Sana Bibi Vs The Learned Addl. Session Judge etc

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

(JUDICIAL DEPARTMENT)

Criminal Revision No.57386 of 2026.

Sana Bibi Vs.

Additional Sessions Judge and 02 others

JUDGMENT

DATE OF HEARING: 13.10.2026.

PETITIONER BY: Mr. Muhammad Safdar Bhatti, Advocate.

STATE BY: Rana Muhamamd Imran Anjum, Deputy Prosecutor General.

RESPONDENT No.3 BY: Mr. Faisal Abbas Ranjha, Advocate.

Amicus Curiae: Barrister Talha Mushtaq, Advocate.

Amir Ajam Malik, J:- Through the instant criminal revision petition, the petitioner/accused person Sana Bibi has impugned the legality and propriety of the order dated 15.9.2026, passed by the learned Additional Sessions Judge, Ferozewala (hereinafter referred to as “the trial Court”), whereby an application preferred by the learned Assistant District Public Prosecutor under Section 540 of the Code of Criminal Procedure, 1898, seeking recall and re-examination of PW-9, namely Muhammad Javaid (Investigating Officer), for the limited and specific purpose of formally tendering into evidence the following recovered articles, was accepted:

i. the chingchi rickshaw recovered upon the pointation of accused Abid Ali;

ii. the insurance policy papers of the deceased recovered from accused Muhammad Shafique; and iii. the Computerized National Identity Card (CNIC) of the deceased recovered from accused Sana Bibi.

2.The brief conspectus of facts relevant for the present purposes is that the petitioner stands arraigned and is facing trial in a criminal case. In the course of investigation, the aforementioned articles are alleged to have been recovered. The Investigating Officer (PW-9) was examined as a prosecution witness. However, owing to an inadvertent procedural omission, the formal exhibition of the said recovered articles was not effected during the course of his examination-in-chief, notwithstanding that the factum of recovery and the existence of these articles formed an integral part of the police file as well as the statement of the witness. The prosecution thereafter preferred an application under Section 540 of the Code of Criminal Procedure, 1898 seeking the recall of PW-9 for the limited purpose of formally tendering the said articles into evidence. The defence vehemently opposed the said application, contending that it amounted to an attempt to fill up lacunae in the prosecution case at a belated stage and would occasion serious prejudice to the accused.

3.Upon a judicious evaluation of the rival submissions advanced by the learned counsel for the contesting parties and a meticulous scrutiny of the judicial record, the learned trial Court allowed the application vide the impugned order dated 15.09.2026. In reaching this conclusion, it appears that the Court enunciated the paramount and overarching desideratum of a criminal trial, that is, the unearthing of substantive truth and the unflinching

advancement of the cause of justice. It further appears that while acknowledging the salutary principle that the prosecution ought not to be permitted to cure intrinsic infirmities or patch up a fundamentally deficient case, the Court underlined that mere procedural lapses, specifically, the formal exhibition of material case property duly recovered and meticulously chronicled in the police record, must not be permitted to occasion a failure of justice. To safeguard the tenets of a fair trial, the Court eventually preserved the absolute prerogative of the defence to subject the newly exhibited articles to rigorous cross-examination. Consequent thereupon, the trial Court directed the recall of PW-9, albeit strictly circumscribed for the singular purpose of tendering the articles into evidence, coupled with the provision of an adequate and reasonable opportunity of cross-examination to the defence.

4.Learned counsel for the petitioner has vehemently assailed the impugned order, characterizing it as manifestly illegal, coram non judice and running directly abreast of the settled canons governing the invocation of discretionary powers under Section 540 of the Code of Criminal Procedure, 1898. It is strenuously urged that the prosecution enjoyed an unfettered and full-fledged opportunity to formally exhibit the recovered case property during the examination-inchief of PW-9, yet omitted to do so owing entirely to its own laches and culpable negligence. Allowing the recall of a witness at this belated stage, the counsel contends, effectively sanctions the prosecution to patch up vital lacunae and bolster a deficient case to the grave prejudice of the accused. Furthermore, it is argued that while the latter limb of Section 540 Cr.P.C. assumes a mandatory character where the production or

examination of evidence is indispensable for a just decision of the case, it cannot be distorted or invoked to remedy inherent foundational deficiencies originating from the prosecution’s own default. Consequently, the impugned order has occasioned severe prejudice to the defence by impermissibly reopening a chapter of evidence that had already attained finality.

5.Per contra, the learned counsel representing the State has resolutely defended the impugned order, submitting that it suffers from no legal infirmity and reflects a sound exercise of judicial discretion. It is contended that the articles in question constitute the foundational substratum, both physical and documentary, upon which the prosecution's narrative rests.

Their recovery, being an undisputed matter of record duly reflected in the investigation proceedings and the testimony of the Investigating Officer, underscores that the omission to formally exhibit them was an inadvertent, purely procedural oversight. It is urged that such a technical lapse introduced neither new factual material nor an element of surprise. Furthermore, the learned State counsel has emphasized that the procedural rights of the defence stand scrupulously safeguarded through the unequivocal grant of an unrestricted right of cross-examination. In these premises, the learned trial Court rightly invoked the imperative directive enshrined in the mandatory limb of Section 540 Cr.P.C. to fulfill its solemn duty of ensuring a just determination of the cause. Lastly, it was submitted that this Court, while exercising its extraordinary revisional jurisdiction, ought not lightly to disrupt a discretionary interlocutory order of the learned trial Court, save where such an order is demonstrated to be palpably perverse, demonstrably illegal, or productive of a manifest failure of justice.

6.I have heard the learned counsel appearing for the respective parties at considerable length and, with their assistance, meticulously perused the impugned order, the relevant statutory provisions, as well as the entire material available on the judicial record. The principal question that falls for determination before this Court is whether the learned trial Court was legally justified in exercising its jurisdiction under Section 540 Cr.P.C. to recall PW-9 for the strictly circumscribed purpose of formally tendering into evidence the recovered articles, which were already an integral part of the record of investigation, or whether such an exercise of power constitutes an impermissible attempt to patch up prosecution lacunae to the irreparable prejudice of the defence.

7.Section 540 of the Code of Criminal Procedure, 1898, provides as under:

“540. Power to summon material witness or examine person present.— 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.”

A critical analysis of the statutory provision reveals that it is bifurcated into two distinct and operative parts. The initial limb vests the Court with an expansive discretionary competence to summon, examine, recall, or re- examine any person at any stage of the proceedings. Conversely, the succeeding limb assumes a mandatory character, casting a solemn obligation upon the Court to summon and examine, or recall and reexamine, any such witness if their testimony appears to the judicial mind to be indispensable to

a just and equitable decision of the case. The underlying legislative intent is manifest and unambiguous: a court of law is neither enjoined to remain a passive spectator in the arduous quest for truth, nor is it permitted to descend into the arena or act as a surrogate for the prosecution. Instead, it is armed with the necessary prerogative and, in fit cases, burdened with the statutory imperative to ensure that all material evidence vital to a just adjudication is duly brought onto the judicial record.

8.The powers of a Court under Section 540 Cr.P.C. are widest in their amplitude; it is obligatory upon the Court to summon evidence of a material witness whose evidence is essential for justice; the Court exercising power under Section 540 Cr.P.C. has to guard itself from exploitation and shall keep the guiding principle of what the ends of justice demand. The avoidance to fill gaps is in negation of justice when a Court arrives at the conclusion that evidence is essential for a just decision. The delay in moving an application is not relevant as the Court itself is empowered, even without an application from any of the parties, to summon the witness deemed essential for a just decision. The Hon’ble Supreme Court of Pakistan has graciously expounded the scope and limitations of Section 540 Cr.P.C. in the following terms in the case of Ansar Mehmood:1

“5. Bare reading of section 540, Cr.P.C. transpires that where an evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination. Examining the law on the subject, reference can be had to Muhammad Murad Abro v.

The State through A.G. Balochistan (2004 SCMR 966), wherein it Ansar Mehmood v. Abdul Khaliq and another (2011 SCMR 713)

was held that provision of section 540, Cr.P.C., is to enable the Court to go at the truth of the matter, so as to come to a proper conclusion.

In the case under trial, it is obligatory to summon a person whose evidence is essential for just decision of the case. Similar view was taken in Painda Gul and another v. The State and another (1987 SCMR 886), with addition that the Court has widest powers under section 540, Cr.P.C. and can summon a witness for examination at any stage of the case. However, while exercising discretion it must guard itself against the exploitation of this power by a litigant party and keep in view the guiding principle, what the ends of justice demand....”

In the jurisprudential framework of Pakistan, the architecture of a criminal trial remains fundamentally adversarial in character. Nevertheless, provisions such as Sections 94 and 540 of the Code of Criminal Procedure 1898, read alongside Article 161 of the Qanun-e-Shahadat Order 1984, vest the Court with restricted yet potentially effective powers in this context.

While the initial limb of Section 540 Cr.P.C. confers a discretionary latitude, its succeeding limb assumes an imperative character, coming into operation only when the proposed evidence is demonstrated to be indispensable to a just adjudication of the cause. Crucially, this extraordinary jurisdiction cannot be converted into a tool to bolster a party's case or to remedy an intrinsic evidentiary lacuna arising out of sheer lethargy or gross default on the part of the prosecution. Whenever recourse is had to the reception of additional evidence, the constitutional and statutory guarantees of a fair trial dictate that the accused be scrupulously protected against unfair surprise, an

Imperative achieved by ensuring full prior disclosure, adequate opportunity for preparation, and an unhindered right of cross-examination. It is a principle firmly entrenched in our jurisprudence that for the purpose of exercising jurisdiction under either limb of Section 540 Cr.P.C., the Court is fully competent to advert to and scrutinize material that has not yet been formally admitted into evidence, whether such material reposes upon the judicial record, lies embedded within the police file, or is otherwise discernable elsewhere. In the case of Dr. Raheem Ullah,2 the provision was enunciated in the following esteemed words of the Hon’ble Supreme Court of Pakistan:

“.... In criminal trials, the interests of various stakeholders— namely, the accused, the public, and significantly, the victims— need to be carefully weighed. This requires protecting the rights of the accused, upholding the public’s interest in justice and safety, and adequately considering the rights and needs of victims. Therefore, a fundamental principle in the law of evidence is that the best and most reliable evidence available should be presented to the Court to establish a fact or resolve points in issue within a legal dispute....”

9.Applying these well-settled tenets to the factual background of the instant case, it becomes abundantly clear that the articles sought to be formally tendered, namely, the Chingchi rickshaw, the insurance policy documentation, and the CNIC of the deceased, do not represent extraneous, novel, or manufactured pieces of evidence introduced for the first time.

Their recovery was duly effected during the course of investigation, and the Dr. Raheem Ullah and others vs. The State and others (PLD 2026 SC 483)

factum of such recovery stands unequivocally recorded in the police file as well as in the deposition of the Investigating Officer. What was inadvertently omitted was merely the procedural act of formally exhibiting these articles on the judicial record during the examination-in-chief of PW-9.

This was a purely formal oversight rather than an intrinsic or foundational flaw in the prosecution narrative or a surreptitious maneuver to spring a surprise upon the defense, which was already fully cognizant of these recoveries. The learned trial Court has judiciously circumscribed the scope of the recall to the singular act of tendering the said articles, while conscientiously preserving the absolute right of the defense to subject the witness to cross-examination. In these premises, the invocation of power under the mandatory limb of Section 540 Cr.P.C. can by no stretch of imagination be characterized as 'filling up a lacuna' in the sense deprecated by the superior Courts. In the case of Ameenullah3, while relying on the judgment in the case of Shahbaz Masih,4 it was reaffirmed by the Honourable Supreme Court of Pakistan as under:

“... where this Court has held that under section 540 of the Cr.P.C. a court enjoys full powers to summon and examine any person as a witness at any stage of the trial, rather it becomes imperative for the court to summon and examine a person when evidence of the latter appears to the court essential to ensure a just decision of the case, because the underlying object is always to reach the truth. Section 540 of the Cr.P.C. empowers the court to summon or examine any person Ameenullah and another vs. The State and another (2026 S C M R 870) Shahbaz Masih v. The State (2007 SCMR 1631).

as a witness at any stage of an inquiry or trial and such power is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan case or the private complaint, as the case may be.5 The court must liberally use the discretionary power in a case in which the examination of a person is material and is essential to come to a proper conclusion.6 The most important condition for exercising the mandatory duty under section 540 of the Cr.P.C. is the satisfaction of the court that the evidence of the witness is essential for a just decision of the case. The discretionary power of the court to summon any witness may be exercised suo motu or on application.7”

10.The distinction between curing a formal procedural oversight concerning already recovered and disclosed material, on the one hand, and permitting the prosecution to introduce entirely new evidence or to patch up a fundamentally weak case, on the other, is crucial. The former advances the cause of justice by ensuring that the Court has before it the complete material necessary for a just decision; the latter would violate the adversarial character of the trial and the fair trial rights of the accused. The impugned order falls squarely in the former category.

Learned counsel for the petitioner has laid considerable stress upon the plea of prejudice; however, it is well established that prejudice, in the contemplation of Section 540 Cr.P.C., cannot be presumed or assumed merely because the Court has permitted the reception of additional evidence.

To warrant interference, the prejudice pleaded must be real, tangible and Abdul Salam v. The State (2000 SCMR 102)

Muhammad Murad Abro v. The State (2004 SCMR 966)

Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550)

substantial, emanating from unfair surprise, the denial of a fair opportunity to meet the evidence, or the introduction of extraneous material that the defense could not reasonably have anticipated. In the case at hand, the subject articles formed an integral part of the investigation record ab initio.

Furthermore, the defense is secured with a full, uninhibited, and unfettered right of cross-examination. Consequently, no element of unfair surprise or legal prejudice is made out. The trial Court has acted with circumspection and due caution by strictly delimiting the purpose of the recall while safeguarding the fundamental rights of the accused. The contention predicated upon prejudice is, therefore, entirely devoid of legal substance.

11.It is equally a matter of cardinal significance that the primary and overarching objective of a criminal trial is the unearthing of substantive truth and the upright administration of justice. Technicalities or formal oversights that do not strike at the root of the matter, nor occasion any real or palpable prejudice, must never be permitted to defeat the ends of justice. It can be aptly noted that the prosecution cannot be licensed to plug glaring loopholes or reconstruct a fundamentally infirm case, mere procedural lapses touching upon the formal exhibition of material case property, which was recovered during investigation and already duly chronicled in the police record and the testimony of the witness, ought not to be allowed to culminate in a miscarriage of justice. This Court finds itself in complete and unreserved agreement with this judicious approach.

12.It is a fundamental precept of procedural law that the revisional jurisdiction of this Court, anchored in Sections 435 and 439 Cr.P.C., is supervisory and corrective in nature. It is by no means an appellate forum,

nor does it empower this Court to substitute its own opinion for that of the trial Court upon a matter resting purely within the realm of judicial discretion, save where the impugned order is demonstrated to be tangibly illegal, perverse, coram non judice, or productive of a manifest failure of justice. No such fatal infirmity has been shown to afflict the order under challenge. The trial Court has correctly comprehended and applied the governing legal canons, judiciously balanced the competing demands of the adversarial model against the overarching imperative of securing a just adjudication, and scrupulously safeguarded the constitutional rights of the accused. In these circumstances, no case for revisional interference is made out.

13.For the foregoing reasons, this Court is of the considered view that the order dated 15.09.2026 passed by the learned Additional Sessions Judge, Ferozewala, does not suffer from any illegality, irregularity or jurisdictional error. The application under Section 540 Cr.P.C. was rightly accepted for the limited purpose of formal exhibition of the recovered articles, subject to the defence’s right of cross-examination. The impugned order is accordingly upheld.

14.Before parting with the case, it is observed that the learned trial Court shall strictly ensure that the re-examination of PW-9 remains scrupulously confined to the formal tendering and exhibition of the three specified articles delineated in the underlying application and the impugned order.

Concurrently, the defence shall be afforded a full, uninhibited, and fair opportunity of cross-examination on all facets pertaining to the said articles.

The trial Court is further directed to proceed with the trial with real dispatch,

thereby ensuring that the solemn rights of both the prosecution and the defence remain fully protected, and the ends of justice are advanced without uncalled-for or unnecessary delay.

15.In the result, the instant criminal revision petition is dismissed. The impugned order dated 15.09.2026 passed by the learned Additional Sessions Judge, Ferozewala, is upheld and maintained. There shall be no order as to costs. A copy of this judgment shall be sent to the trial Court for information and compliance. Judicial record of trial Court be sent back, immediately.

(Amir Ajam Malik) Judge Approved for reporting.

Judge Gulzar*