Cross-examination. (This topic is useful for both bench and bar).
Written by,
Malik Munir Ahmed Joyia.
District & Session Judge.
Judge Banking Court-V
Lahore.
Phone # 0303-9466323
0346-6249001
Gmail Address: malikmunir9014@gmail.com
Purpose of cross-examination.
i.
To check the
credibility of the witness.
ii.
To impeach the
accuracy of the evidence.
iii.
To expose and
bring on record the facts which the witness has not deposed and these facts are
useful for the cross examiner.
iv.
To confront the
facts which the witness has improved to fulfill the lacunas of his case.
Legal terms used in
cross-examination.
i.
Statement.
ii.
Facts.
iii.
Facts and
opinion.
iv.
Evidence.
v.
Testimony.
vi.
Voluntary
statement.
vii.
Obliging concession.
viii.
Previous
statement.
ix.
Narration.
x.
Leading
questions.
xi.
Suggestion.
xii.
Discrepancies
xiii.
Confrontation.
xiv.
Procedure of
Confrontation.
xv.
Contradiction.
xvi.
Dishonest
improvement / embellishment.
xvii.
First version,confession
& defense version.
xviii.
Un-rebutted
evidence.
xix.
Probability and
benefit of doubt.
xx.
Blood Stained earth.
xxi.
Scale site-plan.
xxii.
Inquest reportInquest-report/Naqsha Sorat-e-Hal/Report Marg.
xxiii.
Police File / Zimni /case diary and its use.
xxiv. Use of modern evidence like audio or
video and its legal value.
Cross-examination by defense.
Sequence of cross-examination.
Settled principles of cross-examination.
Cross-examination by trial judge.
Cross-examination by prosecutor on hostile witness.
Re-examination.
Cross-examination
on civil side.
What is cross-examination; It comes under chapter 10 in
articles 133, 134, 135,136,137,138,140,141,150, 161 of the Qanun-e-Shahadat
Order, 1984 and 162 Criminal procedure code (Cr.P.C). A statement on oath of a
witness before the court is known as the examination-in-chief. When the adverse
party tries to falsify/ controvert the said examination- in-chief, said process
is amount to cross-examination. After cross-examination, if any ambiguity come
into picture, the party who produce the witness, can get re-examine said
witness after seeking permission from the court. After that the other party can
be given opportunity with the permission of the court to conduct the
cross-examination, if so required.
The cross-examination is an art
through which the advocates know the modes to cross-examine the witness. The
cross-examination requires hard work and talent of the advocates. It can also
be defined as the interrogation of a witness called by one's opponent. The
cross-examination is used either to abolish or weaken the power of evidence, which
is already anticipated by a witness. It plays an important role to provide
justice to the clients during the trial of each case. It is the professional
duty of the advocates towards their client, to conduct better
cross-examination, because it is not a matter of mere glory and fame. An
advocate can learn the art of cross-examination not only by observing trial,
but by conducting the cross-examination personally on the witness. The main aim
of the cross-examination is to elicit favorable facts from the witness or to
shake the credibility of the witness.
The cross-examination is also
done to find out the truth and detection
of the lie in the testimony of the witness. It is important to remember that
the justice should not be denied by the improper cross-examination. The
advocates should clearly go through those points which they wish to ask before
initiating cross-examination on the witness. Generally, cross-examination means to test the credibility of a witness
and to bring true facts on the record, which the witness has either not brought
on record or has deliberately concealed. The
cross-examination is the most powerful engine as invented by the human
civilization during the experience of centuries. The cross-examination may
differ from case to case and person to person. The age, position, status,
expression, qualification and expertise etc of the witness can be the useful
topics for the cross-examiners. Right to cross-examine flows from the principle
of natural justice that evidence may not be read against a party, until the
same has been subjected to cross-examination or at least an opportunity is given
for the cross-examination.
Right
of cross-examination is not mere formality, but is the only way conferred by
law to check the truthfulness of case of opponent party. The worth of an
advocate is based on the practice and procedure through which he conducts
cross-examination. The cross-examination cannot be confined to the facts to
which the witness testifies in his examination-in-chief. He can be
cross-examined as to the whole of the case, but it confines to the matter which are
relevant to the main case. A witness can
be questioned about his conduct, integrity, his enmity with the other party and
his interest in giving evidence. To shake the creditability of a witness, the
questions can be asked about his previous inconsistent statements about any
relevant fact. Indecent and
scandalous questions can also be asked by the advocate at the time of
cross-examination, if they relate to the fact in issue. The questions intended
to insult or annoy the witness should be forbidden by the court, even though
the question may seem to be proper. Evidentiary value of any such statement of
witness is to be determined by the court at the time of final judgment. Further in section 363 Cr.P.C a judge can pass remarks about the
demeanor of the witness, which is also amount to some sort of
cross-examination. The main purpose of the cross- examination is as under;
i.
To check the credibility of the witness.
ii.
To impeach the accuracy of the evidence.
iii.
To expose and bring on record the facts which the witness has not deposed
and said facts are useful for the
cross-examiner.
iv.
To confront the facts which the witness has improved to fulfill the
lacunas of his case.
There is no hard and fast rule for
the cross-examination. Different kinds of witnesses require different
treatment. Some witnesses are formal in nature and normally, no
cross-examination is required on such witnesses. To conduct proper
cross-examination, the concerned
advocate must know what onus he
has to discharge, what issues is to be proved and what defense he has to take. He can cement the base of his defense, while making questions
in the cross-examination and then prove the same after the case of his opponent
is over. The witness may be questioned to establish his bias, interest,
corruption or perjury. He may be questioned to discover his position with
reference to the controversy or to shake his credit by drawing his attention to
any of his previous inconsistent statement as to relevant fact or to his
previous statement containing admission.
It is well said that best facts of a criminal case are known to the police
and lawyers and the cases are either win or lose in the chamber of the
advocates before the trial commence.
Actually,
the cross-examination is an art and during my career as judge, I observed that
most of the lawyers were struggling in this field and even they are not aware
about the basic legal terms like, facts, statements, evidence, testimony,
narration, suggestion, improvements dishonest improvement and confrontation
etc. They do not know the basic principle of cross-examination that what
question is to be asked and what not. Some time they conduct cross-examination
without preparation.
Legal terms used in cross-examination:
Statement: A statement means the formal presentation of facts or the act of stating
and reciting of facts. In criminal side its kinds are as under:-
•
Statement of the witnesses before the court with or without oath.
•
Statement of witnesses
before police officers u/s 161 Cr.P.C.
•
Statement of the witnesses
before magistrate u/s 164 Cr.P.C.
•
Statement of accused before the trial court u/s 342 and 340(2)
Cr.P.C.
•
Voluntary statement.
•
Previous statement.
Fact: Fact means a circumstance, event or occurrence as actually, takes
or took place or a physical object or appearance. It also means thing, state of
things, or relation of things which can be perceived through senses. There are various kinds of fact like, fact in
issue, relevant fact and fact which are not relevant and otherwise become
relevant.
•
Evidence can be given qua fact in issue or relevant fact under
article 18 of Qanun-e-Shahdat Order 1984.
•
Evidence can be given about existence or non-existence of every
fact in issue or of such other fact like the fact which are the occasion, cause
or effect of fact in issue.
•
Motive, preparation, previous or subsequent conduct of the accused
can be relevant fact under article 21 of Qanun-e-Shahdat Order 1984, while it
got no concern with the fact in issue.
•
Some fact necessary to explain or introduce the relevant facts also
can be relevant to fact in issue. Please see article 22 of Qanun-e-Shahdat
Order 1984. Identification parade is one of the examples of said situation.
•
Probability is a piece of evidence and can be relied upon as an
item to prove a fact. Please see 2006 YLR 251
Fact and opinion; As per article 2(d), Qanun-e- Shahadat order, 1984, fact and an opinion are two different terms of law, having
different consequences. For example a doctor who used to conduct the post
-mortem examination of a dead body, he describes the nature, seat and number of
injuries, which he observes during post mortem report, At the same moment, he
can also make his opinion as to the manner through which these injuries might
have been caused and as to cause of the death. As an expert, he
describes the number, position
and nature of injuries, as he has actually observed, perceived and noticed, but
to depose about the manner and weapon of offence with
which these injuries were caused and
the cause of the death, is the
simple opinion of the doctor drawn from
the facts as he observed
during examination of the dead body. Please see PLD 1992 Lah. 314.
Evidence; Evidence means to confirm, attest, explain corroborate and
demonstrate the disputed facts on oath before the court, so that the court can make the conclusion of the matter
in issue between the parties. The word evidence is an exhaustive term and
includes all statements which the court permits or requires to be made before
it, by the witnesses, in relation to matters of fact under inquiry or trial.
Such statements are called oral evidence, and all documents produced for the
perusal of the court are called documentary evidence.
Testimony; Evidence and testimony are interchangeable words, but in article 3
and 17 of Qanun-e-Shahdat order1984, word testimony has been used to that of
evidence. Testimony means the statements
of the parties, witnesses and documents which are allowed under Qanun-e-Shahdat
Order 1984, to be produced before the court to prove fact in issue or relevant
fact. In testimony, competency of the witness, court, oath of the witness and
cross-examination would be the basic factors. Without cross-examination the
evidence cannot get the status of testimony. So to make the evidence testimony
cross-examination is obligatory. But normally, we use the word evidence to that
testimony which is wrong practice.
Voluntary
statement; In cross-examination,
we face the issue of voluntary statement on the part of witness, when he tries
to further explain his answer. There is no provision of voluntary statement in Qanun-e-Shahdat order 1984, and it also got no value in the eye of
law and judges normally allow such type explanation /answer to continue the
process of evidence. It has been explained in case title Mushtaq Ahmed V
Mohammed Sarwer and another that voluntary statement by a witness in
cross-examination has no evidentiary value. Such voluntary evidence is against
the rule of re-examination as contemplated under Art.133 of Qanun-e-Shahadat
order 1984.
Obliging concession; It means
to give undue favor to defense. Sometime formal witnesses, doctors and IOs give
favorable answer in cross-examination to favor the defense and said answers are
always against the record and are normally made in league with the defense side
to weaken the case of the prosecution. If the court come to the conclusion that
answers of said pw is given to weak the prosecution case and to support the
defense version, then court can ignore it. Said situation as per law is known
as obliging concession and the court of law discourage said steps of the
witnesses and no benefit is advanced to the defense. Please see landmark judgments Habib-Ullah case reported
in PLD 69 Supreme Court, page 127, Muhammad Shareef case reported in 1976
Supreme Court, 452 and 2005 SCMR, 1431,2009 SCMR 407 and 2009 Pcrlj 894 FSC.
Previous
statement; Said statement is
very material in criminal trial. It has been explained in article 140 of
Qanun-e-Shahadat order 1984, and section 162 crpc. If a statement recorded in
discharge of official duty in the same case or in some different case, having
relevancy with the fact in issue, can be brought on record to confront its
deponent, when he comes to court to make evidence. Article 46 and 47 of The
Qanun-e-shahadat Order, 1984 are also relevant in this respect.
Narration; Narration is
the act of telling a story, usually in some kinds of chronological
orders. Narration generally,
means any kind of explaining or telling of something. As per legal practice narration means the
examination-in-chief of the witness and answer of the witness as given against
a general question, put in the cross-examination. All the examination-in-chief
and most of the cross- examination are normally done in the form of narration,
but there is no restriction to do the same in the question and answer shape.
Leading questions; it means a question which promotes or encourages
the answer wanted
to the maker of the question. It is further explained by the
superior courts that the real meaning of this question is that a question which
suggests the answer (yes) is a
leading question. A question which suggests only the
answer (no) also
is leading question, but
a question which may
be answered either in yes or no,
and suggests neither answer as the correct one, is not leading.
Suggestion; it means an idea or plan put forward for the consideration to other
person. In our judicial system, it is normally used by defense counsel to put
their stance/version to the pw, during
cross-examination to rebut him and advance/introduce the case of defense and if
the same is wrongly put, it can promote the case of the prosecution. As per
law, settled in PLJ 1991 criminal case Lahore 249, 2010 P Cr. L J, 1726 and
Muhammad Shah case, reported in 2010 SCMR page 1009, said suggestions never got
the status of corroboration or direct evidence. It is the prosecution which has
to prove its case independently. On the basis of one favorable answer by the pw
to the defense or any suggestion in favor of the prosecution, would not matter,
rather whole evidence is to be looked into, while making any conclusion of the
case. In 2006 SCMR, 577, otherwise view is taken and it was held that said
situation will be addressed in favor of prosecution, but it is a minority view.
Discrepancies; It means when there is a difference between two things that should be alike. In ocular account normally minor
discrepancies crop up due to time factor, but if they do not touch the
intrinsic value of evidence, then same will not matter. Please see 2003 SCMR
884 Mandoos Khan case, 2013 P.Cr.R 1028, 2013 P.Cr.L.J 688 and PLD 2013 586.It
is added that to address said discrepancies, time factor will be kept in mind, because it plays
vital role in memory of the witness.
Confrontation; It is a basic right of an accused in a criminal
trial to confront the testimony of opponent witness in his trial, while using
the opportunity of cross-examination. In our judicial system confrontation means right of the
accused through which he can confront the witness with his previous statement
recorded under section 161 Cr.PC or a ny statement made by him before any even
administrative forum which is related to the matter in issue in 162 crpc and in
article 141 of Qanun-e-Shahdat etc, when the witness avoids to accept/disclose
his actual statement recorded before the police u/s 161 Cr.P.C, or any other
forum of law. Normally, this practice is done when the witness try to improve
his case to fulfill the lacunas or to disown anything goes against him.
Actually, witness makes an effort to deprive the accused qua said valuable
right, so that the accused could not confront said situation. Said act of the
witness shakes his credibility. It is added that confrontation is allowed with
previous statement of the witness and nothing else. Please see relevant case
law PLD 1965 Supreme Court 188 and 1995 MLD 1635 Federal Shariat Court and PLD
2013 SC 386.
Note: Prosecution
could not be permitted to confront a witness with his previous statement
recorded u/s 161 crpc for the purpose of contradicting him even after being
declared hostile.
Procedure
of confrontation; To confront a witness with his previous statement is
somehow complicated process. I just try to simplify it in the light of my
experience. The proper way is to ask the
witness, whether he has made such and such statement before police or before
any other quasi-judicial or administrative forum. We are normally confused, if
the witness replies in yes, the previous statements in writing need not to be
proved, because he himself admitted the said statement before the court and court
will see the fate of said statement. If the witness denies his previous
statement or states that he does not remember any such statement, then
confrontation is needed and said statement be placed on record as ex; DA, B
etc, so the court could see the authenticity of statement.
The
defense counsel will read out to the witness the relevant portion of his
previous statement and give him a chance to explain or reconcile the same. For
example, if pw stated in his previous statement that he reached at the place of
occurrence on hearing the hue and cry, when the victim was assaulted, but in
his examination-in-chief before the court, he states that he reached at the
place of occurrence, while passing through near the same. There is a
contradiction in his two statements and this can be confronted, if so needed by
the defense and defense can put his previous statement as DA etc on the record,
so that the court can observe the actual position. If said practice is not
done, then the statement given before the court on oath would be believed as it
is, and no benefit of previous statement can be taken by the defense.
During
the dictation of cross-examination, when the defense side tries to bring on
record anything left by the witness, which is in favor of the defense or
anything added by the pw, which is amount to fulfill the lacuna, then
after seeing statement of the pw u/s 161
crpc and the examination-in-chief of the pw
and if any addition is made then the said situation can be confronted
with the previous statement under section 162 crpc and article 140 of the
Qanun-e-Shahdat Order, 1984 as the case may be, otherwise the same would be
used against the defense.In the same way, when anything is omitted which was
mentioned in the previous statement and the same is useful for the defense,
then the defense can bring the same on record.
FIR is
mere first information having no evidentiary value, until its scribe (we
normally use the word scriber to that of scribe which wrong practice) proves
its contents before the court. Its maker can be confronted with it, in 140 Qanun-e-Shahadat Order 1984. Its maker can be corroborated in
153 Qanun-e-Shahadat Order 1984. It can be proved against its maker
in 34 Qanun-e-Shahadat Order 1984. Except this it got no role in
criminal trial. Mere improvements are not fatal until these become dishonest.
To declare them dishonest, the criterion is confrontation, by defense and court
itself can't adopt said role. So, we ourselves can't compare the contents of
the FIR, with its maker evidence, we being procedural court has to follow the
settle rules of evidence. As far as 161 crpc statements are concerned, its use
is to confront the witnesses in 162
crpc and nothing else, we ourselves can't compare its contents with testimony
of the witness.
Contradiction; It means the opposition of two ideas which are the subject of one and the
same proposition. When two witnesses or other persons, state things directly
opposed to each other, it amount to contradiction in their evidence. In our judicial system contradiction
and confrontation are two different things. Contradiction means a conflict in
the evidence of pws, if said contradictions are minor in nature and are not
touching and disturbing the roots of the charge, then same are normally
ignored, otherwise said situation is
addressed in favor of defense. Confrontation is the move of the defense
through which the testimony of the witness is checked qua his previous
statement. For further clarification please see PLJ 2013 Cr.P.C 319 and 2014
Pcrlj 885. Discrepancies in the detail of the facts do not amount to
contradiction. Please see PLD 2005 Peshawar 166. If discrepancies are minor in
nature, then carry no weight. Please see 1995 SCMR 1793. It is added that minor
contradiction are quite natural, because with the passage of time the witness
cannot recollect the actual/minute detail of the occurrence and due to this
minor contradiction are normally ignored.
Dishonest improvement/embellishment; Dishonest improvement means to add
something in the previous statement recorded u/s 161 Cr.P.C, to strengthen the
case after seeking some legal assistance, but when the same are duly confronted
and once the same found to be deliberate and dishonest, it costs serious doubts
on the veracity of such witness. Please see 1993 SCMR 550. When a witness
makes improvements or omissions in his deposition, he agrees to own dishonesty,
which alone is sufficient to discard evidence of such dishonest witness. Please
see 2019 MLD 1821. If these improvements are minor in nature. it was held in 2008 SCMR, 8, 2010 SCMR, 385, 2003 SCMR, 884,
2013 SCMR 480, and 2012 SCMR, 1869 that same would not matter.
First version, confession & defense
version; These
are two different terms having different consequences. First version means the statement/ version of the accused recorded by the I.O, when
first time the accused appears before the I.O and the I.O records it under the
head of “berderiaft”. Normally, it is based on reality. As per article 27 of the Qanun-e-Shahadat Order, 1984
the same is admissible in evidence. As a general rule evidence not forming part
of the transaction is not admissible, whereas articles 27&28 of the Qanun-e-Shahadat
Order, 1984 are exceptions to the said
general principle and the facts which are relevant facts to prove the
status/mind of the accused are admissible in evidence like the guilt, intent,
knowledge, negligence, malice etc of the accused. Law is settled that the accused can take the
copy of his first version and during cross-examination, he can bring the same
on record under Article 27 of the Qanun-e-Shahdat Order 1984, by putting
question to the I.O. In the same way, any confession made by the accused before
the police can also be brought on record under the said article,but this
facility is no more available to the prosecution side and whatever the first
version or confession of the accused recorded by the I.O, the prosecution
cannot bring the same on record while putting the same to the I.O. Further see
Section 162 and 172 Cr.P.C under which the accused cannot be restricted to
cross-examine the I.O, or the Magistrate who recorded his confession and he
place it on record and can use the same in his favour. Please see Liaqat Ali
case reported in 1998 P.Cr.L.J 216, PLD 1974 Karachi 91 and Aslam case reported
in PLD 1995 Lahore 632 and PLD 1971 SC,
751.
The statement recorded u/s 161 Cr.PC or in the
body of the police file is a relevant fact under Article 49 of the
Qanun-e-Shahdat Order 1984. Qanun-e-Shahdat Order 1984 is an independent law to
other procedural laws i.e. Cr.P.C and under Article 15 of the Qanun-e-Shahdat
Order 1984 court can compel the I.O, to see the police file and give correct
answer and the privilege of the I.O, u/s 172 Cr.P.C is of no avail to him due
to article 15 of the Qanun-e-Shahdat Order 1984.
As per settled view of the superior courts,
accused is the favorite child of law and he can take a number of pleas in his
defense and is not bound to prove the same. This situation has been explained
in Azhar Iqbal case, reported in 2013 SCMR 383, whereby it has been clearly
opined that in case the accused admits the murder due to Ghayret or due to
other general or special exceptions, then too, he cannot be convicted until,
unless the prosecution proves its case independently.
Accused is so favorite child of the law that if
he has not taken the plea of self-defense and the court comes to the conclusion
that the accused committed the occurrence due to self-defense, then while
believing the same, benefit can be given to the accused about the said plea.
Please see, 2008 YLR 1315 Umer Draz case, 2005 PCr.LJ 1689, PLD 2004 SC 244 and
2011 SCMR 45.After 18th Amendment under Article 10 (A) privilege in the shape
of due process and fair trial is also given to the accused. So, in said
situation courts are bound to give full-fledged opportunity of hearing and
defense to the accused except scandalous questions. If the accused put
scandalous questions then he loses his status as favourite child of the court
and benefit of 382 B Cr.P.C can also be
withheld.
Sometime we face the issue when any accused
come under section 340 (2) Cr.P.C as his own witness and deposes on oath before
the court, then all the procedure for confrontation of previous statement
provided for the prosecution /defense witnesses would be the same. Here if the
prosecution side wants to confront the first version of the accused as got
recorded by him before the I.O, then the court will allow the same.
Defense version means the version taken by the
defense counsel during the cross-examination at the eye-witnesses, and at the
I.Os. Further the defense version is also taken in the statement of the accused
under section 342 crpc and if the accused himself appeares as his own witness
u/s 340 crpc then, he also takes his defence
version on oath. It may be in the light of the first version as discussed above
and it may be independent to that of said first version of the accused. The consequences of
both the same are different to each
other as discussed above.
Un-rebutted evidence; Please see the Article 113,133 and 134 of the
Qanun-e-Shahdat Order 1984, whereby it was explained that if the evidence is
un-rebutted, then it would be admissible in evidence. Please see 2007 SCMR
1700, whereby it was held that facts asserted by one party remain un-challenged
would amount to admission, so to confront and controvert the incriminating
evidence is obligatory, otherwise it would be used against the opponent.
Evidence of the eye-witness in the shape of examination-in-chief without
cross-examination is admissible in evidence, but it remains only evidence and
after cross-examination said evidence got the status of testimony which is more
authentic and reliable. So
un-challenged evidence can be legally taken into consideration, if it is
fully corroborated/ supported by other pieces of evidence like medical evidence
and recoveries etc, To believe it against the defense extra care and caution is required, because
without cross-examination, it remain evidence and cannot get the status of
testimony, because for that purpose cross-examination is necessary.
Evidence of an
eye-witness in the form of his examination-in-chief could not be rejected on
the simple proposition that he was not subjected to cross-examination, if the
accused had himself avoided in a deliberate and calculated manner to avail such
an opportunity. Distinction had to be drawn between these two situations, one
where opportunity to cross-examination was not given or denied to a party, and
second, where it was given, but deliberately not availed of by the accused. In
the latter position the accused can badly suffer. If the right to cross, was
reserved as per request of defense and the witness is died or not available for
cross-examination, then the defense will suffer. Please see PLD 2010 SC 642
Arbab Tsleem case, PLJ 2011 SC 117 and PLJ 2018 SC453 Sadiq case.
In PLD 2001 Lahore 463
otherwise view is taken but after the views of apex court said view will not
matter.
In civil case, said
situation effect otherwise. The principle that a statement or any part of
statement, which remain un-rebutted amount to admission does not attract in
criminal cases, because in criminal side prosecution has to prove its case on
its own, beyond any shadow of doubt, but in civil cases preponderance of
probabilities of the evidence of the parties matter. So question of un-rebuttal
in civil matter is important, but this is not so material in criminal trial. Please see 2018 SCMR 149.
During cross-examination defense
must controvert the evidence of witnesses and put his defense in the shape of
suggestions to all type of witnesses like eye/recovery witness etc that you are
inimical towards the accused etc and due to this you made false evidence. Only
plea taken by the accused in his examination recorded under Section 342, Cr.P.C,
that the case is false and has been registered under the political influence
etc, is not sufficient to create doubt in the prosecution case. Please see 2008
SCMR 387.Defence counsel has to build its defense during cross-examination,
because as per section 342 crpc, there is no room for the defense lawyer to
make answers on behalf of the accused, if so asked by the court under said
section.
Probability and
benefit of doubt; These are two
different terms of law and both said terms have not been explained in any code,
however these have been taken up in various judgment of superior court. A
probability is a state of things that reflects the chance or likelihood that a
particular event can occur. Probabilities can be expressed in proportion like
its range from 0 to 1, and these can also be expressed in percentages ranging
from 0% to 100 %. While word benefit means advantage, gain or interest and
doubt mean misgiving, suspicion and uncertainty etc. The accused is entitled to
have, the benefit of doubt as a matter of right. Accused being a favorite child
of law is to be treated as innocent unless he is proved on the basis of best
possible evidence that he was connected with the commission of crime.
Blood Stained earth;It got importance in murder trial when the
place of occurrence is disputed or the dead body is not verifiable due to
certain reason. Police normally collect report without comparison report
whether said blood was of the deceased or not. Simple report that it is human
blood is not sufficient. To make sure that the deceased was murdered at the
place of occurrence, the collection of comparison report of the deceased blood is necessary. In the said situation no need to cross-examine
the said aspect of the case.
Scale site plan ;Scale-site plan is not necessary in all the cases, it is the discretion of the IO, to
get prepare it if needed. It is not
substantive piece of residence. It can be helpful to cross-examine the eye
witnesses qua their location and other evidence about mode of occurance.Now in
the present era when everybody has video cameras in his mobile, the I.O should
prepare the video of the crime scene, but police avoid to do so and take the
control of everything to prepare the police report as per their need. It is a
basic evidence and if court see, the said video, then most of the things become
clear about the occurrence.
Inquest reportInquest-report/Naqsha Sorat-e-Hal/Report Marg; These three terms are one and the same
and come under section 174 Cr.P.C and
police rules 25, 31-35.Inquest report means to observe the cause of death of a
person and not the person who had caused the death. It is the duty of police to
observe whether it was natural death or by violence or by poisoning, when
police visits the place of occurrence and dead body is lying there. Police is
bound to mention the cause of death. If said report does not disclose the name
of the accused, then it will not matter because its basic requirement is to
disclose the cause of death and not the killer.Please see PLD 2006 Peshawer 5
and NLR 1982, Cr.L.J, 452.Said report states the apparent cause of death, provide description of any mark or marks of
violence which may be found on the body and describe the manner in which and
the weapon or instrument with which such marks appear to have been inflicted.
Said report is signed by the police officer conducting the
investigation.The plan of the scene of death and the detail of clothing, etc
and a list of the articles lying with the body are mentioned in said report. In
cases of death by hanging, the report shall give particulars as to the height
and sufficiency of the support and the nature of the thing used to bear the
weight of the body. In drowning cases the depth of the water shall be stated
Police file / Zimni /case diary
and its use.Case dairy/ zimni is different to the station /
general diary(roznamch). Case diaries are recorded by the I.O during the
investigation of the case,on the printed pages as provided to the I.O by his
department. Every page on which police diary is
written got its number, so that the check on the police investigation be
maintained, but police badly violates it and almost in the criminal case, the
sequence of the page number is disturbed. I.O is bound to send the one carbon
copy of his case diary to the DPO office,but this rules is also badly violated
by the police. These are some reasons due to which the opinion of the police is
always doubted.
Defence cannot claim the copies of the case
diaries under Section 265 C /241 cprc. In the same way, during
investigation processs the accused cannot claim access to said diaries. The reason behind it is
that the plan of investigation of the I.O, should not be in the knowledge of
the accused.If the accused will be aware about the line of action of the I.O,
then the accused can manage to disappear the incriminating evidence as the I.O
wants to procure against the accused. However the statement recorded in boiled
from of PWs can be given to the accused.
When police report under Section 173 Cr.P.C
is placed before trial court and trial court take the cognizance of the case,
then the concerned I.O, hand over the police file to the Naib court of the
trial court. When 173 Cr.P.C, report
submitted before trial court and trial court take the cognizance , then said
report got the status of judicial file
and it is the record of trial court and trial judge can issue the attested
copies of said report as per law.
But as far as police file is concerned, the
same is not judicial or court record. We cannot issue the copies of the same to
the accused. It can only be used by the I.Os to refresh their memories and
defence counsel can get use it to confront the I.O and to put the first version
of the accused on court record. Defence also can get bring on record the
material which is favourable to the accused, as collected by the I.O
during investigation process, but so
such facility is available to the prosecution. Actually police file is the
record of the public prosecutor attached with the court.
Some
time we face the issue of using the case diary in the criminal trial on the
part of the defense side and if the court deem it proper to reach at the just
conclusion of the case then the court can direct the investigation officer to
look into the case diary and make the answer and the investigation officer
would be bound to do so because it is the right of the defense. As
per wisdom laid in section 265, Cr.P.C
and further explained in 1976 SCMR 506
it is held that police diary cannot be corelated with the statements of all the
witnesses recorded by the police. Further case relevant law on this point has been explained
in PLD 1992 Lahore 336.It is added that
the procecution side cannot use the case diries in thieir favour against
the defence.
Roznamcha
/ Station Diary genral Dairy;
A diary
maintained by the police to enter any significant event, incident, offence or
crime etc, on day to day basis is known as police diary and It can be
produced in the evidence. Reports about non-cognizable offence are also entered in said register. In
addition to that all the proceedings of the I.O are given in that register.
Accused cannot claim the copy of said register under Section 265-C /241 Cr.P.C.
However, to confront the I.O, the said register can be summoned by the court at
short notice to the concerned police station. In criminal trial normally, we
use it to check the investigation process of the I.O, because every I.O is
bound to enter his departure and arrival with detail of constables accompanying
him. If any thing collected by the I.O,
he will enter it in the said register. I.O will also mention the arrest of the
every accused in the said register. If the investigation proceeding of the I.O
got no support in the said register about his departure / arrival etc with
reference to the case, then prosecution will suffer. To reach at just
conclusion of the case the court under
Article 140 of Qanun-e-Shahadat Order, 1984 can bring the entry in said register on record
and it would amount to statement.
Use of modern evidence
like audio or video
and its legal value;
The House of Lords in case titled, Regina
(Quintavalle) v. Secretary of State for Health
held that the laws have to be made
in the light of development in scientific knowledge and utilize it in judicial system. Our
courts of law in criminal
and civil side can take judicial notice
of the credible scientific development under Article 112, Qanun-e-Shahadat,
1984. In the present era, we cannot ignore
the relevant scientific research and development, which
has already been recognized and acknowledged by the courts in various other
judicial systems.Scientific research can help and assist the court in
understanding and appreciating evidence
properly and the object of natural and substantial justice can
be ensuerd while using latest technology to collect/ appreciate the evidence.In
this regard article 164 of the
Qanun-e-shahadat Order, 1984 is there,
but to utilize modern devices properly
further legislation is required
because our scheme of law
consider it just as expert opinion and we still prefer the direct or
circumstantial evidence etc. It is held in PLD
2019 SC 196 that I.O can get record the statement of the complainant and the pw under Section 161
Cr.P.C through audio or video or any other mode of electronic media.
No audio or video tape straightaway can be relied upon by a court until the same
is proved to be genuine and not tampered with.A forensic report of audio or video tape prepared Punjab Forensic Science Agency is per se admissible in evidence under section 9(3) of said agency.Under Article 164 of the
Qanun-e-Shahadat Order, 1984 a court
can allow such type evidence to be produced in evidence
in accordance with the law of evidence.Accuracy of the recording must be
proved.An audio or video tape sought to
be produced in evidence must be the actual record of the conversation as and
when it was made or of the event as and when it took place.The person recorded
the conversation or event is to be produced as witness.The audio or video tape must be played in the court and
it must be clearly audible or viewable.
The person recording the conversation or event must identify the
voice of the person speaking or the person seen or the voice or person seen may
be identified by any other person who recognizes such voice or person.Any other
person present at the time of making of the conversation or taking place of the
event may also testify in support of the conversation heard in the audio tape
or the event shown in the video.Such type evidence must be relevant to the controversy and otherwise
admissible. Safe custody of the audio tape or video after its preparation till
production before the court must be proved.The transcript of the audio tape or
video must have been prepared under independent supervision and control. An audio tape or video produced at a late
stage of a judicial proceeding may be looked at with suspicion. A formal
application has to be filed before the court by the person desiring an audio
tape or video to be brought on the record of the case as evidence.Please see PLD 2019 SC 675.In PLD 2019 Supreme Court
of Pakistan page 196, it is held that in
the present era keeping in view the need of latest technology, the audio and
vedio are accepted as solid evidence.
Note: When an advocate will clear qua
above said terms of law, he would be in better position to cross-examine the
witnesses.
Cross-examination by defense: It
is added that normal concept is that the cross-examination is done only by the defense counsel, but reality is
otherwise, even prosecution counsel and even trial judge can also do said job,
if so required. Concept of joint cross-examination is not recognized by the
law. In case where there are more than one accused, the judge while
recording the cross-examination of a witness should mention the name of the
accused and/or his lawyer who is cross-examining the witness. Sometime the accused engaged more
than one counsel, only one lawyer is allowed to cross the witness on behalf of
the accused. Cross-examination by accused himself
is no substitute for cross-examination by the counsel. Please see 1993 SCMR
550.Further to conduct relevant and
legal cross-examination, one should be clear about the legal terms like, facts,
statements, evidence, narration, suggestion, improvements dishonest
improvement, and confrontation etc. Even some lawyers are not aware about the
difference amongst said terms which are quite necessary for proper
cross-examination. The defense counsel normally can ask only three types of
questions in cross-examination, in the form of narration, suggestions,
and leading questions.
Normally, the defense counsel ask question in
the form of narration and the witnesses also answers it, in the form of
narration. Most of the cross-examination is in the form of narration, But some
time, when the witness is telling lie, or he wants to conceal or confuse the
real facts, then the defense lawyer can suggest the witnesses the actual
situation. Actually, narration is the stance of the witnesses, while suggestion
is the stance of the opponent party, who conduct cross-examination and during
this through suggestion said party put its defense to the witnesses. So, any
question which was asked in the form of narration is not so dangerous, but any
suggestion made by the counsel which either answered in positive or negative
can be used against the party making it to the witnesses.
Further
after going through the report u/s 173 Cr.P.C, police file, visiting
of the place of occurrence, discussion of the case with the party , proper
knowledge of medical jurisprudence and forensic science are also helpful in
cross-examination. In murder, injury and rape cases, the knowledge of the
doctors is normally very poor and during cross-examination, they can easily be
knocked out by the competent defense counsel. In our judicial system normally defense lawyers
conduct a lengthy cross-examination, not to assist the court to arrive at just
conclusion, but they do so for the manipulation of mistakes and sometime said practice is done just
to pay the gallery.
No
proper formula or procedure can be prescribed to conduct proper
cross-examination, but after going through the cross-examination as conducted
by some competent defense lawyers, some hints can be taken and said right is to be exercised within
framework provided under articles 141 and 151 of Qanun-e-Shahadat Order, 1984. It is not necessary that witness
should only reply the question as per wishes of the defense side, he can
explain his answer as he wishes. No restriction can be imposed upon said
explanation. It is the basic duty of the trial judge to ensure the prestige and
dignity of the witnesses during the cross-examination and witness should not be
harassed by the defense counsel. Actually, a witness comes forward in aid of justice before the
court of law. Even a man with most brilliant qualities would collapse, if he
will be subjected to filthy, lengthy and irrelevant cross-examination, so court
should check such type practice.
I just refer my own judgment dated 20.09.2017 passed in case titled the
state v Mohammed Arshed, sessions case No.67/S.C. of 2017 and sessions trial
No.12/S.C of 2017, FIR No. 448/2017 dated 12.08.2017 u/s 302 PPC police station
Sadar Lodhran, wherein following factors were explained and these factors can
be material in cros-examining to observe
the availability of the eyewitnesses at the time/scene of occurrence:-
(I)
Residence, age and profession of the witness.
(II)
Routine of daily life of the witness.
(III)
Relationship of the witness with the deceased.
(IV)
Distance between the places of residence of
the pws.
(V)
Distance of the place of occurrence from the
residednce of the pws.
(VI)
The location of
place of occurrence.
(VII)
Approaches/passages towards place of
occurrence.
(i)
The distance
amongst the pws, the deceased and the accused at the time of occurrence.
(ii)
Seat of the
injuries and kind of weapon used by the accused.
(iii)
Position/location of the accused, the pws and
the deceased, prior to the occurrence and the same during the occurrence.
(iv)
Arrival of the
accused, the pws and the deceased at the place of occurrence and the ways used
by them.
Sequence of cross-examination: For convenience, in criminal trial,
defense counsel can divide cross-examination in certain paragraphs on the eye
witness with the following sequence;
· In first paragraph the relation of
the witnesses can be asked.
•
In second paragraph delay in lodging FIR can be checked.
•
In third paragraph mode of occurrence and the credibility of the
witnesses at the time/place can be crossed in a few mini paragraphs.
•
In fourth paragraph ocular account can be confronted with medical
evidence.
•
In fifth paragraph motive can be checked.
•
In sixth paragraph recovery witnesses can be crossed, if the eye
witnesses are also the recovery witnesses.
•
In seventh paragraph defense
version can be put at eye witness
•
Sometime defense lawyers put their case in the beginning and it
makes the thing complicated. So, the better option is to put the case of the
defense at the end of the cross-examination at the complainant and the
eyewitness, so that any development come into cross-examination can easily be
covered up / used in defense version.
Settled principle of cross-examination.
If
one aspect of the case is admitted by one eye witness, then no need to seek
further clarification from other pws, because it’s the prosecution which has to
prove and clarify its case. The job of the defense is just to create doubt.
Further, if a witness gives some favorable answers, then never seek further
clarification of said issue from the said pw, because normally, pw recollects
his memory and clarifies the situation as already stated in favor of defense.
Some time prosecution counsel makes undue interferes and tries to
complicate/explain the situation and during this the witness clarifies the
situation. So after seeking favorable answer change the topic and ask other
question and if further clarification is needed in the favorable answer, then
change the form of the question and then ask at reasonable occasion. Some time
it happens that due to the wrong suggestions and questions of defense counsel
the defense suffer a lot. Defense cannot get away with his suggestion and
questions. So, the defense counsel is clear in mind to put questions and
specially suggestions during cross-examination. The better option is that
always put questions in the shape of narrations and at the end the defense
version can be put in the shape of suggestions to the eye witness.
I have
seen a number of times that lengthy cross-examination not only damages the
defense, but some time, it becomes helpful to clarify the facts of the case
which was inadvertently left by pws. It is not necessary to rebut each and
every aspect of the evidence, because some evidence is produced without any
relevancy. So, it is the duty of the defense to cross-examine and controvert
the evidence which can be used against the defense. It is obligatory for the
defense lawyers to prepare their line of cross-examination in the light of
their defense, if defense is going to admit the killing while taking
self-defense, like grave and sudden provocation etc, then most of the
prosecution case like place/time of occurrence, identity of the accused,
deceased and cause of death etc, are not required to be cross-examined in
detail and in such type of situation, the stress of cross-examination should be
on the mode of occurrence and the other aspects which can prove the defense
version. In such type situation normally motive, medical evidence and mode of
occurrence can be explained in the light of the defense. In most of the cases
the comparison report of crime empties is not procured rather some time crime
empties are not taken into possession by the I.O. In such a situation said
recovery is totally inconsequential and cannot be used as an incriminating
piece of evidence against the accused, but some time even senior defense
lawyers make lengthy cross-examination on that issue. In my humble, it is
totally useless practice.
Sometime place of occurrence is not
disputed, but in spite of this, defense counsel cross-examine draftsman up to a
number of pages. Sometime irrelevant question are asked from formal witnesses.
Said witnesses are not bound to answer such type irrelevant questions. Some
questions are normally asked from the pws who identify the dead body. Mostly,
they are close relatives of the deceased and they give evidence only to the
identification of the dead body. Their examination-in-chief is pertaining to a
few lines and defense court asks from them the time of occurrence, name of the
accused and detail of mode of occurrence. If said Pw gives some answers which
can favor to defense qua remaining facts of the case, then no benefit can be
given to the defense. The court will only consider their evidence qua
identification of the dead body and nothing else. Normally, identification of
the dead body is not disputed and in such a situation, there is no need to
cross-examine such type pws. However about time and place of the identification
of the dead body, they can be cross-examined. So, while cross-examining, the
defense lawyers, being the officers of the court should facilitate the courts
and not waste the time while conducting irrelevant and lengthy cross-examination.
Sometime complainant side insists to produce the three pws on same point like
recoveries etc, because in almost each recovery memos two pws are cited by the
the I.O, it is fruitless practice and to prove recoveries only one cited pw is required and the second one can be the
I.O of the case who prepared that
recovery memo. In criminal side quality of evidence matter and even on single
eye witness accused can be sentenced to death, so defence is to cross-examine
said sole witness on each and every aspect of the case to falsify the
occurrence. He can be cross-examined in the light of site-plan, medical
evidence,motive, his own character and conduct etc, but in civil side along
with quality,quantity also matter,like
article 79 Qanun-e-Shahadat Order 1984 etc.
In the same way, sometime to prove chemical or serologist or any
expert report its scribe is requested
to summon as pw.This is also fruitless practice. Section 510 Cr.P.C is clear on this point, wherein it is provided
that such type reports can be used in evidence without calling it scribe. Some
time defence lawyers insist that the examination-in-chief of the pws be
recorded in his prersnce. Section 353 Cr.P.C
is clear on this point and only the presence of the accused is necessary
at the time of recoding of evidence. If his presence is dispened with subject
to appreance of his pleader, then in the presence of that pleader evidence can
be recorded.The pleader can be any person including an advocate.
Sequence of recording of evidence:
On sequence
of recording of pws, and cross examining them, no restriction can be imposed
and as per article 130 Qanun-e-Shahadat
order 1984, it is
the discretion of the trial court, but this discretion is to be used to
facilitate the fair trial. Evidence of the I.O can be recorded as Pw- 1 and
evidence of complainant can be recorded as last Pw. Defense can raise objection
only in the sequence of the cross-examination and not in sequence of
examination-in-chief of pws. The logic behind, the sequence of the cross-examination
of the pws, is that the defense has to put his case at the pws. If he will
cross-examine the I.O, and complainant first, then his defense can be opened
and prosecution will be in position to tutor the remaining pws especially the
doctor, recovery witness and draftsman etc, in line of cross-examination as
done by defense counsel on the complainant and the I.O. Further IO, is the scribe of all the
statements of pws and other proceedings, and at the end defense can cover up
all his short comings while putting questions and suggestions to the IO. So, in
cross-examining the pws, the sequence suggested by the defense will matter and
no restriction can be imposed in sequence of recording of examination in chief.
Sometime the issue of piece-meal cross-examination is raised by the defense. It
is right of the defense that he will be provided opportunity to cross each of
set of the witnesses, like eyewitness on one and the same day. The defense
counsel cannot claim that he want to cross-examine the doctor, draftsman etc on
one and the same day along with
eye-witnesses, because in such type situation, there no issue of piece meal
evidence, because the evidence of said witnesses do not come under the set of
witnesses.
As far
as the cws are concerned, they are normally the pws and due to certain reasons
prosecution, got given up them and they are summoned on request of the defense,
because these types of witnesses are not supporting the prosecution case and
defense want to bring their evidence on record for the corroboration of its
defense, because without bringing their evidence on record, the court cannot
consider the evidence of said witness as lying in police file.
In such
type situation, when cws, got recorded his examination-in-chief which is
normally against the prosecution, then prosecution is asked to cross-examine
the cws, first because some time the defense feel no need to cross the cws. So,
this is the logic for which prosecution is asked to cross-examine the cw first.
So, the party against whom cws depose is asked to cross said cw.
Sometime
during cross-examination pw admits that his statement under section 161 Cr.P.C
was not recorded by the police. In such type situation some defense lawyer does
not further cross-examine said pw, because they are of the view that said
evidence of the pw cannot be used against the accused. It is wrong concept,
when a pw makes his statement on oath before court of law, then it carries
value in the eye of law. The previous statement i.e. 161 Cr.P.C is used for
only confrontation purposes. In complaint case normally no such statements are
there. In the same way sometime no such statement of cws are there, but when
they make statement on oath their evidence is admissible. So, in said situation
the witness must be cross-examined, otherwise his evidence can be used against
the defense.
Cross-examination by a trial judge; No doubt, here in
Pakistan adversarial system is in existence and a judge only got the role of
umpire, but some exception are there like Art. 161 Qanun-e-Shahdat
Order, 1984, section 249 A, 265 K, 340, 342, 363,539 B, and 540 Cr.P.C etc
empower the trial judges to discover proper facts to do complete justice. In 2015 Pcrlj 1566 Khyzer Hayat vs judicial magistrate
and 2 others, it is held that no right is available to accused to seek legal
assistance at state expenses in the matters, other than entailing capital
punishment. It was further held that in all others cases, it was the duty of
the trial court to put a cross-examination itself on behalf of an un-represented
accused, or who himself intentionally is avoiding to cross-examine the witness.
When defense counsel was constantly not
showing his appearance, it was the duty of the trial court to put question
itself to defend the cause of accused, or to offer accused to cross-examine the
witness, in order to ascertain truth for just decision of the case.
When the accused is represented
through his counsel, then too, the court can exercise said powers, if so
needed. Where an accused is not able to engage a counsel, it is the duty of the
court to cross-examine witness itself on behalf of the accused. During the
recording of the evidence, trial court should apply its mind to the case
carefully and try to clear away any doubts created by different pieces of
evidence. During the whole process of recording of the evidence the trial judge
be mentally prepare and aware of the proceedings of evidence, so that he should
be in a position to exercise some control in the process of recording evidence.
Further if the judge himself dictates the evidence, he can better understand
the worth of the pws and even make comments about demeanor of the witness in
section 363 Cr.Pc.
A trial
judge is expected to discover the truth, therefore, if he finds that the examination of a witness is
not being conducted in such a way as can
be helpful to reach at just conclusion of the case, then trial judge
can intervene while making
questions. Lapse on the part of
prosecution can not to be allowed to stand in the way of trial court. Under article 161 of Qanun-e-Shahadat order 1984 and High court
Rules and Orders, Vol III, Chap. l-E, R.2, the trial
Court can rectify the
intentional or un-intentional lapse on the part of complainant,
investigating officer or complainant counsel
by calling an evidence omitted by them, on its own, if such evidence is
necessary for the just decision of the case. Such powers can be exercised in
the larger interest of justice. Stage of the trial is irrelevant to exercise
such power and the only factor relevant for that purpose is the relevancy of
the evidence called.
So during trial, the trial
judge cannot be a silent spectator and in order to discover and obtain proper
proof of relevant facts of a case, trial judge is authorized to put any
questions in any form without any restriction to a witness under Art. 161 of the
Qanun-e-Shahadat Order 1984, particularly where police officers had shown no
interest to conduct investigation in order to detect the criminals and accused
were sent by them for trial without sufficient evidence. Under sections 245(1),
428, and 540 the trial court would be at liberty to receive in evidence any
admissible document despite the fact that same was not annexed with report
under S.173, Cr.P.C, if said document would meet the standards of
admissibility, and was necessary for the just decision of the case and also
would allow cross-examination thereon.
Cross-examination
by prosecution / hostile witness; to
understand said topic, first see what is hostile witness. According to article 150 of Qanun-e-Shahdat Order, 1984, hostile
witness means a witness who while giving evidence is not interested to depose
actual fact before the court and from
the manner, in which he gives evidence, shows that he is not desirous of
telling the truth to the court. If the witness is doing so due to certain
malafide, then the court will declare him as hostile witness and the party who
produced him will be allowed to cross-examine him, if so needed. Such discretion had to be exercised with due care and attention
keeping in view the interests of both parties, so that no one be prejudiced
from the order of the court. In order to invoke articale 150 of
Qanun-e-Shahadat, 1984, it was necessary to establish that witness was guilty
of equivocation or he was varying in his statement or trying to suppress the
truth or that he bore animosity towards the party who called him.
If
the witness answers some questions which are in conflict with the evidence of
other witnesses, then it is not the reason to declare said witness a hostile
witness. Please see 2019 P Cr. L J 1475 and PLD
2019 Lahore 59.The court can declare a witness hostile at any stage of the
evidence and allow the prosecution to cross-examine its own witness. Sometime a
witness in his examination-in-chief fully supports his earlier statement given
to the police or in the court, but in cross-examination, he starts to favour
other party while contradicting his examination in chief. If his malafide is
clear, then court can, during the course of his re-examination, permit the
persons calling him as a witness to put questions to him which might be put in
cross-examination by the adverse party. It cannot be said that if a party
calling a witness is permitted to put such questions to the witness after he
has been cross-examined by the adverse party, the adverse party will not have any
opportunity to further cross-examine the witness on the answers so given by
him. The court in exercise of its discretion will permit the adverse party to
cross-examine the witness on the said answers. Please see AIR 1964 SC 1503. It
is held in 2011 SCMR 23 that if the
defence counsel is not co-ordinating in cross examining to the pws and is taking undue adjournments,
then the court cannot close the right of cross-examination,but provide him
counsel on state expenses.
Re-examination; If some ambiguity or confusion has arisen during the
cross-examination, the party can re‑examine the witness and if some new facts
have been introduced then the adverse party can cross-examine him further.The examination‑in‑chief,
cross-examination and re‑examination all make one statement. The whole exercise
is undertaken to extort truth so that complete justice may be dispensed with.
Considering the rationale underlying article 150, the principle should be made
applicable to the statement made during re‑examination as well. It is possible
that during the course of re‑examination a witness while clarifying or
elucidating a fact may suppress the truth or state something which appears to
be palpably false or, self-contradictory or for some allied reasons then
permission can be sought to cross-examine that witness.
Cross-examination on civil side; The parameters to conduct the cross- examination in civil and
criminal trial are different in nature.
In a criminal trial, time, date, place and mode of occurrence got material role
in the evidence of the eye witnesses and most of the cases are based on oral
evidence to that of documentary evidence and in exceptional cases documentary
evidence got some importance to fix the liability in criminal cases. If there
are contradictions in the above said time, date, place and mode of occurrence
in the evidence of the prosecution witnesses, then normally the prosecution
evidence is disbelieved and accused is acquitted, while giving him benefit of
the doubt, but contradictions in time, date and place are not so important in
civil trial, because civil suits are decided on the basis of preponderance of
probabilities of the facts of each case.
The rules of
evidence of civil and criminal trial are almost same, but some provisions in
the Qanun-e-Shahadat Order, 1984 are peculiar to criminal trial and other are
peculiar to civil trial. In a civil case a mere preponderance of probabilities
is a sufficient basis for decision, while in a criminal case guiltiness of the
accused must be amount to such a moral certainty as persuades the mind of the
court beyond all reasonable doubt and this rule as a prudence, has in fact
attained the force of law, founded on public policy. There is a difference of
onus of proof because in a criminal trial, it is almost on the prosecution and
in exceptional circumstances, shifts to the defense, while in a civil side, it
is on the party who is claiming the relief and is also determined by the court
while framing issues. Criminal trial is concluded in conviction or acquittal,
while in civil trial the relief sought by the plaintiff either decreed or
dismissed. In civil side the burden of proof lies on the person who files a
suit or proceeding to ensure his civil rights. The burden of proof as to any
particular fact lies on that person who wishes the court to believe in its
existence. It is apparent from articles 117 and 118 of Qanoon- shadet order 1984 that once initial onus has been discharged by
the party upon whom it was resting, it would shift to the other party for its rebuttal
thereof. So in civil side there is competition in both the parties to prove and
disprove the stances of each others, but
in criminal trial it is visa versa.
The criteria to
prove the documents in civil and criminal trial is different to each other. In
civil trial mere marking or exhibiting of documents would not dispense with
requirement of proving the same and the same cannot be exhibited unless it is
proved. Admitting of photocopy of a document in evidence and reading the same
in evidence without observing legal requirements of Article 76 of the
Qanun-e-Shahadat Order, 1984 would be illegal. Further to prove the contents of
document article 79 of The Qanun-e-Shahadat Order, 1984 will matter, but said
article is not so important in criminal trial.
In criminal trial maker/ scribe of the document will matter to prove the
contents of the same and there is no restriction to produce two marginal
witness of the same as in the case of civil trial. In civil side to prove
agreement to sell etc two marginal
witnesses are necessary as per article
79 of The Qanun-e-Shahadat Order, 1984, but the contents of FIR or complaint only can be proved by the
complainant or by the scribe who wrote
the FIR etc. Further there is no issue of quantity of evidence e in criminal
trial like civil trial. In criminal trial only quality of evidence
matter.Further please see its detail in my article published in PLJ
November 2022 page 97.
By, Malik Munir Ahmed Joyia.
District &sessions judge.
Banking court no 5
Lahore.
Malikmunir9014@g.mail .
03039466323-03466249001
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