Approver Witness (Pardon Witness)

Can someone be convicted solely on the statement of an approver witness? A conviction cannot be based solely on an approver witness's statement — it definitely cannot. There is a procedure regarding an approver witness: an investigating officer or inquiry officer, at any stage during investigation, inquiry, or trial in court, if any judge or investigating officer believes that a certain person, who is an accused in the case, can disclose all the facts — if he can be persuaded, made into an approver witness, he will tell the whole truth — then he is formally tendered pardon in writing. Keep this in mind: if pardon was not tendered to you in writing, if you were not formally offered in writing to become an approver witness, and your statement is recorded regardless, then you have gotten badly trapped — you will not get a pardon, you will not get any exemption, rather that statement of yours will be used against you.

Now the second point: what is the difference between a statement recorded under Sections 337, 338 and 339 and a statement recorded under Section 164? Sections 337, 338, 339 deal only with the approver — the pardon-tendered witness — its mechanism is different; the court does not tell him that this statement can also be used against you, that you could be convicted because of this statement — it only ensures that you must make a full and true disclosure; if you do not make a full and true disclosure, then this statement of yours will not be accepted. But the requirements of Section 164 are different — under Section 164, the magistrate formally informs the person giving the statement that this statement can be used against you too, that you could be convicted on the basis of this statement, and that you are giving it of your own free will. But when pardon is tendered, in murder cases, pardon cannot be tendered unless the aggrieved party or the aggrieved party's legal heirs give permission — no court can tender it, nor can any investigating agency tender it, unless they give their permission. A statement given under Sections 337, 338, 339 is in the capacity of an approver witness; a statement given under Section 164 falls under the category of confession of guilt — so this is a major difference between the two.

Coming back to our point: the approver is tendered pardon, he is offered to become an approver witness. After the offer, when he gives his statement, that statement must pass a double test, and passing it is essential — it must pass through two criteria, and if it does not pass the double test, then his statement will not be accepted as valid.

First, the court will ensure whether this witness is trustworthy — as an approver I am tendered pardon; if there are already cases of fraud, murders against me, if I am already involved in cases of this nature, if I do not satisfy the standard of a credible and reliable witness — that will be the first test. If he clears this barrier — yes, I am trustworthy — then the second test is whether what I am saying is corroborated by the surrounding facts and circumstances or not. If it is corroborated by the existing facts and circumstances, then my statement will be accepted, and as soon as my statement as an approver is recorded, I become a witness — I will appear as a witness, and the defence and the co-accused will have the full right to cross-examine me, to prove me a liar. If they succeed in proving me a liar, then my statement will still not be accepted; and if they cannot prove me a liar, then my statement will be deemed to exist in its fullest and considered to be based on truth, and conviction will follow on the basis of that statement.

Now, the court also has to see whether the person being tendered pardon is being kept under pressure — whether he is being coerced or blackmailed into becoming an approver witness, whether he is being threatened into becoming an approver witness — the court has to look at this too.

In the Nawaz Sharif case, 2009 PLD page 814, the Supreme Court put this approver witness through this double test, and it came to light — on this basis the approver's evidence was rejected. They said, no, we will not accept this — what fact came to light was that the person who became the approver witness, who was tendered pardon — on the day pardon was tendered, before that he had been in the custody of the forces; when this matter was brought before the Supreme Court at a later, advanced stage, that this approver witness who is giving a statement on this date, and before that this person had been in the custody of the forces for two months, and was then handed over to the investigating agency, and the investigating agency went straight and got his statement recorded as an approver witness — the courts rejected this, [holding] that if the approver witness was in unlawful custody, was held in unlawful detention before giving this statement, then his statement will not be accepted — it will be presumed that this statement was extracted from him by threat, that it was extracted from him under coercion, that it was extracted from him through blackmail — this is fully covered under the first double test mentioned above.