Summary: (a) Criminal Procedure Code, 1898 — S. 428 — Additional evidence at appellate stage — Scope, pre-conditions, and procedure — High Court, while allowing jail appeal, set aside conviction and remanded to the trial court to record additional evidence and decide the case — Held: This course is beyond S. 428 Cr.P.C. — If an appellate court (including High Court) finds additional evidence “necessary,” it must (i) record it itself or (ii) direct a Magistrate/Court of Session to record it and certify it back to the appellate court, which must then dispose of the appeal itself; remand to trial court for decision on such additional evidence is impermissible under S. 428. (Text of S. 428 explained; distinction drawn from S. 423 Cr.P.C. on remand powers.) (b) Appellate powers — Additional evidence not to cure prosecution lapses — Principles reaffirmed: power under S. 428 is exceptional; to be exercised sparingly “when necessary for a just decision,” not to fill lacunae or repair negligence/omissions of investigation/prosecution; must not prejudice fair trial rights; reasons must be recorded. Shahadat Khan v. Home Secy., WP (PLD 1969 SC 158); Nadir Shah v. State (1980 SCMR 402); Dildar v. State (PLD 2001 SC 384); Ishtiaq Ahmed Mirza v. Federation (PLD 2019 SC 675) — followed. (c) Comparative guidance — S. 428 Cr.P.C. vis-à-vis O.XLI r.27 CPC — In both regimes, appellate court may take/commission additional evidence but must itself decide the appeal after receipt; remand for decision is outside O.XLI r.27 CPC (remand lies, if at all, under O.XLI r.23). Indian Cr.P.C. s.391 cases applied: Rajeswar Prasad Misra (AIR 1965 SC 1887), State of Gujarat v. Mohanlal Jitamalji Porwal (1987 2 SCC 364), Rambhau v. State of Maharashtra (2001 4 SCC 759). (d) Practice & procedure — Motu proprio invocation of S. 428 — Even when no party applies, appellate court may invoke S. 428 on its own perception of necessity, after hearing parties and recording reasons; additional evidence must comply with Ch. XXV Cr.P.C. (mode of taking/recording evidence) and the accused must have opportunity to meet it, including confrontation under S. 342 Cr.P.C. Held: Criminal petition converted to appeal and allowed; impugned judgment of the Islamabad High Court set aside. Case remanded to the High Court to decide the jail appeal afresh in accordance with law — the High Court may, if “necessary,” record additional evidence itself or have it recorded by Sessions/Magistrate and certified back under S. 428, then itself dispose of the appeal — preferably within three months.

Summary: Acquittal granted ---- (a) Criminal Procedure Code, 1898 (V of 1898) – S. 428 – Revisional Jurisdiction – Reappraisal of Evidence – Scope While exercising revisional powers, the Court is not to re-appreciate evidence unless there is a miscarriage of justice arising from a perverse or illegal finding. In the present case, both the trial and appellate courts were found to have misappreciated the evidence, resulting in grave injustice necessitating intervention under Section 428 Cr.P.C. (b) Penal Code, 1860 – Ss. 420, 468 & 471 – Cheating, Forgery, and Use of Forged Document – Essential Elements – Proof – Benefit of Doubt The petitioner was alleged to have committed fraud by transferring an oil tanker through a forged transfer deed. However, no independent corroboration was produced to prove execution of the alleged transfer deed. Prosecution witnesses made contradictory statements regarding the time, amount, and circumstances of the purported transaction. Moreover, no expert opinion was sought regarding authenticity of the thumb impression or signatures. (c) Criminal Trial – Documentary Evidence – Verification and Authentication – Mandatory Nature Neither the trial court nor the prosecution made any effort to verify whether the documents purportedly executed by the petitioner were genuine. Conviction based on unverified documents, without expert evidence, was held to be unsustainable in law. (d) Civil Proceedings – Subsequent Civil Litigation – Relevance in Criminal Case Subsequent civil suits between the same parties relating to ownership of the oil tanker were decided in favour of the petitioner. The complainant’s suit for declaration was dismissed, and the petitioner’s suit for possession was decreed. These facts, brought on record under S. 428 Cr.P.C., further weakened the prosecution’s case. (e) Penal Code, 1860 – Ss. 420, 468, 471 – Acquittal – Absence of Cogent Evidence – Contradictions and Doubts Given the contradictions in prosecution witnesses’ statements, lack of verification of documents, and favourable civil court findings for the petitioner, the Court held that the case was riddled with doubts. The petitioner was entitled to benefit of doubt and acquitted of all charges. Disposition: Criminal Revision allowed. Conviction and sentence under Sections 420/468/471 PPC set aside. Petitioner acquitted. Bail bond discharged.