1. KHAWAJA MUHAMMAD SHARIF, C. J.---The appeal of the accused was argued by Mr. Mahmood Ali Kasuri and arguments in the appeal concluded on 21-9-1971. We decided to inspect the spot on 24-9-1971. After inspection of the spot white discussing the case amongst ourselves we thought it fit to take additional evidence for the clarification of a point involved in the appeal. It was the prosecution case. Even in the F. I. R. It is written, that Adam deceased left his house on 15-5-69 for Jari Kas and that the land of Lal and Razzaq fell in the way. At the trial, Mst. Bivi P. W. The mother of Aslam deceased stated that when Mst. Fatima her daughter-in-law and wife of the deceased, saw the accused killing the deceased and raised a hue and cry from the `Tekari', she (Mst. Bivi) also went to the spot and saw the accused running away from the scene of occurrence and she further observed that the accused had been tilling their lands and the bullocks with the plough were still present near the scene of occurrence. Mr. Kasuri argued that there was no basis for this part of the prosecution case that the accused had lands near the place of occurrence and that their presence on the spot was likely, since the Patwari had not been examined to prove that the accused had lands near the place of occurrence and no copy of the Revenue Record had been placed on record, we felt that in order to ascertain the truth or otherwise of the statement of Mst. Bivi that the accused held lands near the place of occurrence; and that their presence at the spot was likely, we should examine the Patwari of the village. But before examining the Patwari we thought it fit to hear the parties' counsel and also invited Mr. K. NIL Shafi and Mr. A. M. Malik Advocates, two senior members of the Bar, to address the Court Amicus curiae on the point whether the Court can take additional evidence in the circumstances of the case and A is there any limitation on the right of the Court to take additional evidence in such circumstances.
2. Sardar Aftab Ahmed Khan learned counsel for the appellants submitted that we were not only hearing the appeal of the accused but the case was also before us for confirmation of the death sentence passed on Lai accused under section 374, Cr. P. C. So the Court possessed powers under section 375 to take additional evidence. He also referred to sections 540 and 561-A under which the High Court could record additional evidence but he argued that there were certain limitations on the powers of the Court in the matter of taking additional evidence viz. That additional evidence should not be taken to fill in the lacuna left by the prosecution nor should the Court take such evidence that. Could have been produced by the prosecution or defence.
3. Section 375, Cr. P. C. Provides that: "If when such proceedings are submitted the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session,"
4. Section 540, Cr. P. C. Provides that: "Any Court may, at any stage of 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."
5. Section 561-A, Cr. P. C. Provides that: "Nothing in this Code shall be deemed to limit or affect the inherent power of the High court to make such orders as lady be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
6. The learned counsel for the appellants cited PLD 1952 FC 71. It was laid down in this authority that further inquiry or additional evidence at appellate stage should not be ordered to cure infirmities in prosecution case and that the accused should be given the right to rebut such evidence. Abdul Rashid, C. J. Observed that: "The provisions of sections 373 and 418 of tire Coda of Criminal Procedure are meant to be used in such manner as to secure even-handed justice to both parties. They should not be utilized to cure all the infirmities in the prosecution case in the appellate Court."
7. It was further laid down in this judicial authority that:-- "To recall partisan witnesses to make additional statement, at the appellate stage is an invitation for perjured evidence. Section 428 of the Criminal Procedure Code should be availed of by an appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can, therefore, be expected to give an unbiased account of the occurrence.
8. It does not make the slightest difference whether the additional evidence is required by the Court or is produced by parties."
9. Mr. K. M. Shaft addressing the Court Amicus curiae submitted that there were three sections in the Criminal Procedure Code which had bearing on the point before the Court. One is section 428, the other is section 375 and the third is section 540. Section 428 provides that:--- "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."
10. Under the provisions of this section the Court taking additional evidence has to record its reasons but since the case is before this Court for confirmation of the death sentence, the power to record additional evidence would be governed by section 37; which gives the Court an unfettered discretion inasmuch as no reasons are required to be recorded. He also cited PLD 1952 FC 71 and PLD 1970 Lab. 735. It was laid down in PLD 1970 Lah. 735 that:- "In dealing with an appeal in a murder case where there is also a reference to the High Court under section 374, Cr. P. C., the High Court is competent under section 428, Cr. P. C. To call for additional evidence and record or direct the same to be taken by the Court of Session."
11. Mr. Sher Zaman Chaudhry learned counsel for the com--plainant assisting the learned Advocate- General cited PLD 1957 Lah. 739, PLD 1952 Lah. 388 and AIR. 1959 All.
129. P L 1) 1957 Lab. 739 is not very much to the point since it lays down that under section 439, Cr. P. C. The High Court may in its discretion exercise any of the powers conferred on a Court of appeal and record additional evidence under section 428. In this case the learned Judge recorded additional evidence in order to decide whether sentence passed on the accused should be enhanced or not.
12. It was observed by Muhammad, Munir, C. J. In PLD 1952 Lab. 388 that:- "If evidence is taken by an appellate Court as to a new relevant fact and the proof of that fact enhances the incrimi--nating evidence against an accused person, it is only fair that he should have a right to rebut the evidence so taken. In such circumstances he has as clear a right to rebut the additional evidence as the right to produce defence evidence in contradiction of the prosecution evidence. But where a prosecution witness is recalled by the appellate Court only to have a point in his evidence clarified, the position is governed by different principles and neither the accused nor the pro--secution can as of right claim rebuttal, though even here era appeal to the Court's power to call a witness in the interest of justice may sometimes succeed."
13. The learned Chief Justice observed further that:- "The implications of the Federal Court judgment PLD 1952 FC 71 are far-reaching and the rule laid down there may lead to results which were never intended by their Lordships. The principle laid down therein must, therefore, be confined to the assumptions on which that judgment teas rendered, and that principle is: (1) that it is an improper exercise of power on the part of an appellate Court to recall partisan evidence merely to have gaps in the prosecution case filled up or discrepancies in the prosecution evidence removed and (2) that where fresh evidence is taken in appeal by the Court sun mote or at the instance of the prosecution, not at the request of the defence counsel, the accused is entitled to rebut that evidence if it relates to a new relevant fact.
14. But as to (1) above the mere fact that a witness is a partisan is no ground for not recalling him if the appellate Court considers such recall in the interests of justice. It; for instance, an important witness, thoroughly biased against the accused, has not been questioned in the trial Court about a statement made in the course of investigation, which state--ment is in favour of the accused, the appellate Court will be acting rightly and justly in recalling him to enable the accused person to rely on a self-contradiction. Similarly, it often happens that owing to the negligence of the prosecution counsel a witness is not questioned in the trial Court on a material point. In such a case the appellate Court will be within its rights to recall such witness to avoid a possible miscarriage of justice.
15. There is a fundamental distinction between filling up gaps in the prosecution evidence and removing discrepancies in such evidence. The former implies that evidence lacking as to a fact which was a necessary constituent of the offence charged and the appellate Court filled- up the gap by taking additional evidence whereas the latter means that the appellate Court resolved an apparent conflict in the evidence, not in the interests of justice but merely to be able to maintain the conviction.
16. The powers to be exercised by an appellate Court under section 428 are subject to two overriding considerations: (1) That the additional evidence is considered to be necessary by the appellate Court in the interests of justice; and (2) that the accused is riot denied his right to a fair trial.
17. While exercising these powers Courts of Criminal Appeal iii 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 partes, the Court of Criminal Appeal always has a third party before it, namely, society, and its discretionary powers are riot controlled by rules of estoppel, waiver, etc. Therefore negligence, laches, even admission 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 interests of justice and the accused is not prejudiced in his defence on the merits.
18. So far as the right to contradict is concerned, the governing principle is that if the evidence taken by the appellate Court relates to a new relevant fact, which was not before the trial Court, both parties, namely, the prosecution and the accused, are entitled to lead evidence on that point. But if the evidence does not relate, to use an easily understandable but somewhat uncommon expression, to a substantively relevant fact and merely affects the credibility of a witness, the position is different and is governed by entirely different rules."
19. The observations made by Kayani, J. Who constituted the Division Bench with Muhammad Munir, C.
20. J. In this case are very much pertinent and are reproduces) below: "As regards the taking of additional evidence, I think vie have power to take it on any point bearing upon the guilt or innocence, of the accused, that is to say, it may bear on his guilt or it may bear on his innocence. For the interests of justice are not always identical with the interests of the accused, and if in the present case we were told that we filled gags for the prosecution, we should accept the accusation only if we thought that our function was not to do justice to the accused and to the person whom he is alleged to have killed, but to find a pretext for acquitting the accused. In that case, we would be doing injustice to the deceased person and the society for the reason that the society was inefficiently represented at the time of the trial. For the same reason. I am not impressed by the argument that questions put by the Court of Appeal should not be in the nature cross-examination. If the power to call in evidence lies with the Court, and the Court exercises it, I do not understand why it should sometimes have to say to the prosecutor, I am not going to cross- examine the witness lest I should betray an anxiety to bring out the truth', if indeed the object of cross-examination is to bring out the truth.
21. I think it is the moral fear of confessing to others our anxiety to punish the guilty that has brought us to this deplor--able state to Identify the Interests of justice in all cases with the interests of the accused."
22. In AIR 1959 All. 129 it was laid down by B. R. James, J. That.-- "Section 428 forms do exception to the general rule that an appeal must be decided on the evidence which was before the trial Court. Its manifest object is the prevention of a guilty man's escape through some careless or ignorant proceedings of a trial Court or the vindication of an innocent person wrongly accused where the trial Court through some carelessness or ignorance has omitted to record the evidence of the circum--stances essential to the elucidation of the truth.
23. Being an exception to the general rule the powers under it must always be exercised with circumspection, and the doing of justice should be the goal invariably aimed for."
24. In the case before us there is the oral evidence of Mst. Bivi on the point that the accused persons had lands near the scene of occurrence which they were tilling on the day of the murder and that Mst. Bivi had seen the bullocks and the plough of the accused near the scene of occurrence while they were running away from the spot. There is no other evidence either by the prosecu--tion or the defence on this point. We feel we would be serving the interests of justice by calling a Patwari and examining him in order to ascertain whether the accused had lands near the place of occurrence. If he states that there are no lands of the accused near the place of occurrence we will be helping to establish; perhaps the innocence of the accused. Justice has to be done not only to the accused but to the deceased and to the society. Evidence there is on the point involved; we would not be filling in the gaps left by the prosecution but we only want to ascertain the credibility of Mst. Bivi on this point. We, therefore, decide, in the interests of justice, to examine the Patwari of the village on this point. Since we are examining the Patwari on a new but relevant fact, we shall afford the accused an opportunity of leading rebuttal evidence, if they so desire. The Patwari is present. Let his statement be recorded.