1971 P Cr (PLP)

It could not have been the intention of the Legislature that a person who has been granted a pardon in respect of a particular offence should be kept in confinement for an indefinite period particularly when Government have not been able to decide during the last fifteen months whether the prisoners should be prosecuted at all . . . . . . . . . . Indeed the delay which is being occasioned in the decision of this important matter leaves one in reasonable doubt as to whether the detention of the approver is directed to achieve the object of law or merely to harass him for his part in the crime. It seems to me, therefore, that although the process of arrest was proper in its inception the complaint of the approver arises in consequence of subsequent proceedings. Subsection (3) of section‑ 337, implies that, there is a trial in progress and its object is to secure the evidence of the approver for such trial. If there is ho such trial and no likelihood of such a trial then cessante ratione lex insa cessat. This is an eminently fit. case in which the inherent powers of this Court to prevent the abuse of the process of the Court be exercised in favour of a person who has been in confinement for several months and who was recently released on parole at the urgent request of the Solicitor‑General. I direct that the approver shall be released on bail on furnishing security to the satisfaction of the District Magistrate." The above observation was relied upon by Shaukat Ali, J. in Bashir Ahmad v. The State (1968 P Cr. L J. 1367) earlier numbered as Criminal Miscellaneous No. 3692 of 1966..(Abdus Sattar v. The State).

6. In Wazir and others v. The State (P L D 1960 Kar. 674), a D. B. authority, in which the judgment was written by S. A. Haq, J., the present Chief Justice, the question of grant of bail was not directly relevant in the case before their Lordships. However, it appears that despite the availability of direct ocular evidence pardon was tendered to two instead of one approver both of whom were subsequently released on bail. While commenting on this their Lordships observed - "Another remarkable fact about these approvers is that they were released on bail immediately after the tender of pardon on 6‑8‑1956 in contravention of the clear provisions of law con tained in sub‑clause (3) of section 337, Cr. P. C. namely `such person, unless he is already on bail shall be detained in custody until the termination of trial'. While we are not prepared to go all the way with Mr. Abdus Sattar Pirzada that the enlargement of the approvers on bail vitiates their evidence altogether, we consider that the grant of bail is certainly an element which weakens their evidence, as it seems to us to be a clear inducement or tempta tion which must have offered to these two persons for becoming approvers." As stated earlier, this observation of their Lordships is not direct ly relevant to the point in issue before me. A similar question, however, arose before Nazir Ahmad Mahmood, J. in Abdus Sattar v. The State (P L D 1966 Lah. 549). The petitioner who was approver in three cases, had represented before his Lordship that he had been in detention for more than a year under clause (3) of section 337, Cr. P. C. although all the six accused in these cases had already been released on bail and were deliberately delaying the progress of the trial. He, therefore, prayed that he may be released on bail. The view taken by the learned Judge was that sections 497 and 48, Cr. P. C. had no application to the case of an approver which was specifically dealt with under section 337, Cr. P. C. The provision contained in sub‑clause (3) ibid being mandatory in nature, the approver was bound ‑ to remain in detention till the termination of the trial. The petition was accordingly dismissed.

7. A contrary view was, however, expressed by Shaukat Ali, J. in Abdus Sattar v. The State (Cr. M. No. 3692 of 1966) referred to earlier which was overruled by a subsequent D. B. authority Rehmat Masih v. The State (P L D 1968 Lah. 1030) to which the conflict of opinion between Nazeer Ahmad Mahmood, J. and Shaukat Ali, J. was referred for resolution. Khamisani, J. who delivered the judgment in this case, took the view that with the acceptance of a pardon the approver ceased to be an accused and assumed the character of a witness the retention of his status being contingent upon the fulfilment of certain conditions such as the true dis closure of the full facts of the case failing which he is again relegated to the position of an accused, and since sections 496, 497 and 498, Cr. P. C. could be invoked only in the case of an accused person they had no relevancy to the case of an approver whose case was exclusively governed by sub‑clause (3) of section 337, Cr. P. C. It was observed by his Lordship :‑ "The language of section 337(3), Cr. P. C. has received the attention of numerous Courts and the consensus of opinion by all Courts is that an approver, as long as the trial of the case in which he has agreed to become an approver has not con cluded, shall be kept in .custody. In other words, the view taken is that an approver so long as the trial of the case in which he is an approver has not concluded, shall not be released on bail. The provision contained in section 337(3), Cr. P. C. is mandatory and consequently cannot be set at naught, it being based on a very salutary principle of public policy and public interest." Reliance was placed in this regard on Karuppa v. Kundaru referred to earlier. On the point of the non‑application of sections 496, 497 and 498, Cr. P. C. to the case of an approver, their Lordships of the Division Bench placed reliance on the following authorities :‑ (1) Shah Din v. The State and others P L D 1963 Lah. 342. (2),Abdul Sattar v. The State P L D 1966 Lab. 549. (3) Yasin v. Government P L D 1958 Azad J & K 46. (4) Kundan Lal and others v. Emperor A I R 1931 Lah. 353. (5) In re : Khairati Ram A I R 1931 Lah. 476. (6) Mahomed Abdul Majid v. Emperor A I R 1927 Sind 173. (7) A. L. Mehra v. The State A I R 1958 Pb. 72. (8) Allauddin and others v. The State 1968 P. Cr. L J 92. (9) In re : Dagdoo Bapu A I R 1922 Bom. 177. (10) Karuppa Barvai v. Kundaru alias Muniandi Thevan A I R 1952 Mad.

833. It 'may be respectfully observed in this context that an approver is rather in a unique position being initially an accused person who could be released on bail under sections 497 and 498, Cr. P. C. before accepting pardon as clearly envisaged by the excepting clause contained in sub‑clause (3) of section 337, Cr. P. C. A sudden metamorphosis however takes place in his case as soon as he accepts pardon, when he assumes the character of a witness which again is not absolute but subject to further relegation to the original position of an accused in the event of the non‑fulfilment of the conditions of a pardon. Thus, after he is made an approver he only technically becomes a witness. However, in view of the consensus of opinion expressed in the above authorities I have no hesitation in readily and respectfully accepting this view.

8. The next point considered by their Lordships of the Division Bench in Rahmat Masih v. The State was whether bail could he allowed to an approver in exercise of the inherent power of this Court under section 561-A, Cr. P. C. despite the prohibition contained in section 337(3), Criminal Pro cedure Code. Relying on Jairam Das and others v. Emperor (AIR 1945 P C 94), Hidayatullah Khan v. The Crown (P L D 1949 Lah. 2l), Gushtasab Khan v. The Crown (PLD1956FC117), Crown v. Khushi Muhammad (PLD1953FC170) and Mahmood Ali Kasuri v. The State (P L D 1963 S C 478) their Lordships took the view that inherent power vesting in the High Court was not. an independent or supplemental power conferred to fill' up vacuums or lacunas in law and that this power was ancillary in nature and could only be invoked to prevent abuse of the process of Court only to the limited extent where the power was in existence. The precise argument adopted was that since the power to grant bail to an approver was not only non‑existent but had also been expressly taken away by section 337(3), Cr. P. C. the question of granting him bail under section 561‑A, Cr. P. C. did not arise which would otherwise mean completely setting at naught the provisions con tained in section 337(3), Cr. P. C. Reliance was particularly placed on the following observations :‑ "It (section 561‑A, Cr. P. C.) merely safeguards all existing inherent powers possessed by a High Court necessary to secure the ends of justice (A I R 1945 P C 94). This Court cannot claim to exercise any inherent power to grant bail at any stage of the proceedings. The power must be derivable from the express terms of the Code itself." (P L D 1949 Lah. 21). Inherent powers of the High Court (section 561‑A, Cr. P. C.) could only be regarded as auxiliary or ancillary powers to make effective orders that could be passed under some provision of the Code, in the interest of justice (P L D 1963 S C 478)." Their Lordships also took note of the situation where on account of non‑production of witnesses an approver may be unnecessarily detained for inordinately long time or where the prosecution may conspire to make one of the accused as an approver and try to prolong the proceedings and have him, con fined in custody with a view to harass him which would amount to great hardship on him. It was held that merely because detention of an approver had worked on him hardship the law could not be circumvented and powers which were not conferred on the High Court could not be accused as the law is always made for the general good and not for safeguarding exceptional situations. A significant observation made by their Lordships which would be more relevant to the facts of the case before me was :‑ "The prosecution can also say that the case is not likely to proceed which would mean that the trial in the case cannot be concluded and as such the condition laid down under section 337(3), Cr. P. C. being incapable of being fulfilled an approver cad go back to an original position of an accused and apply for bail under sections 496 to 498, Cr. P. C." In this view of the matter, the reference made to their Lord ships to resolve a conflict of opinion in Abdul Sattar v. The State and Criminal Miscellaneous No. 3692 of 1966, was answered as follows :‑ "An approver if he was in custody at the time when he was granted pardon cannot be granted bail under. any provision of the Code of Criminal Procedure on account of prohibition contained in section 337(3), Cr. P. C."

9. The last authority available on the point is Nazir Ahmad v. The State (1970 P Cr. L J 865), wherein the D: B. authority Rehmat Masih v. The State was followed by my learned brother Muhammad Afzal Zullah, J.

10. The ratio decidendi emerging from a review of the fore going authorities of which A I R 1958 Pb. 72 and P L D 1968 Lah. 1030 are more elaborate besides being D. B. judgments, is that in view of the prohibition contained in sub‑clause (3) of section 337, Cr. P. C. as approver could not be allowed bail in exercise of the inherent powers provided .in section 561‑A, Cr. P. C. Notwithstanding the positively and the forthright manner in which this view has been expressed there are certain observations made in both these judgments which appear to me be directly in point to the instant case and may be referred to once again even at the risk of repetition. In A I R 1927 Sind 173, the learned Judges had observed :‑ "It could not have been the intention of the Legislature that a person who has been granted a pardon in respect of a parti cular offence should be kept in confinement for an indefinite period particularly when Government have not been able to decide during the last fifteen months whether the prisoners should be prosecuted at‑all. . . . Indeed the delay which is being occasioned in the decision of this important 'matter leaves one in reasonable doubt as to whether the detention of the approver' is directed to achieve the object of law or merely to harass him for his part in the crime. It seems to me, therefore, that although the process of arrest was proper .in its inception the complaint of the approver arises in consequence of subsequent proceedings subsection (3) of section 337, implies that there is a trial in progress and its object is to secure the‑ evidence of the approver for such trial. If there is no such trial and no likelihood of such a trial then cessante ratione lex ipsa cessat. This is an eminently fit case in which the inherent powers of this Court to prevent the abuse of the process of the Court be exercised in favour of a person who has been in confinement for several months. I have already referred to a similar observation made by late Khamisani, J. in the case of Rehmat Masih v. The State wherein the view was expressed that when the commence ment of the trial was not in sight despite the grant of a pardon an approver could still be technically dealt. with as an accused under sections 497 and 498, Cr. P. C: for the purpose of grant of bail. In all humility and respect, I would venture to say that the qualifying exceptional provision contained in the adjectival expression in sub‑clause (3) of section 337, Cr. P. C. namely "unless he is already on bail" clearly envisages a situation where an accused person before he accepts pardon can be allowed bail. The considerations which found favour with the law giver in taking away this liberty after the grant of pardon to a person, namely the chances of his abscondence, the hazards of intimida tion or even of death at the hands of his confederates whom he decides to betray, the amenibility to extraneous influences to resile from his confessional statement etc. would remain equally applicable to the case of a person already on bail and not detained after the grant of a pardon to him and so such apparent ly there seem to be no good grounds for this artificial distinction. However, it is not the function of this Court to criticise the wisdom of the law‑giver and the law has to be interpreted as it stands, of course having particular regard to object of the legislation in question.

11. The inferences that I have been able to draw from the statutory provision considered in the light of the foregoing discussion are :‑ Firstly the prohibition contained in sub‑clause (3) of section 337, Cr. P. C. is not absolute but qualified and condi tional. Secondly the objects of detention of the approver till the termination of a trial also include inter alia the safeguard of e his interest. Thirdly the prohibition would come into play only if the trial is either in sight or in progress. If however, the commencement of the trial had already taken several years and is still not within sight the authorities are agreed that bail could be allowed to an approver on the ground of abuse of the process of the Court, under section 561‑A, Cr. P. C. inasmuch as the pro hibition contained in subsection (3) of section 337, Cr. P. C. would not be applicable.

12. Having regard to the circumstances of the case before, me, particularly the foot that the petitioner has already spent about four years in detention without any immediate prospects of the commencement of the trial, I direct that he be released on bail on furnishing security in the sum of Rs. 10,000 (Ten thousand only) with two sureties in the like amount to the satisfaction of the Assistant Commissioner, Jhang. A copy of this order may also be forwarded to the District Magistrate, Jhang, for taking any further action as may be deemed necessary in the circumstances. Petition granted.