ordinance. Since the State has not moved for cancellation of bail granted to Ahmed Jan by the Deputy Commissioner, therefore, I did not think it necessary to seek the assistance 63' learned amicus curaie on this point. However, learned amicus curiae was asked to address his arguments on the point whether the present petitioner can be released on bail when he has been declared by Naib Tehsildar as an approver; whereas there is a clear bar under section 337, Cr.P.C. for granting bail to an approver.

9. Mr. Muhammad Aslam Chishti learned amicus curiae invited my attention to Article 16 of Qanun-e-Shahadat and contended that the old concept of declaring a co-accused or an accomplice as an approver has now undergone a substantial change.

10. In order to appreciate the said argument it is thought profitable to compare the old section 133 of the Evidence Act with Article 16 of the Qanun e-Shahadat. Both are reproduced hereinbelow-- "133.Accomplice.--An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

16. Accomplice.--An accomplice shall be competent witness against an accused person, except in the case of an offence punishable with Hadd and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." From comparative study of both the aforementioned sections it becomes abundantly clear that legislature had intentionally created an exception to the rule of evidence that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because 4 proceeds upon the uncorroborated evidence of an accomplice. This exception is in regard to those cases where offence is punishable with Hadd. Thus, an accomplice can be declared as an approver in all cases except those which are punishable with Hadd under the Hadood Ordinances/Orders.

11. Applying this principle to the facts of the case in hand,-it may be observed that the offence registered against the accused is under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which is punishable with Hadd, therefore, the petitioner who is an accomplice could not have been declared or made an approver, as against the remaining co-accused. However, this rule does not apply in cases of offence punishable with Tazir.

12. Another important question pointed out by learned Additional A.-G. was that present petitioner has been made approver by Naib-Tehsildar who was the investigating officer in the present case. The question would arise whether an investigating officer can tender pardon to an accomplice? The answer must be found in section 337, Cr.P.C. which reads as under:-- "

337. Tender of pardon to accomplice.

(l) In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal .Code, namely, sections 216A, 369, 401, 435 and 477A, the District Magistrate or a Sub-Divisional Magistrate may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether, as principal or abettor, in the commission thereof. (3) .................................................... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .....

13. From plain reading of this section a clear conclusion can be drawn that it is only the District Magistrate or a Sub-Divisional Magistrate who may at any stage of investigation or inquiry into or trial of the offence with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence tender a pardon, except of course, for an offence punishable with Hadd.

14. As such Naib-Tehsildar could not declare the petitioner, an approver or tender him pardon on two counts; firstly, he was acting as investigating officer like an S.H.O., therefore, had no jurisdiction to tender pardon to petitioner. Secondly that even as a Magistrate he was not either a District Magistrate or a Sub-Divisional Magistrate but was a Third Class Magistrate, therefore, was not competent even on this count. The conclusion, therefore.' would be that an investigating officer is not vested with the powers under section 337, Cr.P.C. to tender pardon to an accomplice nor any other Magistrate except the District Magistrate or Sub-Divisional Magistrate have got the said powers in view of section 337, Cr.P.C.

15. From above discussion I have come to the conclusion that petitioner has not been legally tendered any pardon, therefore, the order of the learned Sessions Judge refusing bail to him on this ground is not sustainable in law, as such the same is set aside.

16. Now adverting to the merits of the case learned Additional A.-G. pointed out that the vehicle which was used for commission of the highway robbery belonged to the petitioner Muhammad Anwar, therefore, prima facie he is connected with the commission of the offence.

17. To this Mr. J. J. George learned counsel for the petitioner invited my attention to the statements of co-accused Ahmad Jan and Safar Khan. Accused Safar Khan stated in his statement that it was Ahmad Jan who told him that co-accused Azizullah asked him to loot the two buses which belong to his rivals. Although he refused initially but was pursuaded to accompany them. Co-accused Ahmad Jan also stated in his statement the above facts. He further stated that petitioner Muhammad Anwar was invited by him at a dinner in his house. After taking dinner they started towards the highway. The car was being driven according to Safar Khan by Ahmad Jan.

18. Mr. George pointed out that Muhammad Anwar had gone only to attend the dinner and knew nothing about the conspiracy to commit robbery. Since he had a car and was on friendly terms with Ahmad Jan, therefore, he did not raise any objection when the car was driven by Ahmad Jan thus it is a case of further inquiry. 19. 1 have perused the statements of the witnesses. In the first instance it is important to note that Ahmad Jan who was mainly responsible for the offence had been granted bail by the Deputy Commissioner. Similarly, AzizuHah who hatched the conspiracy and accompanied the culprits was arrested and according to the counsel for petitioner, absconded in a clandestine manner. The petitioner was refused bail merely on the ground that he was declared an approver by Naib Tehsildar.

20. From perusal of statements recorded so far I am inclined to hold that the case of present petitioner being of further inquiry falls under subsection (2) of section 497, Cr.P.C. I am, therefore, inclined to grant him bail. He shall be released provided he furnishes security in the sum of Rs.1,00,000 (Rupees One lac) with two sureties of Rs.50,000 (Rupees fifty thousands) and P.R. of like amount to the satisfaction of Sessions Judge, Loralai. He shall be so released if not required in any other case. N.H.Q./444/Q Bail granted.