' RAHMAT HUSSAIN JAFFERI, J.--- This order will dispose of two applications under section 428, Cr.P.C.
Dated 25-9-2003 and 10-4-2004 filed by Special Prosecutor, A.N.F., Sindh Karachi. In the first application, the applicant has prayed for the production of following documents as additional evidence.
(1) Destruction order passed by the learned Sessions Judge, Karachi, South/Special Judge for Narcotics Cases.
(2) Certificate of sampling from the case property issued by the then Judicial Magistrate VII, Karachi South.
(3) Certificate of destruction by burning of the case property issued by the then Judicial Magistrate VII, Karachi South.
(4) Memo. Of burning of drugs property issued by the then Judicial Magistrate VII, Karachi South.
2. In the second application, the applicant has prayed for the recording of evidence of H.C.
Muhammad Ibrahim, A.N.F. Sindh Karachi, to produce 27 samples of the case property drawn by Judicial Magistrate VII, Karachi South as additional evidence.
3. Notice of the both applications was given to the appellants. The appellant Nasir Khan filed his written objections. The appellant Muhammad Azeem adopted the objections filed by the co- appellant.
4. We have heard the Special Prosecutor, the appellants in person and perused the record of this case very carefully. The learned Special Prosecutor has argued that the necessity has arisen for producing the above-mentioned documents and recording of statement of the above-named witness as recently this Honourable Court in a Criminal Appeal No,122 of 2002 Jamil Khan Afridi v.
State decided on 5-9-2003 now reported in 2004 MLD 542, examined the provisions of section 516- A, Cr.P.C., and held that the ingredients of provisions of the said section should be complied with strictly; that at the time of trial the prosecutor did not know about the decision of this Court as it was delivered very recently, therefore, in order to do complete justice in the matter the additional evidence may be allowed to be taken and recorded. The appellants strongly opposed to the grant of the applications and argued that the applications have been made to protract the proceedings of the appeals; that the provisions of section 516-A of Cr.P.C., were not strictly complied with at the time of destruction of the property; that no notice was given to them before allowing the application under section 516-A, Cr.P.C. Nor the same is available on the record of this case; that the documents and the samples of the property were already with the prosecution but they did not produce the same, therefore, they cannot be allowed to fill the lacuna now in the case. They have requested for the dismissal of the applications.
5. In order to appreciate the arguments it will be advantageous to reproduce section 428(1), Cr.P.C.
The said provision is available in Chapter XXXI, Part VII of Cr.P.C. The section reads:-- "Appellate Court may take further evidence or direct it 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 a Magistrate."
6. From the above provision it is clear that the Appellate Court while dealing with appeal under Chapter XXXI, Part VII of Cr.P.C. (in which section 428 is available) if it thinks additional evidence necessary then it shall record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate, or where the Appellate Court is High Court, by a Court of Session or Magistrate.
7. In the present case the appeal is not filed under Chapter XXXI of Part VII of Cr.P.C. But the appeal is filed under section 48 of Control of Narcotic Substances Act, 1997. However, by virtue of section 47 of the said Act, provisions of Cr.P.C. Are applicable to the trials and appeals. Section 47 of Act, 1997 reads:-- "Application of the Code of Criminal Procedure, 1898.--- Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence), shall apply to trials and appeals before a Special Court under this Act."
8. Thus, the provisions of section 428, Cr.P.C. Are applicable before this Court while hearing the present appeals.
9. A perusal of section 428, Cr.P.C. Further reveals that its main object is that a guilty person should not be escaped through carelessness or ignorant proceedings of the trial Court, or innocent person should not be wrongly accused when the Court through the same carelessness or ignorance has omitted to record the circumstances essential to explain or reach at the truth. Another object of the section is to save public time by taking only additional evidence necessary instead of remanding the whole case for examining again the witness already examined. This section meant for neither of the parties to a criminal case but its object is to see that justice is done. Therefore, this section can be pressed into service for the ends of justice whenever it is required either for the prosecution or for the defence, keeping in view the requirement of the society because before a Criminal Court there is always a third-party namely society. Reference is invited to the cases of Akhtar Hussain v.
Emperor AIR 1925 B Pat. 526, State v. Jai Prakash AIR 1959 All. 129 (D.B.), 18 W.R. 31 and Ishwar Prasad v. Emperor AIR 1918 All. 133 (DR).
10. The intention of the section is to empower the Appellate Court to see that justice is done between the prosecutor and the prosecuted and if the Appellate Court finds that certain evidence is necessary for the correct finding it will take action. The essential ingredient of the section is that when the Court thinks that the additional evidence is necessary then for reaching that opinion, reasons are to be recorded. The word "necessary" appearing in the section does not mean that it is impossible to pronounce judgment without the additional evidence. However, power to record an additional evidence at the appellate stage is to be exercised only where additional evidence either was not available at trial or party concerned was prevented from producing same by circumstances beyond its control or by reason of misunderstanding or a mistake. A reference is invited to a case of Dildar v. The PLD 2001 SC 384. It has been held in a case of Fazal Ilahi v. Crown PLD 1952 Lah. 388 (D.B.) that the powers to be exercised by an Appellate Court under section 428, Cr.P.C. Are subject to two overriding conditions; (a) that the additional evidence is considered to be necessary by the Appellate Court in the interest of justice, and (b) that the accused is not denied his right to a fair trial. A Full Bench of Supreme Court of Pakistan in a case of Barket Ali v. Crown 1969 SCMR 448 observed that no party has a right in Appellate Court to the production of any evidence at all It is the Court that has to exercise its discretion in a proper manner in the interest of justice. In the reported case defence counsel was under the impression that certain documents produced by the prosecution at the trial gave a sufficient indication of the defence version and that it was therefore, unnecessary to examine two named witnesses in defence. However, at the conclusion of the trial, when the Sessions Judge made adverse comments in his judgment on non-production of such witnesses, the legal advisers of the appellant tried to rectify their mistakes by asking the High Court to allow additional evidence at the appellate stage. This prayer was allowed and the witnesses were directed to be examined at appellate stage.
11. Keeping in view the above discussion, we have examined the case and find that initially, on 13- 10-1987 'the Pakistan Railway Police, Karachi recovered the heroin powder, arrested the appellant Nasir, registered and investigated the case. On 21-10-1997 the investigation of the case was transferred to Anti-Narcotic Force, Karachi for further investigation vide Exh.41/A. On the next day viz. 22-10-1997 the S.H.O. Pakistan Railway Police Station, Karachi handed over the case papers and the properties to Inspector Rais Ahmed of A.N.F. Karachi vide Exh.41/C. The properties were received by the Inspector Rais Ahmed under Mashirnama Exh.41/D. On 18-3-1997, under the supervision of Judicial Magistrate VII, Karachi South 27 samples of the property were drawn, each weighing 10 grams from the whole property as per order of the Special Judge South Karachi. Such memo. Of samples of the property was prepared vide Exh.41/E. On 8-2-2000 P.W. Sajjad Ali of A.N.F. (Exh.41) produced/add these documents in his evidence.
12. The record further shows that the Special Judge Narcotics Karachi South recorded the statements of the complainant A.S.-I. Sajjad Hussain and Mashir H.C. Muhammad Afzal of Railway Police Station on 6-7-1999 and 24-8-1999 respectively. At that time, the property was not produced in Court nor was the same shown to the witnesses. Before the said Court, the Special Prosecutor informed the Court that the property was destroyed under the orders of the Court. It appears that the Special Prosecutor did not know the preparation of samples of the said property. In the circumstances, the samples allegedly prepared before the destruction of property were not produced before the trial Court though it was available with the prosecution. It appears that the Special prosecutor was not properly assisted or provided adequate information about the preparation of samples of the property. The trial Court also did not take adequate interest in the matter as when it was brought to the notice of the. Court through Exh.41/E that the samples of the property were prepared before its destruction, the Court should have insisted upon the prosecution to produce the said samples. From the record, appears that the statement of main witnesses viz. Complainant and Mashir were recorded when the case was pending before the Special Judge, Karachi South. Normally the property is produced through the complainant or Mashir before whom the property was secured. However, it appears that due to misunderstanding or mistake the said fact was not noticed by the trial Court when the case was received from the Court of Special Judge, Karachi South.
13. We have examined the case diaries but we do not find any mention of the application moved by the Special Prosecutor for destroying the property or order passed thereon by the Court in the said diaries. We have also examined the record and proceedings of the case but we do not find any such application or order available in the record. We have also examined the order dated 6-3-1999 passed by the Special Judge for Narcotics Karachi South by which the property of this case was ordered to be destroyed. (The said order is purported to be produced in the evidence as additional evidence). We find that a Criminal Miscellaneous Application No,62 of 1999 was filed by the Sub- Inspector Sajjad Ali of A.N.F. Karachi through Mr. Nadeem Shah, Special Prosecutor for destruction of properties of 18 cases including the present case. The Court heard the Special Prosecutor and Advocates of Special Case No,1302 of 1997 of Police Station A.N.F. Clifton Karachi and then ordered for the destruction of all the properties of 18 cases including the present case. It also appears that neither the notice of hearing the application was given in the appellants of this case nor they were heard before passing such order. In these circumstances it appears that the Special Prosecutor Mr. Zaheer Ahmed Khan who conducted the trial before the transferor and transferee. Courts did not know about the above-mentioned proceedings and so the appellants. As these documents were not available in the record and the proceedings of the case, therefore, the Transferee Court also did not know about the said proceedings. It appears that because of the above reasons the case was not properly handled before the trial Court.
14. In this type of cases, a case hinges upon the evidence of production of the case property. Under section 516-A, Cr.P.C. The property can be destroyed within the meaning of the said section and before that a sample or samples are to be prepared as required by the said section. In this case, apparently before destruction of the whole property samples were prepared in presence of Magistrate under the orders of Special Judge Narcotics, Karachi South. Therefore, the samples are the valuable piece of evidence which should have been produced in the Court in order to arrive at just verdict of the case. The documents sought to be produced are concerning the destruction of the property, which are also essential to the just decision of the case. Non-production of samples of the property and the related documents in Court occasioned a failure of justice therefore; the same is to be rectified.
15. After considering the material available on the record, we are of the considered view that the additional evidence is necessary which is essential to the just decision of the case.
16. Above are the reasons of our short order dated 28-4-2004, by which we had allowed the applications (M.A. No,3337 of 2003 and M.A. No,1100 of 2003) in the following manner:-- "For the reasons to be recorded separately, both these applications are allowed. The trial Court is directed to examine relevant witnesses in presence of the appellants, as stated in the application for production of the samples as also the documents, described in the application coupled with the application on the basis of which destruction of narcotics was ordered. Such evidence and material be forwarded to this Court after compliance, as aforesaid. Compliance should be made within thirty days of receipt of this order.
' The appeal may be fixed for regular hearing after receipt of such report.
' Office is required to forward the Exh.P.S. Of the case to the trial Court for this purpose." revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.