PESHAWAR: A Peshawar High Court bench has ruled that it has wide powers under the Code of Criminal Procedure (CrPC) to order the recording of additional evidence and to examine or re-examine any person in a criminal appeal to prevent injustice.

Justice Roohul Amin Khan Chamkani and Justice Syed Afsar Shah declared that if an appellate court while dealing with an appeal thinks that recording of additional evidence was necessary, it would record its reasons and could either take such evidence itself or direct it to be taken by the trial court.

These rulings were given by the bench in its detailed judgment in a famous honourrelated case, wherein six members of a family, including three women, were killed inside their house in Nowshera on Aug 20, 2012.

Issues detailed verdict in Nowshera honour killings case

The experts insist that the appellate court in very rare cases invoke the provision of the CrPC related to the recording of additional evidence by it.

The bench had on Mar 9 set aside death sentence awarded by the trial court of an appellant, Zuhrab Gul, who was charged with four of his absconding relatives for the commission of the offence, and had remanded the case back to the trial court for recording additional evidence of a witness, Dr Mujtaba Ali, who had conducted autopsy of the killed male victims and also examined the injured persons in the occurrence.

The appellant was convicted by an additional district and sessions judge in Nowshera on Apr 28, 2015, and was sentenced to death on six counts apart from other sentences including imprisonment and fine.

An injured person Suleman (who later expired due to injury) had told the police at the Nowshera District Headquarters Hospital that at around midnight he along with his wife, Raima, paternal cousin Zakir, brothers Shehzad and Ijaz, maternal cousins Asma and Sehrish, was present at his house when Zuhrab Gul along with four others (who have been absconding) entered their house and opened fire at them as a result he and Zakir had received injuries whereas Shehzad, Ijaz, Raima, Asma and Sehrish had died on spot.

The motive for the murder was that a woman of the accused family, Raima, had eloped with Suleman and they had entered into wedlock.

The prime argument of the appellant’s counsel, Naumanul Haq Kakakhel, was about the testimony of Dr Mujtaba Ali, who was on duty at the time when the bodies and the injured were taken to the hospital.

He claimed that the said witness had only testifi ed that he had conducted the autopsy of two of the male deceased persons and contrary to the prosecution, the claim had not testifi ed that he had examined the injured persons and statement was recorded by the injured Suleman (who later died) in his presence.

In the detailed judgment authored by Justice Roohul Amin Khan Chamkani, it was declared that the court being an appellate court had the wide jurisdiction under Section 428 of the CrPC to direct additional evidence so as to avoid any injustice.

“The bare reading of Section 428 of the CrPC reveals that if an Appellate Court while dealing with an appeal thinks that recording of additional evidence is necessary, it shall record its reasons and can either take such evidence itself or direct it to be taken by Magistrate or where the Appellate Court is a High Court, by a Court of Session.” It added: “The main object of Section 428 of the CrPC relating to production of additional evidence is that a guilty person should not escape through carelessness or ignorant proceedings of the Trial Court or innocent person should not be wrongly accused when the Court, through same carelessness or ignorance, had omitted to record the circumstances essential to explanation or reach at the truth.” “Apart from Section 428 of the CrPC, this Court under Section 540 of the CrPC has ample power to examine or recall and reexamine any person if his evidence appears to be essential to the just decision of the case.” The bench ruled that the only purpose of judicial proceedings in criminal cases was to find out the truth and to arrive at a correct conclusion and avoid any injustice.

“Under Section 540 of the CrPC, the Court has unfettered powers to compulsorily examine any person whose evidence will provide help to elucidate the truth for reaching at a just and fair conclusion of the case.” The bench ruled that in the circumstances of the case they were of the view that non-examination of Dr.

Mujtaba Ali with regard to medico-legal reports of the two injured and endorsement of an important certificate was serious omission on the part of prosecution as well as trial court, which being essential for just decision of the case, would not amount to fill up any lacuna, rather after his examination the Court will be able to do justice between the parties.

The bench remanded the case to the trial court for re-examination of witness Dr Mujtaba with regard to medico legal reports of injured Zakir and Suleman deceased (then injured) and then to decide the case afresh within three months.

Published in Dawn, March 19th, 2017