An accomplice shall be competent witness against an accused person, except in the case of an offence punishable with Hadd and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
What is Accomplice?
An accomplice is a person who is guilty associate in crime or who sustain such a relation in criminal act that he can be jointly charged with the principle accused.
An accomplice is a person who in fact participates in the commission of an offence, and not one who is simply party to a scheme for the detection of a crime. He must be a cautious participant in crime about which he is required to give evidence and must be guilty associate and partner in crime or who in some way or the other, whether before, during or after commission of offence is consciously connected with offence in question along with his confederates or who makes admission of fact showing that he had a conscious hand in offence
Justice Monir in his famous book, principle and digest of Law of Evidence while defining “accomplice” has observed as under:-
“ An accomplice means a guilty associate a partner is crime, a person who is believed to have participated in the offences, or who in some way or other, is connected with the offence in question, or who makes admission of facts showing that he had a conscious hand in the offence.
Evidence of an accomplice in case of an offence punishable with Hadd and Qisas
Evidence of an accomplice is not admissible in case of an offence punishable under Hadd and Qisas but in case of an offence entailing punishment of Tazir his testimony is admissible furnishing basis for conviction, provided the same is corroborated in material particulars.
Corroboration of Evidence of Accomplice
Although under article 16 of Qanun-e-Shahadat 1984, the statement of an accomplice without any independent corroboration is sufficient to the offence but according to Shariah law, statement of an accomplice is not sufficient to hold a person in the eye of law, until it is corroborated by an independent witness. Further illustration (b) to Article 129 of Qanun-e-Shahadat provides that an accomplice is unworthy of credit, unless he is corroborated in material particulars.
The confirmative or corroborative evidence which of course must be independent evidence should be such as corroborates in one or more particular the evidence of the approver that the prisoner was a party to the crime. What is important to remember is that the rule does not require the prosecution to prove through independent evidence that the prisoner committed the crime but only to produce such reliable and independent evidence which shows or tend to show that part of the approver’s testimony wherein he states that the prisoner was the one of the person who took part in the commission of crime is true. If the rule required proof by other evidence that the approver committed the crime charged as distinguished from such evidence as merely tends to show that the approver’s evidence, there would be no need of accomplice because then the other evidence would itself be sufficient for conviction and the evidence of the accomplice would be wholly superfluous. This is the basic distinction which must be born in the mind while judging the value of corroborative evidence.
Distinction between Accomplice And Approve
The difference between approver and accomplice is that approver is always an accomplice where as an accomplice is not necessarily an approver as an accomplice or co-accused becomes an approver after he has been tendered a pardon or granted concession on the condition that he will reveal the truth and will not hide anything in relation to the offence or offences which he and the other accused are alleged to have committed.
Evidentiary Value Of Approver
An approver is always an unreliable person for he is betraying his erstwhile associates. His evidence itself needs collaboration not only with regard to offense deposed to him by but also with regard to the complicity of the person sought to be implicated by him. As a rule of prudence, it is dangerous to act on the uncorroborated testimony of an approver, who is a self confessed criminal having betrayed his former associates under the temptation of saving his own skin, suffering from this stigma and marked depravity of character, an approver’s evidence cannot be viewed without natural reaction of distrust and suspicion. His evidence must first be tested on its basic probabilities or improbabilities like the evidence of any other witness and more strictly so in his case because it is the statement of a person of suspicious credential his evidence needs corroboration for the simple reason that it cannot be accepted without mental, therefore, gather support from other sources to induce faith in its veracity.
Repugnancy to Injunctions of Islam
Act. 16, Qanun-e-Shahadat is repugnant to injunction of Islam in so far as it provides that an accomplice is competent witness against an accused person in all matters other than hadd even if his evidence is uncorroborated. Offence punishable with Qisas like hadd is also to be excepted. Conviction based solely on evidence of accomplice would be illegal unless there is corroborative evidence to support the conviction. (PLD 1991 FSC 139)
Tendering of pardon
Tendering pardon to an accomplice and marking him approver on the condition to disclose all the facts and parts played by his co-accused as provided in Ss 337,338 and 339 of Cr.P.C according to Islamic Law is not permissible in an offence liable to Hadd as Hadd cannot be waived, reduced, enhanced, or altered in any case by anyone. But as far as tendering pardon to him in case of Tazir is concerned, it is permissible if it is based on “public interest” because Tazir can waived by a ruler, Legislature or Judge if he deems it necessary in the circumstances of particular case.