' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Through this application the learned State counsel has prayed that the prosecution may be allowed to recall the Magistrates for production of the original confessional statements of the co-accused who were tried and convicted by Military Court.
2. The relevant facts are that in the month of July, 1983 an information was received by the Embarkation Headquarters, Keamari, Karachi, that two containers were sent to Antwerp, Belgium, containing contraband narcotics/Charas weighing 6.5 tons. The containers were detained and the contraband Charas was recovered. Further information was received that the contraband Charas was smuggled with the assistance of certain defence officers posted in Embarkation Headquarters and certain other units. The defence personnel were arrested and interrogated. Their confessional statements were recorded wherein they implicated respondent Anwar Khattak to be a mastermind and supplier of the Charas. The defence personnel were put to trial by the Military Court. The respondents in this case were shown accused in the challan but they were absconding. The respondents remained fugitive at law. Ultimately challan was submitted against them before the Special Judge Customs, Karachi. The respondents were tried and were acquitted for the reason that the witnesses who were examined at trial have not implicated the respondents and the photo copies of the confessional statements of the co-accused tried and convicted by the Military Court were not admissible in evidence in view of Articles 75 and 76 of Qanun-e-Shahadat Order, 1984 and that the signatures on these documents were not legally proved as required under Article 78 of Qanun-eShahadat Order, 1984.
3. The State preferred this acquittal appeal and submitted the listed application seeking permission for additional evidence under section 428, Cr.P.C. Enabling the prosecution to produce the original confessional statements.
4. I have heard Messrs Mehmood Alam Rizvi and Fariduddin, Advocates for the appellant and Messrs Sami Ahmed Sami and Sohail Muzaffar, Advocates for the respondents.
5. Mr. Mehmood Alam Rizvi, learned Special Prosecutor has submitted that the respondents hatched conspiracy for smuggling of Charas and lured the defence personnel to join hands with him. He submitted that in such cases, it is always difficult to collect the evidence. The entire evidence against the respondents is contained in the confessional statements of the co-accused who were tried and convicted by the Military Court. They have fully implicated the respondents in their inculpatory confessional statements. He has submitted that at the time of trial of the respondents by the learned Special Judge, Customs, the original record was lying with the Martial Law Authorities and was not traceable therefore, the true copies of the confessions were produced.
After filing of this appeal before this Court an application being M.A.. No.1980 of 1991 was submitted stating that the Summary Military Court who tried and convicted the co-accused was not traceable after lifting of martial law and, therefore, the original confessional statements of the convicted accused persons could not be produced. However, the original record was subsequently discovered to be at the Judge-Advocate General's Office in the General Headquarters, at Rawalpindi. It was prayed that the record may be summoned. The application was allowed and the original record was summoned which is available with this Court and therefore, in these circumstances, the additional evidence may be allowed to be recorded for bringing the original confessional statements on the record of the Court.
6. He has submitted that recently a Division Bench of this Court has granted such prayer in criminal Acquittal Appeal No.255 of 2002, Muhammad Azeem v. The State.
7. On the other hand, Mr. Sami Ahmed Sami, learned counsel for the respondents has opposed the application contending that the proceedings in this case were initiated in the year 1983 and judgment of acquittal was recorded in the year 1991, and no efforts were made to produce the original confessions on record. He has submitted that no additional evidence should be allowed to be recorded for the purpose of filling of the lacunas in the prosecution case. He contended that the learned trial Court has examined the evidence recorded during the trial and has held that the prosecution failed to bring evidence on record implicating the respondents for the commission of offence. This finding is not disputed by the learned counsel for the State. In support of his contention that in the facts and circumstances of the present case, the request for additional evidence should not be allowed, he has placed reliance on the following judgments;--
(1) Fazal Elahi v. Crown PLD 1952 Lahore 388; (2)Muhammad Jaffer v. The State PLD 1959 Karachi 585; (3)Muhammad Ismail v. The State PLD 1970 Karachi 261; (3)Zulfiqar Ali Shah v. The State 1989 PCr.LJ 21.
8. I have carefully considered the contentions raised by the learned Advocates for the parties, the peculiar facts and circumstances of this case and the judgments cited by the learned Advocates.
9. Before examining the relevant facts and law I, would like to observe that although the proceedings in this case were initiated in the year 1983, but the respondents in this case were absconders and challan against them was submitted in the Court of learned Special Judge, Customs and Taxation Karachi, in the year 1988 and respondent Anwar Khattak was arrested on 29-4-1989.
10. Now coming to the judgments cited at bar, I find that the learned Division Bench in the order dated 4-5-2004, in Criminal Acquittal Appeal No.255 of 2002 has observed that the object of section 428, Cr.P.C. Is to save public time by taking only additional evidence instead of remanding the whole case for examining the witnesses again. This section is not meant for the purpose the parties, but the object is to see that the justice is done. Relying on the judgments in the cases of Akhtar Hussain v. Emperor AIR 1925 Pat. 526, State v. Jai Parkash AIR 1959 All 129 and Ishwar Prasad v.
Emperor AIR 1918 All. 133, it has been observed that while deciding application for additional evidence in a criminal case, it is required to be kept in view that in criminal cases there is always a third party namely society. It has further been observed that the recording of additional evidence should be allowed where evidence sought to be produced was either not available during the course of trial or party concerned was prevented from producing same by the circumstances beyond its control or by reason of misunderstanding or a mistake. Reference in this regard was made to the judgments in the case of Dildar v. The State PLD 2001 SC 384; Fazal Elahi v. Crown, PLD 1952 Lahore 388 and Barkat Ali v. Crown 1969 SCMR 448.
11. In the case of Fazal Elahi v. Crown (supra), it has been held that powers to be exercised by the Appellate Court under section 428, Cr.P.C. Are subject to two overriding conditions:--
(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 of a fair trial.
' It has been further observed as follows:-- "While exercising this power, 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-parties the Court of Criminal Appeal always has a third party before it namely, society, and its discretionary powers are not controlled by rules of estoppels, waiver, etc. Therefore, negligence, latches, even admissions by counsel are not a bar to the Court's exercising the power to take further evidence, provided the power is intended to be exercised in the interest of justice and the accused is not prejudiced in his defence on the merits."
12. In the case of Muhammad Jaffar v. The State (ibid) a principle has been laid down as follows;-- "In order, therefore, that additional evidence may be taken, the Court itself must think that such additional evidence is necessary. The necessity for taking such evidence must be apparent from the record. The purpose of this provision is not to enable a party who had all the opportunity of giving evidence and which it had not done, to invite the Court to fill up the lacunae".
13. In the case of Muhammad Ismail v. The State, it has been held as follows:-- "The necessity for taking additional evidence under this section must be examined in the particular facts of each case and no hard and fast rule can be laid down. However, the principles governing such cases have been reiterated by the Federal Court of Pakistan in the case of Barkat Ali and another v. The Crown, wherein Cornelius, J., as his Lordship then was, observed as follows:--- "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."
' These weighty observations have been consistently followed by this Court. I may in this connection refer to the case of Ghulam Muhammad and others v. The State, and in particular to the following observations of Or Acheson, "In Ali v. Crown PLD 1952 FC 71, the principles governing such cases as the present have been discussed, and the following observation of Cornelius, J., goes to the root of the matter:-- "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."
14. In the case of Zulfiqar Ali Shah v. The State, reliance has been placed on the judgments referred to above.
15. In the light of the law laid down in the above cited judgments, I revert to examine facts of the present case. As already narrated in the earlier part of this order the defence personnel were involved in the case of smuggling and in their confessional statements they implicated the respondents. The case was tried by Military Court and the defence personnel were convicted on the basis of their confessional statements. The respondents successfully avoided the proceedings before the Military Court. After lifting of martial law, fresh challan was submitted before the Special Judge, Customs and Taxation, in the year 1988, whereafter, the respondents were arrested. As martial law was lifted therefore, the Military Court which tried the defence personnel and before whom confessional statements were produced was not traceable with the result that the original confessional statements could not be produced before the learned Special Judge. The record was not traceable till the conclusion of trial and after the announcement of judgment the prosecution was able to discover that the record was lying with the G.H.Q. On submission of application before this Court during the pendency of this appeal, the original record was called which is now available with this Court.
16. In the above circumstances, I find that the prosecution could not produce the original confessional statements of co-accused, who were convicted on the basis of their confessional statements on account of the fact that the said confessional statements were not traceable. Thus, the original confessional statements could not be produced by the prosecution during the trial before the learned Special Judge, for the reasons beyond their control. Keeping in view the principle laid down in the judgments relied upon by Mr. Sami Ahmed Sami, learned counsel for the respondents to the effect that a criminal Court of appeal should always keep in view that in criminal cases there is a third party also, the society and if any party was not able to produce any evidence at trial on account of circumstances beyond its control and that if the Appellate Court finds that it is apparent on the face of record that the production of additional evidence is necessary; such request be allowed, I am of the considered opinion that the request for recording of additional evidence bringing the original confessions on record is genuine and must be allowed.
17. For the foregoing reasons, the application is allowed. The prosecution is allowed to lead the additional evidence so as to bring the original confessions of the co-accused persons on record.
The additional evidence shall be taken by the learned Special Judge, Customs and Taxation and he shall certify such evidence to this Court within a period of four months, where after this Court shall take up this appeal for disposal.
18. The R and P and the confessional statements duly sealed separately may be remitted immediately to the learned Special Judge (Customs and Taxation) to do the needful.
' The application is allowed as above.