Dr. ABDULLAH HAMID MEHMOOD vs THE STATE
This matter concerns an application filed by the appellant during the pendency of an appeal against a death sentence, seeking to produce additional evidence under C.M.A. No. 2752 of 2008. The appellant requested the examination of two witnesses: a Medical Legal Officer (MLO) to testify regarding injuries sustained by the appellant and his son, and a police official (SDPO) regarding a report filed after the incident. The core legal question was whether the appellate court should allow the production of additional evidence at the appellate stage that was not sought during the trial. The Court held that the application should be dismissed. It reasoned that the request was not made before the trial court, the injuries were not disputed as the prosecution acknowledged the appellant was beaten by the public, and the police records were already on the record. The Court established the principle that additional evidence at the appellate stage will not be permitted where the applicant fails to demonstrate that such evidence is necessary to meet the ends of justice or that it would materially affect the existing ocular or circumstantial evidence.
- Can an appellate court allow the production of additional evidence that was not requested during the trial proceedings?
- Is it necessary to permit additional evidence when the facts sought to be proved are not in dispute?
- What criteria must be met for an appellate court to allow the examination of new witnesses?
ORDER
1. In this matter yesterday arguments were party heard and the matter was adjourned for today when the learned counsel for the appellant has pointed out pendency of C.M.A.No,2752/2008. He submits that this application may be decided first. He submits that by this application two witnesses have been requested to depose towards additional evidence in the matter. These witnesses are Dr. Imran A Sarwar, MLO, Civil Hospital, Karachi, who had examined the appellant and his son while the other would be the witness Shaukat Abbas (wrongly mentioned in the application as Shaukat Abbas). This witness has been requested on the ground that he had visited the place of the incident on 7-7-2002 on the information of Rescue 15 and had submitted a report to the TPO, Jamshed Town, Karachi, regarding factual position of the incident. Learned counsel for the appellant submits that to meet the ends of justice the presence of the above mentioned witnesses is necessary.
2. ' On the other hand, learned APG strongly opposes this application on the ground that most of the witnesses have appeared before the trial Court while death sentence has been awarded to the appellant. He submits that the factual position in respect of the injuries of the appellant and his son is not the subject-matter of the appeal as they were allegedly beaten by the public a the place of incident while the witness Shaukat Abbas is also not necessary as he was SDPO and some of the police official had appeared after information on Rescue 15 and that the ocular evidence in the matter was quite sufficient to be considered for the purpose of decision of appeal.
3. Hearing the learned counsel, we are of the view that the proposition of the learned APG is quite right as no such request was made in the trial Court when the witnesses were produced. The MLO, requested, is in respect of injuries to the appellant and his son, which is not being disputed as according to learned APG, public gave them beating after double murder. The evidence of SDPO is also not necessary as police papers of both mashirnamas etc. Have come on record while fact in respect to information on 15 has also been spelled out in the facts of the case, here is no strong ground to show that whether expected evidence will effect the ocular or circumstantial evidence. In such a situation this application (C.M.A. No,2752 of 2008) is dismissed.