ACCOMPLICE AND APPROVER

 

                      ACCOMPLICE AND APPROVER

 

RELEVANT PROVISIONS

Ø Articles 16, 129(b) of QSO, 1984

Ø Sections 337, 338, 339, 339-A of Cr.P.C, 1898.

 

 

WHO IS AN ACCOMPLICE ?

The Federal Shariat Court, in its judgment titled Haider Hussain vs. Govt. of Pakistan, interprets the word accomplice in the following words:

"An accomplice is a co-accused, an associate or partner who has such relation to the criminal act that he [or she] can be jointly charged with the other accused.”

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 . An accomplice is a co-accused until he is granted pardon then his position turns to be an approver (Sultani Gawah or Waada Maaf Gawah).

 

 

 

 

 

Examples Of Accomplice:

• Serving as a “get-away” driver
• Being a “lookout” for cops and witnesses while the crime is being committed
• Loaning money, weapons, or other objects for use in the commission of the crime
• Encouraging the principal to complete the crime

 

IS ACCOMPLICE A COMPETENT WITNESS?

 

ISLAMIC VIEW:

According to Islamic View, he is not a competent witness, as he lacks the qualities mentioned in Tazkiya tu Shahood.

IN QSO:

An accomplice is a competent witness as per article 16 of the Qanoon-e-Shahadat Order, 1984 (QS0) 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.

 

NECESSITY OF CORROBORATION:

Ø An accomplice is likely to swear falsely in order to shift the guilt from himself.

Ø  An accomplice is a participator in crime and thus an immoral person.

Ø An accomplice gives his evidence under a promise of pardon or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally, and this hope would lead him to favour the prosecution.

 

 

 

NATURE OF CORROBORATION:

Generally speaking corroboration is of two kinds.

Ø Firstly the court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime.

 

Ø Secondly the court seeks corroboration of the approver's evidence with respect to the part of other accused persons in the crime and this evidence has to be of such a nature as to connect the other accused with the crime.

 

The corroboration need not be direct evidence of the commission of the offence by the accused. If it is merely circumstantial evidence ofhis connection with the crime it will be sufficient. The corroboration need not consist of evidence which, standing alone would be suficient to justify the conviction of the accused. If that were the law it would be unnecessary to examine an approver.

 

CATEGORIES OF ACCOMPLICE:

 

1.PRINCIPAL OFFENDER OF FIRST DEGREE AND SECOND DEGREE:

The principal offender of first degree is a person who actually commits the crime. The principal offender of the second degree is a person who either abets or aids the commission of the crime.

 

For example:

If a person buys a gun and uses it to rob a store, , that person is the principal offender, because they have actually committed the offence of armed robbery.

 

Ø ‘A’ killed ‘B’ with a knife. A is the prime accused of 1st degree.

 

Ø When ‘A’ was trying to kill ‘B’, ‘B’s wife obstructed ‘A’. On that the companion of A i.e. ‘D’ caught hold of B’s wife, thereby cleared the way to ‘A’ for murdering ’B’. Here the acts of ‘D’ come under the category of principal offender of second degree

 

 

 

2. ACCESSORIES BEFORE THE FACT:

They are the person who abet, incite, procure, or counsel for the commission of a crime and they do not themselves participate in the commission of the crime.

Examples

An example of being an accessory before the fact might be giving a person the tools necessary to burglarize another person’s home or a business. Another example would be giving someone the keys to a car to use in a robbery. 

 

3.ACCESSORIES AFTER THE FACT:

 They are the persons who receive or comfort or protect persons who have committed the crime knowing that they have committed the crime. If they help the accused in escaping from punishments or help him from not being arrested, such person are known as harbourers. These persons can be accomplices because all of them are the participants in the commission of the crime in some way or the other. Therefore anyone of them can be an accomplice.

 

Examples:

• Acting as the getaway car driver
• Helping the other parties to dispose of evidence
• Acting as a decoy to distract law enforcement personnel

 

PROCEDURE OF GRANTING PARDON: (How an accomplice turns to be an approver).

The procedure of tendering pardon to an accomplice is provided under Criminal Procedure Code, 1898 (the Code).

SECTION 337 CRPC:

Ø 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.

 

Ø  Where an accused is tendered pardon to be an accomplice, he is produced before the Magistrate for recording his statement.

Ø 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.

 

Ø 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 CRPC:

Ø 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.

 

Ø 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.

 

 

SECTION 339 CRPC:

 

Ø 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.

 

Ø 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

 

Ø 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 the permission of the High Court.

 

 

SECTION 339A CRPC:

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 SUMMARY:

Ø A co-accused may be tendered pardon to give true and full circumstances of an offence.

 

Ø Such pergon must be given in writing the pardon with condtions and reason mentioned.

 

Ø Under section 337 of the Code, the prosecutor may tender pardon at any stage before judgment passed.

 

Ø 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.

 

Ø In Hadd cases, no pardon is given.

 

Ø In injury or Qatl cases consent of victim or legal heir as the case may be, is necessary.

 

Ø Where accused is in custody and he is tendered pardon, he shall remain in custody till termination of trial

Ø The prosecutor has to certify that approver has complied with conditions or not.

 

Ø The court has to record plea of approver that he has complied with all conditions of pardon.

 

Ø  The statement is to be recorded as a prosecution witness on oath.

 

Ø The statement may be used against the person making it during same trial.

 

Ø The trial of approver is not conducted jointly with other accused.

 

Ø If court is satisfied that approver has complied with conditions he shall be acquitted.