It appears that pursuant to this provision the trial court has passed the order dated 26

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Revision Application No. 97 of 2009

Date order with signature of Judge

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Irfan Saadat Khan.

Date of hearing 27^th October, 2009.

Mr. Muhammad Farooq Advocate for the applicant

Mr. Abdul Rahman Kolachi Assistant Prosecutor General

Mr. Zubair Zia Siddiqui Advocate for the accused Zubair

son of Abdul Ghafoor

Mr. Muhammad Ashraf Qazi Amicus curie

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GULZAR AHMED, J.:- The applicant has impugned the order dated 16.7.2009 passed by the learned Special Jude, Anti Terrorism Court No.II, Karachi (the trial court).

It is contended by the learned Counsel for the applicant that the applicant was granted pardon in terms of Section 338 Cr.P.C. and the applicant complied with the conditions of the order granting her pardon but the trial court on its own proceed to examine her evidence and passed the impugned order while directing recording of further prosecution evidence made an observation that the applicant will make statement under section 342 Cr.P.C. as she is not yet finally declared as an approver and pardoned. Learned Counsel contended that the trial court in passing the impugned order has committed grave illegality inasmuch as it did not take into consideration the provisions of Section 339 and 339-A Cr.P.C. and in support of his submission relied upon the case of Malik MUSHTAQ @ BLACK PRINCE Vs. THE STATE (2005 YLR 1728) and MST. TAHMINA ASIF Vs. THE STATE (PLJ 2008 FSC 100).

Mr. Abdul Rahman Kolachi, the Assistant Prosecutor General contended that the trial court has to determine the status of the applicant whether she is pardoned approver or accused and then proceed with the matter and that the impugned order requiring the applicant to record statement under section 342 Cr.P.C is not correct.

Mr. Zubair Zia Siddiqui Counsel for accused Zubair supported the impugned order saying that the condition of pardoning has not been fulfilled by the applicant and she should be tried for the offence and in this respect relied upon the case of Ghulam Qadir Vs. The State (PLD 1959 SC (Pak) 377) and Gurdit Sindh V/s Emperor (AIR 1939 Lah.66).

Mr. Muhammad Ashraf Qazi the learned Amicus Curie has contended that in the wake of an order under section 338 Cr.P.C., the applicant can be tried only after the public prosecutor has certified that the applicant failed to meet the conditions of the order under section 338 Cr.P.C. and in such eventuality, the applicant has to be tried separately from the other accused and in such trial a show-cause will be required to be given to the applicant before prosecution evidence in the case is recorded against her. The learned Amicus Curie has also filed a note of arguments.

We have considered the submissions made by the learned counsel and have gone through the record.

The brief facts of the matter are that the applicant along with co-accused were facing trial in the trial court in Crime No. 851/2008 under section 365-A/34 PPC of Police Station Shahrah-e-Faisal, Karachi. The applicant filed an application under section 338 Cr.P.C. to the trial court for pardoning her in consideration of her recording statement under section 164 Cr.P.C. and giving evidence of true account of the events and full disclosure of circumstances with regard to the offence. The trial court through order dated 26.3.2009 allowed the application and directed recording of applicant’s statement under section 164 Cr.P.C. and to be examined as first prosecution witness in trial proceeding. Pursuant to such order, the applicant was produced before the 11^th Civil Judge/Judicial Magistrate, Karachi-East who recorded her statement under section 164 Cr.P.C. in which she was cross examined by accused counsel. Subsequently, the applicant was also examined in Court as prosecution witness No. 1 and was cross examined by the accused counsel. On completion of her evidence in Court, the trial court proceeded to pass the impugned order.

Section 338 Cr.P.C. empowers the High Court or the Court of Sessions trying a case at any time, before the judgment is passed, 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 such offence tender pardon on the condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned whether as a principal or abettor in the commission thereof.

It appears that pursuant to this provision, the trial court has passed the order dated 26.3.2009, pursuant to which the statement under Section 164 Cr.P.C. of the applicant was recorded and her evidence, as prosecution witness No.1, was recorded in the court. What further procedure that was to be followed by the trial court for dealing with the case of the applicant is apparently provided in Sections 339 and 339-A Cr.P.C. Section 339 Cr.P.C., inter alia, provides that where the pardon has been tendered under Section 338 Cr.P.C. and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has either by willfully concealing anything essential or by giving false evidence not complied with the conditions on which the tender was made such person may be tried for the offence in respect of which the pardon was so tendered and that such person shall not be tried jointly with any of the other accused and shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made in which it shall be for the prosecution to prove that such conditions have not been complied with. Section 339-A Cr.P.C., inter alia, provides that the court trying under section 339 a person who has accepted a tender of pardon shall before the evidence of witnesses for the prosecution is taken ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made and in case the accused does so plead, the court shall record the plea and proceed with the trial and shall before the judgment is passed in the case, find whether or not the accused has complied with the conditions of pardon and if it is found that he has so complied the court shall notwithstanding any thing contained in this code, pass judgment of acquittal.

The reading of the above provisions of section 339 & 339-A cumulatively shows that the procedure of trial of a person who has been tendered pardon has to commence with the certificate containing opinion of public prosecutor that the person pardoned has not complied with the conditions on which tender was made and that such person be tried for the offence of which pardon was so tendered and that such person shall be tried separately from the other accused and before such trial is commenced, the person who has accepted the tender of pardon will have to record the plea of having complied with the conditions of tender and if the plea be that of having made the compliance then the court will proceed to try such person and before judgment is passed will consider such plea and in case the court come to the conclusion that the person has complied with the conditions of tender of pardon, he shall be acquitted.

The trial court in the present case, however, did not follow this procedure rather from the impugned order it appears that without taking certificate containing opinion of the Public Prosecutor, the trial court on its own proceeded to consider evidence of the applicant and further proceeded to try the applicant as an accused person jointly with other accused. This is apparent as the trial court in the impugned order has clearly observed that applicant is not yet finally declared as an approver and pardoned and required her to give statement under section 342 Cr.P.C. The trial court in passing such order apparently has committed illegality inasmuch as it has adopted a procedure which is not in accordance with the provisions of section 339 & 339-A Cr.P.C. The trial court in dealing with the case of a person who has been tendered pardon under section 338 Cr.P.C., who has also recorded statement under section 164 Cr.P.C. and whose evidence has also been recorded as prosecution witness, has to deal with his/her case as per procedure provided under section 339 & 339-A Cr.P.C. and not otherwise.

In case of Ghulam Qadir the Hon’ble Supreme Court has laid down as a rule that as a matter of strict law, the uncorroborated testimony of an accomplice could if accepted form the basis of conviction in a criminal case. However, in the course of judicial precedents rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver’s statement on material points suggesting a link between the accused persons and the crime before such a statement could be accepted as a safe foundation for their conviction. On the point in issue, this judgment, with due deference, has no application for the reasons that it may be of use to the trial court for evaluation of evidence at the time of giving of judgment.

In the case of Mst.Tehmina Asif, the trial court has refused to grant the application for grant of pardon which the learned single Judge after elaborate consideration allowed the same. This case also has no direct nexus to the point in issue.

In the case of Gurdit Singh, which is a Division Bench judgment of Lahore High Court, it was held that section 339-A Cr.P.C. does not apply to the case of an approver who has stated that his statement as approver was completely false and where the approver has forfeited pardon was put to trial without obtaining of plea from him as to whether he had complied with the terms of his pardon. Such irregularity was held to be curable under section 537 Cr.P.C. It was further observed in this case that section 339-A Cr.P.C. clearly applies to a case in which the approver’s case is still that he was one of the persons who had committed the offence but the Public Prosecutor was in error in considering that he had, in any way, failed to comply with any of the conditions upon which the tender of pardon was made. The last mentioned observation has some relevancy to the case in hand.

As discussed above, the provisions of Sections 339 & 339-A Cr.P.C. being exhaustive and clear in their manifestation, they also seem to be mandatory and the trial court was required to follow the procedure provided in both these provisions for dealing with the case of the applicant. Such having not been done, the impugned order suffer from grave illegality and same is set aside with direction to the trial court to proceed with the case in accordance with the provisions of section 339 & 339-A Cr.P.C., as discussed above. This Criminal Revision Application in the above terms stands disposed off.

Mr. Muhammad Ashraf Qazi, learned Amicus Curie has rendered valuable assistance to the Court in hearing of this matter and we express our real gratitude and thanks to him.

J U D G E