IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CRIMINAL PETITION NO. 801 OF 2021 
(On appeal against the judgment dated 11.06.2021 
passed by the Peshawar High Court, Peshawar in 
Criminal Revision No. 49-P/2021) 
 
Shah Jehan and another 
… Petitioners 
VERSUS 
Raheem Shah and others 
… Respondents 
 
For the Petitioners: 
Mr. Ghulam Mohy-ud-din Malik, ASC 
 
 
 
For the State: 
 
Mr. Shumyl Aziz, Addl. A.G. KPK 
 
Date of Hearing: 
 
20.10.2021 
 
ORDER 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition 
under Article 185(3) of the Constitution of Islamic Republic of 
Pakistan, 1973, the petitioners have called in question the judgment 
dated 11.06.2021 of the Peshawar High Court, Peshawar passed in 
Criminal Revision No.49-P/2021 with the prayer to set aside the 
same in the interest of safe administration of criminal justice. 
2. 
 
The facts of the case are that a case bearing FIR 
No.1706 dated 30.11.2019 under Sections 302/324/148/149 PPC 
was registered at Police Station Faqirabad, District Peshawar at the 
instance of Zewar Khan son of Gul Roz Khan. After the registration 
of the aforesaid crime report, the matter was investigated by the 
Investigating Officer and the report in terms of Section 173 Cr.P.C. 
was submitted before the Trial Court. During the pendency of the 
proceedings, an application under Section 540 Cr.P.C. was filed to 
summon Raheem Shah, father of the deceased and Sadiq Khan, 
who was one of the eye-witnesses of the occurrence and re-
examination of Zewar Khan (PW-6) and Uzair Khan (PW-8) as they 
were turned hostile during trial. The Trial Court vide order dated 
15.02.2021 allowed the application to the extent of summoning of 
Raheem Shah, father of the deceased and Sadiq Khan, who 
Criminal Petition No. 801/2021 
2
happens to be one of the eye-witnesses of the crime report, whereas 
the application to the extent of re-summoning and re-examining of 
Zewar Khan (PW-6) and Uzair Khan (PW-8) was dismissed as their 
examination-in-chief and cross-examination has already been 
completed, thus, there is no occasion for re-calling them for re-
examination. The order of the Trial Court was challenged before the 
High Court in Criminal Revision No.49-P/2021 which was allowed 
vide judgment dated 11.06.2021. Hence this petition. 
3. 
 
The main crux of the arguments advanced by the 
learned counsel for the petitioners is that the Trial Court as well as 
the High Court while adjudicating the matter with respect to the 
application which was filed under Section 540 Cr.P.C. have gone 
beyond the scope of the law. Contends that it is an established 
principle of law that in criminal matter, new witnesses cannot be 
brought on the record unless and until they are necessary for the 
just decision of the case and those can be brought if they join 
investigation from the initiation of the proceedings. Contends that 
Raheem Shah, father of the deceased was neither cited as witness 
nor mentioned in calendar of witnesses in report under Section 173 
Cr.P.C. The application for summoning of Raheem Shah, father of the 
deceased along with Sadiq Khan was moved for the first time on 
26.01.2021 after the lapse of about 14 months and that too when 
the statement of the ocular account was recorded and cross-
examination was completed by the learned defence counsel. 
Contends that the statement of Sadiq Khan was not recorded and 
that the observations given by the High Court are unwarranted and 
as such it would squarely prejudice the case of the petitioners, 
therefore, the observation passed by the learned High Court while 
exercising revisional jurisdiction is uncalled for. 
4. 
 
On the other hand, the learned Law Officer supported 
the order of the Trial Court as well as the revisional judgment 
passed by the High Court. It is mainly contended that the witnesses 
of ocular account, namely, Zewar Khan (PW-6) and Uzair Khan (PW-
8) have given their statements according to their conscious and the 
fate of the same is yet to be decided, therefore, the order of the Trial 
Court permitting to introduce new witnesses (father of the deceased, 
who is not mentioned in the crime report and Sadiq Khan, already 
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3
mentioned in the crime report) is fully justified whereas the judgment 
of the High Court in revisional jurisdiction is unexceptionable. Lastly, 
it is argued by the learned Law Officer that the judgment impugned 
before us would not prejudice the case of the petitioners in any 
manner whatsoever, therefore, the same is passed squarely in 
accordance with law.  
5. 
 
We have heard the learned counsel for the parties and 
gone through the record. 
 
 
There is no second cavil to this proposition that the 
aforesaid crime report was registered at the instance of one Zewar 
Khan who narrated the definite story relating to the prosecution case 
which is spelt out from the record from the bare reading of the same. 
Undeniably, Sadiq Khan is one of the eye-witnesses, whereas 
Raheem Shah, father of the deceased stands nowhere in the crime 
report as a witness. The filing of the application after the lapse of 
about 14 months wherein a new witness has been introduced to 
substantiate the accusations leveled in the crime report does not 
make sense as considerable time has already elapsed and it will 
certainly imprint that the said application has been filed after due 
deliberation and consultation. No doubt the introduction of new 
witness cannot be denied stricto sensu but certainly the scheme of 
law would be bypassed if at this stage the statement of Raheem 
Shah, father of the deceased is permitted to be recorded during the 
proceedings before the Trial Court although it was well within the 
knowledge of the said Raheem Shah about the murder of his son 
and he never opted to appear as a witness and in this regard the 
statement under Section 161 Cr.P.C. was not recorded by the 
Investigating Officer. It is nowhere mentioned that Raheem Shah 
ever appeared before the Investigation Officer to substantiate the 
accusation leveled against the accused persons. As far as the case 
of Sadiq Khan is concerned, he is one of the eye-witnesses of the 
crime report and as such his statement, if earlier not given up by the 
prosecution and the prosecution’s case is still not closed, the same 
can be re-agitated and adduced to strengthen the prosecution 
version on the basis of contents of the crime report, therefore, he can 
be produced and recorded by the Trial Court as per dictates of law, 
whereas so far as re-summoning and re-examination of two 
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4
prosecution witnesses, who have already been recorded by the Trial 
Court, is concerned, as their cross-examination has already been 
conducted by the defence counsel and any application at a belated 
stage just on the ground that the prosecution witnesses have made 
statements contrary to the earlier statements under Section 161 
Cr.P.C. is no ground at all to issue direction for re-summoning and 
re-examining the said witnesses for further cross-examination which 
is against the essence of law. No one can be permitted to fill in the 
lacunas at the belated stage according to his own whims. Therefore, 
the order of the Trial Court to the extent of declining re-summoning 
and re-examination of Zewar Khan (PW-6) and Uzair Khan (PW-8) is 
upheld. Further, the finding of Trial Court to summon father of 
deceased is also set aside, however, Sadiq Khan, PW can be 
summoned to substantiate the prosecution version, if so desired, 
whereas the finding of the High Court is set aside. The learned Trial 
Court shall proceed with the trial in the light of this judgment. This 
petition stands disposed of accordingly. 
 
 
 
 
 
 
 
JUDGE 
 
JUDGE 
Islamabad, the 
20th of October, 2021 
Approved For Reporting 
Waqas Naseer/*  
