' This order will dispose of Criminal Miscellaneous No,1116-M of 1999 filed in Criminal Appeal No,122 of 1999.
2. Learned counsel for the petitioners submits that in the instant case, Raja Munawar, D.S.P. Had also investigated the case and recorded the statements about the "alibi", of the present petitioners, that they were present at the time of occurrence in the office of D.S.P., Chakwal and same was confirmed by Muhammad Taj, S.I., Muhammad Walayat, S.1. And Raja Munawar S.D.P.O. Learned counsel for the petitioner submits that under section 428, Cr.P.C. The Appellate Court has power to record additional evidence either itself or direct it to be taken by Court of Session when the appeal is pending before this Court. Learned counsel for the petitioners submits that it is a matter of life and death of the petitioners and the evidence of the said D.S.P., Rana Munawar is very essential for the just decision of the case. He submits that the learned trial Court even failed to summon the said Raja Munawar, D.S.P. As a Court-witness.
2-A. On the other hand, learned counsel for the complainant in his written reply which has been placed on record, contended that the present petition is not maintainable, that the main appeal was fixed for hearing time and again since 25-5-1998 and the present application under section 428, Cr.P.C. Has been filed in a mala fide manner to prolong the decision of the case. He further submits that Taj Muhammad, S.I., the Investigating Officer, in this case tried to spoil the case of the complainant and on the application of the complainant the investigation was transferred to Range Crime, Rawalpindi and the same was investigated by Muhammad Younus, D.S.P., who conducted the investigation and appeared before the learned trial Court during the trial as P.W.3 and version of Imtiaz Ali Khan, petitioner (appellant) was found to be false by the said D.S.P., that he was present in the Office of D.S.P., Chakwal on 23-8-1995 at the relevant time. He further submits that evidence of D.S.P., Raja Munawar is just an opinion which is not binding on Court. He also relied upon 1992 SCM R 2055 and PLD 1992 Lahore 340.
3. We have heard the learned counsel for the parties. We may mention here, that according to the paper book, present petitioners were being represented by a very Senior Counsel at the time of their trial. During the trial which went on for about three months no application under section 540, Cr.P.C. Was filed by the present petitioners before the learned trial Court for summoning Raja Munawar, D.S.P. As a Court-witness. It may also be mentioned here, that when the accused/appellants persons were examined as an accused under section 342, Cr.P.C., they even did not mention to produce the said Raja Munawar, D.S.P. In their defence. It may further be noted here, that the present petitioners even did not produce D.S.P., Chakwal in whose office they were allegedly present at the time of the occurrence. It may also be noted here that they even did not produce a single witness in their defence from the Office of D.S.P., Chakwal either his Reader, Staff Offices or any other person from public present there at that time. Section 428, Cr.P.C. Is very clear which reads as follows:-- "In dealing with any appeal under this Chapter the Appellate Court, if it thinks additional evidence to be necessary, shall record its reason 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."
4. In the circumstances of the case, we do not think it necessary to record the additional evidence as prayed by learned counsel for the petitioner in the instant application. Keeping in view, the circumstances mentioned above, there is no merit in this petition and the same is dismissed.