Shahji Rehrnan Khan, J.--This is an application filed under Sections 94/428/540 Cr.P.C. by Lal Khan, convict/petitioner, for bringing on record the application of Sahibzada Naeemullah addressed to the High-Ups of Police of the Province during investigation of case FIR No,95 dated 7/3/2004 under Section 302/34 PPC of Police Station Naurang, District Lakki Marwat, for taking disciplinary action against Mashal Khan, Acting Sub-Inspector, MPI due to his alleged ill-deeds.
2. The petitioner Lal Khan alongwith Saddiq Khan and Rashid Khan were charged in the aforesaid case for allegedly committing the murder of deceased Sahibzada Kabir Khan. After their arrest, accused/petitioner Lal Khan with co-accused Saddiq Khan were jointly tried and the learned trial Judge while acquitting accused Saddiq Khan of the charge convicted and sentenced the petitioner Lal Khan under Section 302(b) PPC to imprisonment for life and to pay compensation amounting to Rs, 1,00,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C., in default to suffer six months simple imprisonment vide judgment dated 18.7.2007 of the learned Additional Sessions Judge-I Lakki Marwat.
3. The main grievance of the petitioner is that despite the fact that the Investigation Officer, Umer Hayat Khan, has clearly admitted in his cross-examination about submission of the application by Sahibzada Naeemullah, but the prosecution has deliberately abandoned him as he was not supporting the fabricated story of the complainant and thus this Court is required to examine/record additional evidence under Sections 94/428/ 540 Cr.P.C.
4. The learned counsel for the complainant and the learned Deputy Advocate General representing the State have opposed the application on the ground that the learned trial Court has taken into consideration all the material facts while passing the impugned judgment and that no useful purpose could be served by allowing the application in hand.
5. After hearing the arguments advanced at the bar and going through record of the case, we would like to reproduce Sections 94, 428 and 540 Cr.P.C. which read as under:-- "Section 94 Cr.P.C.--Summons to produce document or other thing: (1) Whenever any Court or any Officer-in-charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or Officer, such Court may issue a summons, or such officers a written order to the person in whose possession or power such document or thing is believed to be requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
Provided that
(a) ...........................................
(b) ...........................................
"Section 428 Cr.P.C. 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 High Court, by a Court of Session or a Magistrate.
(2)When the additional evidence is taken by the Court of session or the Magistrate, it or he shall certify such evidence to the 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 it were an inquiry."
"Section 540 Cr.P.C. Power to summon material witness or examine persons present:-- Any Court may, at any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
6. The careful perusal of the above reproduced sections of law radiates that there can be no cavil with the proposition that under the law a Court is empowered to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and re- examine any such person if his evidence appears to it essential to the just decision of the case.
Likewise, in dealing with any appeal under Chapter XXXI of the Code of Criminal Procedure, if the appellate Court considers additional evidence to be necessary, it may either take such evidence itself or direct it to be taken by a Magistrate or a Court of Session after recording its reasons.
However, there is a rider clause to the exercise of such powers and these provisions are not to be utilized at the appellate stage to cure the inherent infirmities or fill up a lacuna in the prosecution case. It is well settled by now that such powers are to be exercised only 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.
7. The facts of the instant case are that the applicant/accused was in the know of the application of Sahibzada Naeemullah filed with the police and on the score, Umer Hayat Khan I.O. was cross- examined as PW. 11 and despite of his admission regarding the said application, the applicant/accused did not ask for bringing on record the said application, nor applied to the trial Court for summoning of Sahibzada Naeemullah (abandoned PW), therefore, in the peculiar facts and circumstances obtaining in this case, we are of the considered opinion that the application for additional evidence filed by the applicant/accused is not maintainable, because the said evidence was available at trial stage and the applicant/accused did not require it to be brought on record.
The appellate Court can exercise such powers only when some evidence was discovered subsequently which could not be collected earlier, or where a party was prevented from adducing such evidence at the trial for extraordinary reasons beyond its control and power. In the present case, the petitioner had ample opportunity at trial stage to have applied for production of such evidence which cannot be allowed at this belated stage.
8. Consequently, we find no merit in this application which is hereby dismissed and the main appeal be fixed for hearing in the next available D.B.