The Approver Witness (Part 2)

Can someone be convicted solely on an approver witness's statement? Just on the approver witness alone? The answer to this question is no, absolutely not, nothing like that exists. I've already told you the procedure regarding the approver witness, that an investigating officer or inquiry officer, during a court's investigation, during a court's inquiry, during a court's trial, at any stage, any judge or investigating officer believes that a particular person, it's presumed, is indeed an accused in this, but he can disclose all the facts, so if he's tendered a pardon, made an approver witness, he'll tell the complete truth, then he's tendered a pardon in writing. Let me make one more request here: if the pardon isn't tendered to you in writing, if you're not offered in writing to become an approver witness, and your statement is recorded, well, you're badly caught, you won't get a pardon, you won't get relief, rather that statement of yours will be used against you. Now the second thing, what's the difference between a statement recorded under 337, 338, and 339, and a statement recorded under 164? Sections 337, 338, 339 deal only with the approver, the approver witness, its whole mechanism is different, the court doesn't say in this that this statement can also be used against you, that you could also be punished because of this statement, it only assures that you must make a complete and true disclosure, if you don't make a complete and true disclosure, this statement of yours won't be accepted, but Section 164's requirements are different, under Section 164 the magistrate formally cautions the person giving the statement, saying, well, this statement can also be used against you, you could be punished based on this statement, you're giving it of your own free will, but when a pardon is tendered, in injury and murder cases, until the victim or the victim's next of kin, next of kin meaning the lawful heirs, the lawful heirs give permission, a pardon cannot be tendered, no one, neither the court nor the investigating agencies can tender a pardon until they give permission. A statement given under 337, 338, 339 is as an approver witness, a statement given under 164 falls under confession of guilt, a confession falls under confession of guilt, so this is a big difference between the two. Now let's come back to our point, that the approver was tendered a pardon, he was offered to become an approver witness. After the offer, when he gives his statement, that statement undergoes a double test, passing which is very important, it will go through two standards, and if it doesn't pass this double test, his statement won't be accepted as correct. First, the court will confirm whether this witness is reliable, can I, as an approver, be tendered a pardon, when there are cases against me related to fraud, murders, injuries, I'm already involved in cases of this nature, do I meet the standard of tazkiyah and shuhood (moral rectitude of witnesses), this will be the first test. If he passes this barrier, that yes, I am reliable, then the second test is whether what I'm saying is consistent with the current facts and circumstances or not, if it's consistent with the current facts and circumstances, then my statement will be accepted, and as soon as my statement is recorded as an approver, my status becomes that of a witness, I'll be produced as a witness, and the defence and the co-accused will have the full authority to cross-examine me, to prove me a liar, they'll have the full authority, if they succeed in proving me a liar, then my statement still won't be accepted, and if they can't prove me a liar, then my statement will be considered fully valid, considered correct, and considered based on truth, and conviction will follow based on this statement. Now, the pardon being tendered, is it being given under pressure, is he being forced to become an approver, is he being blackmailed into becoming an approver, is he being threatened to become an approver witness, the court must also look into this. Nawaz Sharif's case, 2009 PLD page 814, Supreme Court, this approver was put through this double test, and what came to light, based on which the approver's evidence was rejected? They said, no, we won't accept this, what fact came to light was that the person who became an approver, who was tendered a pardon, before the day the pardon was tendered, he was in the custody of the forces, when this was brought before the Supreme Court at a recent, advanced stage, that, sir, this approver is giving his statement on this date, and before this he had been in the forces' custody for two months, and the forces took him into their custody and then handed him to the investigating agency, and the investigating agency went straight and had his statement recorded as an approver, the courts rejected this, that if the approver is in unlawful custody, if he was in unlawful detention before giving this statement, his statement will not be accepted, it will be presumed that he was threatened into giving this statement, forced into giving this statement, blackmailed into giving this statement, this too is fully covered in the double test I mentioned earlier. Now his statement should be harmonious, consistent, connected, that the way the crime happened, the approver's statement is coming in the same manner, in the same sequence, but the crime is there, there's a gap in the middle, who did it, how, and why? The approver is telling that he did it this way and for this reason, he's filling that gap. When this mutual support comes together, then the approver's statement will be considered fully valid. 2014 YLR page 1412, Lahore High Court, Lahore. Now I've also told you the difference between a 164 statement and a 337 statement, it must be in writing. Now a legal matter comes up, it's been said that Sections 337, 338, 339 should be compared with Sections 494 and 248 of the CrPC, all these sections are CrPC sections. Sections 337, 338, 339 deal with the matter of someone being made an approver witness, having proven himself, being acquitted, that he committed the crime, it was established that he committed the crime and was involved in it. A thought may have crossed your mind, I don't need to tell you, but I'll tell you anyway: the approver, the approver witness, must be an accused in that case, if he's not an accused, then he's not an approver, rather he'll come as a witness saying, I know these circumstances, and he's stating the facts he has, as a witness, this has nothing to do with 337, 338, 339, he must be an accused in this case, if he's an accused, then under Sections 337, 338, 339 of the CrPC, he'll become an approver witness, and after becoming an approver witness, he'll be removed from it, silenced as an approver witness, why silenced? Because that structure the prosecution had built, whatever gaps it had, he filled them, and what he filled were harmonized, consistent with the facts, matched those facts, if those gaps had been left unfilled, not only would this case have failed, but the other four would have failed too, so he was made an approver witness so that gap would be filled, now the gap is filled, they've been convicted, he should be removed. Sections 494 and 248, although there are differences, under Sections 337, 338, 339 the full trial will happen, and after the trial the approver witness will be acquitted, whereas under Section 494 CrPC the prosecution withdraws its case, the prosecution withdraws, or under Section 248 the complainant withdraws the case, and when they withdraw the case, then a quietus order (silence order) will be passed, that because the prosecution withdrew it, therefore he is discharged, because the complainant withdrew the case, therefore he is discharged, but under Sections 337, 338, 339 the case won't be withdrawn against him, rather, once the approver gives his statement, he'll be kept in judicial custody for his protection, and if he's proven to be a genuine approver, he'll be acquitted at the end of the trial, and if he's not proven to be a genuine approver, then that statement won't be used against him, rather he'll be given an independent trial.