P L D 2025 Balochistan 92
Before Gul Hassan Tareen, J
NIAZ MUHAMMAD--- Petitioner
Versus
The STATE and another ---Respondents
Criminal Revision Petition No. 72 of 2023, decided on 23rd October, 2023.
Criminal Procedure Code (V of 1898) ---
----Ss. 540, 345(2), 337 & 338--- Penal Code (XLV of 1860), Ss. 302(b) & 34--- Contract Act
(IX of 1872), S. 23---Calling an acquitted co -accused as a prosecution witness ---Legality ---
Qatl-i-amd, common intention--- Compromise made with co -accused on the condition that he
would testify against accused---Legality ---Application of the petitioner, sought recalling of
the acquitted accused as a prosecution witness was dismissed by the Trial Court ---Validity ---
Accused "PK" was arrested who had confessed his guilt before the Investigating Officer and
disclosed that "MI" was his co -accused and they both committed qatl -i-amd of the deceased --
-On such disclosure, the respondent No.2 was arrested who also confessed to the charged
offence---Both the accused were sent to face the trial where they were indicted; they pleaded not guilty and claimed trial---In the course of trial, the accused "PK" compounded the
offence with the complainant/ petitioner ---Trial Court accepted the application made under
S.345 (2), Cr.P.C and acquitted the accused "PK" ---Allegedly, the acquitted accused had
confessed his guilt before the Investigating Officer; therefore, he being a participator of the
qatl-i-amd of the deceased was an eye witness, as such, he was competent witness ---
Participator of offence becomes a competent witness when he is tendered pardon under Ss.
337 & 338, Cr.P.C.---Even otherwise, the admission of guilt before the Investigating Officer of an accused is not relevant under Arts. 38 & 39 Qanun- e-Shahadat, 1984, therefore,
evidence of such witness is inadmissible ---Disclosure of any accused is not admissible in
evidence against a co -accused ---Since the prosecution could not place reliance on the
confession of accused made before the police, therefore, the prosecution could not be allowed to produce such piece of evidence before the Trial Court against the co -accused/
respondent No.2--- Perusal of record inferred that the petitioner had compromised the offence
with the acquitted accused on the condition that he would give testimony against the respondent No.2, because the petitioner had not mentioned any reason of compromise with the acquitted accused in his application made under S.540, Cr.P.C.--- If such practice is
allowed to prevail, then, the same will result in mockery of law and the complainant/prosecution will be at liberty to pick and choose between the accused persons and compromise the case with an accused of his choice so as to bring him as his witness and punish an accused, he wisked to get punished--- Such nature of compromises would defeat the
provisions of Ss. 337 & 338, Cr.P.C., therefore, same are void under S. 23 of the Contract Act, 1877, to the extent of calling acquitted accused as a prosecution witness ---Since, the
prosecution had not resorted to the provisions of Ss. 337, 338 or S.494, Cr.P.C., for offering pardon to the accused "PK" during the investigation or trial nor had withdrawn prosecution against him, therefore, the said accused could not be called as a prosecution witness under S.540, Cr.P.C.---Criminal revision petition was dismissed, in circumstances.
Rafiullah v. 11th Additional District and Sessions Judge (West) Karachi and others
2020 MLD 942; Wasiullah v. Ali Mohseen and 2 others 2016 PCr.LJ 1124; Siddiqullah v. The State and another PLD 2009 Pesh. 1; Malik Muhammad Younas and another v. Umer Hayat and another 1998 MLD 1195; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; Mst. Rabia Bibi v. Additional Sessions Judge and 3 others PLD 2020 Lahore 690 and Abdur Rashid and another v. The State 1970 PCr.LJ 722 ref.
Abdur Rashid and another v. The State 1970 PCr.LJ 722
rel.
Akbar Khan Kakar and Ghulam Wali Achakzai for Petitioner.
Fazal -ur-Rehman State Counsel for Respondent No.1 and Taimoor Shah Kakar for
Respondent No.2.
Date of hearing: 16th October, 2023.
JUDGMENT
GUL HASSAN TAREEN J. ---The petitioner through this Criminal Revision
Petition, filed under sections 435 and 439, the Criminal Procedure Code, 1898 ('Cr.P.C'), has
assailed the order dated 23 June, 2023 of the learned Additional Sessions Judge, Loralai ('Trial Court') whereby, an application made by the petitioner under section 540, the Cr.P.C
for calling of the acquitted accused as a prosecution witness, was dismissed.
2. Facts of the case, briefly stated, are that, petitioner registered an FIR No. 07 dated 16
May, 2019 against unknown accused under section s 302 read with section 34, the Pakistan
Penal Code, 1860 at Levies Station Sinjavi, District Ziarat. The prosecution case as contained in the report is that, on 14 April, 2019 at about 11:00 a.m., the son of complainant namely Inayatullah, 16 years old, was found missing. He along with relatives went in search of his missing son. On 15 April, 2019, at about 07:00 a.m., the petitioner, Madad Khan, Naseebullah and other relatives saw the corpus of Inayatullah into a tube well. The corpus was taken out from the well and took it to the Civil Hospital Sinjavi for medical check- up.
The duty doctor referred to for post mortem to the Civil Hospital Quetta. After necessary formalities, the corpus of Inayatullah was buried in their ancestral graveyard.
3. On such report, a formal FIR was registered and investigation was entrusted to Abdul
Khaliq, Naib Tehsildar Levies. Subsequently, the case was entrusted to the Crimes Branch,
Quetta. In the course of investigation, accused namely Paind Khan was apprehended who confessed his guilt before the Investigating Officer and confessed that he along with accused, Muhammad Imran (respondent No.2) had taken the deceased to a hut and the respondent No.2 strangulated the deceased. On his disclosure, the respondent No.2 was also apprehended, who also confessed his guilt before the Investigating Officer.
4. The complainant compounded the offence of Qatl -i-amd and forgiven the accused
Paind Khan. The Trial Court accepted the compromise an acquitted the accused Paind Khan. The prosecution examined thirteen witnesses, when complainant made an application under section 540, the Cr.P.C, to summon the acquitted accused, Paind Khan as a prosecution
witness. The Trial Court vide impugned order dismissed the application.
5. Messrs Akbar Khan Kakar and Ghulam Wali Achakzai, learned counsel for the
petitioner state that the acquitted accused Paind Khan confessed his guilt before the notables of the area and had also admitted his guilt during the course of investigation, therefore, being a participator of the Qatl -e-amd, he is an eye -witness, thus his testimony is relevant and
would assist the Trial Court for reaching at a just conclusion. They referred to the Articles 16, 43 and 129(b), the Qanun- e-Shahadat Order, 1984 ('Q.S.O') and section 540, the Cr.P.C
and placed reliance on the following case laws:
Rafiullah v. 11th Additional District and Sessions Judge (West) Karachi and others 2020 MLD 942.
Wasiullah v. Ali Mohseen and 2 others 2016 PCr.LJ 1124.
Siddiqullah v. The State and another PLD 2009 Peshawar 1.
Malik Muhammad Younas and another v. Umer Hayat and another 1998 MLD 1195.
6. Mr. Fazal -ur-Rehman, the learned State Counsel supported the contention of
petitioner's counsel and placed reliance on the following case laws:
Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814
Mst. Rabia Bibi v. Additional Sessions Judge and 3 others PLD 2020 Lahore 690
7. Mr. Taimoor Shah Kakar , learned counsel for the respondent No.2 states that an
accused of an offence may be examined as a prosecution witness; however, it cannot be done unless the prerequisites of section s 337 and 338, the Cr.P.C have been fulfilled by the
prosecution. He states that under section 540, the Cr.P.C, an acquitted accused cannot be
summoned as additional witness; therefore, the Trial Court has rightly dismissed petitioner's
application. The learned counsel referred to Articles 16 and 129 (b), the Q.S.O and placed reliance on the case of Abdur Rashid and another v. The State published in 1970 PCr.LJ 722.
8. Heard. Record gone through.
9. The Criminal Procedure Code, like all other procedural laws provides a complete
mechanism regarding matters relating to remedy, mode of trial, the manner of taking evidence etc. The object of the Cr.P.C is to provide a mechanism for the punishment of offenders against the substantive criminal laws. Evidence is a mode by which, an accused may be penalized. In criminal cases, burden to prove a charged offence is always on the prosecution (save in exceptional circumstances) and where prosecution fails to bring home charge against an accused beyond the shadow of reasonable doubt, the Court would be left with no option save, to acquit the accused. In this regard, the prosecution cannot take benefit of the fact, that either accused has not deposed on oath or has not led any evidence. Hence, in criminal case, the State is on one side and the offender is on the other. State cannot chose an accused where there are more than one, or an acquitted accused as its witness and ask the Court to summon such acquitted accused as a prosecution witness against his co- accused.
10. The Cr.P.C., however, provides exceptions to the general principle, that prosecution
shall prove its case through its own evidence. Section s 337 and 338, the Cr.P.C. are instances
of such exception. According to section 337, the Cr.P.C, the District Public
Prosecutor/Officer in -charge of the prosecution in the District, may at any stage of the
investigation or inquiry into or the trial of the offence, tender a pardon to the
participator/accused of offence as described in the said sections, with a view of obtaining evidence, on condition of his making a full and true disclosure of the whole of the circumstances relative to the offence. The accused who has accepted the tender under section
337 or section 338, the Cr.P.C shall be examined as a prosecution witness under section
337(2), the Cr.P.C. Under section 338, the Cr.P.C, the High Court or the Court of Sessions
trying the case may, at any time before the judgment is announced, with the view of obtaining on the trial the evidence of any person supposed to have been concerned in, any such offence tender, or order the District Public Prosecutor to tender, a pardon on the same condition.
11. The second exception is section 494, the Cr.P.C. The public prosecutor may, with the
consent of the Court withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. The effect of withdraw from prosecution is acquittal (if it is made after a charge has been framed). In such case, the accused against whom prosecution has been withdrawn, may be called as a witness against his co -accused except in cases where section 337 may be availed of. Other than these
provisions, there is no corresponding provision in the Cr.P.C for citing an accused as a witness against his co -accused. An accomplice becomes approver when given pardon. The
law of sections 337 and 338, the Cr.P.C has been founded on the doctrine of law of necessity and is based on public policy. The logic behind such law is that, instead of acquittal of all the accused, it is better to punish one or more accused on the evidence of his/their co -accused.
12. The Court may acquit an accused on the principle of benefit of doubt when the
prosecution fails to prove the charge beyond shadow of reasonable doubt. The Court may acquit an accused when a compromise is allowed under section 345 (2), the Cr.P.C and where the public prosecutor, with the consent of the Court withdraws from the prosecution of any person under section 494, the Cr.P.C. An accused acquitted for any of afore reasons, save section 494 ibid, cannot be compelled or permitted to appear as a prosecution witness against his co -accused. Reliance is placed on the case of Abdur Rashid v. The State reported
in 1970 PCr.LJ 722. The relevant therein is reproduced hereunder:
"The Criminal Procedure Code gives certain powers under which the evidence of an accused can be made available. He can be granted a conditional pardon by the Magistrate under section 337, Cr.P.C. or the Public Prosecutor with the consent of the Magistrate can withdraw, the charge against him under, section 494, Cr.P.C. The prosecution can exercise
these powers when they consider that the evidence of an accused is necessary in a case
and he should be examined as an accomplice under section 133 of the Evidence Act.
Where section 337, Cr.P.C. is applicable, the better course is to proceed under that section. In a fit case, however, the Court may allow the prosecution against a person to be withdrawn under section 494, Cr.P.C. for the purpose of obtaining his evidence against the co -accused except in cases where section 337 may be availed of. "
13. In the present case, accused Paind Khan was arrested who had confessed his guilt
before the Investigating Officer and disclosed that Muhammad Imran is his co -accused and
they both committed Qatl- i-amd of the deceased Inayatullah. On his disclosure, the
respondent No.2 was arrested who also confessed the charged offence. Both were sent to face
the trial where they were indicted; they pleaded not guilty and claimed trial. In the course of
trial, the accused Paind Khan compounded the offence with the complainant/petitioner. The
Trial Court accepted the application made under section 345(2), the Cr.P.C and acquitted the accused Paind Khan. The petitioner's counsel states that the acquitted accused had confessed his guilt before the Investigating Officer; therefore, he being a participator of the Qatl -i-amd
of the deceased is an eye- witness, as such, he is competent witness. A participator of offence
becomes a competent witness when he is tendered pardon under sections 337 and 338, Cr.P.C. Even otherwise, the admission of guilt before the Investigating Officer of an accused
is not relevant under Articles 38 and 39, the Q.S.O; therefore, evidence of it is inadmissible.
The disclosure of any accused is not admissible in evidence against a co -accused. Since the
prosecution cannot place reliance on the confession of an accused made before the police,
therefore, the prosecution could not be allowed to produce such piece of evidence before the
Trial Court against the co- accused/ respondent No.2.
14. Perusal of record infers that the petitioner has compromised the offence with the
acquitted accused on the condition that he would give testimony against the respondent No.2,
because the petitioner has not mentioned any reason of compromise with the acquitted accused in his application made under section 540, Cr.P.C. If this practice is allowed to prevail, then, the same would result in mockery of law and the complainant/prosecution would be at liberty to pick and choose in between the accused and compromise the case with an accused of his choice so as to bring him as his witness and punished the accused he wishes. Such nature of compromises would defeat the provisions of sections 337 and 338, the Cr.P.C, therefore, same are void under section 23 of the Contract Act, 1872, to the extent of calling acquitted accused as a prosecution witness.
15. Since, the prosecution had not resorted to the provisions of sections 337, 338 or the
section 494, the Cr.P.C for offering pardon to the accused Paind Khan during the investigation or trial nor had withdrawn prosecution against him, therefore, the said cannot be called as a prosecution witness under section 540 the Cr.P.C.
16. Under section 540, Cr.P.C, the Court cannot use power to advance the cause of
prosecution. Same is position of the Article 161, the Q.S.O. When law requires a thing to be done in a particular manner, it should be done in that manner.
17. The Articles 16, 43 and 129(b), the Q.S.O, referred to by the petitioner's counsel are
not relevant. The Article 16 states that an accomplice is a competent witness and a sentence based on his uncorroborated testimony is not illegal. Article 143 states that a proved confession of an accused may be considered as a circumstantial evidence against his co -
accused. In this case, there is no judicial confession of the acquitted accused Paind Khan. The Article 129(b) states that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. The referred to provisions are totally irrelevant in this case. The case laws relied by the petitioner's counsel and the learned State counsel are distinguishable.
For the foregoing reasons, the Criminal Revision Petition is dismissed.
SA/18/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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