FORCE COMMANDER, REGIONAL DIRECTORATE ANF, RAWALPINDI vs JUDGE
This criminal revision petition challenges an order passed by the Judge Special Court (C.N.S.) Rawalpindi, which dismissed an application filed by the Special Prosecutor (ANF) to declare an accused, Dr. Abdul Rasheed Juma, as an approver and record his statement. The trial court had dismissed the application on three grounds: non-commencement of trial and non-submission of a complete challan, lack of competence of the Incharge of Prosecution to move the application, and failure to append the proposed statement of the accused. The core legal question centered on whether an approver's statement can be recorded prior to the commencement of trial and whether the Special Prosecutor was competent to file the application. The Lahore High Court held that the trial court's reasoning was flawed, clarifying that an approver's statement can be recorded during investigation, inquiry, or trial at any time before judgment, that the Special Prosecutor is competent to move such an application, and that the proposed statement was indeed on record. The petition was accepted, the impugned order set aside, and the trial court directed to proceed with recording the statement.
- Can the statement of an approver be recorded before the commencement of trial or during the investigation stage?
- Whether the Special Prosecutor (ANF) is competent to move an application for declaring an accused as an approver?
- Can a co-accused challenge the tender of pardon given to another co-accused?
- Section 164, Code of Criminal Procedure 1898
- Section 338, Code of Criminal Procedure 1898
ORDER
' Through this revision petition order dated 19-6-2012 passed by Mr. Zafar Iqbal Chaudhry, Judge Special Court (C.N.S.) Rawalpindi has been assailed whereby he dismissed an application of the Special Prosecutor (ANF) for declaring Dr. Abdul Rasheed Juma as approver and recording his statement as such.
2. The learned Special Prosecutor argued that his application has been dismissed on three grounds; (i) that the complete challan has not been submitted and the trial has not commenced so far; (ii) that the application pertaining to the pardon and declaring him as approver has not been moved by the Incharge of Prosecution; and (iii) that the proposed statement of the accused Prof. Dr. Rasheed Juma has not been appended with the petition. The learned. Special Prosecutor goes on to submit that the statement of the said accused under section 164, Cr.P.C. As mentioned by the learned Special Judge (C:N.S.) cannot be equated with the statement of the approver as the former is to be recorded without oath being confession made by an accused whereas the later is to be recorded on oath as a witness. The learned Prosecutor contends that the statement of Dr. Rasheed Juma dated 16-6-2012 was placed on the record; commencement of trial was not the requirement of law and he being Incharge of the Prosecution was competent to move the said application so the impugned order is not sustainable in the eye of law and is liable to be set aside.
3. The learned counsel for the co-accused Makhdoom Shahab-ud-Din has opposed this revision petition on the ground that recording the statement of Dr. Rasheed Juma as an approver would seriously prejudice the rights of his client. The accused Dr. Rasheed Juma is also present along with his learned counsel who has supported the arguments advanced by the learned Special Prosecutor. He has also filed a Writ Petition No,1763 of 2012 with the similar prayer.
4. We have considered the arguments advanced from both the sides and have perused the record.
5.
6. #TBS
7. B
8. C'
9. #TBE
10. The impugned order is not based on sound reasoning. Dwelling upon the first objection of non- commencement of trial/non-submission of complete challan, it would suffice to say that the statement of an approver can be recorded during the investigation, inquiry and trial. So there is no condition precedent attached to the recording of the statement of approver under section 338, Cr.P.C. It can be recorded even during the investigation or during the trial at any time before judgment. The second reason which prevailed: with the learned trial Court to decline the said application was that the same had not been moved by the Incharge Prosecution. Special Prosecutor (ANF) is undoubtedly the Incharge of the Prosecution and when a pardon had been tendered by the A petitioner/competent authority the Special Prosecutor (ANF) being Incharge of the Prosecution was fully competent to move the said application. The third reason mentioned by the learned trial Court for not acceding to the request of the petitioner was that no statement of the accused Dr. Rasheed Juma has been appended with the petition. A perusal of the record shows that such a statement dated 16-6-2012 is available on the record so none of the reasons mentioned by the learned trial Court while disposing of the application of the petitioner/Special Prosecutor is borne out from the record. The 'impugned order is thus found not to be based on sound reasoning. The trial Court has failed to exercise the jurisdiction/discretion vested in it As regards the objection of the learned counsel for the co-accused we would like to refer to 2005 YLR 1728 (Lahore) wherein it was observed by a Division Bench of this Court that if the approver/co- accused had been given pardon by .The competent authority it could not be challenged by the other co-accused as they would be at liberty to cross-examine him.
11. In the light of the above discussion this revision petition is accepted, the impugned order is set aside and the learned trial Court is directed to proceed with the matter as per request, of the Special Prosecutor for declaring the said Dr. Rasheed Juma as approver in the case on the conditions to be set out by the learned trial Court and to record the statement of the approver in accordance with law.