Article 133 Re-examination Is a Right, Section 540 Recall Is Not: Supreme Court

Independently written and published by Shahbaz Shah Legal Journal.

Re-examination and recall follow different legal routes

The Supreme Court of Pakistan has distinguished a party’s ordinary right to re-examine its witness under Article 133 of the Qanun-e-Shahadat Order, 1984, from the court’s power to recall a witness under section 540 of the Code of Criminal Procedure, 1898. A party that misses the ordinary opportunity cannot later demand recall as a matter of right. The court’s power nevertheless survives where the evidence is essential to a just decision. Judgment, paragraphs 8–12

The Supreme Court’s judgment in Criminal Petition for Leave to Appeal No. 251-P/2026 is by Justice Salahuddin Panhwar, sitting with Justice Muhammad Hashim Khan Kakar. The hearing and short order are dated 23 October 2026. Judgment, pages 1 and 10.

In The State through Special Prosecutor, ANF v. Kamil Shah and another, the Court refused leave to appeal against a Peshawar High Court judgment setting aside an order permitting recall of a prosecution witness. The record did not satisfactorily establish why further examination was essential to decide the case justly. Judgment, paragraphs 13 and 17–18

The decision concerns the conduct of witness examination in a pending narcotics trial. It does not acquit the accused or decide the underlying charge. The prosecution’s unsuccessful petition challenged the refusal to recall PW-03. Judgment, paragraphs 1–3 and 17

Why the prosecution sought recall

Muhammad Ashraf, PW-03, gave his examination-in-chief on 4 September 2025. His cross-examination was deferred and took place on 10 June 2026, approximately nine months later. The prosecution did not then seek re-examination under Article 133 or ask that the witness remain available for that purpose. Instead, it submitted a separate section 540 application on the same day. Judgment, paragraphs 2–3

The Special Court allowed the application on 20 June 2026. The Supreme Court recorded that the order lacked cogent reasons explaining why re-examination was essential. The High Court set it aside on 16 July 2026 in Criminal Miscellaneous (Q) No. 23-P/2026, prompting the State’s petition. Judgment, paragraphs 1 and 3

The prosecutor argued that the lengthy cross-examination had produced matters requiring clarification. The Supreme Court’s response was to distinguish the available procedures and their respective thresholds. Judgment, paragraphs 4–5 and 7–13

Article 133 provides the ordinary opportunity

Article 133 regulates the sequence of examination-in-chief, cross-examination and re-examination. Within its ordinary scope, re-examination is available at the desire of the party that called the witness. A formal written application is not mandatory when counsel seeks explanations of matters referred to in cross-examination. Judgment, paragraphs 8–10

The purpose is broader than correcting an obviously ambiguous answer. Counsel may seek an explanation or further detail concerning any matter touched upon in cross-examination. The judgment discusses Rammi alias Rameshwar v. State of M.P., (1999) 8 SCC 649, on that point. That Indian decision is cited in the Pakistani judgment as an interpretive comparison, not as Pakistani legislation. Judgment, paragraph 11

Entirely new matter requires the court’s permission under Article 133(3). If permission is granted, the opposing party has a corresponding opportunity to cross-examine on that new matter. Ordinary re-examination is therefore a right within defined limits, subject to the court’s supervision. Judgment, paragraphs 8–11

Section 540 requires an independent judicial assessment

Section 540 permits a criminal court, at any stage, to summon or examine a person, or recall and re-examine someone already examined. Its first part is discretionary. Its second part requires action where the evidence appears essential to a just decision. Judgment, paragraph 7

The court must identify the inadequacy in the existing record and explain how the proposed evidence would address it. Relevance, convenience or an advantage to a litigating party does not, by itself, satisfy that inquiry. The power must not become a means simply to strengthen the prosecution or cure an inherent evidentiary deficiency. Judgment, paragraph 7

Missing Article 133 does not extinguish section 540 jurisdiction. However, it does mean that the party can no longer insist on recall merely by invoking the earlier procedural opportunity. The court must assess necessity independently and preserve fairness and due process under Article 10A. Judgment, paragraph 12

What trial lawyers should take from the ruling

The practical course identified by the Court is to follow the answers given during cross-examination and seek any necessary explanation under Article 133 before the witness is discharged. Where new matter is proposed, counsel should identify it and obtain permission, preserving the other side’s further cross-examination. Judgment, paragraphs 10 and 14–15

A later section 540 request should identify the precise proposed evidence, explain why the existing record is insufficient for a just decision and address the safeguards required for the opposing party. In this case, the prosecution failed to establish the required necessity. Judgment, paragraphs 7, 12–13 and 15

The Court directed circulation of the judgment through High Court Registrars to the district judiciary and through the provincial and Islamabad Prosecutor Generals to prosecutors. Judgment, paragraph 16

Frequently asked questions

Is re-examination limited to ambiguous answers?

No. It may explain or elaborate on matters referred to in cross-examination. New matter requires the court’s permission. Judgment, paragraphs 10–11

Is a written Article 133 application compulsory?

Not for re-examination within its ordinary scope. The judgment permits an oral request or an application; permission is required to introduce new matter. Judgment, paragraph 10

Does missing re-examination permanently bar recall?

No. Section 540 remains available where the court independently finds the evidence essential to a just decision. Recall cannot then be demanded as a party’s automatic right. Judgment, paragraph 12

Were Kamil Shah and the other respondent acquitted?

This judgment does not decide their guilt or innocence. It dismisses the State’s challenge concerning recall of a witness. Judgment, paragraphs 1–3 and 17–18

Related reading

Read the related analysis of section 540 and new witnesses without an automatic new trial.

Source

Read the complete 10-page judgment in Criminal Petition for Leave to Appeal No. 251-P of 2026. The linked PDF reproduces the complete document provided and verified by the uploader.