Shamshad Bano Vs The State etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Case No. Crl. Revision No.49928/2026 Shamshad Bano Versus The State, etc.

Sr.No.of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, where Proceedings Proceedings necessary.

18.09.2026 M/s Tahir Mehmood Mughal, Shazia Rajab and Shahzad Ahmad Bhutta, Advocates for the petitioner. Mr. Kashif Raza, Advocate for respondent No.2. Ch. Muhammad Mustafa, DPG.

Through this criminal revision in terms of Section 435 of the Code of Criminal Procedure, 1898 (Cr.P.C), Shamshad Bano (petitioner/accused) has assailed the vires of order dated 17.06.2026 by learned Addl. Sessions Judge, Lahore, whereby an application under section 540 Cr.P.C on behalf of State was allowed for re-examination of Muhammad Rafique Shahid (PW-1) and Muhammad Idrees (PW-2) during trial in case F.I.R No.11227/2024 dated 24.11.2024, for offences under Sections 302 & 34 P.P.C. registered at Police Station, Kahna Nau, Lahore.

2.Learned counsel for the petitioner submits that through the impugned order, the learned trial Court has permitted the prosecution to fill up the lacunae in its case; he also challenged the maintainability of the above application as earlier a similar application was dismissed by the learned trial court.

3.Conversely, learned Law Officer has supported the impugned order by submitting that the omission on the part of aforesaid prosecution witnesses to depose about recovery memo was inadvertent as the relevant recovery memos were part of the report under Section 173 Cr.P.C. and copies thereof were supplied to the accused in terms of Section 265-C Cr.P.C. at appropriate stage; he contends that the defence was, therefore, fully aware of the prosecution material; and that the PWs sought to be re- examined are yet to be cross-examined by the defence and the right of cross-examination of the accused remains intact.

4.Arguments heard. Record perused.

5.First, I would like to address the petitioner's objection as to the maintainability of the above application. This contention is misconceived because earlier application was moved by the complainant’s counsel directly and not through the learned Deputy District Public Prosecutor (DDPP); it was withdrawn, and thereafter above said second application was moved through the learned DDPP. It is needless to mention here that mere withdrawal of an earlier application, particularly when no adjudication on the merits thereof is shown, may not operate as a bar against the exercise of jurisdiction conferred by statute.

6.The controversy revolves around the nature and scope of jurisdiction in terms of Section 540 Cr.P.C., which is reproduced hereunder:-

‘Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.’

The provision confers wide powers on a Court to summon, examine, recall, or re-examine a person whose evidence appears essential to the just decision of the case. The first part of the provision is enabling, whereas the latter part imposes an obligation on the Court. The discretionary power of the court to summon any witness may be exercised suo motu or on application.1 The court is also empowered to summon a person as a witness though the latter may not be cited as a witness2 or whose name does not appear in the calendar of witnesses.3 Thus, the determinative consideration is not merely the stage of the proceedings or the fact that a witness has already been examined, but whether his evidence is necessary for arriving at a just decision of the case. It is equally well settled that the power under Section 540 Cr.P.C. is not to be exercised mechanically or with a view to providing a party an opportunity to repair every weakness or lacuna in its case; it can neither be used to advance the case of the prosecution nor that of the defence. The fundamental question the court must consider is whether summoning a witness is essential to a Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550) Abdul Salam v. The State (2000 SCMR 102) Sajid Mehmood v. The State (2022 SCMR 1882)

just decision of the case. The paramount consideration is the administration of justice and the discovery of truth.

7.The Learned trial Court has not permitted the prosecution to introduce an altogether new piece of evidence. The record reveals that the recovery memos relating to the crime weapon, bearing the names/signatures of these witnesses, were already available on the judicial file. Admittedly, copies of the relevant documents were supplied to the accused persons in terms of Section 265-C Cr.P.C. at the appropriate stage. The mere fact that a witness, during his examination-in-chief, omitted to state a particular fact which otherwise finds support from the contemporaneous documentary record does not, by itself, render the exercise of jurisdiction under Section 540 Cr.P.C. unfair or unjust. The identification of the dead body of the deceased and attestation of the recovery memo of the alleged crime weapon are not wholly extraneous or new matters; rather, they relate to material circumstances of the prosecution case and are a matter of record. The proposed re-examination of the said witnesses does not deprive the petitioners of their valuable right of cross-examination; rather, the defence would have full opportunity to cross-examine them.

8.In the peculiar facts and circumstances of the case, recalling the prosecution witnesses for re-examination does not amount to filling the lacunae of the prosecution’s case but appears to be just and fair. Even otherwise, the

observation of the rule of ‘avoidance to fill the gaps’, regarding evidence, which is essential for the just decision of the case, would not only be the negation of justice in a general sense, but would also contravene another rule, namely that no party should suffer on account of mere technicalities. The procedural law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fair play. The exercise of power under section 540 Cr.P.C to correct an inadvertent omission on the part of the prosecution regarding material evidence does not amount to filling up a lacuna, rather, the failure to exercise the jurisdiction in such cases may defeat the ends of justice.5.

9.The fair trial is not the right of an accused only but the prosecution is equally entitled to it. After the insertion of Article 10-A, the trial Court is to resolve the issue in the light of fairness, particularly when no prejudice is likely to be caused to the other side6. Both the prosecution and the accused are equally entitled to the right of access to justice, treatment in accordance with law, and equal protection of law.7

10.I have not found the impugned order arbitrary or without jurisdiction; rather, the learned trial Court has correctly appreciated the scope of Section 540 Cr.P.C. No prejudice is likely to occur to the cause of the accused.

Muhammad Azam versus Muhammad Iqbal and others (PLD 1984 Supreme Court 95) ( 5 member Bench) Ameenullah and another v. The State and another (2026 SCMR 870) Naseer Khan vs. Said Qadeem and others (2020 SCMR 293) Article 4, 10-A and 25 of the Constitution of Islamic Republic of Pakistan, 1973

Learned counsel for the petitioner could not demonstrate that the impugned order suffers from a patent illegality, material irregularity, or a jurisdictional defect, or that it has resulted in any miscarriage of justice.

11.Consequently, the instant petition, being devoid of merit, is dismissed. Needless to say, the observations made herein are confined to the question of the exercise of jurisdiction under Section 540 Cr.P.C. and shall not prejudice the case of either party regarding the probative worth of the recovery memo and the intrinsic value of the deposition of the PWs sought to be re-examined.

(Muhammad Amjad Pervaiz) Judge M.J.Mehmood *

Approved for reporting.

Judge