متوفی کی بیوہ کو بھی ملزموں میں سے ایک کے طور پر اس کیس میں شامل کیا گیا تھا - - مقدمے کی سماعت میں متوفی/ملزم کی بیوہ کو استغاثہ کے گواہ کے طور پر پیش کرنے کی.............

 2026 P Cr. L J 372
Peshawar

ملزم کو معافی-دائرہ کار-ملزم-درخواست گزار پر الزام لگایا گیا کہ اس نے اپنے شریک ملزم کے ساتھ مل کر شکایت کنندہ کے والد کا قتل کیا - - متوفی کی بیوہ کو بھی ملزموں میں سے ایک کے طور پر اس کیس میں شامل کیا گیا تھا - - مقدمے کی سماعت میں متوفی/ملزم کی بیوہ کو استغاثہ کے گواہ کے طور پر پیش کرنے کی استغاثہ کی درخواست کی اجازت دی گئی تھی - -ضابطہ فوجداری کی دفعہ 337 کی فراہمی کی قانونی حیثیت. ، بیان کیا گیا ہے کہ عدالت مقدمے کے کسی بھی مرحلے پر ملزم کو معافی دے سکتی ہے اس سے پہلے کہ فیصلہ ثبوت حاصل کرنے کے مقصد سے منظور کیا گیا تھا اور موجودہ معاملے میں یہ ٹرائل کورٹ کے ذریعہ کیا گیا تھا---- تاہم ، یہ ضروری تھا کہ متوفی کی ملزم/بیوہ کو شکایت کنندہ/استغاثہ کی طرف سے یا خود عدالت کی طرف سے کی گئی درخواست کے جواب میں اپنی آزاد رضامندی اور سرکاری گواہ بننے کی خواہش کا اظہار کرنا چاہئے تھا ، تاہم ، متنازعہ حکم اس حقیقت کے بارے میں مکمل طور پر خاموش تھا کہ آیا متوفی کی بیوہ (مقدمے کا سامنا کرنے والے ملزم) کو کبھی بھی سرکاری گواہ بننے کے لئے اپنی صوابدید کا استعمال کرنے کا اختیار دیا گیا تھا اور اس طرح اس نے اپنے دوسرے پرنسپل اور شریک ملزم کے خلاف اپنی مرضی اور رضامندی کے ساتھ اپنا بیان ریکارڈ کرنے پر اتفاق کیا تھا ۔ - اس کی عدم موجودگی میں ، قانون کے متعلقہ حصوں کی ضروریات کو مناسب طریقے سے اور قانونی طور پر پورا نہیں سمجھا جاسکتا تھا - موجودہ معاملے میں ، متوفی کے شکایت کنندہ/بیٹے/قانونی وارث نے استغاثہ کے ذریعے متوفی/ملزم کی بیوہ کو استغاثہ کے گواہ کے طور پر پیش کرنے کی درخواست کی اور اس حقیقت کے ساتھ کہ اس پر صرف ایس ایس کے تحت الزام عائد کیا گیا تھا ۔ 201/202 ، P.P.C ، لہذا ، Ss.337 اور 338 ، P.P.C. میں موجود بار ، کہ کسی بھی شخص کو معافی نہیں دی جائے گی جو متاثرہ شخص کی اجازت کے بغیر چوٹ یا موت سے متعلق جرم میں ملوث تھا یا ، جیسا کہ معاملہ ہوسکتا ہے ، متاثرہ کے وارثوں کا ، موجودہ کیس پر لاگو نہیں ہوا ۔ - تاہم ، ٹرائل کورٹ کے سامنے تسلیم شدہ طور پر نہ ہی ملزم کی طرف سے معافی کی منظوری کی کوئی درخواست پیش کی گئی تھی جس میں یہ وعدہ کیا گیا تھا کہ وہ متوفی کے قتل کے بارے میں اپنے علم میں موجود حالات کا مکمل اور صحیح انکشاف کرے گی اور نہ ہی اس کی رضامندی سیاہ اور سفید رنگ میں دستیاب ریکارڈ کی سطح پر جاری کی گئی تھی تاکہ یہ ظاہر کیا جاسکے کہ اس نے رضاکارانہ طور پر اپنے شریک ملزم (یہاں درخواست گزار سمیت) کے خلاف ساتھی/گواہ بننے کا انتخاب کیا ہے اور نہ ہی ٹرائل کورٹ کے ذریعہ کسی بھی دفعہ کا حوالہ دیا جاسکتا ہے جس کے تحت مقدمے کا سامنا کرنے والے ملزم کو استغاثہ کے گواہ کے طور پر پیش کرنے کی اجازت دی گئی تھی کیونکہ اگر اسے معافی دی گئی تھی تو اس سے پہلے اس شرط سے پہلے ہونا ضروری ہے کہ وہ متوفی کے قتل کے بارے میں اپنے علم میں موجود حالات کا مکمل اور صحیح انکشاف کرے گی اور اگر وہ ایسا کرنے میں ناکام رہی تو اسے ایس پی سی --- اس کے علاوہ ، آئین کے آرٹیکل 13 کی وجہ سے ، ایک ملزم شخص کو خود کے خلاف گواہ بننے پر مجبور نہیں کیا جاسکتا ہے-- -

Pardon to the accused---Scope---Accused-petitioner was charged that he along with his co-accused committed murder of the father of complainant---Widow of the deceased was also implicated in the case as one of the accused---Prosecution’s request qua producing widow of deceased/accused as a prosecution witness in the trial was allowed---Validity---Provision of S.337, Cr.P.C., described that the Court could tender pardon to the accused at any stage of the trial before the judgment was passed with a purpose of obtaining evidence and in the present case it had been done by the Trial Court---However, it was essential that accused/widow of deceased should have expressed her free consent and willingness to become approver in response to a request made by the complainant/ prosecution or by the Court itself, however, the impugned order was completely silent about the factum that whether widow of deceased (accused facing trial) had ever been given an option to exercise her discretion to become an approver and thereby agreed to record her statement with her free will and consent against her other principal and co-accused---In absence whereof, the requirement of the relevant Sections of law could not be considered to have been duly and legally fulfilled---In the present case, the complainant/son/legal heir of the deceased made request for production of widow of deceased/accused as prosecution witness through the Prosecutor coupled with the factum that she had been charged only under Ss.201/202, P.P.C, therefore, the bar contained in Ss.337 & 338, P.P.C., that no person shall be tendered pardon who was involved in an offence relating to hurt or qatl without permission of the victim or, as the case may be, of the heirs of the victim, did not apply to the present case---However, admittedly before the Trial Court neither any application by the accused facing trial qua grant of pardon containing an undertaking that she would make full and true disclosure of the circumstances within her knowledge about the murder of deceased was moved nor her consent in black and white floated upon the surface of the available record to show that she voluntarily opted to become an accomplice/approver against her co-accused (including petitioner herein) nor any Section of law could be quoted by the Trial Court in the impugned order under which accused facing trial was allowed to be produced as a prosecution witness because in case she was granted/tendered pardon, the same must be preceded by a condition that she would make full and true disclosure of the circumstances within her knowledge about the murder of the deceased and in case she failed to do so, she had to bear legal consequences thereof in light of S.339, Cr.P.C., etc.---Moreover, by virtue of Art.13 of the Constitution, an accused person could not be compelled to be a witness against himself/herself---

Judgment

---Through the instant criminal revision, Gulzeb son of Kala (who is main/one of the accused in a case registered vide FIR No.903 dated 06.09.2023 under sections 302/109/201/202/34 P.P.C, at Police Station, Havelian District Abbottabad) has challenged the order/judgment of learned Additional Sessions Judge, Havelian dated 20.12.2024 whereby request of the prosecution qua producing Mst.Khadija Bibi (accused facing trial) as a Prosecution Witness in trial of the aforesaid case FIR has been allowed.

2. Precisely, the facts of the present case are that Amir Khan son of Jehanzeb along with dead body of his father Jehanzeb lodged a report with the local police in Emergency Ward TDH Havelian wherein he reported that as per his mother namely Mst.Khadija Bibi, his father has committed suicide. On his report, inquiry under section 174 Cr.P.C. was started, however, after post mortem examination, the possibility of suicide was ruled out and during interrogation, Mst.Khadija (widow of the deceased) disclosed that her husband was murdered by Gulzeb (brother of the deceased) at the abetment of Amir and Mst.Maria Gul (who are son and daughter-in-law of the deceased). Mst.Khadija (widow of the deceased) also recorded her statement under section 164 Cr.P.C. In the wake thereof, instant case was registered vide FIR No.903 dated 06.09.2023 under section 302/109/201/202/34 P.P.C, at Police Station, Havelian District Abbottabad.

3. Arguments of learned counsel for the parties and learned Additional Advocate General heard in detail and record perused with their able assistance.

4. It is the case of petitioner that though it was an unseen occurrence, however, prosecution is determined to produce Mst.Khadija Bibi, who is recorded as one of the accused in the complete challan, in support of its case and obtained the impugned order in its favour which order is against the law and prescribed procedure. It is also the case of petitioner that Mst.Khadija herself is involved in the commission of offence and that, the impugned order of the learned trial court is extremely prejudicial to the case of petitioner, therefore, not sustainable in the eye of law. On the other hand, petitioner's contentions were rebutted on the ground that the Court of Sessions being a trial Court has discretion under section 338 Cr.P.C to tender pardon to any of the accused for the purpose of obtaining his evidence, therefore, the learned trial court while exercising its discretion judicially, has rightly granted the permission to the prosecution to produce Mst.Khadija as prosecution witness through the impugned judgment/order.

5. The only proposition before this Court in the instant case is that as to whether learned trial court has rightly allowed the prosecution to produce Mst.Khadija (who is one of the accused facing trial) as a prosecution witness against co-accused (including petitioner herein) during trial of a criminal case or not? Since the person who has been selected by prosecution to be produced as its witness is herself admittedly an accused facing trial in this case, therefore, before unravelling the proposition in hand, it would be analyzed that under which provision(s) of criminal law, evidence/statement of an accused could be recorded/obtained as a witness against his/her co-accused. But before that it would also be pretty appropriate to pass a cursory look upon the meaning of the word accomplice/approver as definition thereof is neither given in Qanune-Shahadat Order 1984 nor in the Code of Criminal Procedure, 1898.

As per Black's Law Dictionary (Tenth Edition) "accomplice" is described as follows:

"(1) Someone who is in any way involved with another in the commission of a crime, whether as a principal in the first or second degree or as an accessory. (2) Someone who knowingly, voluntarily, and intentionally unites with the principal offender in committing a crime and thereby becomes punishable for it."

Similarly, Corpus Juris Secundum (Volume 23 § 1349 at p.323) states:

"The various definitions of an 'accomplice' all convey the same idea, which is that an 'accomplice' is one who is concerned with others in the commission of a crime, is an associate in crime, or a partaker of guilt, one who aids or assists, or is an accessory. It is commonly said that an 'accomplice' is one who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime. Criminal intent is essential to render one an accomplice. Thus, to be an accomplice one must be an active partner in the intent to commit a crime. The term includes all who are concerned in the crime, whether as principals in the first or second degree, or as accessories, or aiders or abettors, and under applicable statutory provisions the term includes principals, accessories, coconspirators, and in fact all persons who are connected with the crime by unlawful acts, declarations, or omissions whether antecedent, to, contemporaneous with, or subsequent to, the main act constituting the crime."

The Hon'ble Supreme Court of Pakistan had the occasion to consider the aforesaid term in Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53). After an in-depth review of the case-law cited at the bar it ruled (at p.193):

"An accomplice, therefore, means a guilty associate or partner in crime, or, who in some way or the other, whether before, during or after the commission of the offence, is consciously connected with the offence in question, or who makes admissions of facts showing that he had a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. In other words, an accomplice is a particeps criminis, who is consciously so connected with the criminal act done by his confederate, that he on account of the presence of the necessary mens rea, and his participation in the crime in some way or the other, can be tried along with that confederate actually perpetrating the crime. A witness who could not be so indicted on account of the absence of mens rea cannot be held to be an accomplice ... Whether a person is or is not an accomplice depends on the facts of each particular case, considered in connection with the nature of the crime. The burden of showing that a witness is an, accomplice lies ordinarily upon the party alleging it, namely, the accused, though it is certainly the duty of the prosecution to bring all relevant facts having a bearing on this aspect of the matter to the notice of the Court."

In light of the above, it is clear that an accomplice is one of the accused persons but he/she ceases to be so and becomes an approver when granted pardon.

6. When we go through the relevant law on the subject, we find that by virtue of Article 16 of the Qanun-e-Shahadat Order, 1984, an accomplice is considered as a competent witness and the case can be proceeded upon his/her testimony. The aforesaid Article being relevant is reproduced as under:

"16. Accomplice; An accomplice shall be a 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."

7. The procedure for an accomplice to become an approver/witness is given under sections 337 and 338 of The Code of Criminal Procedure, 1898, which being relevant to the present controversy are reproduced as under:

337. Tender of pardon to accomplice. (1) In the case of any offence triable exclusively by the High Court or Court of Sessions, or any offence punishable with the 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 216-A, 369, 401, 435 and 477-A, [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, 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:

(1-A) Every Magistrate who tenders a pardon under subsection (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record:

Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.

[(2) Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any.]

(2-A) In every case where a person has accepted a tender of pardon and has been examined under subsection (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Sessions or High Court, as the case may be.

(3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial.

[338. Power to grant or tender of pardon. At any time before the judgment is passed, the High Court or the Court of Sessions trying the case may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order [officer in charge of the prosecution in the District] to tender, a pardon on the same condition to such person.]

Almost an identical proviso is added to both sections 337 and 338 Cr.P.C which is also produced below:

"Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victim or, as the case may be, of the heirs of the victim."

8. There is no cavil with the proposition that in certain cases enumerated in section 337 Cr.P.C, officer in charge of the prosecution in the District, 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, can tender a pardon to such person on condition of his/her making a full and true disclosure of the whole of the circumstances within his/her knowledge relative to the offence and to every other person concerned, whether, as principal or abettor in such case.

9. Similarly, by virtue of section 338 Cr.P.C the High Court or the Court of Sessions trying the case may, at any time before the judgment is passed, with the view of obtaining the evidence of any person concerned in any such offence, tender, or order officer in charge of the prosecution in the District to tender, a pardon on the same condition to such person.

10. It is manifest from the conjoint reading of the aforesaid sections of law that sections 337 P.P.C and 338 P.P.C deal separately with the situations of tendering pardon by the Officer Incharge of the prosecution as well as the Court. The former section of law meets the situation when the case is in the investigation or inquiry or pending trial before a Magistrate, whereas the latter section of law deals with the situation when the trial is pending before the Court of Session or High Court. However, the proposition in this case relates to a stage as laid down in section 338 of Cr.P.C i.e. a trial which is pending before the Court of Sessions, therefore, not only the officer incharge of the prosecution but the Court can tender pardon to the accused at any stage of the trial before the judgment is passed with a purpose of obtaining evidence and in this case it has been done by the learned Additional Sessions Judge but before passing such an order, it was essential that accused (Mst.Khadija) should have expressed her free consent and willingness to become approver in response to a request made by the complainant/ prosecution or by the Court itself, however, the impugned order is completely silent about the factum that whether Mst.Khadija (accused facing trial) had ever been given an option to exercise her discretion to become an approver and thereby agreed to record her statement with her free will and consent against her other principal and co-accused. In absence whereof, the requirement of the afore-stated sections of law could not be considered to have been duly and legally fulfilled.

11. So far as the bar contained in sections 337 P.P.C and 338 P.P.C that no person shall be tendered pardon who is involved in an offence relating to hurt or qatl without permission of the victim or, as the case may be, of the heirs of the victim, is concerned, since as per the impugned order, the complainant Ahmed Khan (son/legal heir of the deceased) made request for production of Mst.Khadija as prosecution witness through the Assistant Public Prosecutor coupled with the factum that she has been charged only under sections 201/202 P.P.C, therefore, the aforesaid bar does not apply to the present case, however, admittedly before the learned trial court neither any application by Mst.Khadija (accused facing trial) qua grant of pardon containing an undertaking that she would make full and true disclosure of the circumstances within her knowledge about the murder of deceased Jehanzeb was moved nor her consent in black and white float upon the surface of the available record to show that she voluntarily opted to become an accomplice/approver against her co-accused (including petitioner herein) nor any section of law could be quoted by the learned trial court in the impugned order under which Mst.Khadija (one of the accused) is allowed to be produced as a prosecution witness because in case she is granted/tendered pardon, the same must be preceded by a condition that she would make full and true disclosure of the circumstances within her knowledge about the murder of the deceased and in case she fails to do so, she has to bear legal consequences thereof in light of section 339 Cr.P.C etc.

12. In order to further fortify such stance it would not be out of place to mention here that by virtue of Article 13 of The Constitution of the Islamic Republic of Pakistan, 1973, an accused person cannot be compelled to be a witness against himself/herself. In this respect, Article 13 of The Constitution is cited below:

"No person-

"(a) .............................; or

(b) shall, when accused of an offence, be compelled to be a witness against himself."

13. In view of the above discussion and expositions of law on the subject, the impugned order of the learned trial court is not maintainable due to legal infirmities, therefore, this criminal revision is allowed and consequently the same is set aside. However, if accused Mst.Khadija is still desirous of making a statement with a view to obtaining a pardon, then she could be tendered/offered pardon in writing either by the officer incharge of the prosecution which tender of pardon must be duly signed by such officer but strictly in accordance with the procedure prescribed by law, or by the trial Court itself by adopting the required procedure.

Needless to mention that the above observations are with regard to procedure only as adopted by the learned trial court regarding obtaining of evidence of an accused person, therefore, the same shall in no way prejudice the independent mind of learned trial Court while finally deciding the case.