# Need that witness back? Section 540. > At any stage of an inquiry, trial or other proceeding; and it must do so if the evidence appears essential to the just decision of the case. A witness whose s.161 statement was never recorded can still be examined, and filling a lacuna is only a subsidiary factor (2022 SCMR 1882). - Topic: Courts and procedure - For: Advocates - A 11-slide carousel: https://failegal.site/media/need-that-witness-back-section-540-recall - Published by FAI Legal on 2026-10-12 ## The power. Section 540, CrPC. > "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 appears to it essential to the just decision of the case." (Code of Criminal Procedure, 1898 · Section 540) ## Two parts. Supreme Court, 2022 SCMR 1882. - **First part** "May": discretion to summon, examine anyone present, or recall a witness. - **Second part** "Shall": mandatory if the evidence appears essential to the just decision. - **The aim** Justice for the accused, the prosecution and society. ## Quick quiz. No 161. Guess first, then swipe for the answer. - **A. No, never** - **B. Yes, weight is then assessed** - **C. Only if the accused agrees** ## Answer: B. No bar. Supreme Court, 2022 SCMR 1882. - **The rule** No bar on examining a witness under s.540 whose s.161 statement was not recorded. - **The safeguard** If it prejudices the accused, the evidence may or may not be acted upon. - **Not listed?** A material witness can be summoned even if not in the calendar of witnesses. ## Myth or fact? The lacuna argument. - **Myth: Any s.540 application that fills a gap in the prosecution case must be refused.** - **Fact: The test is whether the evidence is necessary. If it also fills a lacuna, that is "purely a subsidiary factor" (2022 SCMR 1882).** ## For the defence too. Sindh High Court, 2016 PCrLJ 667. - **The facts** A prosecution witness was never cross-examined by the defence. - **The order** The trial court was told to re-summon him for cross-examination. - **The warning** Miss that date, and no further chance. ## 265-F or 540? Sindh High Court, PLD 2020 Sindh 32. - **s.265-F** The parties' prerogative: examine, withhold or give up a witness. - **s.540** The court's power, for a just decision. Not for either side. - **On appeal** An appellate court has no power to summon a witness on its own motion. ## Draft it right. What courts look for. - **Who and why** Name the witness and the fact only he can prove. - **From the record** Essentiality can be inferred from the file. No separate inquiry is needed (PLD 2021 Bal. 127). - **Neutral aim** "Just decision" does not mean for prosecution or defence (2021 PCrLJ 567). ## Draft it with FAI. Ask FAI in your own words. It answers with the exact section and the leading judgments. - **Recent Supreme Court cases on recalling a witness under section 540 CrPC.** - **Draft an application under section 540 CrPC to recall a prosecution witness.** ## What this does not mean - Section 540 is the power of the court for a just decision, not a tool for either side. Choosing to examine, withhold or give up a witness is the prerogative of the parties under s.265-F (PLD 2020 Sindh 32). - An appellate court has no power to summon a witness on its own motion (PLD 2020 Sindh 32). - Evidence taken under s.540 is not automatically acted upon. If it prejudices the accused, it may or may not be relied on (2022 SCMR 1882). ## Questions people ask ### What is section 540 CrPC in Pakistan? It lets any court, at any stage of an inquiry, trial or other proceeding, summon a witness, examine a person present, or recall and re-examine a witness. The court must do so if the evidence appears essential to the just decision of the case. ### Can a witness be recalled at any stage of a criminal trial? Yes. The first part of s.540 is a discretion to summon or recall. The second part is mandatory where the evidence appears essential to the just decision (2022 SCMR 1882). ### Can a witness be examined if his 161 statement was never recorded? Yes. The Supreme Court held there is no bar on examining such a witness under s.540, and a material witness can be summoned even if not in the calendar of witnesses (2022 SCMR 1882). ### Can section 540 be used if it fills a gap in the prosecution case? The test is whether the evidence is necessary. If it also fills a lacuna, that is only a subsidiary factor (2022 SCMR 1882). ### Can the defence ask to recall a witness for cross-examination? Yes. In 2016 PCrLJ 667 the Sindh High Court told the trial court to re-summon a prosecution witness who was never cross-examined by the defence, with a warning that missing that date meant no further chance. ## Sources - Code of Criminal Procedure, 1898 · Section 540: Power to summon material witness or examine person present --- Educational legal information, not legal advice. Every case turns on its own facts. Speak to a qualified lawyer about your situation. Review status: Pending advocate review. FAI Media is part of FAI Legal (https://failegal.site), research on Pakistani statutes and judgments. Free to watch and read.