RANA BHAGWAN DAS, J.---This appeal with the leave of the Court arises out of judgment in Criminal Appeal No,75 of 1995 passed by High Court of Balochistan setting aside the conviction and sentence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order) and remanding the case to the trial Court with directions to refer the case to Investigating Agency for collecting evidence and to adduce the same before the Court for recording additional evidence as under:-- "(i) Documents Exhs.P/42 to P/60 alongwith specimen handwriting signatures, thumb-impression of appellant be referred to Handwriting Expert for opinion, whether contents of any of these documents are in the writing of appellant or otherwise;
(ii) Investigating Agency should also examine any person of the area, who could define words 'Pani"Daggina' Datum', 'Bori' etc.
(iii) Investigating Officer should also contact the persons, whose addresses, and telephone numbers are available on the documents and should collect evidence, whether they have any business connection with appellant and if it is so, then what is the nature of such business. If Investigating Officer comes to the conclusion that the persons whose addresses, names etc. Are available in the documents, are also involved in nefarious business of drug trafficking then action should be taken against them, in accordance with law." It was further directed that on receipt of above evidence trial Court shall decide the case afresh in accordance with law.
2. Facts of the case, briefly stated, are that consequent upon an spy information received on 17th May, 1991, Mekran Scouts Troops headed by Maj. Muhammad Younas raided Gizi Kohar in the wilderness of Kohlwah on 18th May, 1991 at 6-30 a.m. And after exchange of firing with a number of anti-social elements recovered 9603 bottles of foreign whisky, 18 half-filled bottles of whisky and 435 kilograms of Charas. Strangely enough, none of the culprits could be arrested at the spot and it is spelt out from the prosecution case that all the criminals took to their heels. On the basis of letter written by Maj. Muhammad Niaz Leghari, Commandant Mekran Scouts, Turbat, F.I.R. Exh.P.W./4-B was registered on 21-5-1991 against the appellant and five unknown persons at Police Station PNCB, Quetta. Appellant was, however, arrested for the first time on 11-6-1991 in presence of Constable Ejaz Ali and Abdus Samad (not produced) when a notebook and certain papers were recovered from his possession. Chemical analysis of the samples taken out from the narcotics allegedly recovered were found to contain Charas, cannabinoid and alcohol.
3. On completion of investigation interim challan against as many as 29 persons was submitted before the Court of whom 7 persons including the appellant were produced before the learned Sessions Judge, Mekran Division at Turbat whereas remaining persons were shown as absconders.
A glance at the charge framed by learned Sessions Judge, however, would indicate that only the appellant and one Bashir Ahmed son of Ismail Baloch were physically present before the Court while remaining 27 persons were charged in absentia.
4. In support of its case prosecution examined Roghan Shah P.W.1, Abdus Samad P.W.2, Maj. Muhammad Younas P.W.3 and Niaz Hussain Malghani Field Investigating Officer, PNCB, Quetta.
Appellant in his statement on oath in terms of section 340 (2), Cr.P.C. Repudiated the allegations and denied the recovery of any diary maintaining accounts of narcotics from his possession. He claimed to be a Zamindar by profession.
5. On appraisal of evidence learned trial Court by its judgment dated 27-4-1995 convicted the appellant under Articles 3 and 4 of the Prohibition Order and sentenced him to rigorous imprisonment for two years, whipping of five stripes and fine of Rs,10,000 or in default simple imprisonment for one month for each offence. Sentences on both counts were ordered to run concurrently with the benefit of section 382-B, Cr.P.C. Six other co-accused tried alongwith appellant were, however, acquitted as no case was made out against them.
6. In statutory appeal against his conviction and sentence prosecution moved an application under section 540, Cr.P.C. For production of additional evidence. It was prayed that due to serious negligence and inadvertence of the Investigating Officer a notebook alongwith some other documents recovered from the possession of the appellant could not be exhibited at the trial although photocopies thereof were placed on record. Despite appellant's serious reservations to the prayer of the prosecution learned High Court allowed the application and examined Humayun Majeed another Investigating Officer who produced 18 documents exhibited as Exh.P/42 to Exh.P/59 subject to objection by the defence counsel. Later, appellant was further examined in terms of section 342, Cr.P.C. And as he opted to make his statement on oath he was examined and cross- examined by the prosecution within the contemplation of section 340(2), Cr.P.C. On scrutiny and analysis of the material on record learned High Court did not find it necessary to discuss the evidence in detail but remanded the case to the trial Court with directions for further probe into the matter by examining Handwriting Expert to determine as to whether any of the documents was in the handwriting of the appellant.
7. Mr. Basharatullah, Senior Advocate Supreme Court, learned counsel for the appellant referred to the evidence on record pointing out that the witnesses of the raiding party did not directly and specifically implicate the appellant with the offence of possessing and trafficking in narcotics substances. He emphasized that neither the appellant nor any one else was arrested at the spot and the prosecution did not elaborately explain as to how the appellant's name came to light and was incorporated in the letter forming the basis of the F.I.R. Recorded after three days. Learned counsel strenuously assailed the approach of the learned High Court in remanding the case for collecting further evidence through the Investigating Agency after more than five years of the occurrence. A grievance was made of the fact that in appeal arising out of conviction which could not be supported by the evidence available on record learned Judge in Chambers was legally not vested with the powers to direct the collection of evidence in order to sustain a conviction wrongly recorded by the Court of first instance.
8. In order to appreciate the contentions raised it would be appropriate and advantageous to reproduce the provisions of law contained in sections 540 and 428 of the Code of Criminal Procedure enabling a Court to record or direct the recording of additional evidence which may be essential to the just decision of a cause. These sections read as under:-- "540. Power to summon material witness or examine person present.--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 re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re- examine any such person if his evidence appears to it essential to the just decision of the case."
428. 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.
(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 if it were an inquiry."
9. 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 re-call and reexamine 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.
10. A plain reading of the provisions quoted hereinabove tend to show that widest possible powers have been conferred on a Court for summoning a witness or re-calling and re-examining a witness already examined. Apparently the discretion vested in a Court appears to be unrestricted nevertheless such power being in the nature of public trust can only be exercised if such evidence appears to be essential to the just decision of the case and not to fill in the lacuna in a case owing to gross negligence, inefficiency, carelessness and recklessness of a party. An important and relevant ground for the exercise of discretion may be where some evidence is discovered subsequently which could not be collected earlier despite due diligence earlier or where a party was prevented from adducing such evidence at the trial for extraordinary reasons beyond its control and power. But in the instant case photocopies of documents, were placed on record therefore non-production of such documents in evidence and its admissibility or otherwise amounted to sheer negligence and carelessness on the part of prosecution. We are fortified in this view by the dictum of the Federal Court rendered in Ali v. Crown PLD 1952 FC 71 in which a Full Bench headed by Abdul Rashid. C.J. (as his lordship then was) ruled that the terms in which the power is given by sections 375 and 428, Cr.P.C. Vary to some extent. Under section 428, Cr.P.C. The Appellate Court may call for additional evidence "if it thinks additional evidence to be necessary" but must give reasons for its action. Under section 375, no reasons need be given but the additional evidence required must be upon a "point bearing upon the guilt or innocence of the accused". The essential question for the Court being in either case that of the guilt or innocence of the accused person, the distinction between the two sections in relation to this case is more apparent than real.
The limitations of section 428 are obvious. Such an order, stating reasons, would operate to exclude evidence which is not directly relevant to such reasons. Federal Court cautioned by emphasising that the powers must be exercised judicially, that is to say, so as to preserve in all respects the essential fairness and even-handed justice to both parties. They should not be utilized to cure all the infirmities in the prosecution case in the Appellate Court.
11. Aforesaid principle of law was followed in Ghulam Muhammad v. State PLD 1957 Lah. 263; Muhammad Ismail v. State PLD 1970 Kar.
261. Similar view was taken in Muhammad Ehsan v. State PLD 1975 Lah. 1431 and Gullan v. State PLD 1977 Lah.
1103. Question of allowing or otherwise of additional evidence at appellate stage also came up for consideration before a Full Bench of this Court in Barkat Ali v. Crown 1969 SCMR 448. It was 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 advisors of the appellants tried to rectify their mistake 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. In appeal arising out of conviction and sentence this Court upheld the view taken by the learned Judges of the High Court with the further observation that section 428 of the Cr.P.C. Authorises the Appellate Court, if it thinks additional evidence to be necessary, to record its reasons and to lake such evidence in the interest of justice.
This Court laid emphasis on the criteria for exercise of discretion by laying down that this discretion must be exercised in a judicial manner and a purely arbitrary or capricious exercise of this discretion is liable to be set aside by this Court. In Riaz Hussain v. State 1986 SCMR 1934 a Full Bench of this Court declined to summon two police officers who were refused to be summoned by the trial Court at the instance of the accused for the reason that no effort was made at the trial to insist on production of these officers and the point was not raised at appellate stage. There is yet another authority by a Full Bench of this Court in Painda Gul v. State 1987 SCMR 886 laying down that it is clear that section 540, Cr.P.C. Gives very wide powers to the Court to examine any witness as a Court-witness at any stage of the case. It is needless to emphasise that this discretionary power of such amplitude has to be exercised with caution and circumspection in accord with provisions of Cr.P.C. And general principles of criminal law. Zafar Hussain Mirza, J. (as his lordship then was) speaking for the Full Bench laid down that the Court must guard against the exploitation of this power by parties who had ample opportunity to produce evidence within their knowledge and must not put one of the parties in a position of advantage vis-a-vis the other. The guiding principle is always what the ends of justice demand.
12. It is well-entrenched principle of law that the powers under section 540, Cr.P.C. Are divided in two parts. The first is discretionary in nature whereas the second is mandatory. According to first part it is discretionary with the Court to summon any person as witness suo motu or on an application, whereas according to second part the powers to summon, examine, re-call or re-examine any person as a witness are to be exercised with care and great caution. There must be strong and convincing evidence available on record for deriving an inference that examination of a particular person by way of additional evidence at appellate stage is essential to the just F decision of the case. If it cannot be reasonably shown that such evidence will assist the Court in arriving at a correct conclusion, resort to section 540, Cr.P.C. Or for that matter to section 428, Cr.P.C. Must be declined because exercise of discretion under law cannot be permitted in order to cure the blunders and serious lapses committed by a party.
13. Viewed in the light of the legal position and in the context of decided cases it is very difficult to concur with the view taken by the learned Judge of the High Court in the instant appeal. While the anxiety on the part of a Court to bring to book a hardened criminal or a drug trafficker may be natural and commendable, legal provisions safeguarding the rights and interest of an accused must be borne in mind in order to ensure that justice is not only dispensed with but also seems to have been done. As the course adopted by the High Court in the case in hand cannot be supported by any principle of law, we are inclined to accept this appeal, set aside the impugned judgment as well as conviction recorded by the trial Court and acquit the appellant for lack of any incriminating evidence connecting him with the commission of the crime. Order accordingly.