1989 P Cr (PLP)

TANZIL-UR-RAHMAN, J.--Mr. Shaikh Ayaz, learned counsel for the appellant has submitted an application under section 428 read with section 561-A, Cr.P.C. praying this Court to receive the documents listed in the application as additional evidence and summon Dr. Anwar or any other doctor from the Eye Department of the Jinnah Post-Graduate Medical Centre, Karachi to produce the said documents. We have gone through the affidavit accompanying the application. Para 4 gives the reason for not producing the documents or summoning the doctor. It reads as under:- "That Dr. Anwar who had treated me had gone overseas at the time when my statement was recorded under section 342, Cr.P.C. and therefore, my counsel did not think it advisable that I should plead alibi in my statement particularly when the OPD slip was written and signed by Dr. Anwar and was to be proved through his evidence." It is pertinent to note that an attempt to introduce the pica of alibi is lacing made in the case at this stage. Admittedly, the statement of the appellant under section 342, Cr.P.C. is completely silent about it. The absence of the doctor at the relevant time as alleged, was no bar to take the plea. It is noticeable that the counsel has prayed for summoning Dr. Anwar who allegedly treated him or any other doctor. It shows that had the appellant taken the plea of alibi he could have summoned any other doctor as prayed now, to prove the documents by summoning any other doctor who is well conversant with the signatures of Dr. Anwar who is stated to have gone to Russia in connection with his studies, at the relevant time. It is true that section 428, Cr. P.C. gives power to the appellate Court to; permit additional evidence but it is subject to the condition that the appellate court thinks it necessary. This provision of law is primarily meant not for the party but for the Court which feels it necessary to meet the ends of justice. In this respect, we may refer to a Division Bench decision by two eminent Judges of their time we mean, Mr. Justice Muhammad Munir and Mr. Justice Kayani, reported as Fazal Elahi and others v. Crown P L D 1952 Lah.388, wherein it has been observed that the powers to be exercised by an appellate Court under section 428 are sub1ecl to two, overriding considerations: (1) that the additional evidence is considered to be necessary by the appellate Court in the interest of justice; and (2) that the accused is not denied his right to a fair trial. We may also refer to Ali and another v. Crown P L D .1952 Federal Court 71, by a Full Bench comprising of Abdul Rashid, C.J. A.S.M. Akram and A.R. Cornelius, JJ., wherein the question of allowing additional evidence by appellate Court under section 428, Cr.P.C. came up for consideration. The Honourable Chief Justice, Sir Abdul Rashid the first Chief Justice of Pakistan observed: "The provisions of sections 375 and 428 of the Code of Criminal Procedure are meant to be used in such manner as to secure even handed justice to both parties. They should not be utilised to cure all the infirmities in the prosecution case in the appellate Court." We would like to say that the principle laid down in the above judgment equally applies to defence case, Mr. Justice A.R. Cornelius (as then he spas, later on Chief Justice of Pakistan) observed in his judgment (In fact all three learned members of the Bench wrote separate judgments): "A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control or by reason of misunderstanding or mistake." In another decision Barkat Ali alias Gharibu and others v. The Crown reported in 1969 S C M R 488 decided on 22-5-1953) the Hon'ble Chief Justice Sir Abdul Rashid, who delivered opinion of the Court, reiterated the said principle and said: "Section 428, of the Cr.P.C. authorizes the appellate Court if it thinks additional evidence to be necessary, to record its reasons, and to take such evidence in the interests of justice. It is true that this discretion must be exercised in a judicial manner and a purely arbitrary or capricious s. exercise of this discretion is liable to be set aside by this Court." It was a case where an application was made by the defence. It may, further, be stated that if an appellate Court records new evidence as to a new fact, which may be relevant, as alleged in the case before us, it will be' unfair on the part of the appellate Court as it may amount to fill up the gaps to be filled in by defence or discredit the prosecution evidence which has already come on record. Interest of justice and interest of accused may not be necessarily identical. If we allow the appellant to take a new plea of alibi and summon the witness to prove it, it may amount to do injustice to the deceased person. Mr. Shaikh Ayaz invites our attention to para. 7 of the application that; the plea of alibi was taken by the appellant before the police. This too will not change the legal position. For the aforesaid reasons, the application is dismissed. M.A.K./Z-60/K Application dismissed.