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Criminal Revision No. 103 of 1982, decided on 6th February, 1983

-- S. 338-Pardon, tender of-Police collecting evidence of extra. judicial confession and other circumstantial evidence against accused and proposing to examine as many as 14 witnesses against both accused, allegedly responsible for murder of deceased-Order of Trial Judge, directing District Magistrate to tender pardon to one of accused persons, held, perverse and arbitrary, in circumstances . Matter remanded for decision of application afresh.

No doubt the Additional Sessions Judge trying the case may, with the view of obtaining on the trial the evidence of any person supposed to have directly or indirectly concerned in, or privy to any such offence, tender, or order District Magistrate to tender a pardon on the same condi tion to such person. It is well-settled that it is only in exceptional cases that the Sessions Judge should move District Magistrate to tender pardon to an accomplice and one of such circumstances may be that it is otherwise not possible to bring home the guilt to the co-accused. This power has to be exercised with great care and caution and on ample grounds and with a clear recognition of the risk which it necessarily involves allowing an offender to escape just punishment at the expense of possibly an innocent person. Furthermore, the judicial discretion has to be exercised in case of extreme necessity.

Malik Wazir Ghazi for Petitioner.

Akhtar Masood for the State.

Pir Muhammad Rafi-ud-Din Shah for the Complainant.

Date of hearing: 6th February, 1983.

This revision arises from the order of the learned Additional Sessions Judge, Multan, whereby he, on 4th February, 1982 directed the District Magistrate to tender pardon to respondent No. 2, Msr. Waziran.

2. The facts giving rise to this petition in brief, are that Muhammad Iqbal, petitioner and Mst. Waziran respondent No. 2, were challaned under section 302/34, P. P. C. for the murder of Mumtaz Ahmad, husband of respondent No. 2. In the report submitted under section 173, Cr. P. C. the prosecution cited as many as 14 witnesses. The case was entrusted to the learned Additional Sessions Judge before whom Mst. Waziran moved application for her being made as an approver. This application was dismissed, on 28th September, 1981. On 24th October, 1981 Mst. Waziran moved second application praying that she may be made an approver as she was prepared to disclose the true facts of the case. This application was accepted by the learned Additional Sessions Judge, on 4th January, 1982 directing the District Magistrate to tender pardon to Mst. Waziran, accused-respondent No. 2, after observing necessry legal formalities as provided under sections 337, 338, Cr. P. C. in compliance of this order the learned District Magistrate tendered her pardon on 3rd February, 1982 and her statement was recorded by a Magistrate Ist Class on 3rd February, 1982 wherein she disclosed what according to her, were the true facts of the case. It is remarkable that this statement was recorded without oath. Hence this revision.

3. The learned counsel for the petitioner submits that pordon was tendered to Mst. Waziran who was the principal accused without legal necessity. As against this the learned counsel for respondent No. 2 has defended the impugned order.

After hearing the learned counsel I find that the learned Sessions Judge who had earlier refused to tender pardon to Mst. Waziran agreed to make her an approver on 4th January, 1982 with the obser tion "that the prayer of the petitioner cannot be turned down for the reason because the pardon is to be tendered under the conditions laid down under section 337, Cr. P. C. and the co-accused Muhammad Iqbal will have an opportunity to cross-examine the witnesses during the trial. In view of the nature of the occurrence and the allegation made by the prosecution and the evidence cited by the prosecution I am satisfied that it is a fit case to tender pardon to the accused petitioner under section 333, Cr. P. C. I hereby direct the District Magistrate to tender pardon to the petitioner accused."

4. I have considered the reasons given by the learned Additional Sessions Judge for allowing application of respondent No. 2 with great care and have also gone through the material available before me. I find that the prosecution proposes to examine as many as 14 witnesses against Muhammad Iqbal and Mst. Waziran, respondent No. 2 to connect them with the commission of the murder of Mumtaz Ahmad. I further find that the police has collected the evidence of extra-judicial confession and other circumstantial evidence against the accused person. No doubt the Additional Sessions Judge trying the case may, with the view of obtaining on the trial the evidence of any person supposed to have directly or indirectly concerned in, or privy to any such offence, tender or order District Magistrate to tender a pardon on the same condition to such person. It is well settled that it is only in exceptional cases that the Sessions Judge should move District Magistrate to tender pardon to an accomplice and one of such circumstances may be that it is otherwise not possible to bring home the guilt to the co-accused. This power has to be exercised with great care and caution and on ample grounds and with a clear recognition of the risk which it necessarily involves allowing to escape just punishment at the expense of possibly an Innocent son. Furthermore, the judicial discretion has to be exercised in case of extreme necessity.

The Additional Sessions Judge had to apply his mind as to the evidence already collected by the police against Muhammad Iqbal co-accused. I am convinced that in the case to hand the learned Additional sessions Judge has not considered the matter in accordance with the guiding principles laid down by the superior Courts. The order is Before, perverse and arbitrary.

5. For all these reasons I am inclined to set aside the order of the 3ditional Sessions Judge, dated 4th January, 1982 as well as the order, dated 3rd February, 1982 of the District Magistrate tendering pardon to Mst. Waziran, respondent No. 2. The matter is remanded back to the additional Sessions Judge i.e. the trial Court to decide the application Mst. Waziran afresh, in accordance with law.

S.G.D. Revision accepted.

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