ISLAMABAD, Oct 31: The Supreme Court has ruled that appellate courts may permit the introduction of additional evidence under Section 428 of the Criminal Procedure Code (CrPC) only in rare and exceptional cases — and not as a means to rectify weaknesses in the prosecution’s case or investigation.
The observation came in a judgement authored by Justice Muhammad Ali Mazhar, who headed a two-judge bench hearing the jail appeal of Waseem Hassan Khan against an Islamabad High Court (IHC) verdict dated April 11.
Justice Mazhar noted that Section 428 grants appellate courts limited jurisdiction to record additional evidence where it is “necessary to reach a just decision”. He emphasised that this provision should not be conflated with Section 423, which outlines the general powers of appellate courts, and must be invoked only when the absence of fresh evidence would result in a “failure of justice.”
“The appellate court must be satisfied that the recording of additional evidence is essential for the ends of justice,” the judgement said, adding that if a high court finds further evidence necessary, it should either record it itself or direct a sessions judge or magistrate to do so.
Case Background
The case concerned the death of Esha Hassan, wife of petitioner Waseem Hassan Khan and sister of complainant Muneeb Khan. The complainant alleged that his sister had repeatedly been subjected to physical abuse by her husband.
On March 6, 2023, after failing to reach her by phone, the complainant was informed by police that his sister had died. At Polyclinic Hospital, the family observed marks of violence on her neck, hands, and feet, indicating possible strangulation. A murder case was subsequently registered at Sihala Police Station under Section 302 (murder) of the Pakistan Penal Code.
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.…
— Dawn.com (@dawn_com) October 31, 2025
The post-mortem report cited asphyxia as the cause of death. On June 3, 2024, an Islamabad sessions court convicted Waseem Hassan Khan and sentenced him to life imprisonment.
However, the Islamabad High Court, in its April judgement, set aside the conviction and remanded the case to the trial court to record additional evidence — including an explanation of CCTV footage by the investigating officer — under Section 428 CrPC.
You May Also Like: UAE to establish three date processing plants in Pakistan
Supreme Court Decision
The apex court observed that the requirement of due diligence must guide such decisions, noting that additional evidence can be allowed only if it was previously unavailable despite best efforts. If the evidence was omitted due to negligence or a deliberate strategy, the appellate court is justified in refusing the request.
Setting aside the IHC ruling, the Supreme Court remanded the case back to the high court with directions to decide the jail appeal afresh within three months.
Check out our latest video:
