The Approver Witness

Sections 337, 338, and 339 of the CrPC deal with the approver witness. 1. To whom can an offer of pardon be made? And 2. In which crimes can a pardon offer be made? This offer applies in every trial being conducted by the High Court or Sessions Court, meaning the offence's jurisdiction lies either with the High Court or the Sessions Court, or its punishment is up to ten years, or up to seven years, including Sections 216-A, 369, 401, 435, and 477-A. Now why is this offer given to a co-accused? When you lack evidence, when you have no evidence, a person has been murdered, no one knows who did it, how it was done? There's an allegation, they must have gotten it done. Someone got injured, no one knows who did it or who got it done. Now under Section 337 CrPC, a pardon is tendered to these co-accused, on what basis? That they will tell the court all the complete facts. Under Section 337, this offer can be made during investigation or inquiry. The condition is the same: complete disclosure of the truth, and all the channels within his knowledge related to the commission of this crime, and he will name every person involved in it, whether the principal accused or an intermediary. Now here's a restriction under Section 337: in injury and murder cases, related to injuries or murder cases, no one can offer a pardon on their own, the written permission of the victim, whether it's the injured person, or the lawful heirs of the victim if he was murdered, must be obtained, and only then can a pardon offer be made to any person. Now when someone is seen to have complete facts, it's assumed that he has the complete facts, then he's given a full written summary that in the commission of this crime we have this gap, if you tell us the original circumstances and facts, we will make you an approver witness, this person is not the accused, nor is there direct evidence against him, or there is, but the chain is broken, we don't know the co-accused, and if we do, the chain is incomplete, to establish that chain, or to complete that disclosure, they offer him a pardon. 1. The pardon offer must be in writing, handed to the accused, or the accused must sign it, the offer must be in writing. 2. He must accept that offer, that I have accepted this offer. 3. When he's recording his statement before the magistrate under Sections 337, 338, 339, the magistrate should not just write, yes, it's done, the pardon is granted, the statement is recorded, no, he must state the reasons. The magistrate will look at the file, after looking at the file will read it, after reading will conduct a full inquiry, will wait, and after waiting, if he believes, yes, if this person discloses the real facts, and not only will he tell the truth, but he'll tell the complete truth, not half the truth, then he'll tell the complete truth, and after telling the complete truth, the nature of this case will change. Now the magistrate also needs to assess whether, if this person tells the complete truth, he will step out of the accused's box and appear in court as prosecution evidence, does he meet that standard, if he's given a pardon, if he's made an approver witness, will he stand up fully as a witness? After confirming this, he'll write his statement, once his statement is written, this accused's status becomes that of a witness, then during trial that witness will be produced, and the remaining accused, who became accused based on his disclosure, will have the full right to thoroughly cross-examine him. 4. The magistrate will also tell him, well, this pardon is being tendered to you, if you tell the complete truth and it's consistent with the rest of the facts, then until this trial's judgment is decided, you'll be kept inside jail, you'll remain in jail, what's the wisdom in this, that's for later, they say, so let me tell you now, the wisdom behind this is his protection, but this is not a strict and rigid rule, there are concessions available, it's not that, sir, once someone is offered a pardon, his statement is taken, it's accepted, and he must stay in jail for the rest of his life until the trial concludes, no, there are concessions available, that the trial is taking too long, there's delay, matters are such, he's ill, anything could happen, he could even come out, but the basic rule is that he'll stay inside. Now the question arises, can a pardon only be tendered during investigation and trial? The answer to this question is no, a pardon can also be tendered during trial, if the judge conducting the trial, the presiding officer, the judge, believes that among the facts coming to light there's such a person who, if he discloses the complete correct facts, the real facts of this case will come to light and it will be easier to decide the case justly. Now here's a restriction: the law of evidence says that a statement made because of a co-accused is not conclusive evidence against a co-accused. Now the approver has gone and given his statement, accepted the pardon, became an approver witness, now one accused challenges this pardon. They say, sir, we've been made accused based on this accused's statement, because of which injustice has been done to us, he's dumped all the blame on us to save his own skin. Now what's the courts' view on this? Let me give you the judgments too. The courts' view is that you've only been accused based on this accused's statement, because he's no longer an accused, he's taken the form of a witness, so you should understand it this way: he is a witness against you, and when that witness is produced during trial, you'll have the full right to cross-examine him, so you have no prejudice against you, no injustice is being done to you, no unfairness is happening to you: 1. 2005 YLR page 1728. 2. 2016 PCrLJ (Pakistan Criminal Law Journal) page 714, Lahore High Court, Lahore. In this it was held that no one should be convicted solely on the approver witness's statement, if the approver witness's statement isn't consistent, isn't corroborated with other independent evidence, with other independent evidence, then it won't be sufficient on his statement alone, the court will examine everything, assess it, assess its truthfulness. Now some ambiguities arise here, which the courts have also resolved. If it's established that the approver, who was tendered the pardon, suppose on January 1st, 2018, this person is produced before the magistrate, stating, sir, he's been tendered a pardon, he's accepted it, the magistrate satisfies himself, and after satisfying himself, records his statement, and after that, at a later stage, it comes to light that this person has been in the custody of a law-enforcement agency since October 2017, in October 2017 he was in the custody of a law-enforcement agency, and on January 1st, 2018 he was tendered a pardon and accepted the offer to become an approver, then the approver's statement is finished, the approver has no standing anywhere, his statement will be thrown in the trash, no court will trust it, because it's been established that when the pardon was tendered by the prosecution, he accepted it, but before that he was in the custody of a law-enforcement agency, so we cannot look away from the question of beatings, of coercion, of pressure, of blackmail, of threats, of death threats, of threats to destroy his family. Therefore his statement will not be considered correct. Then, once he becomes an approver, once his statement is recorded, his trial will be separated, his trial will proceed, but he'll be separated from the main trial, he'll be separated from that main trial, and the trial will proceed regarding the remaining accused. If the approver's statement is treated as solid, if his statement gains the required credibility, then fine, then he's acquitted, because he became an approver witness, without his statement conviction wasn't possible, the statement he gave was encouraging. Now what does 'encouraging' mean? Let me give a small example. A is murdered, A is hit here, exits there, hit here, exits from the back, he dies. Now no one knows who fired the shots. Suppose it's assumed that B knows who shot A. Now B is told, sir, if you tell the real facts, you'll be made an approver witness. How was B caught? Some of the deceased's belongings were found at his house. Now B isn't saying anything, he's saying, yes, they're at my house, but I won't say how they got there, because on this one civil factor I can't get the death penalty just because some of the deceased's belongings were found at my house. So now the approver's statement will be read, how will the approver's statement be read? He says Z came from behind, he fired, it exited here and there, meaning he says, sir, he came from this side, hit here, exited there, came from behind, hit the back, exited from there. Now that's not encouraging in his statement, because the deceased was hit here and it exited there, was hit here and exited from the back, therefore the approver's statement will not be accepted.