Accomplice is an accused person who is directly or indirectly concerned in commission of an offence or its privy. He is also known as guilty associate or an approver (in urdu SULTANI GAWAH). An accomplice is a co-accused until he is granted pardon then his position turns to be an approver.
An accomplice is a competent witness as per article 16 of the Qanoon-e-Shahadat Order, 1984 (QSO) except in Hadd cases. Though it is permissible that an accused may be convicted on evidence of only one witness but for accomplice it is provided under illustration (b) of article 129 (QSO) that the court may presume that an accomplice is untrustworthy of credit unless corroborated in material evidence.
The procedure of tendering pardon to an accomplice is provided under Criminal Procedure Code, 1898 (the Code). Section 337 of the Code provides procedure for tendering pardon to accomplice by the prosecution through magistrate during investigation (pre-trial), inquiry or trial stage it implies a condition that in cases of hurt or Qatl, the victim or heirs of victim shall give consent for tendering such pardon by the Prosecution. Where an accused is tendered pardon to be an accomplice, he is produced before the Magistrate for recording his statement. At this eve the accused is required to give full and true disclosure of all the circumstances of the incident within his knowledge so as to reach the real culprits of the offence.
When pardon is granted to an accused who is in custody, he shall remain in custody till finalization of the trial. Where the accomplice is on bail he shall continue to be on bail.
Section 338 of the Code provides that the High Court or Court of Sessions at any time before judgment passed during trial may tender pardon to an accomplice or order the prosecution to tender pardon to an accomplice on the same conditions as provided in section 337 of the Code read with section 16 and 129 of the Qanoon-e-Shahadat Order, 1984.
The pardon to an accomplice is always to be granted in writing and reasons shall also be given for such pardon. The statement of the approver or accomplice is recorded just as a witness on oath in view of the provisions of section 16 of QSO, as he being a competent witness.
As per section 339 of the Code, the prosecutor certifies that the accomplice has not complied with the pardon accepted by him then accomplice is liable to be tried for the same offence for which he has been pardoned or any other offence for which he is found guilty. His trial shall be separate from other co-accused. The law also provides right to such approver that he may plea that he has complied with the conditions of pardon and the prosecution has to prove that accomplice has not complied with such conditions and the court shall decide the question. The statement made by such person being approver may be used against him in such trial. If the prosecution or the court deems that the accused has given false evidence then he may be tried for such false evidence with permission of the High Court.
In section 339-A of the Code it is provided that prior to start of trial on the basis of statement of an approver, the court shall record the plea of such approver that he has complied with the pardon tendered to him and record his evidence as witness for prosecution (PW). If the court finds during trial that the approver has complied with conditions, he shall be acquitted.
POINT-WISE BRIEF.
1. A co-accused may be tendered pardon to give true and full circumstances of an offence.
2. Such person must be given in writing the pardon with conditions and reason mentioned.
3. Under section 337 of the Code, the prosecutor may tender pardon at any stage before judgment passed.
4. Under section 338 of the Code, the High court or Court of Sessions during trial may tender pardon or order the prosecutor to tender the same.
5. In Hadd cases no pardon is given.
6. In injury or Qatl cases consent of victim or legal heir as the case may be, is necessary.
7. Where accused is in custody and he is tendered pardon, he shall remain in custody till termination of trial
8. The prosecutor has to certify that approver has complied with conditions or not.
9. The court has to record plea of approver that he has complied with all conditions of pardon.
10. The statement is to be recorded as a prosecution witness on oath.
11. The statement may be used against the person making it during same trial.
12. The trial of approver is not conducted jointly with other accused.
13. If court is satisfied that approver has complied with conditions he shall be acquitted.