P L D 1971 Supreme Court 709 (PLP)

The appellant admitted the receipt of ,the above-mentioned amounts. According to him the sum of Rs. 1,000 was paid by Zulfiqar Ali Shah towards costs of fertilizers. But he claimed that since the amount could not be spent he had refunded it to the com plainant a few days later and obtained a receipt from him. The receipt was not produced as it was not with him at the time. Similarly, he admitted that he had received Rs. 6,139.78 from Ghulam Mustafa for the purpose of depositing the same in the treasury but he could not do so as the treasury was closed. He, accordingly, refunded the amount to Ghulam Mustafa on the same day and also obtained a receipt from him. Again, no receipt was produced. The prosecution in each case examined three witnesses. The defence suggestions which were put to the complainants respectively were denied by them but even at this stage the receipts were not produced and the witnesses were not confronted therewith. After the close of the prosecution in each case the appellant was examined on the 1st October 1963. He reiterated his defence but even at this stage he did not produce the receipts which he claimed to have obtained from the complainants on the alleged refund of the respective amounts. He, however, asked on that day for time to produce defence evidence. The cases were, accordingly adjourned to the 15th October 1963 for defence evidence. On this date he made supplementary statements and produced two receipts which were marked as Exh. D. A. in each case and asked for further time to summon his witnesses. The learned Special Judge refused the prayer for time but recalled the complainants in each of these cases and put the receipts to them. Ghulam Mustafa denied that the receipt bore his thumb impression or that he had given any such receipt. Similarly, Zulfiqar Ali Shah also denied that he had executed the receipt, produced by the appellant in his supplementary statement. He too denied that the money had been refunded to him by the appellant. The learned Judge did not, thereafter, re-examine the appellant nor put this material piece of evidence to the appellant but closed the case and delivered his judgments on the some date convicting the appellant under section 409, P. P. C. and sentencing him to rigorous imprisonments for one year as also a fine of Rs. 1,500 or in default further rigorous imprisonment for six months in the case relating to Zulfiqar Ali Shah. Similarly, he was sentenced to rigorous imprisonment for one year and a fine of Rs. 7,000 or imprisonment in default for further period of one year in the case of Ghulam Mustafa. The appellant went up in appeal to the High Court of West Pakistan, Lahore Seat, but a learned Single Judge of the said High Court dismissed both the appeals on the same date, namely, the 23rd May 1967, and maintained the sentences. The sentences in the two cases were, however, made to run concurrently. It was argued before the High Court that the trial had been vitiated by reason of the procedure adopted by the learned Special Judge of taking supplementary evidence after the examina tion of the accused without giving any further opportunity to the accused to explain the new evidence which was thus brought on record by the supplementary examination of the complainants in these two cases. The High Court repelled the contention and took the view that no illegality had been committed. Leave was, however, granted to the appellant in both the cases to consider the legality of the procedure adopted by the learned Special Judge. It was further felt that after obtaining from the complainants their denials of the execution of the receipts filed by the accused as part of, his supplementary statement the latter should have been allowed an opportunity of rebutting that evidence. Since the question of law involved is the same in both these appeals they have been heard together and will be disposed of by this judgment. Learned counsel appearing for the appellant in both these appeals has contended that the procedure adopted by the learned Special Judge suffered from two serious defects, namely, that he had given no opportunity to the accused of rebutting the additional evidence of the complainants recorded presumably under sec tion 540, Gr. P. C. This was additional evidence which had not been put to the accused in his earlier examination. It was necessary, therefore, to give him an opportunity of explaining this additional evidence. The failure to do so had resulted in grave miscarriage of justice and resulted in serious prejudice to the accused. In support of this contention he has relied on a decision of a learned Single Judge of the Karachi Bench in the case of State v. Abdul Hamid (1970 PCrLJ 384). In that case, after the examination of the accused under section 342, Cr. P. C. the Court ordered that one Mst. Fatima Begum from whom the accused claimed to have purchased certain compensation books should be called as a witness under section 549, Cr. P. C. When she appeared, her thumb-impressions were taken and sent to an handwriting expert. The question was whether any further opportunity should be given to the accused to rebut the opinion of the expert. The learned Judge held that if the expert's opinion was prejudicial to the accused it would be necessary, and in any case, desirable and proper, to re-examine the accused with reference to the new evidence recorded by the Court. This view is clearly correct and we approve of the same. The learned counsel appearing on behalf of the State supports the appellant's contention to this extent that, according to him, though this is not an illegality at all but merely an irregularity it would, nevertheless, vitiate the trial only if it can be shown that prejudice has thereby been caused to the accused person. In the facts of the present case there can be no doubt that such prejudice has been caused because what the learned Judge had done in this case was to permit evidence in rebuttal of the defence case after the prosecution had closed its case and the accused had entered upon his defence. The accused should A have been given a right to rebut that evidence, for, there can be no manner of doubt that this was additional evidence in the case. Normally, the prosecution closes before the accused is examined but there is no bar to the taking of additional evidence in the interest of justice, at any stage of any enquiry or trial as provided by the provisions of section 540, Cr. P. C. The trial had not in the present case concluded and, therefore, the taking of additional evidence was not illegal. A criminal Court is fully within its rights in receiving fresh evidence even after both sides have closed their evidence and the case is adjourned for judgment, for, till then the case is still pending. The only question, therefore, is as to whether in the interest of fairness a further opportunity should have been given to the accused to rebut the additional evidence which he had no opportunity of explaining in his earlier examination under sec tion 342, Cr. P. C. It may well be that the accused may have even then asked to have the reciepts examined by an expert after obtaining specimen signatures and/or specimen thumb-impressions of the complainants in these cases. He might even have had some other plausible explanation to offer with regard to the denial given by the complainants or he may well have asked the Court to compare the signatures or thumb-impressions on the receipts with the admitted thumb-impressions of the complainants, if any, on the record. There were a variety of ways in which he could have, in spite of the denial of the complainants, tried to support his own defence. He was, unfortunately, not given this opportunity. The denial of this opportunity has, therefore, without any doubt, caused him prejudice. It is an elementary principle of the administration of criminal justice that the accused should be afforded every reasonable opportunity of rebutting the evidence which goes against him, particularly, where tile Court itself brings such evidence on the record after the close of the prosecution case. The denial of such an opportunity cannot but result in prejudice. We are, therefore, of the view that the irregularity committed by the Special Judge, in the present case, was a material irregularity for which the orders of conviction cannot be sustained. They are, accordingly, set aside and the case is remanded to the Special Judge to be tried from the stage at which the complainants were recalled and examined. The learned Special Judge should now recall the appellant in each case and examine him further under section 342, Cr. P. C. with regard to this additional evidence. Then afford him a reasonable opportunity of rebutting that evidence if he so desires. It is only after this has been done that he can proceed to judgment. The orders of the Courts below are, accordingly, set aside but the appellant will continue on the bail already granted to him till the termination of the proceedings before the learned Special Judge. R. s. A. Order accordingly.