2020 LHC 3159
428 CrPC
i) Additional evidence can only be sought, during proceedings of an appeal.
ii) If the appellate court thinks additional evidence to be necessary and makes an order for the same, then may:-
a. take such an evidence itself;
b. Direct it to be taken by a Magistrate and in case of a High Court, by a court of Session or a Magistrate.
iii) In case the additional evidence is taken by a subordinate court, then it shall be transmitted to the appellate court.
iv) Thereafter, the appellate court shall proceed to decide the appeal.
Writ Petition No: 1903-Q of 2020
2020 LHC 3159
(Muhammad Ashfaq @ Nanna Vs. Additional Sessions Judge etc.)
Date of Hearing: 25.11.2020
JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR
(JUDICIAL DEPARTMENT)
Writ Petition No: 1903-Q of 2020
(Muhammad Ashfaq @ Nanna Vs. Additional Sessions Judge etc.)
Date of Hearing: 25.11.2020.
Petitioner by: Mr. Muhammad Javed Furrukh, Advocate.
State by: Malik Shah Nawaz Kalyar, AAG with Kashif ASI.
Respondents No. 3 to 6 by:Mr. Rehan Zafar, Advocate.
JUDGMENT
Muhammad Tariq Abbasi, J:- This writ petition, calls in question, the order dated 10.02.2020, of the learned Additional Sessions Judge, Bahawalnagar, regarding acceptance of applications, filed by the respondents No. 3 to 6 (hereinafter referred to the respondents), for additional evidence and examination of Dr. Noor Khan Tareen.
2. The private complaint, under Sections 337A(iii)/337-L(2)/342/34 PPC, filed by the present petitioner, against the respondents, was decided by the learned Judicial Magistrate 1st Class, Bahawalnagar, through judgment dated 13.01.2016, whereby they were convicted for charge under Section 337-L(2) PPC and sentenced to pay Daman, amounting to Rs.5,000/- each, to the injured (petitioner).
3. The respondents had challenged their above mentioned conviction and sentence, by way of an appeal before the learned Additional Sessions Judge, Bahawalnagar.
4. During pendency of the appeal, the respondents had moved the above mentioned applications, whereby they had requested for bringing on the record a report of the District Standing Medical Board, Bahawalnagar and for the said purpose, examination of Dr. Noor Khan Tareen, a Member of the said Board. 5. The learned appellate court, through the order in question dated 10.02.2020, had accepted the above mentioned applications and request made therein and consequently while setting aside the above said judgment of the learned trial court, had remanded the case, with a direction to record the additional evidence and decide it afresh.
6. Section 428 of Pakistan Code of Criminal Procedure, 1898, deals with the additional evidence and speaks as under:-
”428. Appellate Court may take further evidence or direct to be taken.
(1) In dealing with any appeal under this Chapter, the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate or, when the Appellate Court is a High Court, by a Court of Session or an Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to be Appellate Court and such Court shall thereupon proceed to dispose of the appeal;
(3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken……
(4) The taking of evidence under this section shall be subject to the provisions of chapter XXV as if it were an inquiry.”
7. From the above mentioned provision, the following is learnt:-
i) Additional evidence can only be sought, during proceedings of an appeal.
ii) If the appellate court thinks additional evidence to be necessary and makes an order for the same, then may:-
a. take such an evidence itself;
b. direct it to be taken by a Magistrate and in case of a High Court, by a court of Session or a Magistrate.
iii) In case the additional evidence is taken by a subordinate court, then it shall be transmitted to the appellate court.
iv) Thereafter, the appellate court shall proceed to decide the appeal.
8. The above mentioned, tell that for additional evidence, at every cost, the above mentioned procedure should be adopted and in no case, the above said practice, chosen by the learned appellate court could be recommended and approved.
9. On realizing the situation, the learned Law Officer in attendance as well as counsel for the respondents, have frankly held the order in question to be a patent illegality.
10. Resultantly, the findings of the learned appellate court, made in the impugned order, regarding setting aside of conviction of the respondents, being totally unjustified and against the procedure, are turned down. However, as the document intended to be brought on the record, is public record, surely beneficial to reach at just conclusion, therefore, the above said applications have rightly been allowed.
11. Consequently, it is directed that the learned trial court, shall record additional evidence, sought through the above said applications and transmit the same to the learned appellate court, which on the basis of whole of the record, shall decide the appeal, in accordance with law, which shall be deemed to be pending there.
12. Disposed of.
(Muhammad Tariq Abbasi) Judge
Approved for reporting
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