[Sections 428 and 375, Cr.P.C.]
Appellate courts were to be cautious in allowing the production of additional evidence at an appellate stage, especially when such fact was available and in the knowledge of the party seeking to produce it. Therefore, unless the said evidence could not have been collected earlier, despite due diligence or where the said party was prevented from collecting and producing the same at the trial for reasons beyond its control and power, the appellate courts were not to allow production of such additional evidence. 2021 SCMR 873 SUPREME-COURT
The object of section 428 is not to enable the prosecution to produce evidence which could easily have been produced at the first trial. 36 Mad. 457 (470) Jeremiah v. Vas.
Section 375, Cr.P.C. is not meant to enable a Court to remedy an important error in procedure which might have been calculated to prejudice the accused in the trial and which in fact causes the trial to be vitiated. The proper course is to set aside the conviction and order retrial (DB). AIR 1935 Sindh 154 (179). Identity of accused in dispute. Prosecution given two opportunities by Sessions Judge to establish identity. Chief Court ordered recording of further evidence. Held, discretion under section 375, Cr.P.C. not exercised judicially. Accused's case gravely prejudiced. Additional evidence eliminated from consideration. (FC) PLD 1954 FC 293 Khan v. Crown.
Infirmities not to be cured. Further inquiry or additional evidence at appellate stage should not be ordered to cure infirmities in prosecution case. Accused has a right to rebut such evidence. Denial of the right is violation of the principle of natural justice. (FC) PLD 1952 FC 71 Ali v. Crown. Additonal evidence in revision under section 439, Cr.P.C. was considered justified when High Court recorded the statement of civil surgeon to find out the extent to which the complainant had been incapacitated by the injuries, in order to enhance the sentence or not. (DB) PLD 1957 Lah. 739 Younis. Additional evidence at appellate stage is allowed when that evidence was not available at trial or evidence was prevented by circumstances beyond control or by reason of misunderstanding or mistake. (SC) PLD 1952 FC 71 Ali v. Crown.Also See (DB) PLD 1957 Lah. 263 Ghulam Muhammad.
Additional evidence in Supreme Court in murder case was allowed with regard to actual custody of crime, shells, between time of their recovery and their reaching expert's office, while hearing appeal. (SC) 1969 SCMR 437 Abdul Majeed 1969 P.Cr.LJ 1168.
Evidence at appellate stage under section 428, Cr.P.C. is at the discretion of the Court. Application for production of additional evidence allowed. (SC) 1969 SCMR 448 Barkat Ali v. Crown.
Additional evidence in documentary form about alibi of the appellant not allowed to be produced at appellate stage when reliable oral evidence was already on the record. NLR 1981 Cr. 487, Nasir Javed. Apprehension of failure of justice. If there is apprehension of failure of justice by an erroneous acquittal or by an erroneous conviction, the Court would be justified in exercising its jurisdiction in calling for additional evidence. AIR 1953 Hyd. 145. Abdul Muhim Khan. No reason need be given u/S. 375 for calling additional evidence but it must be a point bearing upon the guilt or innocence of the accused. PLD 1952 FC 71. Ali v. Crown.
Additional evidence not available at trial. Despite the wide terms in which the power is given it has only been exercised where the additional evidence was either not available at trial or the party producing it was prevented from producing it, either by circumstances beyond its control or by reason of misunderstanding or mistake. PLD 1952 FC 71. Ali v. Crown. PLD 1977 Lah. 1103. Gullan etc. PLJ 1977 Lah. 659.
Inaptitude of lawyers or negligence of the judge. Where in appeal by the accused against his conviction and a reference u/S. 374, Cr.P.C. the High Court is apprised of the fact that valuable material which could and should have been put in evidence was not put before the jury owing to the inaptitude of the lawyers for the accused or the apathy or lack of vigilance on the part of the judge, the High Court can make full use of those materials before it for the purpose of doing justice. As an appellate Court, the High Court can itself take additional evidence or direct such evidence to be taken u/S. 428, Cr.P.C. As a Court dealing with a reference u/S. 374, Cr.P.C. High Court can make further inquiry or take additional evidence or direct those things to be done by the Sessions Court u/S. 375, Cr.P.C. (DB) AIR 1943 Cal. 521 (527). Emperor v. Lal Mia. When prosecution is allowed to produce additional evidence after the close of the case the accused should be re-examined and allowed an opportunity to rebut prosecution evidence. (SC) PLD 1971 SC 709 Rashid Ahmed.
Additional evidence at appellate stage allowed where there is no question of inviting perjured evidence and evidence of purely formal nature is required. Non-examination of the accused after additional evidence when not causing prejudice to accused does not vitiate proceedings. (SC) 1971 SCMR 260 Salehon. Accused has no right to rebut the evidence of his own witness when additional evidence taken on appeal. The function of the Court is to do justice to the accused as well as the person aggrieved and the society (DB) PLD 1952 Lah. 388 Fazal Elahi v. Crown.