ABSTRACT
In Pakistan the criminal trial is mainly based on examination of witnesses produced by prosecution to prosecute a person accused of an offence. The witness is examined by the party who produced him, is called examination-in-chief. The adverse party has right to cross examine him. If any new facts are brought in cross-examination, the witness may be re-examined. All such process is done systematically but not mechanically. The detailed provisions are provided under chapter-X of The Quanoon-e-Shahadat Order, 1984. The main purpose of examination of a witness is to corroborate the facts with other witness and also to produce supportive proofs during his evidence. The evidence recorded on oath is generally known as deposition of witness. The prosecution witness and defense witness are equally treated in examination by the court. There is an exceptional provision of examination of accused under section 342 of the Code of Criminal Procedure, 1898 (Cr.P.C). Such examination of accused is termed as Statement of Accused u/s 342 Cr.P.C. the statement of accused under section 342 Cr.P.C is recorded without oath at any stage during trial. The prosecution has no right to cross examine accused on his statement under section 342 Cr.P.C. Where accused, during statement under section 342 Cr.P.C, opts to be examined on oath, then the court shall proceed under section 340 Sub Section 2 Cr.P.C and examine accused on oath.
Key words: examination-in-chief, cross-examination, Re-examination, Quanoon-e-Shahadat, criminal trial, hostile, virtual examination, cyber security, Skype, whatsapp
INTRODUCTION
The judicial system of Pakistan is adversarial system . The criminal case is based on evidence collected by investigation officer and produced in the court alongwith charge sheet. The evidence so collected during investigation, is to be proved through witnesses. The witnesses produced or arrayed as witnesses on the side of victim are generally termed as Prosecution Witnesses (PWs) and the witnesses produced by defense/accused are termed as Defense Witnesses (DWs). It is the requirement of law that documents produced in the court are to be proved through production of witnesses unless such witness is explicitly excluded by law. On appearance of a witness before the court, he may be examined on oath or without oath. Where a witness is required to be examined on oath, he shall be subjected to cross-examination to check his truthfulness or otherwise to shake his credibility. Cross-examination is the ever best tool in criminal case to check truthfulness, veracity of witness. The examination of a witness is mainly dealt with by the provisions of the Quanoon-e-Shahadat Order, 1984 under chapter X Articles 130 to 161 and 164. There are certain provisions in the Code of Criminal Procedure, 1898 which relate the examination of witnesses and accused on oath or otherwise without oath.
Definitions
Examination: The word examination is a noun derived from examine. Examine literally means to look at or into critically or methodically in order to find out the facts, condition, etc of something/someone; to investigate, inspect, scrutinize or inquire into. To test by carefully etc The Concise Oxford Dictionary defines Examine as investigate, scrutinize (accounts, person in or on subject, organ, baggage for contraband goods, theory, statement, one’s own conscience, whether), inquire into.
Technically it means that the process of asking someone questions to find out facts e.g. the questioning of a prisoner by a magistrate (or an advocate).
Examination-in-Chief: or Evidence in Chief: the questioning of a witness by the party who called them. The examination-in-chief is also called direct examination.
Cross-examination: The term Cross-examine, literally means to question closely, law to question a witness produced. Technically it is a process to question witnesses called by the other side in a case, in the hope that one may discredit him or weaken the evidence.
Re-examination It means that after cross-examination-in-chief and cross-examination of a witness when the party who called him as his witness, intends to examine his own witness on certain facts came in cross-examination which require some clarification.
Further cross-examination: if adverse party intends to cross examine the witness on his re-examination, the witness may be subjected to further cross-examination.
Examination-in-chief, cross-examination and re-examination
Quanoon-e-Shahadat Order 1984 defines, Under Article 132, the Examination of a witness by the party who calls him shall be his examination-in-chief. The examination of a witness by the adverse party shall be called his cross-examination. The examination of a witness subsequent to the cross-examination by the party who called him shall be his re-examination. It is legal position that the witness shall be first examined-in-chief, then if other side desires, may cross examine him. After cross-examination the witness may be re-examined by the party who called him. The examination-in-chief and cross-examination must relate to relevant facts. The cross-examination may not be confined to the facts disclosed in examination-in-chief by the witness. The Examination in chief is also known as direct examination. It is normal practice in state cases that the examination in chief is to be conducted by the state counsel whereas in private cases or direct complaints it is to be conducted by the counsel of complainant or applicant as the case may be or it is also to be done by the witness in person.
Facts deposed by witness in his examination-in-Chief must be subject to cross-examination. The facts deposed by witness are not confronted by adverse party in cross-examination, shall be deemed to have been admitted as it is. Where the circumstances appear in examination-in-chief to adverse party that no material incrimination was made against him and he opts the cross-examination to be Nil, the presumption of admission of facts does not arise for accused. Suffice to accused to adopt the court of Nil for cross-examination as no evidence was brought on record against him.
Leading Question
Leading question means the reply of same should come in yes or no forms. E.G It is correct to suggest, it is fact that, you may agree that… so on so forth? No leading question is to be asked in examination in chief or re-examination where adverse party has objection on such question. Leading question may be asked with permission of the court. The court has to decide the objection of the adverse party firstly and then to decide whether permission is granted or objection is sustained. The only exception to the leading question which it pertains to introductory or undisputed facts or already proved facts.
Exception to general rule
The general rule is that the evidence should be recorded by the competent person in judicial proceedings who is authorized to take such evidence. The evidence shall be taken in presence of adverse party and there should be right of cross-examination to such witness. There are only two exceptions to this general rule. First exception is given in Article 46 of the Quanoon-e-Shahadat Order, 1984. The person makes a statement as to the cause of his death and he dies due to such cause, his such statement is made admissible under Article 46 QSO. Such statement is also called as Dying Declaration of a deceased person. Where such person gave statement the same was given in absence of adverse party but his such statement is made admissible in evidence despite of the fact that it is not general rule of evidence. Second exception if section 512 Cr.P.C where accused has absconded away and the make is permissible to preserve the evidence of witness with a view that if at his trial any such witness is either dead or has become incapable of giving evidence or his presence cannot be acquired without unnecessary delay, his statement previously recorded at the back of accused can be taken into evidence.
Cross-examination is not a formality, as seen, during practice in the court proceedings; rather it is one of the best technique and valuable right of accused to ascertain truth of the statement given by witness. It is held in the case of Ghulam Haider vs State that cross-examination is valuable right of accused and it is best method for ascertaining the truth. The cross-examination is most important part of evidence and it continuity of the examination of a witness but not a separated part.
Where a witness has recorded his examination in chief but he could not come in witness box for cross-examination his whole statement cannot be considered and cannot come on record. It is held in the case of Muhammad Abid vs Mst. Nasreen yousuf that cross-examination is continuing part of the whole statement rather more important than examination-in-chief. Where a party has abstained from giving evidence in his own case about the facts in his personal knowledge, presumption is that the truth was on the other side. Affidavit in evidence has no legal value unless the witness made himself available for test of cross-examination in the trial. The Honourable Supreme Court of Pakistan has held in the case of Arbab Tasleem v/s State that examination of eye-witness in the form of examination in chief though found legal and admissible in evidence yet its evidentiary value could not be equated with such statement subjected to cross-examination, therefore, for giving weight to the statement of such witness, it would have to be seen whether the examination-in-chief, intrinsically rang true and whether or not same was supported by circumstantial evidence.
Examination of witness in absence of counsel for accused
Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 provides the right to fair trial. The person so prosecuted under a law in Pakistan shall have the right to fair trial and due process. Under section 340 sub section (1) of the Code of Criminal Procedure, 1898 the accused is entitled as a matter of right to be provided a Pleader on state expenses. The section 340 (1) Cr.P.C is reproduced as under:
‘340. Right of person against whom proceedings are instituted to be defended and his competency to be a witness: (1) Any person accused of an of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such court, may of right be defended by a pleader’.
Circular 6 of Chapter VII of the Federal Capital and Sindh Courts Criminal Circulars provides that services of defence counsel shall be provided to the appellant in the cases of Capital punishment. Rule 35 of the Sindh Chief Court Rules also (appellate Side) also deals with the same proposition. In the cases involving capital punishment shall not be proceeded in absence of pleader of accused. Even examination in chief may not be recorded in absence of pleader of accused. It is held in the case of Shafique Ahmed alias Shahjee v/s The State that the proceeding were abolished as the same were conducted in absence of any pleader of accused. The court should have given an opportunity to accused, to engage pleader to defend the accused. In case, the accused are unable to engage advocate the court is empowered to get services of an advocate on state expenses to defend accused. Where an accused has failed to cross examine or to give reply of questions put to him in his statement under section 342 Cr.P.C, the court is empowered to engage a counsel on state expenses, lest the entire trial would become illegal. It is held in the case of Ghulam Rasool Shah v/s State that accused failed to engage an advocate and he has also refused to reply the questions put to him under section 342 Cr.P.C, the Honourable Supreme Court of Pakistan has remanded the case for denovo trial, and declared the entire trial as illegal.
It is the fundamental right of a person under the Constitution of Islamic Republic of Pakistan that an accused be dealt in accordance with law, his liberty, life and fair trial are inalienable rights protected in the constitution. It is also internationally accepted proposition that a person shall have a right of fair trial. The same proposition is discussed in the case of Faisal v/s The State by the Honourable Sindh High Court. The question was examined by United States’ court in a case of Gideon v. Wainwright (1963) 372 US 335. It was observed as under :–
“Not only these precedents but also reason and reflection requires us to recognize that in our adversary system of criminal justice, any person held into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crimes, Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal Courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has face his accusers without an lawyer to assist him.”
In another case of Jon Richard Argersinger v. Raymond Hamlin (1972) 407 US 25 while dealing with the philosophy of free legal services Douglas J. observed as under :–
“The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the sciences of law. If charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect.”.
It has further been observed as under : –
“The right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty indigence or incommunicado situation and the State is under, a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required provided of course the accused person does not object to the provision of such lawyer. We would, therefore, direct that on the next remand dates, when the under-trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such under-trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment date 12th February, 1978. The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today.”
Private Counsel for a party in criminal trial and his mandate
It is generally seen that parties also engage private advocate on their own expenses, despite of the fact that government has provided Public Prosecutors free of cost to the complainant. Such Public Prosecutors are controlled by the provincial government through Prosecution Department. The Criminal Prosecution Departments are established by virtue of Act of legislation and the rules thereunder. The parties engage an advocate in their cases to assist and provide more firsthand information and help to the prosecutor in a criminal trial to seek the justice. The advocates engaged by the parties are generally expert and well trained in the field. Where a private counsel is engaged by a party to represent such party, he shall act under the instructions of Public Prosecutor incharge of such case in a particular court. The relevant provision of the Code of Criminal Procedure, 1898 is section 493 which is reproduced herein below for ready reference:
"493. Public Prosecutor may plead in all Courts in cases under his charge Pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions."
The provision of section 493 Cr.P.C provides the words “and if any private person instructs a pleader to prosecute in any court any person in any such case....” means that any private person in any case may engage counsel/advocate. The section does not restrict any person who has any right in any case to engage a private counsel and instruct him to prosecute. Likewise, such advocate may be engaged in any case and may prosecute any person in any case. It is the provision of section 493 Cr.P.C provides the words “and the pleader so instructed shall act therein” which does not restrict the private counsel regarding specific act done by him during the proceedings. The words “any party” in section 493 Cr.P.C does not mean a complainant rather it is an open word which may include any person whose rights are vested in the case. He may be an injured person, a legal heir of a deceased, other than a complainant or even a complainant. In many cases, the complainant may not be legal heir or he may be a police officer on behalf of state. In such situations the legal heir or an injured person may engage an advocate to represent him and act under control of the Public Prosecutor.
The private counsel may also cross examine a witness if it is necessary for such private party to do so. The court cannot restrict such private advocate to conduct prosecution and act under section 493 Cr.P.C. However such private counsel cannot bypass the spirit of section 493 Cr.P.C, as held in the case of Haji Pathan Khan v/s State The word plead and act are two different words used in section 493 Cr.P.C. the word “act” has a vast meaning in its interpretation. The prosecutor is main actor in the criminal case to proceed and plead on behalf of prosecution whereas the private advocate engaged by any party, is under control of the Public Prosecutor. The embargo created by the legislator is not a complete restraint on private counsel to act. Otherwise the engaging of a private counsel shall have nothing but to engage a deaf and dumb person who has no part to play in the game or proceedings. All the acts done by private counsel for a party, shall be under instructions and control of the Public Prosecutor. The private advocate is not engaged antagonistically to that of Public Prosecutor. The private party’s advocate and the Public Prosecutor are sailing in the same ship in the same sea to the same destination. So it is hardly thought that engaging a private counsel by private party in a state case would be adverse to Public Prosecutor. However all the acts done by the private counsel would be controlled and mandated by the Public Prosecutor. The private counsel may move all his requests at appropriate stages of the criminal trial in writing, either countersigned by the Public Prosecutor or by consent of Public Prosecutor. Such countersign or consent is sufficient that the act done by private counsel is controlled by Public Prosecutor. The consent of the Public Prosecutor need not be in writing. The aim of the court is to reach at a just and fair decision. The services of a private counsel cannot be restricted rather the same can be liberally adopted to give effect to the fundamental rights of parties for fair trial and dealing them in accordance with law.
Restrictions during cross-examination
The Quanoon-e-Shahadat Order, 1984 provides certain provisions to protect the witness and to protect the time of court under Articles 141 to 149. Only lawful question are permitted to be asked from a witness during cross-examination. The questions as to testify veracity of witness, his introduction and status in society, to shake his credit by injuring his character are allowed by be asked as lawful questions despite of the fact that such answer may expose him to penalty or forfeiture directly or indirectly. However, any question asked by the adverse party to compel witness to answer, shall be decided by the court, which may be not relevant to the proceedings. the court has to decide whether the witness shall be compelled or not to answer such question. It is observed, that during evidence, the courts note that the objection shall be decided at the time of judgment. Such practice is not justified under Article 143 of the Quanoon-e-Shahadat Order 1984. The court has to decide as to whether such questions are proper or improper to affect the credibility of witness on such matters under which he testifies. Such questions would be improper if there is remote relation between imputation of credibility of witness and the evidence he adduces. It is also statutory bar upon asking only relevant questions in cross-examination. There should be some reasons behind the asking questions. In case an irrelevant question is asked by adverse party, the court has to ask the reasonable grounds for such question. In case no reasonable grounds are there, the court may disallow such question being improper under Article 143 Quanoon-e-Shahadat Order, 1984. No question can be allowed to be asked from a witness randomly without any reasonable grounds. An irrelevant question without any reasonable ground exposes an advocate or a party asking such question to consequences. If the court in its opinion finds that an irrelevant question was asked by an advocate; the court may report such circumstances to the controlling authority of advocate or to high court concerned. The court may restrict to ask any indecent question although it may be relevant, unless the facts are not determined by asking such question. Likewise, the court shall restrain asking insulting question from witness.
Technique and Art of cross-examination
It the general proposition that the cross-examination of a witness is not law but it is an art. The cross-examination is a natural flow of questions on the footprints of the replies of a witness. The cross-examination cannot be made understood in form of points or questions. It is a natural flow of questions put to a witness in accordance what he has deposed in the court and whatever documents he has produced during evidence. It is the best techniques to unearth the trustworthiness of a witness and truth of his evidence. The unpredictable replies by a witness during cross-examination may lead to a different track or a zigzag track which may ruin the entire case of the party who called the witness to support. Cross-examination is considered the most important part of a proceeding in a case and test of an advocate. It is not necessary that a most genius advocate or a most significant orator should win a case by art of his cross-examination. Some time a great lawyer may not be able to competently cross examine a witness yet a mediocre grade advocate may twist and ruin the case of prosecution . It is necessary for a professional advocate to have clarity in mind and thoughts, infinite patience and self control, power to read mind of witness, ability to act with vigor and brevity, masterful of knowledge of the subject matter/case and related law. In addition to all of the above qualities, the professional advocate should have ability to discover feeble spot in the witness. The advocate may not have a physical vigor to counter a bold witness but it is the mental and intellectual vigor and duel between advocate and witness. Thus the witness on his side should be alert and the advocate should be very careful and mindful about an unexpected reply which may or may not be in favor of accused. When a witness is being examined by the court, his examination-in-chief is the most important portion of case file. It is to be noted during examination of witness. Following are some most important questions to be taken into consideration by both parties regarding evidence of the witness:
a. What facts the witness has testified and what facts he failed to disclosed to the court?
b. What facts are in favor of prosecution and what against accused?
c. Which side of both parties are injured by testimony of witness?
d. Whether witness has testified such facts in such manner which impressed the judge/court?
e. Is it necessary for adverse party to cross examine witness or no need to cross examine him at all?
f. Whether the testimony of witness is against the record made available by the party called him? If so, whether there is need to declare witness as hostile and cross own witness?
There is difference in discrediting the witness and discrediting his testimony. The eye contact with witness is the most important thing during examination of a witness and cross-examination. The lawyer must have, unlike a lion in the play; he has something more to do than a roar, to do more. An advocate must be a good actor in the court. He should have a sense of humor with caution and care.
Matter of cross-examination
While cross examining the witness one should be most careful and vigilant and quiet dignifiedly take it. It cannot be always believed that if the tract taken by witness in his Examination-in-chief may be twisted in cross-examination of same tract and facts. The defense has to frame his own track and try to step witness on the track of defense. The question in cross-examination must be based on some purpose. Flagrant and confused questions may not help the case of defense. Likewise, the witness must be vigilant while under cross-examination. The witness should be mindful of what he has deposed and what he has earlier replied in his cross-examination so that he may not counter his own version in cross-examination. It is generally observed during practice that good advocates get started with the questions which are the weakest points in the evidence of witness. So one should not beat about the bushes; rather question on the matter directly, where he find a weak point. Every witness is important in a case. The witness is concerned twofold in a case. Firstly, he is related to the case as his person and secondly, his testimony is concerned in the case. Thus the cross-examination is also two fold in the same manner. The defense has to discredit the witness and also to discard his testimony.
The cross examination of an expert witness is very much difficult for an advocate who might have not gone through the protocols of such field and having less concern with the field of an expert witness. Mostly, observed that the advocates do not cross examine expert witness. The Medical, radiological, handwriting and forensic experts are commonly called in witness box to produce the reports, generated by such expertise process or monitored by such witnesses. It is observed that the forensic experts are hardly trailed out from what they deposed in the court. However, if the counsel is having basic knowledge of the protocols of the forensic laboratory tests and have gone through the entire material collected and the process adopted, then he may only be able to get some favorable replies from the expert witness of a forensic section. Now a days, the data are retrieved from Laptops, computers’ hard discs, smart phones etc. the reports are generated by toolkits of different versions. It is very hard for an advocate to cross examine such an expert witness who generated the report through machine process. Likewise, the reports generated by firearm experts by comparison microscope, regarding arms and ammunition and its matching with crime weapons or crime empties and bullets. It requires a great deal of knowledge of working and generation of such reports. The data of mobile phones are generally retrieved in soft copy which is converted into hard copy. The soft copy are generally not produced in the courts during the trial proceeding.
Examples of cross-examination
At a trial between certain music publishing houses, as to an alleged piracy of a popular song, Tom Cooke, a wellknown actor and musician, was subpoenaed as an expert witness by one of the parties. On his cross-examination by Sir James Scarlett, that learned gentleman rather flippantly questioned him in this wise:- "Sir, you say that the two melodies are the same but different. Now, what do you mean by that?" To this Cooke promptly answered, “ I said that the notes in the two copies are alike, but with a different accent, the one being in a common time and the other in six- eighth time; and consequently the position of the accent of the notes was different. " Sir James. "What is a musical accent?" Cooke. "My terms are nine guineas a quarter, sir." [A laugh]. Sir James (rather ruffled) . "Never mind your terms here; I ask you, what is a musical accent? Can you see it?" Cooke. "No, Sir James." Sir James. "Can you feel it?” Cooke. "A musician can. " [Great laughter]. Sir James (very angry) . " Now, pray, sir, don't beat about the bush, but explain to his Lordship, and the jury, who are expected to know nothing about music, the meaning of what you call accent. " Cooke. "Accent in music is a certain stress laid upon a particular note in the same manner as you would lay a stress upon a given word for the purpose of being better understood. Thus, if I were to say, ' You are an ass,' the accent rests on ' ass' ; but if I were to say, ' You are an ass, ' it rests on you, Sir James. "
The most important thing in cross examination of a witness is to slip the witness from his testimony by inducing him to give a voluntary mistake by explaining a fact. The best of all such cross examination in the history, is the cross examination of Socrates to Melteus, the prosecutor against Socrates. Socrates, a famous Greek Philosopher, was formally charged at the Athenian courts for his philosophical teachings and its effect on the people of Athens. He was presented in front of hundreds of jury men and unsupportive audience to defend himself against charges that were set by Meletus, one of his prosecutors. Normally a person would plead with the jury to free himself from receiving harsh punishments, but Socrates was not among them. Despite of knowing the fact that the result of the trial would be death, Socrates presented a powerful speech and tactfully cross examined Meletus to prove to the audience and the jury that Meletus accused Socrates of an issue (the corruption of the youth) that Meletus himself was ignorant about. As Socrates says “But in fact Meletus, you have sufficiently displayed that you never yet gave any thought to the young. And you making your own lack of care plainly apparent, since you have cared nothing about the things for which you bring me here” First of all, Meletus accuses Socrates of corrupting the minds of the youth. When Socrates questioned to Meletus who is it that has a good influence on youth, Meletus replied the laws. Socrates then asked him to be more specific in terms of people, and Meletus said it were the jurymen. In response to Socrates persistent questions, Meletus mistakenly makes an absurd overstatement that the entire population of Athens has a positive influence on youth except for Socrates. Socrates then, draws an analogy that involves horses, saying that horse-trainers, specialized people that possess skills on how to deal with horses, can possibly have a positive influence, whereas other people would have negative influence. Socrates believes that this analogy must be correct in terms of all animals along with human beings because if it takes an expertise to improve a horse, than it would certainly be incorrect to think that everyone in the society can help make young people better. Meletus’ overstatement and his inability to defend himself gives more authority to Socrates as it seems that Meletus is just arguing for the sake of it and that he does not have any true evidence that would prove Socrates guilty of corrupting the youth.
Statement of accused under section 342 Code of Criminal Procedure, 1898
Section 342 Cr.P.C empowers the court to examine an accused to enable him to explain any circumstances appearing in evidence against him. The court may examine accused at any stage of any inquiry or trial. The court may not warn accused that his statement is being recorded. However, it is seen in practice during proceedings of the cases, that normally when all the prosecution witnesses are examined by the court and the prosecution has closed its side or the side of evidence of prosecution is closed by the court suo motu, and prior to calling accused for his defense (statement on oath under section 340 (2) Cr.P.C) then statement of accused is recorded under section 342 Cr.P.C. The statement of accused is a material piece in the criminal case. The words “any circumstances appearing in the evidence” used in section 342 Cr.P.C is of much worth. Any incriminating material produced or adduced by the prosecution during evidence shall be brought to accused in his statement under section 342 Cr.P.C. The statement of accused is generally based on certain question; the reply is to be given by accused. The statement u/s 342 Cr.P.C is taken without oath hence any reply given by the accused, shall not be subject to cross-examination. In the case of Allah Dino v/s The State it was held that each and every circumstance and material evidence was not put in statement of accused to enable him to defend himself, hence it was material irregularity and appeal against conviction was allowed. It is settled by judgments of the superior courts that statement of accused should be recorded in shape of questions to enable him to defend himself. stereotype questions without fact that role of each accused was distinguished, is not a statement as provided under section 342 Cr.P.C. In the case of Tassaduque Hussain alias Shaikh v/s State , it was held as under:
“Purpose of recording the statement of accused under S.342, Cr.P.C. was to inform him of prosecution case .so that he be enabled to explain any circumstances appearing in evidence against him and prepare himself in his defence accordingly---Such statement was to be in form of questions and answers and was to be recorded per S.364, Cr.P.C., i.e. in English language and if accused did not understand English language then it was to be explained to him in language which he could understand---Statement, thereafter, was to be signed both by Judge and accused and a certificate was to be appended by the Judge that said statement contained full and true account of the same---Statements of accused/appellants under S.342, Cr.P.C. showed that each of the accused had been asked the same question to which they gave the same reply, though as per evidence brought on record the role of each accused played in commission of offence was distinct” (Note: Emphasis applied)
The statement of accused under section 342 Cr.P.C (taken without oath) and the statement of accused under section 340 (2) Cr.P.C recorded on oath, are two different statements and have two different values in the criminal case. Both the statements can neither be equated nor be substituted with each other. Statement under section 342 Cr.P.C is not to be considered as an evidence on oath. The same proposition is held in the case of Mukhtar Ahmed alias Bholi v/s State. The court has to consider the provisions of section 364 Cr.P.C by appending a certificate to the end of the statement of accused recorded u/s 342 Cr.P.C. It is generally held that when certificate is not written by the judge with his own handwriting, the cases are remanded for recording statement of accused afresh as per section 364 Cr.P.C. in the case of Kafeeluddin vs State , and in the case of Mehboob Karim v/s The State , it is held that violation of section 364 Cr.P.C is irregularity and curable by remanding the case to the trial court for retrial after recording of statement of accused. However it is not sole ground for remand of a case or violation of section 364 Cr.P.C that certificate under the statement of accused was not written by hand by the judge. Where certificate mentions that the statement was recorded in hearing and presence of accused and he understood its contents to be true and correct and then affixed his signature/LTI. The accused did not raise any objection at the time of recording such statement or even at the time of final hearing of the case. Where accused is not otherwise prejudiced by such defect in statement of accused, then it would not be a ground for vitiating the trial. It is held in the case of Naimatullah v/s State that where accused is not prejudiced or no any injustice and injury caused to defense of accused then it would not be a sole ground for accused. Naimatullah case supra was remanded on other grounds.
The statement of Accused is not just a formality but it is based on the judicial maxim audi alterm partem. The court has not only ask formal questions to the accused on generality of the evidence brought by prosecution but also to put all incriminating pieces of evidence including documents produced in the evidence. Where a dying declaration is relied upon by the prosecution and such declaration is in written form, the same shall be put in statement of accused to the accused with reference of its Exhibit Number (mark of identification on documents so produced).
For instance:
1. What do you (accused) say about dying declaration of deceased ABC s/o XYZ dated: 20.12.1984 produced at Exh.5/C?
2. What do you say about the Post Mortem Report No:999/1984 produced at Exh.5/D?
Online or Virtual examination of witness and cross-examination
After corona virus situation, Covid-19 pandemic in 2020, when each and every field of life has been shocked due to lock down. The people stuck down wherever they were. It has a deep effect on performance of courts and examination and cross examination of witnesses and appearance of accused in the court. The alternate process, due to technology of mobile and internet, was virtual meeting and virtual proceedings. The Honourable Supreme Court of Pakistan has also adopted such steps for hearing of cases virtually. Such experience was proved very effective and economical on multidimensional sides. The questions arose regarding the legal validity of examination of witnesses on line by the trial courts. The most highlighted case regarding examination of a witness virtually was Misha Shafi case. In this case the Honourable Supreme Court of Pakistan has held that personal attendance of witness for cross examination was not necessary rather her virtual attendance was sufficient. It was also held that witness need not to go to any embassy office where she lived, for here cross examination virtually. The legislative intent and use of modern technology was thoroughly discussed in Meera Shafi v/s Ali Zafar Case, prominently known in media as Meesha Shafi Case. The Honourable Supreme Court has held that role of a judge is to understand the purpose of law in the society and to help the law to achieve its purpose. The updating construction of law by use of technology and scientific development is need of hour. The provisions of Article 164 the Quanoon-e-Shahadat Order, 1984 permits the court to use modern technology.
It is also observed in the cases of sexual harassment and gender based violence case, the victim women or girls and their families avoid to adduce evidence and feel discomfort by their physical appearance before the court where offender and his companions and relatives used to attend. In such like situations, the online or virtual examination of witness may ease to proceed the case.
The protocols for recording virtual evidence of witness are also provided in the case of Munawar Hussain v. State and in the case of Muhammad Israr v/s State. The courts have to follow such protocols. it is held in Muhammad Israr case, supra, that the whatsapp call or any other independent mode of call the witness may be considered present in the court albeit without any strong supervision at the witness end, there will be always difficult and awkward situation for the trial court particularly if witness commits contempt of court or perjuries himself and it immediately notices that he has purges himself. Identification of witness and administration of his oath to the extent that he be examined online and recording of evidence should be done in open court. The Honourable Peshawar High court has observed protocols in conducting online examination of witnesses in the case of Muhammad Israr, supra, which is affirmed by the Honourable Supreme Court of Pakistan in Meera Shafi case, supra, hence now become applicable in the whole Pakistan. The protocols, as held in Muhammad Israr Case are reproduced for ready reference:
"The following protocol/guidelines shall be observed by the trial courts in the province of Khyber Pakhtunkhwa.
1. Guidelines for conducting proceeding between trial court and court where witness shall appear.
For the purpose of these guidelines, reference to the "trial court" shall mean, where the trial is pending and witness attendance required, whereas the "witness end" shall be the place/court, where witness appears for recording his statement via video link.
i. In appropriate cases, the trial court may direct or allow a witness to be examined on video link.
ii. At any time, on application of a party or on its own initiative, the trial court may make direction in open court or in chamber for recording any testimony of a witness intra province, inter province or oversees Pakistan.
iii. The direction of the court for recording evidence of witness on behest of parties be sought through a proper application at the earliest, showing reasonable ground for inability of the witness to personally appear before the trial court. Notice of such application be given to the other party or counsel on the same date of filing application and the trial court may discuss it with the party under notice. In case of consensus between the parties the trial court shall proceed further, however in case of contest of application, the trial judge after hearing the parties shall pass an appropriate order in writing, granting leave or otherwise.
iv. The proceedings by way of video conference shall be conducted as judicial proceedings and the same courtesies and protocol shall be observed at both end viz trial court and court where witness is appearing for making statement. All the relevant provision of procedural and penal Code including the provision of Qanun-e-Shahadat Order shall apply to the recording of evidence by video technology; however, these guidelines shall not be applicable to proceedings under section 164 of Cr.P.C.
2. There shall be coordinator at both sides i.e. trial court as well as at the witness end. The trial judge shall act as coordinator at trial court side while at the witness end, the coordinator may be any of the following officials.
a. Where the witness is to be examined intra province, the judicial officer of equal jurisdiction of the trial court or the Session Judge of District at witness end or any judicial officer not below the rank of Additional Sessions Judge shall be coordinator.
b. Whereas the witness is to be examined is in other province including Azad Kashmir and Gilgit-Baltistan, and Islamabad, the judicial officer of the equal jurisdiction or the Session Judge of the district where the witness is permanently or temporarily settled subject to availability of video link facility at that District shall be coordinator. In case of non-availability of internet/video link facility at the witness end, the coordinator shall be nominated by the Registrar of the concerned High Court in any other nearest districts.
c. Whereas the witness to be examined is abroad and overseas, the trial court through Registrar of the High Court shall coordinate with the Foreign Ministry to nominate the official of Embassy/High Commissioner/Consulate of Pakistan to be a coordinator as well to arrange all necessary requirements including virtual court at witness end. The responsible officer Embassy/High Commissioner/Consulate shall be deputed for supervision, identification and administering oath etc to the witness. The officer shall be vested with the power of trial court for purpose of recording of statement.
d. Whereas the person to be examined is a convict or otherwise in a jail in connection with any offence, the concerned jail superintendent shall produce him before the Sessions Judge of the District where the convict prisoner is lodged. For production of the witness, the Superintendent Jail shall adhere to the order of District and Session Judge at the witness end. In case the witness is juvenile lodged at Borstal House or a lady with residence at shelter home/Dar-ul -Aman etc, the concerned Incharge shall be under obligation to follow the directions of Sessions Judge at the witness end.
e. Whereas the witness is to be examined is hospitalized in any Provincial or Federal hospital or public sector hospital, the coordinator (Sessions Judge of concerned District) shall of its own or appoint any judicial officer as commissioner to visit the hospital for recording the statement of patient/witness. The Coordinator shall make correspondence with the Medical Officer or Incharge of the hospital for providing necessary internet facilities at the premises of patient/witness. The Medical Superintendent/Incharge of the Hospital shall associate the Sessions Judge or his nominee at the witness end.
f. In case of any other person/witness, as may be ordered by the Sessions Judge at witness end.
3. The Sessions Judge or his/her nominee at the witness end shall ensure the attendance of witness through all means prescribed by the provisions of Procedural, Penal Codes and Qanun-e-Shahadat Order, 1984. The prosecutors shall assist the court at trial court as well as at witness end.
4. In case, the person is witness of record, the prosecution shall be under obligation to provide the attested copies of entire record to witness to enable him/her in recording of his/her examination in Chief/Cross examination/re-examination or to confront him with any document etc. The trial court, at the time of allowing witness to be examined on video link, shall record the direction, of the prosecution in the case to make all necessary arrangements for ensuring the production of witness and availability of record at witness end.
Advantages of online or virtual examination
The modern age of internet and digitalization has, on one hand, made the life easier and faster and at the same time on the other hand made the life vulnerable at the technical hands. The courts have to adopt the modern technology in proceeding of the cases faster, easier and inexpensive so also lesser time consumption. It is also need of the hour to legislate new laws and formulate rules to adapt with the modern age of science and technology. The online or virtual recording of evidence save precious time and also save evidence quickly without any delay or incurring expenses. The same date may also be kept in digital format to make it easily available with the courts under a uniform coding system so that the same may be retrieved at any time before any competent court during trial or even at appellate stage.
Problems with online or virtual examination of witness
The real life or physical interaction of a witness in the court of law cannot be equated, at any cost, with that of virtual attendance of witness. The credibility of a witness and strength of witness testimony is the most important point in on line examination. The eye of camera may only be able to capture the face of witness or at a limited area only unlike a physical attendance of witness in the court room. The body language of witness cannot be easily read by the court at the time of virtual examination. The quality and reliability of the virtual conference and technological security are main concerns in examination. The breakdown of network, electricity, connection errors, software and hardware issues are also caused, which may also cause change in the ID numbers and passwords on each re-connection.
The ready reference to the documents produced or relied upon or even cross-examined upon during online and virtual examination of witness is a big deal for the court and the parties at litigation. The tutoring of witness or coaching off-camera or on another screen in face of witness. Change of time zone is few cases and availability of all stake holders, is also a main issue to be resolved. The court shall deal a complex situation in complicated cases involving many accused having separate counsel located at various jurisdictions. Assistance to the witness in online evidence recording in front of camera to be required, which is beyond control of the court. In few cases, the bulk of documents are to be shared online by witnesses or even the adverse party, which documents require a considerable storage on cloud based system. The safety and security of the documents and the evidence recorded virtually is big concern. The split system of recording of evidence eg skype link is used with screen sharing, the voice transmission by phone and documents sharing by any other source create a risk based system. The Witness may be unfamiliar with online environment and technology of internet. The witness may not concentrate on camera due to some reasons and the court may presume adverse inference of conduct of the witness. Demeanour of witness may be recorded on certain facts which might have not occurred but due to online/virtual communication such event happened. Availability of witness, adverse party and the presiding officers at one time to access online proceedings as there is possibility of change of time zone in few cases eg the court timing in Pakistan is totally different to that of United States of America, Canada, Cuba or Mexico. Where the witness is residing in Canada, USA or Japan then the time difference in Pakistan may also create hurdles on one hand on the other hand the date of recording of evidence would be marked differently in some situations due to change of time zone. It may create situations in later stage of the criminal cases. The evidence recorded on a date which may come prior to date where evidence is being taken by presiding officer in Pakistan. In some situations, the availability of translators is also a big deal at the time of recording evidence.
.privacy and security are highly probable risk in the online proceedings. In most of the cases, when witness, counsel and court are using multiple networks to become online at one point, the same is attractive situation for hackers to crash the virtual situation of proceedings. Intruding the court proceedings cannot be ruled out completely with certainty. Data protection, privacy and cyber security are main concern in connection with online or virtual examination of witness in court proceedings. Prior to proceeding with evidence of witness, security measures regarding hacking, cyber theft, cyber manipulation should be ensured. Technology for recording virtual evidence either may not be available in remote and rural areas or the quality of network access may not be up-to the mark. The interruption in signals and network errors may cause errors in understanding of the exact words and sentences, which might be typed erroneously at the other end. The errors in such situation may prejudice case of either party contesting it. Agreement of parties on virtual examination, sometimes, becomes a hard task. Particularly, where many persons are involved in the case. The adverse party may not agree on virtual cross-examination of witness. In most of the work places in judiciary proper arrangements for video conferencing system are not reasonable. As sometimes the court rooms may not be fit place for recording evidence virtually. The court rooms usually are congested and fad up with litigating parties and their counsel.
Conclusion
Examination of a witness and that of an accused during trial is one of the most important stages in the criminal trial. The responsibility of the advocate is to assist the court in getting the ultimate justice to the parties. The advocate helps the parties to deal with complex procedures of laws at the relevant time and at the relevant stages of trial. The importance of an advocate cannot be denied in a criminal trial. The modern technology has also found its ways, like all other fields, in the legal frame work and judicial system. It is need of the time that advocacy be equipped with modern trainings and technologically upgraded. It is the need of hour to equip the courts with modern technology and training. The laws in Pakistan are generally framed since more than one century. It is the need of hour to the modern legal. As we have observed in the above discussion that there is dire need of legislation in connection with modern technology and use of techniques in the trial of cases. Though there are a few certain provisions available in the existing laws but yet the same does not fulfill the requirements of the modern technology. Thus the superior courts find need to frame and formulate certain SOPs. Recording of evidence, online or virtually, is a great deal of work in the courts. On one hand there are advantages for adopting modern technology on the other hand there are certain risk factors, for which no legislation is specifically available in Pakistan. The Government is expected to take notice to such legislation to muddle through these problems and control over the misuse of technology.