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Criminal Revision No. 10 of 1981, decided on 30^thJune, 1981.

-- S. 337 (2)-Words and phrases-Word "custody" in S. 337, Cr. P. C.-Means custody of Court or judicial custody and approver always to be deemed in custody of Court.-[Words and phrases--Approver].

-- S. 540-Approver, recalling of-Prosecution seeking permission of Court to re-call approver and be directed to remain present in Court during examination of material prosecution witnesses so that identity of approver is established-Petition allowed with direction to trial Court to summon approver during examination of such prosecution witnesses.-[Approver].

Sher Zaman Chaudhary for Petitioner.

Rafique Mahmood Khan, Addl. A.-G. for the State.

M. Y. Surakhvi for Accused-Respondents.

Date of institution : 23rd May, 1981.

This petition arises out of an order, dated 16th May, 1981, whereby Sessions Judge, Mirpur declined to summon Bashir Ahmed, an approver, to remain present in the Court to establish and prove identification through prosecution witnesses.

On 8th April, 1980, the dead body of Ghulam Hussain alias Hussaina, resident of Kaloo Chak, Tehsil Kharian, Gujrat, was found in Bhimber Nullah'. During the investigation, it transpired that the deceased was killed by Muhammad Hussain and others on account of enmity between the parties out of a dispute over the land. Bashir Ahmed accepted the tender of pardon and became approver. The accused persons are detained in Mirpur Jail whereas the approver is kept in custody at Bhimber. The statement of the approver was concluded on 28^thMarch, 1981 when the case was adjourned for evidence of other witnesses, to 16th May, 1981. On that day, the Public Prosecutor and Manzoor Ahmed, petitioner moved an application in the Sessions Court for summoning the approver so that his identification was proved by Ghulam Hussain, Manzoor Ahmed and Fateh Muhammad, P. Ws. The prayer ;vas declined and prosecution was directed to produce the approver on its own on the next date. It is stated at the bar that on refusal of the Sessions Court, the prosecution moved the District Magistrate for issuance of direction to the Police to produce the approver in the Court on the next date. The order was issued and sent to S. P. office. It is further stated that this order of the District Magistrate found no compliance and hence on the next date, i.e. 17th May, 1981, the prosecution was compelled to move this Court.

It is evident from the impugned order that the trial Court declined to summon the approver as the prosecution failed to move the Court Promptly, on the date when the evidence of the approver was completed or within sufficient time in order to issue process and secure the presence of the approver. In other words, delay alone was the cause for rejection of the prayer.

It is disclosed from the report of the S. H. O. under section 173, Cr. P. C. that Bashir Ahmed, approver who happened to be a friend of Muhammad Hussain, played a leading part in completion of conspiracy of murder. The approver impersonated as one Khalid and persuaded the deceased to help him in dissolution of marriage of his sister. After the institution of the suit for dissolution at Kharian, the approver brought the deceased at Bhimber where he was killed during the night on 7th April, 1981. The prosecution evidence required to be produced relates to identification of Bashir Ahmed. It was sought to be proved that Bashir Ahmed visited the deceased from time to time and persuaded him to accompany to Bhimber. This evidence of the prosecution became material provided the approver was openly identified by the witnesses in the Court. It was in this background that the presence of the approver was required in the Court during the deposition of the witnesses.

Under section 337 (2), Cr. P. C., a person accepting the tender was to be examined as a witness in the trial Court. Under subsection (3), such person was to remain in custody unless he was already on bail, till termination of the trial. Likewise, in the instant case, Bashir Ahmed, after making statement as an approver, was retained in the custody at Bhimber till the termination of the trial.

The reference to word "custody" under section 337, Cr. P. C. means custody of the Court, in other words, a judicial custody. In cases triable by the High Court or Court of Session, pardon was tendered to the accused by the District Magistrate. After accepting the tender of pardon, a person accepting such tender, if not on bail, was kept in custody. The release of an approver was to be made at the time of termination of the trial by the Court. Thus, the custody of the approver is always the custody of the Court.

On making a statement in accordance with the conditions of the agree ment, approver is relieved of his obligations unless it was certified by the Public Prosecutor that the approver failed to fulfil the conditions of the pardon. Thus approver was required to be summoned by the Court only for making his statement as a witness. It was pointed out by Mr. Muhammad Yunus Surakhvi, learned counsel for the accused persons that there was no specific provision in the Criminal Procedure Code that an approver after making statement in terms of his pardon, could be re called by the Court for remaining present during the deposition of the prosecution witnesses, in order to establish his identity. The only provi sion made in the Code was section 540 and under that section, the request of the prosecution could not be allowed. The contention is devoid of force for the reason that the approver is not sought to be recalled as a witness. The object of the prosecution is that he may remain present during the deposition of the witnesses so that material evidence relating to identification of the approver is made. In absence of approver, the wit nesses, naturally, cannot establish and prove the identity of the approver.

The Sessions Court was competent to recall the approver in order to comply with request of the prosecution. The ground for refusal of the prayer as stated earlier, is the delay. It is apparent from the conduct of the prayer. Prosecutor that he failed to request the Court on 28th of March, when evidence of the approver was completed, to direct that the approver be directed to remain present in the Court on the next date. The Public Prosecutor also failed to move the Court within reasonable time for recalling the approver. This may be due to inadvertence or inefficiency of the Public Prosecutor. It is also on record that the prosecution case is being conducted by Mr. Sher Zaman Chaudhary, a senior counsel. It is least expected that a counsel of his standing may be careless to move the Court within reasonable time for recalling the approver. The fact remains that the prayer was not made on 28th March, or shortly thereafter. But at the same time, the prosecution cannot be punished for negligence of the Public Prosecutor or the learned counsel for the complainant. The subsequent act of the prosecution whereby it promptly moved the District Magistrate in order to secure the presence of the approver in the Court, is indicative of the fact that the prosecution once realised importance of the presence of the approver in the Court during the deposition of the witnesses, it did not sleep over the matter. Thus, under the circumstances, I find no cause to punish the prosecution for earlier negligence of the Public Prosecutor.

It is important to note that in the light of the statement at the bar, by the learned counsel for the petitioner as well as accused-respondents the order of the District Magistrate sent to the office of the S. P., was not complied with. It is not the first time that compLalnt with regard to the conduct of the Police is brought to the notice of this Court. In various cases, it has been pointed out from time to time that in majority cases of murder, the accused persons escape liability purely due to inefficiency, negligence or connivance of the Investigating Agency or Police Officers. In the instant case, the presence of approver appears to be essential to connect the accused persons with the commission of offence. The order of District Magistrate was ignored, suppressed or misplaced, as a result of which the prosecution could not secure the presence of the approver in the Court on the next date. This is a serious charge. The learned Additional Advocate-General shall move the Government to enquire into the matter and take appropriate action against the persons concerned. The result of inquiry shall be intimated to this Court.

In view of the aforesaid discussion, the petition is accepted, the impugned order is set aside and it is directed that the Sessions Court shall summon the approver to remain present in the Court during the statements o of Manzoor Ahmed, Fateh Muhammad and Haji Ghulam Muhammad. The file shall be sent back today and the process shall issue within a period of 3 days from the date of receipt of the file.

Petition allowed

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