IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE SAJJAD ALI SHAH 
 
 
Civil Appeal No.1085 of 2017  
(On appeal from the order dated 18.4.2017 
passed by the Peshawar High Court, Peshawar 
in W.P. No.1230-P/2017) 
 
 
 
Chairman NAB 
…Appellant 
 
VERSUS 
Muhammad Usman and others 
….Respondents 
 
 
For the appellant(s): 
 
Mr. Arshad Qayyum, Special Prosecutor 
 
 
For respondents No.1 & 2: 
Mr. Shumail Butt, ASC 
 
Date of hearing: 
 
 
21.9.2017 
 
 
 
JUDGMENT 
 
 
 
  
 
Dost Muhammad Khan, J:-  
  
This appeal with the leave of the Court is against the 
judgment 
of 
the 
Peshawar 
High 
Court 
dated 
18.4.2017. 
The 
Accountability Court, Peshawar vide order dated 9.3.2017 declined 
request of the respondents for summoning 33 prosecution witnesses, 
who were already examined and cross-examined, however, it was set 
aside through the impugned judgment.   
C.A No.1085/17 
2 
 
  
We have heard the learned ASC for the appellant and the 
learned ASC for the respondents-accused and have gone through the 
relevant provisions of law and also the case-laws cited at the bar.  
2. 
  
The respondents were charged for collecting huge money 
from several persons, wanted to perform “Hajj”, however, they allegedly 
misappropriated the same and did not perform their promise.  
3. 
  
Initially, cognizance of the case was taken by the FIA, 
Peshawar but then it was transferred to the NAB. The latter after 
conducting inquiry, converted it into investigation and at the conclusion 
thereof, Reference No.2 was filed in the Accountability Court, Peshawar. 
At the conclusion of the prosecution evidence, the respondents accused 
submitted a long list of defence witnesses including 33 witnesses of the 
prosecution, they wanted to examine as defence witnesses, albeit these 
witnesses were earlier examined by the Prosecution and were cross-
examined, however, no reason much less plausible was shown for such a 
venture.  
4. 
  
The learned Division Bench of the High Court in paras 6 & 7 
of the impugned judgment has held as under:- 
“Under the provisions of sections 265-F and 540 Cr.P.C 
the trial Court has wide powers and the respondent 
accused/defence has a right to produce any witness 
already examined by the Prosecution and this right 
cannot be denied to the accused-respondent.”  
 
  
To know the true meaning and import of the two provisions 
of law, same are reproduced as follows: - 
“S.265-F. Evidence for prosecution: 
 (1)…………………………………(not relevant) 
(2)…………………………………(not relevant) 
C.A No.1085/17 
3 
(3)…………………………………(not relevant) 
(4)…………………………………(not relevant) 
(5)…………………………………(not relevant) 
(6)  
If the accused, or any one of several accused, says 
that he means to adduce evidence, the Court shall call on the 
accused to enter on his defence and produce his evidence;  
(7)  
If the accused or any one or several accused, after 
entering on his defence, applies to the Court to issue any 
process for compelling the attendance of any witness for 
examination or the production of any document or other 
thing, the Court shall issue such process unless it considers 
that the application is made for the purpose of vexation or 
delay or defeating the ends of justice such ground shall be 
recorded by the Court in writing.” 
“S.540. Power to summon material witness or examine 
persons 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.” 
6. 
  
Under the former provision of Cr.P.C, it is the Prosecution to 
produce and examine its witnesses, who are necessary to place before 
the Court the true version of a case, while the accused/defence has a 
right to cross-examine them, which opportunity on all the 33 witnesses 
was fully availed by the accused-respondents.  
7. 
  
The latter provision i.e. section 540 Cr.P.C. empowers the 
Court to examine any witness, present in Court or to produce any 
document in his possession or to summon and re-examine any 
person/witness already examined and it shall summon and examine any 
such witness, if it is of the view that its evidence or further evidence is 
C.A No.1085/17 
4 
necessarily required to reach at a just conclusion by securing the ends of 
justice.  
8. 
 
The production and examination of witnesses has also been 
explained by various provisions contained in Chapter 10 of the Qanun-e-
Shahadat Order, 1984. This provision in unequivocal terms prescribes 
the mode and manner of examination of witnesses. The prosecution 
witnesses or any party calling and examining the witnesses is called, 
‘examination-in-chief’ while examination of the same witnesses by the 
opposite party is called, ‘cross-examination’. Subsequent examination 
of the same witnesses by the party calling it, is called ‘re-examination’. 
The latter exercise is conducted with the permission of the Court 
whenever any ambiguity or vacuum is created in the testimony of 
witness/witnesses during the course of cross-examination to explain the 
same and not for dishonest improvement.  
9. 
  
The Courts are required to guard and protect the witnesses 
against undue harassment and undesirable cross-examination, not 
relevant to the fact in issue but directed against the witnesses by way of 
bush-beating, putting them to unnecessary strain and stress so that 
something is brought about from their mouth after they are exhausted 
through such undue process.  
10. 
  
The famous Jurist on the law of evidence, “Wigmore” has 
placed the status of the witnesses on high pedestal and has described 
them ‘engines and machines/essential tools’, without whose assistance 
and evidence the Courts would be unable to do justice or to reach at a 
correct conclusion therefore, he suggests that it is the primary duty of 
the Court to safeguard the interest of the witnesses in a reasonable 
manner and they are to be protected from undue harassment. 
C.A No.1085/17 
5 
11. 
  
The 3rd category of witnesses is called ‘Court witnesses’, 
who are examined or re-examined by the Court, when at trial, the Court 
is of the view that their evidence is essential for the just and fair decision 
of the case in discovering the truth. These powers have been conferred on 
the Court with the only object that justice is not slipped out of the hands 
of the Court nor it get out of its domain because doing justice in each 
case is the primary obligation of every Court and not the party in an 
adversarial system of justice. The role of the Court under the provision 
of S.540 Cr.P.C is inquisitorial where it endeavours to discover the 
truth, suppressed by both or one party to the case to incapacitate the 
Court to reach at a just conclusion. The role of the Judge does not 
undergo change because in exercising inquisitorial powers, the law has 
imposed obligation on it to discover the truth and to secure the ends of 
justice.  
12. 
  
From the entire scheme of above provisions of Cr.P.C. and of 
the provisions of the Qanun-e-Shahadat Order, 1984, it becomes clearer 
than crystal that the two categories of witnesses i.e. the prosecution 
witnesses and the defence witnesses are distinctly placed pole apart and 
both cannot and shall not be intermingled.  
13. 
  
The words used, Vexation, causing delay in the trial or 
defeating the ends of justice are of vital connotation and discretion is 
vested in the Trial Court to refuse the summoning or examining any 
witness by the Defence if the purpose is to defeat such ends. 
14. 
  
There may be very rare and exceptional cases, where, the 
prosecution has dropped any material witness whose evidence, if given, 
may have a direct bearing on the end result of the case, in that event, the 
Court is blessed with unfettered powers to summon and examine such 
C.A No.1085/17 
6 
witness only for the purpose of discovery of truth, for the purpose of 
doing complete justice however, such powers are not to be exercised at 
random and without application of proper judicial mind with reasonable 
depth to the facts of each case. Unmistakenly, in view of the provision of 
S.540 Cr.P.C. the witnesses are examined as ‘court witnesss’ and not for 
prosecution or defence, therefore, none of the parties to a case can claim 
such a right. These powers shall only be exercised to put justice into 
correct channels.  
15. 
  
The discretion so vested in the Trial Court ordinarily cannot 
be questioned and that too in extraordinary constitutional jurisdiction 
unless it is shown and established that exercise of such powers by the 
Trial Court or by not exercising the same, has resulted into a grave 
miscarriage of justice, therefore, calling the witness of the other party as 
its own witness, even in criminal trials, already examined, is not 
acknowledged by the law on the subject, therefore, it is neither desirable 
nor such a practice can be approved. In exceptional cases, where 
material witness has been dropped by the prosecution in the 
circumstances discussed above, the Court may exercise powers with due 
care and caution. However, in that case too, the prosecution 
witness/witnesses cannot be examined as defence witnesses but court 
witness/witnesses and for that, a written request is made to the Court 
showing cogent and convincing reasons for calling and examining any 
witness of the prosecution, not examined or has already been examined 
to be re-examined as court witness.  
16. 
  
 If the witnesses of the prosecution already examined in bulk 
like in this case, are called as defence witnesses u/s 265-F Cr.P.C. this 
would defeat the ends of justice besides corrupting the system of justice 
C.A No.1085/17 
7 
through intrigues. In case they make improvement in favour of the 
defence, making radical departure from their earlier statements, they 
would compromise their integrity and would also expose themselves to 
criminal prosecution on the charge of perjury therefore, such a course 
shall be avoided in all circumstances to streamline the process and to 
ensure that trials are not delayed and course of justice is not thwarted by 
such tactics and tricks.  
17. 
  
It is the bedrock principle of law that discretion once 
exercised by the Court vested in it by law, shall in no manner be 
disturbed or set aside by the courts superior in rank. This principle shall 
apply more vigorously in constitutional jurisdiction of the High Court 
under Article 199 thereof, which shall be exercised sparingly and 
considerable restraints should be exercised in this regard.  
18. 
  
As held time and again that the powers of judicial review 
vested in High Court under Article 199 of the Constitution is no doubt a 
great weapon in the Judge’s hands however, the same shall not be 
exercised in a case where discretion is exercised by the subordinate 
court/Tribunal in a fair and just manner without violating or 
disregarding statutory provision of law, likely to occasion the failure of 
justice. Ordinarily such extraordinary jurisdiction shall not be exercised 
at random and in routine manner. The following case law is reproduced 
for the guidance of the learned Judges of the High Court for future 
course of action:- 
(i) 
Brig.(Rtd.) Imtiaz Ahmed v. Government of Pakistan, through 
Secretary, Interior Division, Islamabad (1994 SCMR 2142) 
 
(ii) 
Shahnaz Begum v. The Hon’ble Judges of the High Court of Sindh  
 
 
and Baluchistan (PLD 1971 SC 677) 
 
(iii) 
Malik Shauktat Ali Dogar v. Ghulam Qasim Khan Khakwani  
C.A No.1085/17 
8 
(PLD 1994 SC 281) 
19. 
  
In our considered view, the learned Division Bench of the 
Peshawar High Court through the impugned judgment has certainly 
overstepped its jurisdiction vested in it under Article 199, probably due 
to lack of proper assistance at the bar, however, one cannot ignore the 
fundamental principle relating to administration of justice that law is 
written on the sleeves of the Judges and it is the primary duty of a Judge  
to apply the correct law to a case before it and even the party is not 
bound to engage a counsel for telling the Court how a particular law is to 
be applied and how the jurisdiction is to be exercised thus, the impugned 
judgment being not sustainable in law, is set at naught.  
 
According, this appeal is allowed and the impugned judgment of 
the Peshawar High Court dated 18.4.2017 is set aside while that of the 
Accountability Court is restored.  
Judge  
 
 
Judge  
 
 
Judge  
Islamabad, the  
21st September, 2017 
Nisar /- 
 
‘Approved for reporting.  
