MUHAMMAD ASIF vs State Ss — 2024 PLD 459 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD ASIF VS State Ss. 337 & 338---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Tender of pardon to accomplice---Power to grant or tender pardon---Scope---Accused assailed order passed by Trial Court whereby co-accused was tendered pardon under S. 338, Cr.P.C., to become approver against accused/petitioner---Validity---Not only the officer incharge of the prosecution but the Court could tender pardon to the accused at any stage of the trial before the judgment was passed with a view to obtaining evidence---In the present case, it had been done by the Trial Court but before that it was essential that accused should have volunteered to become approver in response to a request made by the complainant or the Court---Though application of the complainant stated that co-accused was ready to become approver but his consent in black and white was not available on the record---Similarly the Court had also not taken his consent before tendering him pardon---In that view of the matter, impugned order one-sidedly considered that co-accused would be a useful witness as an approver which was opposed to constitutional protection as ordained under Art. 13 of the Constitution---Likewise, S. 338, Cr.P.C., required 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 might be, of the heirs of the victim---Present case was of qatl but Court had not obtained consent of legal heirs of the deceased before tendering pardon to the co-accused, therefore impugned order was liable to be set aside on such legal premise as well---When an accused was tendered pardon, he must be kept in custody until the trial was concluded and Officer Incharge of prosecution certified that accused had made full and true disclosure of the whole of the circumstances so as to prevent his trial as an accused under Ss. 339/339-A, Cr.P.C., but in this case, co-accused was not taken into custody which action was in violation of subsection (3) of S. 337 Cr.P.C, sub-rule (2)(f) of Rule 25.29 of Police Rules, 1934 and Rule 8 of Chap. 14 of High Court (Lahore) Rules and Orders, Volume-III, therefore, order impugned was bereft of legal sanctity---Reasons must be outlined by the Court before framing its mind to tender pardon to an accused---In the present case, Court had not taken the prosecution on board before tendering the pardon to the accused which was an illegality because though Court has power to tender pardon to any person but the Court can have no interest whatsoever in the outcome nor can it decide for prosecution whether particular evidence is required or not to ensure the conviction of the accused---Impugned order was set-aside accordingly.

MUHAMMAD ASIF vs State Ss — 2024 PLD 459 LAHORE-HIGH-COURT-LAHORE

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