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Official Citation: 2026 LHC 2052
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Ali Zia Bajwa)
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Ali Zia Bajwa), officially reported as 2026 LHC 2052. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Ali Zia Bajwa) DECISION DATE: 16-03-2026 TAGLINE: While Section 540 Cr.P.C. empowers the Court to recall a witness, the scope of re-examination is confined by Article 133(3) of the Qanun-e-Shahadat Order, 1984, to matters arising out of cross-examination. CASE DETAILS: Crl. Appeal 10516/26 ============================================================ .
Stereo. H C J D A 38. Judgment Sheet IN THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
Crl. Appeal No.10516/2026 (Mst. Nasreen Fatima alias Nusro. Vs. The State and another)
JUDGMENT
Date of hearing: 16.03.2026 Appellant by: M/s. Muhammad Aslam and Abid Mehmood, Advocates. State by: Ms. Nuzhat Bashir, Deputy Prosecutor General.
ALI ZIA BAJWA, J:- Through the instant Criminal Appeal, preferred under Section 48 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as ‘the CNSA’), the appellant has impugned the order dated 14.02.2026 rendered by the learned Judge, Special Court constituted under the CNSA, Lahore, whereby re-examination of a prosecution witness was allowed. 2. The factual matrix giving rise to the present appeal is that FIR No. 3783/2024 was registered against the appellant under Sections 9(1)-3(d) and 15 of the CNSA at Police Station Nawab Town, Lahore . Upon submission of the report under Section 173 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ‘the Code ’), the appellant was formally indicted, whereafter the prosecution evidence was duly recorded. Upon the close of the prosecution evidence, the statement of the appellant under Section 342 of the Code was recorded, and the matter was thereafter fixed for final arguments. At that stage, the prosecution move d an Crl. Appeal No.10516/2026
(2) application seeking permission to re-examine PW-6, Amir Naseer 3679/HC. The prosecution was aggrieved by the statement of PW -6, Amir Naseer (Head Constable), who, during his examination-in-chief, deposed that he had received six sealed parcels containing the bulk quantity of narcotics (charas) from Nadeem Abbas, Sub -Inspector for keeping the same in Saddar Malkhana. However, according to the record, the said parcels were handed over to him by Shahid Mahmood Khan, S.I., the complainant of the case. The application filed by the prosecution was allowed, and permission was accordingly granted to re-examine the witness; hence, the instant appeal. For better comprehension, the statement of PW -6 has been scanned and is reproduced hereinafter. PW-6 27.11.2025
Statement of Amir Naseer 3679/HC, presently posted at P.S Baghbanpura, Lahore as Moharrar, on oath.
It is stated that 12.06.2024, I was posted as Moharrar Sadar Malkhana, Lahore and on the same day, Nadeem Abbas SI/OCU handed over six sealed parcel of remaining case property of charas to me for keeping the same in sadar malkhana, Lahore which I kept the same in malkhana sadar. I.O recorded my statement u/s 161 Cr.P.C. X X X X X X By Abid Mehmood Kasuri advocate, learned defence counsel. The statement u/s 161 Cr.P.C dated 12.06.2024 is correct and I.O. recorded the same as I had got recorded to him. I do not remember the time when Nadeem Abbas SI handed over remai ning case property to me.
R.O.&.A.C: 27.11.2025 3. Arguments advanced by the learned counsel for the appellant as well as by the learned Deputy Prosecutor General have been heard at considerable length. The entire record, including the impugned order and the material placed on file, has been carefully perused with their able assistance. 4. The prosecution has placed reliance upon Section 540 of the Code as well as Article 133(3) of the Qanun -e-Shahadat Order, 1984 (hereinafter referred to as ‘the Order ’), in seeking permission for the re - Crl. Appeal No.10516/2026
(3) examination of the prosecution witness. Before adverting to the merits of the controversy at hand, it would be advantageous and appropriate to delineate the scope, ambit, and underlying object of the aforesaid provisions. A proper appreciation of the legislative intent and the judicial interpretation thereof is essential for the just determination of the issue involved. At the outset, it would be appropriate to examine the scope and ambit of Section 540 of the Code. Accordingly, for the sake of clarity and better understanding, the said provision is reproduced hereinafter. 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 re -call and re -examine any person already examined; and the Court shall summon and examine or re -call and re - examine any such person if his evidence a ppears to it essential to the just decision of the case. It is pertinent to observe that Section 540 of the Code is incorporated in Chapter XLVI thereof, which is captioned ‘Miscellaneous’. This provision is manifestly divided into two distinct parts. The use of the word ‘may’ in the first limb confers discretionary power on the Court, whereas the word ‘shall’ in the second limb imposes a mandatory duty to exercise that power when necessary for a just decision of the case. The first part is discretionar y, empowering a Criminal Court at any stage of inquiry, trial, or other proceedings under the Code to summon any person as a witness, examine any person present though not summoned, or recall and re -examine a previously examined person, whereas the second part is mandatory, requiring the Court to summon, examine, or recall and re -examine any person if it considers such evidence essential for a just decision of the case. The use of expressions such as ‘any Court’, ‘at any stage ’, ‘of any inquiry, trial or other proceedings’, ‘any person’, and ‘any such person’ demonstrates that the provision is couched in the widest possible terms and does not, in its language, circumscribe the powers of the Court. However, the breadth of this authority demands that the discr etionary power under the first limb be exercised judiciously, with due care and in harmony with the scheme of the Crl. Appeal No.10516/2026
(4) Code. The second limb, in contrast, is mandatory in nature and obliges the Court to summon and examine, or to recall and re -examine any such person, where the evidence appears to be essential for the just decision of the case. Where a party draws attention to the necessity of certain evidence, the Court must consider exercising its power, discretionary or mandatory, as the case may be, bearing i n mind that the overarching object of the provision is to discover the truth and secure the ends of justice. 5. It is a cardinal principle of the law of evidence that the best available evidence must be produced before the Court to establish the facts in issue. While it is for the prosecution and the defen se to prove their respective cases by adducing such evidence as they consider appropriate, and the Court cannot compel either party to examine any particular witness, an adverse inference may nonetheless be drawn under Article 129, illustration (g) of the Order where a party withholds evidence which could be produced and which, if produced, would operate against it. At the same time, the Court is not a mere passive umpire in a contest betw een adversaries. It bears an independent obligation to discover the truth and to ensure that justice is both done and seen to be done. It is in furtherance of this duty that Section 540 of the Code confers wide powers upon the Court to summon, examine, rec all, or re -examine any person at any stage of the proceedings where such evidence appears essential for the just decision of the case, so as to prevent miscarriage of justice arising from an incomplete or speculative presentation of facts. 1 Section 540 of the Code partakes of an inquisitorial character, inasmuch as it empowers the Court to actively intervene in the proceedings for the purpose of eliciting the truth and ensuring a just determination of the case. 6. The next significant question that arises for consideration is whether Section 540 of the Code confers upon the Court a carte blanche, that is to say, an unfettered and unbridled authority devoid of any governing
1 Mohanlal Shamji Soni vs Union Of India And Another - AIR 1991 SC 1346 Crl. Appeal No.10516/2026
(5) principle, and whether the extraordinary power vested therein is unguided, uncontrolled and uncanalised in its exercise. It is incumbent upon the Court to exercise due caution while invoking the powers under this section. Such authority must not be employed to fill up lacunae left by the prosecution or the defen se, nor should it be exerci sed in a manner that operates to the disadvantage of the accused, causes serious prejudice to the defence, or confers an unfair advantage upon either side. Equally, the reception of additional evidence under the guise of this provision must not be permitte d to result in a retrial or to alter the fundamental nature of the case as originally presented by either party. Reliance may be placed on the authoritative judgments of the Supreme Court of Pakistan rendered in Shah Jahan and another v s. Raheem Shah and o thers (2022 SCMR 352) , Muhammad Saleem v s. Muhammad Azan and another (2011 SCMR 474) , and Liaquat Ali and others v s. The State (2000 SCMR 1455) . Moreover, Article 10-A of the Constitution of the Islamic Republic of Pakistan , 1973 guarantees the right to a fair trial and due process. A fair trial mandates that neither party be afforded any undue advantage. Accordingly, the prosecution cannot be permitted to fill lacunae in its case where such indulgence would occasion prejudice to the accused. 7. Now, to properly appreciate and explore the true scope and ambit of re-examination, Article 133 of the Order is reproduced below: 133. Order of examination. —(1) Witnesses shall be first examined -in-chief, then (if the adverse party so de sires) cross-examined then (if the party calling him so desires) re-examined. (2) The examination and cross -examination must relate to relevant facts but the cross-examinations need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re -examination shall be directed to the explanation of matters referred to in cross -examination and, if new matter is, by permission of the Court, introduced in re -examination, the adverse party may further cross -examine that matter. (Relevant portion highlighted for emphasis) Crl. Appeal No.10516/2026
(6) Article 133 of the Order lays down the sequence in which a witness is to be examined. It provides that the examination-in-chief of a witness shall first be recorded, followed by cross-examination by the adverse party, and thereafter re-examination by the party who called the witness. While cross - examination may extend to all relevant facts and is not confined to matters stated in examination -in-chief, re -examination, conversely, is limited to explaining m atters arising out of cross -examination. However, if with the permission of the Court any new matter is introduced during re-examination, the adverse party is entitled to further cross -examine the witness on that matter. Article 133(3) of the Order restricts the scope of re -examination to the clarification of matters arising out of cross -examination and does not permit a party to fill lacunae or to improve upon the testimony given in examination-in-chief. Cross-examination and re-examination are distinct and sequential stages, each with a defined scope and object. Cross-examination, conducted by the adverse party, has a wide ambit to test veracity, credibility, and reliability of the witness. It permits leading questions to elicit favourable facts, expose in consistencies, confront prior statements, and impeach the credit of the witness. Re-examination, conducted by the party calling the witness, is narrowly limited to explaining matters arising in cross - examination and cannot be used to repair omissions or re construct the case. Re-examination is not an independent or parallel stage of evidence . It arises only after the completion of cross -examination. There can be no re - examination immediately following examination -in-chief, for its very purpose is to clarify or explain matters brought forth during cross - examination. In the absence of cross -examination, the occasion for re - examination does not arise. 8. Admittedly, the prosecution was aggrieved by a portion of the statement made by its own witness, PW -6, duri ng examination -in-chief. However, nothing elicited in cross -examination had prejudiced its case, nor had the witness stated anything requiring clarification. Consequently, there was no occasion for the trial Court to permit the re -examination of PW-6. It Crl. Appeal No.10516/2026
(7) is manifest that the trial Court, through the impugned order, has permitted the prosecution to bolster its case by filling in lacunae and plugging inherent loophole. Such a course, if sustained, would effectively allow the prosecution to rectify defects at a belated stage of the proceedings, thereby causing serious prejudice to the appellant. The Court is under a duty to maintain a fair balance between the rights of the parties, ensuring that neither party suffers prejudice and that the ends of justice are met. It would not be out of place to observe that the proper course for the prosecution was to invoke Article 150 of the Order, by moving an application immediately after examination -in-chief to seek permission to cross -examine its own witness, particularly where he resiled from his earlier statement or deposed contrary to the record. Such recourse is specifically provided to address hostile or deviating witnesses, enabling the prosecution to test veracity and confront prior inconsistent statements, rather than resorting to impermissible means. It appears that the learned prosecutor realized the weakness in the case only at the stage of final arguments and, in an attempt to remedy the defect, moved an application for re -examination of PW -6 namely Amir Naseer 3679/HC. Such a course was belated and misconceived, as the appropriate stage had already passed, the application, therefore, merited dismissal. 9. Although Section 540 of the Code confers upon the Court plenary power to recall and re -examine any witness at any stage of the trial, it does not define or regulate the scope or conditions under which such recall for the purpose of re -examination is permissible . The power under this section is essentially facilitative in nature, enabling the Court to recall and re-examine a witness where such course appears necessary for the just decision of the case. However, the substantive scope of re -examination is governed by Article 133(3) of the Order, which restricts re -examination to the explanation of matters arisin g out of cross -examination. Consequently, while Section 540 of the Code provides the mechanism enabling the Court to recall and re-examine a witness at any stage of the trial, the scope of such re- Crl. Appeal No.10516/2026
(8) examination is governed by Article 133(3) of the Order. Therefore, the procedural power under Section 540 of the Code cannot be exercised in a manner that circumvents or expands the substantive limitations imposed by Article 133(3) of the Order. This view is further fortified by Article 165 of the Order, which con fers overriding effect upon its provisions over those of the Code. 10. In view of the above, the impugned order, having been passed on erroneous legal premises, is not sustainable; consequently, the appeal is allowed and the impugned order is set-aside.
(FAROOQ HAIDER) JUDGE (ALI ZIA BAJWA) JUDGE Approved for Reporting
(FAROOQ HAIDER) JUDGE (ALI ZIA BAJWA) JUDGE The judgment was dictated on 16.03.2026 and after completion it was signed on 31.03.2026.
Riaz