ISLAMABAD: The Supreme Court has issued guidelines on the exercise of powers under Section 540 of the Code of Criminal Procedure (CrPC), 1898, clarifying that trial courts may summon additional evidence when necessary for justice but cannot use that authority to strengthen the prosecution’s case or remedy fundamental weaknesses in its evidence.
In a 10-page judgment authored by Justice Muhammad Salahuddin Ahmed Panwar, the court examined the role of a criminal court in Pakistan’s adversarial justice system and the relationship between Sections 94 and 540 of the CrPC, Article 161 of the Qanun-e-Shahadat Order, 1984, and the constitutional right to a fair trial.
The three-member bench, headed by Justice Muhammad Hashim Kakar, observed that a criminal court must remain impartial without becoming a passive observer of proceedings.
The judgment emphasised that the prosecution retains the burden of proving an accused person’s guilt, while the court remains responsible for ensuring that its decision is lawful, fair and based on evidence essential to the administration of justice.
Court Explains Scope of Sections 94 and 540
The Supreme Court explained that Section 94 of the CrPC empowers a court to order the production of documents or other material whenever it considers them necessary or desirable for an inquiry or trial.
Section 540, meanwhile, allows a court at any stage of proceedings to summon a witness, examine a person present in court, or recall and re-examine someone who has already testified.
The judgment distinguished between the two parts of Section 540. While the first gives the court discretionary authority to obtain additional evidence, the second makes its exercise mandatory when that evidence appears essential to a just decision.
The bench noted that Pakistan’s criminal justice system is primarily adversarial, meaning that the prosecution and defence present their respective cases. However, courts also possess limited statutory powers to obtain evidence independently when required for justice.
These powers, the judgment clarified, do not permit a judge to assume the prosecution’s role.
Seven Principles for Trial Courts
The Supreme Court laid down seven principles governing the use of Section 540.
First, although criminal trials follow an adversarial structure, courts may exercise limited evidence-gathering powers under Sections 94 and 540 of the CrPC and Article 161 of the Qanun-e-Shahadat Order.
Second, the initial part of Section 540 is discretionary, whereas its latter part becomes mandatory when the evidence is essential to reaching a just decision.
Third, a person may be examined under Section 540 even if their name does not appear in the original list of witnesses or their statement was not previously recorded under Section 161 of the CrPC. Neither circumstance automatically prevents the court from calling that person.
Fourth, Section 265-C requires the timely provision of existing material that must legally be disclosed to the accused. It does not require the prosecution to produce a witness statement that was never recorded.
Fifth, courts must not invoke Section 540 merely to improve either party’s case or overcome an inherent deficiency in the evidence.
Sixth, when additional evidence is introduced, the accused must receive adequate safeguards against unfair surprise, including disclosure of the material, sufficient opportunity to prepare a response and the right to cross-examine witnesses.
Seventh, the consequences of any procedural irregularity must be determined by the actual prejudice caused to the accused. Calling additional evidence during an ongoing trial does not automatically require the entire proceedings to begin again.
Fair Trial Must Remain Central to Judicial Discretion
The judgment makes clear that trial courts have a responsibility to obtain evidence necessary for a fair decision, but that responsibility must be exercised within the limits of the law.
Judges cannot remain passive when essential material is missing, nor can they intervene simply to repair shortcomings in the prosecution’s case.
The Supreme Court’s guidelines seek to preserve that distinction while protecting the accused’s constitutional right to a fair trial.
