Approver Witness (Tender of Pardon)

The approver witness is dealt with under Sections 337, 338, and 339 of the CrPC.
1. To whom can an offer of pardon be made?
2. In which offences can an offer of pardon be made?

This offer can be made in any trial that a High Court or Sessions Court is conducting, or which is before a High Court or a Sessions Court, or [an offence] punishable with up to ten years, or punishable with seven years, which includes 216-A, 401, 435, 369, and 477-A. Now why is this offer made? When you lack evidence — a person has been murdered, no one knows who did it or how; someone was injured and it's not known who did it or who had it done. Now, under Section 337 of the CrPC, pardon is tendered to those who were party to the offence — but on what basis? That they will disclose all the complete facts to the court. The condition is that they disclose the complete truth, on every point within their knowledge relating to the commission of that offence, and that they name every person involved in it, whether he is the principal accused or an accomplice. Now, a problem arises here in Section 337 — in cases of injury and murder, in murder cases and cases relating to injuries, no one can offer a pardon on their own; written permission has to be obtained from the victim — if injured — or, if the victim has been murdered, from the victim's legal heirs, and only then is an offer of pardon made to a person. Now when a person is seen to have full facts — it is believed, assumed, that he possesses the complete facts — then a full written summary is given to him, stating that we have this gap in establishing this offence; if you tell us the original facts and circumstances, we will make you an approver witness. In this case he is not an accused, nor is there direct evidence against him, nor is the identity of his co-accused known — and if it is known, there is no evidence — so, to build this case, they tender him pardon.

1. The pardon document must be in writing, which is handed over to the accused, or the accused's signature must be taken on it — the offer must be in writing.
2. He must accept the offer — I have accepted this offer.
3. When he is recording his statement before the magistrate under Sections 337, 338, 339, the magistrate should not simply write, 'yes, pardon has been granted, statement recorded' — no, he must state reasons. The magistrate will look at the file, and after looking at it will read it, and after reading it will conduct a full inquiry, will wait — and after waiting, if he believes that yes, if this person discloses the real facts, and not just tells the truth but tells the whole truth, not half the truth but the complete truth — and after telling the complete truth, the nature of this case will change. Now the magistrate also has to assess this: if this person tells the complete truth, then he will come out of the box of 'accused' and appear in court as a prosecution witness — does he meet that standard, if pardon is tendered to him, if he is made an approver witness, will he stand up fully as a witness? After satisfying himself of this, he will record his statement; once his statement is recorded, this accused's status becomes that of a witness. Then during trial, that witness will be produced at trial, and the remaining accused, who became accused on the basis of his disclosure, will have the full right to fully cross-examine him.
4. The magistrate will also tell him: look, this pardon is being tendered to you; if you tell the complete truth, and it is corroborated with the remaining facts, then until the trial's judgment is decided, you will be kept inside jail — you will remain inside jail. Is there protection for this? This is not a written rule as such; there are exceptions to it — it is not that once someone is tendered pardon, his statement is taken and accepted, he must remain in jail for his entire life until the trial concludes. Exceptions exist — the trial is dragging on, there are delays, circumstances are such, he is ill — anything can happen, he can also be released. Now the question arises: can pardon be tendered only during investigation and trial? The answer to this question is: no, pardon can also be tendered during the trial, if the judge conducting the trial, the presiding officer, believes that among the facts and circumstances coming to light there is such a person who, if he tells the complete correct facts, the real facts of this case will come to light, and it will become easier to reach a just decision. Now, the approver went and gave his statement, accepted the pardon, became an approver witness — now an accused challenged this pardon. They said that because of this accused's statement, injustice has been done to us — to save his own life he has put all the blame on us. Now what is the court's view on this? I will give you the judgments too — the court's view is that on this accused's statement, only the court [can rely on the allegation against you], because he is no longer an accused, he has taken the form of a witness, so consider it exactly like this — that he is a witness against you, and when a witness is produced during trial, you have the full right to cross-examine him — so no injustice is being done to you, no unfairness is happening to you.
1. 2005 YLR page 1728.
2. 2016 PCr LJ (Pakistan Criminal Law Journal) page 714, Lahore High Court, Lahore. It was held in this that a conviction should not be based solely on the statement of an approver witness — if the statement given by the approver witness does not have corroboration, then conviction will not follow solely on his statement. The court will look at everything, will scrutinize it, will scrutinize its truthfulness.