ISLAMABAD: The Supreme Court ruled on Thursday that appellate courts should permit additional evidence under Section 428 of the Criminal Procedure Code if it is necessary for a just decision, rather than using this power to correct defects in the prosecution’s case or investigation.
The section should be invoked by courts after being satisfied that the recording of additional evidence was necessary, observed Justice Muhammad Ali Mazhar, who was heading a two-judge bench that had taken up a jail appeal of Waseem Hassan Khan against the Islamabad High Court’s decision on April 11.
CrPC Section 428 allows the appellate court to record additional evidence separately and then decide the appeal, which cannot be intertwined with the exactitudes of Section 423, which deals with the general powers of the appellate court, observed Justice Mazhar.
Justice Mazhar observed that the jurisdiction vested in this section of law applies in rare cases where the appellate court’s conscience was satisfied that without the fresh evidence, there would be a failure of justice.
In this case, Justice Mazhar observed that if the high court felt that the recording of additional evidence was inevitable, the high court ought to record the additional evidence by itself or directed a sessions court or a magistrate to do so.
The case at hand revolves around Esha Hassan, sister of complainant Muneeb Khan, who was married to petitioner Waseem Hassan Khan. It was alleged by the complainant that he was informed by his sister that the petitioner maltreated her on numerous occasions and tortured her.
On March 6, 2023, the complainant tried to contact the petitioner after their sister didn’t respond, but he disconnected the call.
In the evening, the police informed them about the death of their sister. When the complainant along with his brother went to the Polyclinic Hospital to collect the body, they found violence marks on her neck, hands and feet, suggesting that she had been strangled to death.
A case was subsequently registered at the Sihala police station on March 6, 2023, under Section 302. According to the post-mortem report, the cause of death was asphyxia.
The Islamabad additional district and sessions judge-IV (east), on June 3, 2024, convicted the petitioner and imprisoned him for life. The petitioner filed a jail appeal in IHC to challenge his conviction, which allowed the appeal by means of the impugned judgement under Section 428 and while setting aside the conviction, remanded the matter to the trial court to record additional evidence and also directed the investigation officer to record additional statement in the evidence while explaining the CCTV footage to the trial court.
Justice Mazhar observed that the requirement of due diligence accentuates that only new or previously unavailable evidence that was overlooked despite best efforts, but if the oversight was due to a party’s own negligence or strategy, the appellate court may refuse the recording of additional evidence.
Setting aside the judgement, the Supreme Court remanded the matter to high court to decide the jail appeal afresh, preferably within three months.
Published in Dawn, October 31st, 2025
