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Criminal Miscellaneous Nos. 408 and 409 of 1963, decided on 27th March 1963.

Ss. 337 (3) & 339 --Whether Sessions Judge, upon receiving certificate of Public Prosecutor under S. 339, not competent to order detention of approver after completion of trial.

Where the Sessions Judge, upon receiving a certificate given by the Public Prosecutor under section 339, Criminal Procedure Code, 1898, on the culmination of trial ordered in his judgment that the approver was not to be released since he had failed to fulfil the condition of his pardon, it was argued that section 337(3), Cr. P. C., authorises the detention of a person, to whom pardon has been granted, only "until the termination of the trial" and, therefore, the Sessions Judge had no jurisdiction to detain the approver after the trial before him had terminated:

Held, that subsection (3) of section 337, Criminal Procedure Code, 1898, is just an enabling section, which enables the detention of the person to whom pardon has been granted, although by virtue of the grant of pardon to him, he is no longer an accused person in the case. It cannot, therefore, be said that if the detention of an approver, who has failed to fulfil the conditions on which pardon was granted to him, is otherwise authorised, section 337(3) would warrant or require his release, from judicial lock‑up the moment the trial terminates. A perusal of section 339 of the Code would show that the effect of the certificate of a Public Prosecutor under section 339 is that the approver becomes triable for the offence which he had committed. In other words, he is relegated to the position in which he was immediately before the grant of pardon to him. The approver in the case was, at the time when pardon was granted to him, a person accused of an offence and was under detention pending proceedings in Court against him. His detention in the judicial lock‑up after the culmination of the trial was, therefore, warranted by the provisions of Chapter XIV of the Code, and there was nothing illegal about it.

Emperor v. Kothia I L R 30 Born. 611 and Emperor v. Abani Bhushan Chuckerbutty I L R 37 Cal. 845 distinguished.

Ss. 339 & 337‑. Issue of certificate under S. 339 ‑ No formal withdrawal or forfeiture, of pardon by Court necessary for prosecution of approver.

M. Sarwar for Petitioner.

Ataullah Sajjad, A. A: G. for Respondents.

Dates of hearing : 26th and 27th March 1963.

Shah Din son of Islam Din, caste Malik, aged 21 years, trunk‑maker, resident of House No. 12, Street No. 12, Faiz Bagh, Lahore, was one of the persons accused of an offence under section 120‑B in a case in which four other persons were being accused under sections 302/34 and 120‑B, P. P. C. Before, however, a report under section 173, Cr. P. C., could be submitted to the Magistrate, pardon was tendered to Shah Din petitioner on the usual "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." The case against the other three persons was, after the usual proceedings, duly committed to the Court of Sessions and the trial culminated in the conviction of three of the four accused persons under section 302/34, P. P. C. and their acquittal under section 120‑B, P. P. C.

2. The last paragraph of the judgment dated the 28th of January 1963, announced by the learned Sessions Judge, Lahore, in this case, reads as follows :‑

"Since the approver has not fulfilled the conditions of his pardon, he is not released."

Aggrieved by this, the petitioner Shah Din filed the present petition under section 491, Cr. P: C. and Article 98 of the Constitution of the Republic of Pakistan, praying that "it may be declared that the direction of the Sessions Judge, Lahore, dated the 28th of January 1963, detaining the petitioner after the termination of the trial for an indefinite period is passed without lawful authority and the petitioner at present is illegally and improperly detained in the District Jail, Lahore. It is further prayed that he be set at liberty.

3. I heard the learned counsel for the petitioner, and finding that the case involved an important point of law, issued notice to the Advocate‑General, West Pakistan, also. I have had the opportunity of hearing Mr. Ata Ullah Sajjad, Assistant Advocate -General, who has appeared on his behalf.

4. The learned counsel for the petitioner has submitted that cognizance of a case can be taken under the Criminal Procedure Code only under section 190 and that too by a Magistrate. He has further submitted that the cognizance of an offence by a Court of Session is limited to cases which have been committed to it for trial as is clear from section 193, Cr. P. C. His contention is that even if the petitioner has not complied with the conditions on which pardon was granted to him and is, therefore, triable for the offence that he committed, it is only a Magistrate who can take cognizance of it, and the Sessions Court would be seized of it only after the Magistrate has found it fit to commit him for trial. That being so, he asserts, it was not open to the Sessions Judge to issue the direction which he did in the last paragraph of the judgment, quoted above. He represents that section 337(3), Cr. P. C., authorises the detention of a person to whom pardon has been granted and who is commonly known as an approver only "until the termination of the trial." The learned Sessions Judge, according to him, therefore, had no jurisdiction to detain him after the trial before him had terminated.

5. He also submitted that the mere fact that the Public Prosecutor had issued a certificate in accordance with the terms of section 339, Cr. P. C., could not result in the trial of the petitioner automatically, since, according to him, it was for the District Magistrate to come to a conclusion on the basis of the facts of the case as to whether the petitioner should be put on trial.

6. Learned counsel referred to Emperor v. Kothia (I L R 30 Bom. 611) and Emperor v. Abani Bhushan Chuckerbutty (I L R 3 7 Cal. 845), in support of the proposition that the Sessions Judge could not detain the petitioner after the culmination of the trial. The first of these cases deals with an entirely different proposition which comes under section 339, Cr. P. C., as it stood before amendment by the Criminal Procedure Code (Amendment) Act, 1923, which provided for the giving of a certificate by the Public Prosecutor and also made it enough for the basis of a prosecution of the approver concerned. The proposition canvassed in this authority was that once the person to whom pardon has been granted had fulfilled the conditions on which he accepted the tender of pardon, i.e., had made "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 commis sion thereof." The mere fact that he did under evil influence give false evidence when cross‑examined does not make him liable to prosecution. This proposition has not been canvassed before me, and I very much doubt if it could be under the extraordinary procedure of habeas corpus. Such a point could be raised only m proceedings under section 439, Cr. P. C., as was in fact done in the case cited above. The other case also pertains to a period before the amendment of the law referred to above, and follows the decision already quoted and discussed above. In fact, the latter case actually deals with the question as to whether it is at all open to a Court to try a person in the absence of a proper finding that forfeiture of pardon under section 339, Cr. P. C., was incurred in a particular case. This again is not a point before me.

7. I have no dispute with the proposition that a Court of Session is not, under the Code of Criminal Procedure, empowered to take cognizance of offences directly and that it can do so only through the intervention of a committing Court. I, however, fail to see bow this point arises in the present case, since the learned Sessions Judge has neither taken cognizance of any offence against the petitioner nor has he put him on trial. All that he has done is to make a statement at the end of the judgment that the petitioner was not to be released since he has not fulfilled the conditions of his pardon. It. may also be mentioned here that this finding‑of the learned Sessions Judge is based upon a cer tificate given by the Public Prosecutor, which is a part of this record and which is in accordance with the terms specified under section 339 of the Code. It is, therefore, not possible to question the legality of this finding given by the learned Sessions Judge. The question remains whether the learned Sessions Judge can at all order that the petitioner be not released although the trial had culminated. If one is to peruse sections 337, 338 and 339 in the sequence in which they appear in the Code, one finds that subsection (3) of section 337 appears at a stage where the question of the approver having failed to fulfil the terms of his pardon does not arise. In fact, subsection (3) of section 337 is just an enabling section, which enables the detention of the person to whom pardon has been granted, although by virtue of the grant of pardon to him, he is no longer an accused person in the case. A It can, therefore, not be said that if the detention of an approver, who has failed to fulfil the conditions on which pardon was granted to him, is otherwise authorised, section 337 (3) would warrant or require his release from the judicial lock‑up the moment the trial terminates. A perusal of section 339 would show that the effect of the certificate of a Public Prosecutor under section 339 is that the approver becomes triable for the offence which he had committed. In other words, he is relegated to the position in which he was immediately before the grant of pardon to him. In the present case, pardon was granted to the petitioner when he was in the custody of the police and was charged with an offence under section 120‑B of the Pakistan Penal Code. In other words, he was at that time a person accused of an offence and was under detention pending proceedings in Court against him. All that the learned Sessions Judge has, by the last paragraph of his judgment, done is to say that he would continue to be in that position since 4 he had forfeited the concession that had been granted to him in the interregnum. His detention in the judicial lock‑up is, therefore, warranted by the provisions of Chapter XIV of the Code of Criminal Procedure, and there is nothing illegal about it.

8. The argument of the learned counsel for the petitioner that it is now for the District Magistrate to decide whether he is to be tried or not does not hold any water. This argument overlooks the amendments introduced in the law by the Criminal Procedure Code of 1882, that of 1898 and the Criminal Procedure Code (Amendment) Act, 1923, with the result that no formal determination as to a withdrawal or forfeiture of pardon by the trying Court is now necessary for the approver's prosecution, and the certificate of the Public Prosecutor is enough. The question, therefore, of the District Magistrate or any other person having to take a decision as to whether the approver should be tried or not does not arise under the present law.

9. I, therefore, find that the detention of the petitioner is neither illegal nor improper, and would, therefore, reject the petition.

K. B. A./A. H. Petition rejected.

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