PLJ 2023 SC 327
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Syed Mansoor Ali Shah, JJ.
MEERA SHAFI--Petitioner
versus
ALI ZAFAR--Respondent
C.P. No. 1795 of 2022, decided on 21.11.2022.
(Against the judgment of Lahore High Court, Lahore, dated 18.05.2022, passed in C.R. No. 24617/2022)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--Modern devices--Production & recording of evidence--video link--Suit for damages--Respondent instituted a suit for damages against petitioner, on basis of alleged defamation--Petitioner appeared herself in witness box as DW-4 in her defence evidence--On two dates of hearing, petitioner (DW-4) was cross-examined but her cross-examination could not be completed--In meanwhile, petitioner left for Canada and filed an application in trial Court for recording her remaining cross-examination from Canada through a video link--She was a mother of two children of 6 and 8 years of age, and it would cause her unnecessary expense and inconvenience in travelling--Principle of updating construction is in consonance with purposive approach, which this Court has consistently adopted while interpreting different statutes--The CPC is silent on matter of evidence recording through video conferencing--Petitioner is only defendant in suit, therefore, her evidence is very much essential to just decision of case--Present petition for leave to appeal is, therefore, converted into an appeal and same is allowed--Accepting application of petitioner for recording her remaining cross-examination through video conferencing--There is no dispute as to identity of petitioner, nor is there any serious apprehension that petitioner would be under influence of or tutored by any other person in course of recording her remaining cross-examination--Therefore, not inclined in present case to require petitioner to go to Pakistan Embassy in Canada and to involve any officer of Embassy in process of recording her remaining cross-examination through video conferencing--‘Purpose of cross-examination’, as observed by this Court in case of Muhammad Shafi, ‘is to assist Court in bringing truth to light by disclosing or clarifying matters which witnesses may wish to conceal or confuse from motives of partisanship’--Presiding officer of Court, judge, should not remain a silent spectator but should act as a vigilant supervisor, for right of cross-examination is neither unlimited nor unbridled--When judge observes that right of cross-examination is being abused by asking question which are irrelevant and intended to prolong cross-examination with object of manipulating error, or to scandalized, insult or annoy witness, he should intervene and disallow such questions. [Pp. 330, 334, 336, 337, 338, 340 & 341] A, B, C,
D, E, G, K, L, M, O
2021 SCMR 1617; 2018 SCMR 1885; 2016 SCMR 875; 2012 SCMR 6; 2001 SCMR 550 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--Virtual attendance--The “virtual attendance” of a witness in Court through medium of video conferencing enables judge and other persons present in Court to see witness and hear what he says, and vice versa. [P. 335] F
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--Article 164 of the QSO provides that in such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques. The QSO is mainly a procedural law; its provisions are therefore to be construed liberally, not restrictively, to advance remedy. [P. 337] H
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 164--Oral evidence--The oral evidence of a witness that may become available because of modern technique of video conferencing, does fall within the scope of the provisions of Article 164 of the QSO. [P. 338] I
PLD 2022 SC 99; 2013 SCMR 203; PLD 2021 SC 362;
2020 PCrLJ 1184; PLD 2021 Pesh 105 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 353--Presence & constructive presence--The word “presence” used in Section 353 of the Code of Criminal Procedure 1898 includes “constructive presence” through video conferencing, and by referring to Article 164 of the QSO have held that the statement of a witness can be recorded through video conferencing in a criminal case. [Pp. 338 & 339] J
PLD 2006 Kar 629; AIR 2003 SC 2053 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 133--Cross-examination--The purpose of cross-examination is to assist the Court in bringing the truth to light by disclosing or clarifying matters which witnesses may wish to conceal or confuse from motives of partisanship. [Pp. 340 & 341] N
Mr. Muhammad Saqib Jillani, ASC for Petitioner.
Mr. Muhammad Ali Raza, ASC for Respondent.
Date of hearing: 2.9.2022.
Judgment
Syed Mansoor Ali Shah, J.--The question that falls for our consideration is: whether the evidence of a witness who is not physically present in court can be recorded in a civil case by using the modern technology of video conferencing, within the existing legal framework.
2. Briefly, the background facts of the case in which the said question has arisen for our consideration are that the respondent instituted a suit for damages against the petitioner, on the basis of alleged defamation. The respondent contested the suit by filing her written statement. On the pleadings of the parties, the trial Court framed certain issues for trial and called upon the parties to produce their evidence. After the completion of the affirmative evidence of the respondent, the petitioner produced her witnesses and also appeared herself in the witness box as DW-4 in her defence evidence. On two dates of hearing, the petitioner (DW-4) was cross-examined but her cross-examination could not be completed and on the next two dates, the hearing of the case was adjourned due to the leave of the Presiding Officer and the strike of the Bar. In the meanwhile, the petitioner left for Canada and filed an application in the trial Court for recording her remaining cross-examination from Canada through a video link.
3. In the said application, the petitioner mainly pleaded that she had been appearing in Court on several dates for her cross-examination, but for one reason or the other, her cross-examination could not be completed; that she had to return to her place of abode, Canada, where she had been living with her family since 2016; that she was a mother of two children of 6 and 8 years of age, and it would cause her unnecessary expense and inconvenience in travelling to Pakistan and leaving her children in Canada, for the remaining cross-examination; and that by such travelling she would also face the risk of coming in contact with coronavirus and of consequent restrictions upon her re-entry into Canada.
4. The respondent opposed the application, and the trial Court dismissed the same by its order dated 28.03.2022. The High Court also dismissed the revision petition of the petitioner filed against that order of the trial Court, vide its judgment dated 18.05.2022 (“impugned judgment”). Hence, the petitioner has knocked at the door of this Court through the present petition for leave to appeal.
5. We have heard the arguments of the learned counsel for the parties, read the cited precedent cases and perused the record of the case.
6. As the question being considered in the present case is, whether the evidence of a witness who is not physically present in Court can be recorded in a civil case by using the modern technology of video conferencing within the existing legal framework, we think that it would be appropriate to cite here the relevant provisions of the law, which are to be examined for answering the said question. They are Rule 4 of Order 18 of the Code of Civil Procedure 1908 (“CPC”), Section 151 of the CPC and Article 164 of the Qanun-e-Shahadat Order 1984 (“QSO”):
Rule 4 of Order 18 of CPC:
4. Witnesses to be examined in open Court: The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.
Section 151 of CPC:
151. Saving of inherent powers of Court: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court, to be exercised after recording reasons in writing,[1] to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Article 164 of the QSO:
164. Production of evidence that has become available because of modern devices, etc.: In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.
The most important of the above provisions, for the present purpose, is perhaps Rule 4 of Order 18 of the CPC (“Rule 4”), which provides that the evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the judge. Although the expression “witnesses in attendance” used in Rule 4 is not followed by the words “in Court”, the reading of the Rule as a whole leaves little room to doubt that the attendance of the witnesses referred to therein means the attendance of the witnesses in Court. However, what is unclear is whether this “attendance” means only “physical attendance” or may include “virtual attendance” by video conferencing. Can the word “attendance” used in Rule 4 be extended to “virtual attendance”?
7. In order to answer the above question it is important to highlight the conceptual role of a Court in a constitutional democracy. The role of a judge is to understand the purpose of law in the society and to help the law achieve its purpose. Law is a living organism and must respond to the changing social realities of the time. Indeed when social reality changes, the law must change too. Just as the change in social reality is the law of life, responsiveness to change in social reality is the life of the law.[2] Legislative intent must be viewed in its changing environment by treating the statute as a living organism. The Court cannot be insensitive to the system in which the statute operates. If the statute or the legislative intent is to be viewed as at the time of its origin, it freezes the meaning of the statute at the historical moment of its legislation, which may no longer be relevant to the meaning of the statute in modern times. To limit the meaning of the statute to its original legislative intent only reduces the judge into a historian and an archaeologist whereby he looks backward instead of forward. Sterility and stagnation defeat the purpose of law and defy its organic character. The best way forward to assess the legislative intent of a law is to examine its purpose today by considering its objectives, the goals, the interests, the values, the policy, and the function that the statute is designed to actualize. Change in social reality today also depends on the rapid development of technology to which the law cannot shut its eyes. While law develops gradually and technology is often far ahead of the legislature and the judicature, both these institutions must move forward and acknowledge the technological advances in developing the law, which cannot stand still and must adapt to the changes in society. In the process of interpreting laws, judges must endeavor to bridge the gap between law and society. The intersection of law and technology not only requires the law to regulate technology but also to employ technology to make laws more at home with the technology-savvy society.
8. Coming back to the question, whether the word “attendance” used in Order 18 Rule 4 of the CPC can be extended to “virtual attendance”, we find a five-member bench decision of this Court in Fakir Muhammad case[3] to be instructive in this regard and points us in the right direction. The Court held, in that case, that the principle of extension of statutes to new things is a well-known principle of the con-struction of statutes and cited Maxwell[4] to say that except in some cases where the principle of strict construction is to be applied, the language of a statute is generally extended to new things which were not known and could not have been contemplated by the legislature when it was passed. By applying the said principle, the Court held that the words “by land” used in Section 19 of the Sea Customs Act 1878, include “by air”.
9. The principle of extension of statutes to new things, referred to by this Court in the Fakir Muhammad case in 1958, has over the years been crystallized into the principle of “updating construction” of statutes. As the constant formal updating of all laws by the legislature is not practicable and each generation mostly lives under the law it inherits, the legislature is presumed to have intended that the laws enacted by it should ordinarily be taken as “always speaking” and applied at any future time in such a way that gives effect to its intention in the changed circumstances that have occurred since the enactment of the law. This is commonly called the “updating construction” of laws.[5] The changes that require the updating construction of law may include technological or scientific developments, new natural phenomena or changes in social conditions, etc. ‘It is not difficult to see why an updating construction of legislation is generally to be preferred. Legislation is not and could not be constantly re-enacted and is generally expected to remain in place indefinitely, until it is repealed, for what may be a long period of time. An inevitable corollary of this is that the circumstances in which a law has to be applied may differ significantly from those which existed when the law was made, as a result of changes in technology or in society or in other conditions. This is something which the legislature may be taken to have had in contemplation when the law was made. If the question is asked “is it reasonable to suppose that the legislature intended a Court applying the law in the future to ignore such changes and to act as if the world had remained static since the legislation was enacted?” the answer must generally be “no”. A “historical” approach of that kind would usually be perverse and would defeat the purpose of the legislation.’[6]
10. The updating construction is, however, applied only where its application would be consistent with the legislative intention. When a new state of affairs or matters comes into existence, the Courts have to consider whether they fall within the legislative intention. ‘They may be held to do so if they fall within the same genus of facts as those to which the expressed [legislative] policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can be fulfilled if the extension is made.’[7] We may underline here that the principle of updating construction is in consonance with the purposive approach, which this Court has consistently adopted while interpreting different statutes.[8] In fact, the purpose and policy of the law, which is to be interpreted, play a central role in applying this principle.[9]
11. In the 21st century, technological advancement has reached an unprecedented speed. A technological change is thus often so radical that it could not have reasonably been perceived by the legislature and catered in the language of the statute, nor can the legislature promptly catch up with such changes by the formal legislative process. In such a scenario, the principle of updating construction requires judges to bridge the gap between law and technology by identifying the concept (purpose and policy) behind the statutory provision and giving effect thereto in interpreting a particular provision. For, ‘when a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood. The content may change but the concept remains the same.’[10] The Courts should therefore look at the bigger picture (purpose and policy) to harmonize law with technological change, and adopt a realistic approach in factual assessment to retrieve what the law intends to achieve. In applying the statutory language to a new situation created by technological change, it is necessary both to view the facts realistically and to keep in mind the purpose of the legislation.[11]
12. When we examine the question as to extending the word “attendance” used in Rule 4 to “virtual attendance” in light of the above principle of updating construction, there remains no difficulty to find the right answer. What we need to do is to see: what are the legislative purpose and policy in requiring the attendance of a witness in Court for recording his evidence, and whether extending the word “attendance” used in Rule 4 to “virtual attendance” would fulfill or defeat that purpose and policy. The legislative purpose, in this regard, is evident from Rule 4 itself, that is, the evidence of the witness is to be recorded: (i) in open Court, and (ii) under the personal superintendence of the judge. It is also not hard to discern the legislative policy. The recording of evidence of a witness in an open Court under the personal superintendence of the judge ensures that the witness may give the evidence, of his free will as per his conscience without being under the influence of any other person.
13. The “virtual attendance” of a witness in Court through the medium of video conferencing enables the judge and other persons present in Court to see the witness and hear what he says, and vice versa. Such an attendance is thus, in effect, in open Court, and his evidence is also recorded under the personal superintendence of the judge. The judge under whose superintendence the evidence through video conferencing is recorded can satisfy himself about the free will of the witness present on screen as he does about the witness present physically in Court by questioning him in this regard and ensuring that he is not under the immediate influence of any other person. Needless to say that a Court can ensure the independence of a witness only from the immediate influence, not from any covert influence, of any other person in both situations whether he is physically present or virtually present in Court. In the latter situation, the Court can ensure that there is no other person in the room where the witness is sitting, while his evidence is being recorded, by asking him to provide a full view of that room on the screen. The identity of the witness, if disputed, can also be verified by the judge through appropriate means. The witness can be confronted on screen with documents produced or sought to be produced in Court by any of the parties or, if needed, the scanned copies of such documents can be sent to him through modern means of communication. In all such necessary matters as to the recording of evidence, the physical attendance and the virtual attendance of a witness in Court do not differ.[12] The virtual attendance of a witness in Court, thus, appears to be the species of the genus of “attendance” required under Rule 4 and fulfills the legislative purpose and policy in requiring the attendance of a witness in Court for recording his evidence. Therefore, we can legitimately conclude that the word “attendance” used in Rule 4 can be extended to “virtual attendance”, and the word “attendance” mentioned in this Rule does not mean only “physical attendance” but includes “virtual attendance” made possible by the modern technology of video conferencing.
14. Next, we proceed to examine under which provision of the CPC can a Court make an order for the virtual attendance of a witness as there is no such provision in Order XVI of the CPC, which relates to ‘Summoning and Attendance of Witnesses’. Learned counsel for the petitioner has referred to Section 151 of the CPC, in this regard; therefore, we need to see whether a Court can make such an order, in the exercise of its inherent powers under Section 151 of the CPC.
15. Admittedly, the CPC is silent on the matter of evidence recording through video conferencing: there is no express provision either allowing or prohibiting such procedure of recording evidence. And regarding the procedural law, it is a well-settled principle that the ‘Courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code [of Civil Procedure], but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, prohibition cannot be presumed.’[13] The provisions of Section 151, which empowers the civil Courts to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, are intended to preclude the possibility of the civil Courts being stuck in a situation for any omission in the CPC. The inherent powers of the civil Courts saved by Section 151 are thus supplementary to their powers stated expressly in the CPC and are to be exercised where the situation is not covered by any provision of the CPC. It hardly needs lengthy arguments to establish that when in the circumstances of a case, requiring physical attendance of a witness in Court will incur an unnecessary amount of delay, expense or inconvenience, the order of the Court allowing virtual attendance of a witness through video conferencing is for the ends of justice, and the rejection of an unjustifiable insistence of the opposing party on securing physical attendance of such witness in Court is to prevent abuse of the process of the Court. An order allowing virtual attendance of the witness in such circumstances thus squarely falls within the scope of Section 151 of the CPC.
16. The learned counsel for the petitioner has also relied upon the provisions of Article 164 of the QSO, in addition to Section 151 of the CPC, for allowing the production of the evidence of the petitioner (DW-4) through video conferencing, while the learned counsel for the respondent has opposed this reliance with the contention that the term “evidence” used in Article 164 only relates to documentary evidence and does not include the oral evidence of a witness which is to be recorded in Court.
17. Article 164 of the QSO provides that in such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques. The QSO is mainly a procedural law; its provisions are therefore to be construed liberally, not restrictively, to advance the remedy. As per Article 2(1)(c) of the QSO, unless there is anything repugnant in the subject or context, the term “evidence” used in the QSO is to include: (i) all statements which the Court permits or requires be made before it by witnesses, in relation to matters of fact under inquiry -such statements are called oral evidence; and (ii) all documents produced for the inspection of the Court such documents are called documentary evidence. The learned counsel for the respondent could not point out to us anything in the subject or context of Article 164, that may be repugnant to the said inclusive meaning of the term “evidence” in Article 164. We are, therefore, not persuaded to agree with his contention and are of the view that the oral evidence of a witness that may become available because of the modern technique of video conferencing, does fall within the scope of the provisions of Article 164 of the QSO.[14]
18. Article 164 of the QSO is actually our gateway to allowing modern science and technology to come into our Courtrooms.[15] ‘If justice is to be done, then law must not become stagnant or archaic while society moves forward. It must be accessible, intelligible and must change with the time, responding to the realities of modern life.’[16] In the present age of information technology, no one can dispute the advantages of the use of this technology in Courts for improving the efficiency of the judicial process and reducing the delay in the dispensation of justice. As the ultimate objective of the law is to serve society, the Courts need to embrace and use technological developments with a pragmatic and dynamic approach in case management and Court proceedings, for dispensing justice more efficiently and expeditiously. The above interpretation of the various provisions of law allowing modern technology of video conferencing to be read into the exiting enactments enhances access to justice,[17] promotes fair trial[18] and introduces inexpensive and expeditious justice[19] thereby advancing the fundamental rights under articles 9 and 10A and principle of policy under article 37(d) of the Constitution of the Islamic Republic of Pakistan, 1973.
19. We find it necessary to underline here that although the powers conferred by Section 151 of the CPC and Article 164 of the QSO are discretionary, the Courts are to exercise them judiciously, not arbitrarily or mechanically, on the filing of an application in this regard by a party to the proceedings. This discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case. In exercising the discretion, the Courts are to see: (i) whether the evidence of the witness appears essential to the just decision of the case, and (ii) whether requiring physical attendance of the witness in Court would incur unreasonable delay, expense or inconvenience. We have inferred the standard of “unreasonable delay, expense or inconvenience” from the legislature’s wisdom. The standard of unreasonable “delay or expense” for relaxing adherence to certain general rules of the law of evidence has been provided in Articles 46, 47 and 71 of the QSO, while Sections 503 and 512 of the Code of Criminal Procedure 1898 add the ground of unreasonable “inconvenience” to the said two grounds for creating exceptions to some general rules of recording the evidence of witnesses.
20. Before turning to the facts of the present case, for examining the prayer of the petitioner on the touchstone of the above two conditions, we would like to say a few words on the precedent cases of Munawar Hussain[20] and Muhammad Israr[21] cited by the learned counsel for the petitioner, and on the rules and laws of other countries on the subject of recording evidence through video conferencing referred to by the learned counsel for the respondent. In these cases, the Lahore and Peshawar High Courts while relying, among other cases, upon the Aijazur Rehman case[22] of the Sindh High Court and the Praful Desai case[23] of the Indian Supreme Court have observed that the word “presence” used in Section 353 of the Code of Criminal Procedure 1898 includes “constructive presence” through video conferencing, and by referring to Article 164 of the QSO have held that the statement of a witness can be recorded through video conferencing in a criminal case. Although we agree, in principle, with the exposition of law made in the cited two cases as to the permissibility of recording evidence of a witness through video conferencing in a criminal case, the point on which we have some reservations is that in these cases both the High Courts have prescribed a long list of guidelines/protocols to be complied with by the Courts in allowing evidence of a witness to be recorded through video conferencing and have made the compliance therewith obligatory. The learned counsel for the respondent has also asked us to lay down such guidelines in line with the rules and laws of the other countries referred to by him. However, we are not inclined to undertake such an exercise in the present case and find it appropriate that it should be left to be done by the High Courts in the exercise of their rule-making power under Article 202 of the Constitution of the Islamic Republic of Pakistan 1973, on the administrative side, after due deliberation. In doing so, the High Courts may, if deemed appropriate, look into the rules and laws made by other countries on the subject. Till then, the Courts may exercise their power to allow recording evidence through video conferencing and may consider the guidelines provided by the two High Courts in the said cases. The requirement of strict adherence to the guidelines prescribed by the High Courts in the present case may, however, impede the application of the very law declared therein; therefore, we think it proper to make it clear that those guidelines are to be followed by the Courts to the extent it is found just and proper to follow them in the facts and circumstances of a particular case. For instance, where there is a serious apprehension that the witness would be under the influence of or tutored by some other person in the course of recording his evidence, or his very identity is disputed on substantial, not flimsy, grounds, the Court may require his presence in the Pakistan Embassy in the country concerned and engage some officer of the Embassy in the process of recording his statement through video conferencing, as provided in those guidelines. But without any such serious apprehension or substantial dispute, requiring all such witnesses in every case to go to the Pakistan Embassy and engaging some officer of the Embassy in the process would also involve some unnecessary delay, expense or inconvenience. This matter should, therefore, be left to the discretion of the Court concerned, which shall obviously exercise it judiciously for valid reasons.
21. Now, we examine the prayer of the petitioner on the touchstone of the above two conditions: (i) whether her evidence appears essential to the just decision of the case, and (ii) whether requiring her physical attendance in Court for recording the remaining cross-examination will incur unreasonable delay, expense or inconvenience.
22. The petitioner is the only defendant in the suit; therefore, her evidence is very much essential to the just decision of the case. The petitioner lives in Canada since 2016 as her ordinary place of residence, with her family including two children, and is not in that country for a short visit. The petitioner comes to Pakistan only when there is a working schedule for her. Waiting for her such a schedule would certainly cause a delay in the decision of the suit, and forcing her to come to Pakistan from Canada by leaving her children there or carrying them with her would incur such expense and inconvenience which surely appears unreasonable under the circumstances of the case. The prayer of the petitioner for allowing her remaining cross-examination through video conferencing is, thus, found justified.
23. The trial Court and the High Court have legally erred in disallowing it. Their orders rejecting the prayer of the petitioner are not sustainable. The present petition for leave to appeal is, therefore, converted into an appeal and the same is allowed. The impugned judgment is set aside, and the revision petition of the petitioner is allowed by setting aside the order of the trial Court and accepting the application of the petitioner for recording her remaining cross-examination through video conferencing.
24. There is no dispute as to the identity of the petitioner, nor is there any serious apprehension that the petitioner would be under the influence of or tutored by any other person in the course of recording her remaining cross-examination. We are, therefore, not inclined in the present case to require the petitioner to go to the Pakistan Embassy in Canada and to involve any officer of the Embassy in the process of recording her remaining cross-examination through video conferencing.
25. Before parting with the judgment, we feel constrained to express our concern about the unending, lengthy cross-examination of the petitioner (DW-4). So far, a 24-page cross-examination of the petitioner has been recorded, and the parties are contesting on the mode of recording further cross-examination of the petitioner for the last about eight months. This state of affairs is really disquieting. ‘The
purpose of cross-examination’, as observed by this Court in the case of Muhammad Shafi,[24] ‘is to assist the Court in bringing the truth to light by disclosing or clarifying matters which witnesses may wish to conceal or confuse from motives of partisanship.’ There is, however, a regrettable practice to use the tool of prolonged cross-examination for the purpose of leading the witness into some error by exhausting him through unnecessary and irrelevant questioning. This practice is designed not for the disclosure of truth but for the manipulation of error. In such a situation the presiding officer of the Court, the judge, should not remain a silent spectator but should act as a vigilant supervisor, for the right of cross-examination is neither unlimited nor unbridled. When the judge observes that the right of cross-examination is being abused by asking questions which are irrelevant and intended to prolong the cross-examination with the object of manipulating error, or to scandalize, insult or annoy the witness, he should intervene and disallow such questions.[25]
(K.Q.B.) Petition allowed
[1]. This italic phrase is added in CPC to the extent of province of Punjab by the Code of Civil Procedure (Punjab Amendment) Act 2018.
[2]. See Benjamin N. Cardozo, The Paradoxes of Legal Science 10-11 (Greenword Press 1970) (1928); William H. Rehnquist, The Changing Role of the Supreme Court, 14 Fla. St. U.L.Rev 1; Aharon Barak, The Judge in a Democracy, chapter 1.
[3]. Fakir Muhammad v. Federation of Pakistan PLD 1958 SC 118.
[4]. Maxwell on Interpretation of Statutes (Tenth Edition).
[5]. Bennion, Bailey and Norbury on Statutory Interpretation (Eight Edition) pp. 503-518.
[6]. R v. Walsall Metropolitan Borough Council [2015] 1 All ER 165 per Leggatt J.
[7]. Royal College of Nursing v. Department of Health 1981 AC 800 per Lord Wilberforce.
[8]. JS Bank v. Province of Punjab 2021 SCMR 1617; Tariq Iqbal v. Government of KPK 2019 SCMR 859; Saif-Ur-Rehman v. ADJ 2018 SCMR 1885; Nawaz Chandio v. Ismail Rahu 2016 SCMR 875; Aamer Raza v. Minhaj Ahmad 2012 SCMR 6; Khalid Masood v. Khurshid Begum 2001 SCMR 550; Federation of Pakistan v. Noori Trading Corporation 1992 SCMR 710.
[9]. SYC Leung, How Do Statutes ‘Speak’ in Recent Technology Advancement Cases? (2021) Statute Law Review 1.
[10]. Birmingham City Council v. Oakley [2001] 1 AC 617 per Lord Hoffmann.
[11]. Uber BV v. Aslam [2021] UKSC 5 per Lord Leggatt.
[12]. See State of Maharashtra v. Praful Desai AIR 2003 SC 2053 paras 23-24, wherein the Indian Supreme Court has extended the word “presence” to presence through video conferencing, dealt with the various objections on recording evidence of a witness through video conferencing by a Commission (not by the Court itself) and endorsed this process of recording evidence. See also Cyberworks Audio Video Technology Ltd v. Mei Ah (HK) Co Ltd [2020] HKCFI 347, wherein the Hong Kong High Court has extended the words “hearing” to telephonic hearing.
[13]. Narsingh Das v. Mangal Dubey (1882) ILR 5 All 163 per Justice Mahmud. This principle was endorsed and reiterated by this Court in Nur Elahi v. State PLD 1966 SC 70 and H. M. Saya & Co. v. Wazir Ali Industries PLD 1969 SC 65.
[14]. See also Naeem Khan v. Muqadas Khan PLD 2022 SC 99; Salman Akram Raja v. Govt. of Punjab 2013 SCMR 203.
[15]. Ali Haider v. Jameel Hussain PLD 2021 SC 362.
[16]. Ram Kishore Choudhury et al, Judicial Reflections of Justice Bhagwati (2008).
[17]. See Govt. of Balochistan v. Azizullah Memon, PLD 1993 SC 341.
[18]. See Chairman Nab v. Nasar Ullah, PLD 2022 SC 497.
[19]. See Muhammad Sharif v. Nabi Bakhsh, 2012 SCMR 900.
[20]. Munawar Hussain v. State 2020 PCrLJ 1184.
[21]. Muhammad Israr v. State PLD 2021 Pesh 105.
[22]. Aijazur rehman v. State PLD 2006 Kar 629 per Rehmat Hussain Jafferi, J.
[23]. State of Maharashtra v. Praful Desai AIR 2003 SC 2053.
[24]. 24 Muhammad Shafi v. State PLD 1967 SC 167. See also Muddassar v. State 1996 SCMR 3; Mir Hassan v. State 1999 SCMR 1418.
[25]. See Articles 131 and 143 to 148 of the Qanun-e-Shahadat Order 1984.
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