Who is an approver? On what conditions can an accused be an approver?

Former Inspector General of Police (IGP) Chowdhury Abdullah Al-Mamun, one of the key accused in a case filed on charges of crimes against humanity committed during the July uprising, became an approver on Thursday.

In this context, public discussion has turned to what an approver or state witness is, how an accused becomes one, and under what legal conditions.

An approver is a person who has participated in a crime, admits to his involvement, and provides the court with a complete and truthful account of the incident, including naming other individuals involved. The court may then choose to pardon this person.

In his book on commentary on the Code of Criminal Procedure, noted legal expert Gazi Shamsur Rahman writes, “In serious criminal cases, a magistrate may pardon someone who was directly involved in the crime…. Such a person is required to make a full and honest disclosure of everything they know about the offence, including who else was involved.”

Speaking about this, Supreme Court lawyer and Supreme Court Bar Association General Secretary Md. Ruhul Quddus Kazal, told Prothom Alo, an approver could be a person, who himself was involved with the crime, he must first admit his guilt to the court and disclose complete information about all those involved.

An approver is kept in custody until the trial concludes, he added.

Trials for criminal offences are conducted under the Code of Criminal Procedure (CrPC), the Penal Code, and other related laws. Sections 337, 338, and 339 of the CrPC outline who can become an approver, the conditions for a pardon, and the procedures of trial. On the other hand, the provision related to the issue of pardoning an approver is mentioned under Section 15 of the International Crimes (Tribunals) Act, 1973.

Speaking about this, Supreme Court lawyer and special prosecutorial adviser to the Ministry of Home Affairs, Ehsanul Haque Samaji, explained to Prothom Alo, “According to Section 337 of the CrPC, an approver is someone who was directly or indirectly involved in the offence, but agrees to make a full and truthful disclosure of the incident and the roles of all involved, in exchange for a conditional pardon and testifies in court.”

On the procedure, he added, “The court first declares someone an approver. They are kept in custody until the trail is over to prevent outside influence. The court offers him a conditional pardon, and that person is then formally recorded as a state witness.”

Section 337 empowers a first-class magistrate to offer a pardon to any person, at any stage of an investigation or trial, on condition that they truthfully disclose all facts and individuals involved.

Section 338 allows a Sessions Judge to do the same before delivering judgment.

An approver will disclose all relevant information on condition of pardon. Explaining this provision, four top criminal lawyers told Prothom Alo that under the CrPC, if an approver is found to have concealed facts or given false testimony, they can be re-indicted.

In his book on commentary on the CrPC, Gazi Shamsur Rahman notes that if the state witness’s testimony is corroborated by other evidence, a conviction may be pronounced. However, if the prosecution finds that the witness has lied or concealed facts, they may request that the person be treated as an accused.

In such a case, although the approver becomes an accused, he is not tried along with other accused, he writes in the book.

Lawyer Ehsanul Haque Samaji said, “An accomplice may legally testify against other accomplices. Such testimony alone can suffice for conviction, even without corroboration. There are several High Court rulings on this matter.”

Section 133 of the Evidence Act specifies that an accomplice is a competent witness. According to the provision, a conviction based solely on such testimony is not illegal merely due to lack of corroboration.

Speaking about when an accomplice could be an approver, senior lawyer Ehsanul Haque Samaji said that an approver remains a witness only as long as they fulfil their conditions. In that case the court could acquit him. If he violates the terms, he reverts to the status of an accused and may be punished accordingly.

Section 15 of the International Crimes (Tribunals) Act, 1973 outlines the approver provision. At any stage of the trial, a tribunal may conditionally pardon an individual involved directly or indirectly in an offence, if they truthfully disclose all relevant facts and testify in court. They remain in custody until the trial concludes.

Speaking about this, Supreme Court lawyer Shishir Monir said that as per the ICT act, an offender, who admits guilt and reveals complete information about others involved, can be considered an approver. They must confess their own crimes and expose those of others before the tribunal.

Mentioning former IGP Chowdhury Abdullah Al-Mamun’s approval as an approver in a case filed on charges of crimes against humanity during the July uprising, Shishir Monir further said, “He (Mamun) has confessed to his crimes before the tribunal. The tribunal will now record his testimony in open court. He is the first accused to become an approver in the International Crimes Tribunal.”

He further noted that while the foundational concept of approver comes from the CrPC, neither the CrPC nor the Evidence Act technically applies to the Tribunal. Still, the legal philosophy remains rooted in domestic criminal law.

On whether Chowdhury Abdullh Al Mamun may receive any special benefit for becoming an approver, ICT Chief Prosecutor Mohammad Tajul Islam told newspersons that the tribunal will decide that.

He further said if his statement reveals the full and truthful account of the incident, the tribunal may pardon or sentence him. It’s entirely within the tribunal’s discretion.

According to lawyer Shishir Monir, in the subcontinent, a very few people have acknowledged their crime and became an approver.

He cited one notable example from over two decades ago. In 2004, notorious gangster Ershad Shikder’s bodyguard, Nure Alam, became a state witness. He testified in court about Shikder’s crimes and was acquitted in the Abdul Aziz murder case.

Aminul Gani was the defence lawyer in that case. He told Prothom Alo, “Nure Alam confessed his own crimes before the court and gave detailed testimony about the other accused involved. As a result, he was acquitted.”