NIAZ MUHAMMAD vs State Ss — 2025 PLD 92 QUETTA-HIGH-COURT-BALOCHISTAN

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NIAZ MUHAMMAD VS State 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.

NIAZ MUHAMMAD vs State Ss — 2025 PLD 92 QUETTA-HIGH-COURT-BALOCHISTAN

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