Trial court could not pardon accused sans taking prosecution on board: LHC

LAHORE: The Lahore High Court held that a trial court could not pardon an accused without taking the prosecution on board.

The court passed this order on a petition of Muhammad Asif challenging the order of Additional Sessions Judge, Lahore, which declared his co-accused Muhammad Awais as approver without recording any cogent reason or observing the legal formalities.

The court said while acting with due propriety, the court must bear in mind that the interests of the accused are just as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to an accused, the court added.

The court said a judge must know the nature of the evidence the person seeking conditional pardon is likely to give, the nature of his complicity, and the degree of his culpability in relation to the offence and about the co-accused.

The court observed that a court has the power to tender pardon to any person but the court can have no interest whatsoever in the outcome. It also cannot decide whether particular evidence is required for prosecution or not to ensure the conviction of the accused.

The court said reasons must be outlined by a court to tender pardon to an accused and that it is essential to record reasons and to further whether the pardon was or was not accepted by the person to whom it was made.

The court said it is also the requirement of law that when an accused is tendered pardon, he must be kept in custody until the trial is concluded but in this case, Awais, the accused, was not taken into custody, therefore, the impugned order is bereft of legal sanctity.

The court observed that in this case, the court has also not taken the prosecution on board before tendering the pardon to the accused which is an illegality. The court said section 338 of CrPC requires that no person shall be tendered pardon without permission of the victim or, as the case may be, of the heirs of the victim who is involved in an offence relating to hurt or qatl.

The present case is of qatl (murder) but the court has not obtained the consent of the legal heirs of the deceased before tendering pardon to the accused, therefore, the order is also liable to be set aside on this legal premise as well, the court concluded.

Copyright Business Recorder, 2024