P L D 1991 Quetta 39 (PLP)

2. Therefore question cropped up whether this Court had jurisdiction to direct opening of aforementioned two containers, for resolving the mystery to ascertain real truth for arriving at just conclusion. Accordingly parties were put to notice, and learned Advocate‑General as well as Mr. S.A.M. Quadri Advocate were asked to assist the Court. Arguments were heard at length. Section 185 (f) of Customs Act specifies that appellate Court shall exercise same powers which High Court enjoys under Criminal Procedure Code. Close examination of sections 561‑A, 540 and 428, Cr. P.C. clearly suggests that plenary powers vest in appellate forums to rectify omissions or commissions of trial Court for achieving ends of justice. A Apparently jurisdiction of High Court for recalling witnesses to clarify the position, or recording additional evidence is very wide, indefinable, extraordinary and limitless. However criteria, regulating such authority mainly would be to achieve real and substantial justice, and preventing abuse of the process of Court.

3. Karachi High Court while considering powers of additional evidence at appellate stage in case Nawab Yousaf v. State PLD 1901 Kar. 150 observed that duty of Court is not to merely to hear the evidence, but also to enquire into truth and secure justice. Relevant portion is reproduced below:‑‑ "There is no doubt that this case has not been properly conducted in the trial Court where the most material question was not put to the witnesses. Under the scheme of the Criminal Procedure Code a duty is placed on the Court not merely to listen to the evidence but to inquire into the truth of the matter and so to secure justice. Accordingly if any restriction is to be placed upon the power conferred on the appellate Court by section 428, to quote the words, of Mepherson, J. in AIR 1925 Pat.526 it certainly cannot be that negligence or inadvertence on the part of the prosecution is to be allowed to effect a miscarriage of justice; on the contrary the enactment is, like the other provisions referred to in the Criminal Procedure Code, directed to the attainment of justice even at a late stage in the proceedings, by the introduction of further materials which the Court judges to be essential to a just decision of the case. In my opinion, the Appellate Court is by no means condemned to countenance a miscarriage of justice because the prosecutor or even the trial Court fails to realise the necessity of bringing certain evidence on the record, even if that evidence is not purely formal." Similar view has been expressed in the following reported judgments:‑‑ (i) Abdul Ghafoor v.The State PLD 1983 Lah. 139 "On a perusal of these precedents it does appear that the weight of pronouncements of the superior Courts is in favour of the proposition that the Court ought to make maximum endeavour for discovering the truth for arriving at a just decision. To achieve this avowed objective, in search for truth, the Court cannot be construed to be leaning in favour of either side or against any one. Otherwise, in the absence of true state of facts coming to the knowledge of the Court, it is difficult to conceive, how the decision would be correct or just. This power to secure ends of justice, therefore, must be exercised where the purposes enumerated above are designed to be achieved unless some principle of law creates an impediment or circumstances of a given case lead the Court to the irresistible inference that the effect of such an exercise of power would bring about opposite results like miscarriage of justice. The weight to be attached to such relevant and material evidence received for just decision of the case, is for the trial Court, to determine at the conclusion of the trial." (ii) Muslim Shah v. The State PLD 1977 Pesh. 55 "The provision of law reproduced above from the Act is clear on the point. We are aware of no other provisions of law dealing with this appeal nor the learned Assistant Advocate‑General has been able to tell us. Chapter XXXI of the Code provides for appeals and the provision of section 428, Cr.P.C. is meant for recording further evidence if it is considered necessary. Why was it considered necessary, shall be instantly discussed in the succeeding paragraphs. It must be, however, made clear that this section is meant for neither of the parties to criminal case but its object is to see that justice is done, there fore this section can be pressed into service for the ends of justice whenever it is required, either for the prosecution or for the defence." It may be seen that Mr.Muhammad Aslam Chishti, learned counsel for appellant found himself in great difficulty to dispute powers of Appellate Court relating to summoning of evidence for achieving the ends of justice. However, referring to observation in case Ali and others v. The Crown PLD 1952 FC 71 an attempt was made to argue that powers cannot be utilised for curing infirmity or procuring partisan witnesses. Besides, learned counsel made feeble effort to suggest that in the event of summoning witnesses, case ought to be remanded for retrial. All the aforementioned aspects, I may say with profound respect, have been dealt with in an exhaustive and authoritative manner by Division Bench judgment of Lahore High Court, in case entitled Fazal Ellahi v. the Crown PLD 1952 Lab.

388. Relevant observations which are of considerable guidance as regards matter in hand are reproduced below:‑‑ "Similarly, it often happens that owing to the negligence of the prosecution counsel a witness is not questioned in the trial Court on a material point. In such a case the Appellate Court will be within its rights to recall such witness to avoid a possible miscarriage of justice. In the case before us, for instance, the prosecution had the opportunity to re examine the doctor on the point on which we have examined him. If the omission had been allowed to stand, the consequence might have been that neither of the appellants could have been convicted of murder of which we are finding them guilty and the result must have been a miscarriage of justice. Besides, it must be remembered that there is a fundamental distinction between filling, up gaps in the prosecution evidence and removing discrepancies in such evidence. The former implies that evidence was lacking as to a fact which was a necessary constituent of the offence charged and the Appellate Court filled up the gap by taking additional evidence whereas the latter means that the Appellate Court resolved an apparent conflict in the evidence not in the interest of justice but merely to be able to maintain the conviction. The powers to be exercised by an appellate Court under section 428 are subject to two overriding considerations:‑‑ (i) 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. While exercising the powers Courts of Criminal Appeal in this country should never overlook the basic position that the duty of a Criminal Court, is fundamentally different from that of a Court of Civil Appeal. While the latter is a tribunal inter partes, the Court of Criminal appeal always has a third party before it namely, society and its discretionary powers not not controlled by rules of estoppel, waiver etc. Therefore negligence, laches, even admissions by counsel are not a bar to the Court's exercising the power to take further evidence." Thus ratio decidendi in aforequoted reports distinctly leads to a conclusion that, this Court can even suo motu summon evidence aimed at promoting ends of justice,. In this case undisputedly containers/packets were proved in the trial Court, but same were incidentally not opened for ascertaining its contents. In the peculiar circumstances, presently there exists complete confusion on account of divergent stands from both sides concerning contents of containers. Placed in such situation, I believe that production and opening of containers in presence of witness who exhibited the same, neither tends to fill any lacuna nor help case of the prosecution, but obviously would promote ends of justice, thereby facilitating the Court for arriving at proper conclusion, about articles actually taken into custody at the time of seizure. Accordingly for just determination of appeal, I am inclined to direct production of the containers before this Court for its opening in presence of P.W.N. Capt. Nadeemul Haq. To avoid any prejudice, it is clarified here that appellant in such eventuality may further cross examine said witness. N.H.Q/368/Q. Order accordingly.