1993 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 428

Additional evidence

Report sought to be brought on record as additional evidence by summoning the Investigating Officer did not disclose any facts in respect of which that officer had personal knowledge and consequently no useful purpose could be served to re-examine him at the appellate stage

Re-examination of the witness was declined in circumstances. Syed Sami Ahmad and Azizullah Shaikh for Applicant. Naimur Rehman, Standing Council alongwith Fariduddin for the State. Date of hearing: 1st June, 1992. This application has been filed under section 428, Cr.P.C. on behalf of the appellant, Anwar Khattak requesting that he may be allowed to adduce additional evidence by summoning of P.W.14, Mumtaz Hussain Bhutto, Superintendent (Hqrs.), Directorate-General of Intelligence and Investigation (Customs and Excise), Government of Pakistan. It may be pointed that the appellant has filed a photo copy of a report purportedly sent by P.W. Mumtaz Hussain to Directorate-General of Intelligence and Investigation (Customs and Excise) Government of Pakistan, Islamabad, in which, opinion was expressed by the witness that the prosecution in the present case of accused Anwar Khattak and Muhammad Ayub Khan Afridi was for political reasons and the said accused had been implicated in this case falsely. After going through the contents of the said document which runs in four pages, it is clear that part of the story related by the witness was based upon the information, which according to him had been gathered from different sources and it was based upon his opinion. To make it short, the report purportedly sent by the witness to the Directorate-General of Intelligence and Investigation (Customs and Excise) is not based .upon his personal knowledge. I would like to point out that although the Court has wide powers to allow a party to lead additional evidence even at the appellate stage of the case but in a particular case whether permission should be granted to a party to lead evidence would depend upon the circumstances of each case. However, I would like to point out that if permission is granted to a party to re-examine a witness whose evidence was earlier recorded by the trial Court merely to allow him to resile from his earlier statement the same would not be in the interest of justice unless there are circumstances which compel the Court to permit re examination of such witness. In the present case, the witness is an officer of the Customs Department who at one stage had been entrusted with the investigation of the case. However, admittedly, when the witness was incharge of the investigation, the proceedings in the case remained dormant from 1985 to 1990 and investigation was entrusted to another officer of the Customs. Thereafter, investigation in the case was completed and a challan was filed before the Court. So far as the said report submitted by the said witness to his superior officers is concerned, as it has already been pointed out earlier, the same does not disclose any facts in respect of which the witness has personal knowledge. Consequently, in my opinion, no useful purpose would be served in any case to re-examine this witness at this stage of the case. Mr. Naimur Rehman has invited my attention to the statement of accused Anwar Khattak, which was recorded under section 342, Cr.P.C. by the learned trial Court wherein no such allegations have been made which may show that he has been implicated in this case for political reasons. Mr. Naimur Rehman has also invited my attention to section 161(10) of the Customs Act, according to which, an officer of Customs holding an inquiry into a case, can release a person on his execution of a bond as provided in the said section if he is of the view that there is no sufficient evidence or reasonable ground for suspicion against such person. Admittedly, Mr. Bhutto, who was the incharge of the investigation did not act in accordance with section 161(10) or make a report to the learned Special Judge for discharge of the accused in the case. In the result, I find no force in this application (C.M.A. No.548 of 1992) and the same is dismissed. The case, by consent is adjourned to 10-8-1992 for further arguments. So far as the bail applications moved on behalf of the appellants are concerned, the learned counsel do not press the same at this stage. N.H.Q./A-1367/K Application dismissed.