EXAMINATION OF WITNESS AND ACCUSED IN THE COURT AND ONLINE

UNDER CRIMINAL LAW IN PAKISTAN

LIAQAT ALI KHOSO

Additional District and Sessions Judge, Malir, Karachi
00923337120634, 00923003158634
[email protected]
[email protected]

ABSTRACT
In Pakistan the criminal trial is mainly based on examination of witnesses
produced by prosecution to prosecute a person accused of an offence. The witness is
examined by the party who produced him, is called examination-in-chief. The
adverse party has right to cross examine him. If any new facts are brought in cross-
examination, the witness may be re-examined. All such process is done
systematically but not mechanically. The detailed provisions are provided under
chapter-X of The Quanoon-e-Shahadat Order, 1984. 1 The main purpose of
examination of a witness is to corroborate the facts with other witness and also to
produce supportive proofs during his evidence. The evidence recorded on oath is
generally known as deposition of witness. The prosecution witness and defense
witness are equally treated in examination by the court. There is an exceptional
provision of examination of accused under section 342 of the Code of Criminal
Procedure, 1898 (Cr.P.C). Such examination of accused is termed as Statement of
Accused u/s 342 Cr.P.C. the statement of accused under section 342 Cr.P.C is
recorded without oath at any stage during trial. The prosecution has no right to cross
examine accused on his statement under section 342 Cr.P.C. Where accused, during
statement under section 342 Cr.P.C, opts to be examined on oath, then the court shall
proceed under section 340 Sub Section 2 Cr.P.C and examine accused on oath.

Key words: examination-in-chief, cross-examination, Re-examination, Quanoon-e-

Shahadat, criminal trial, hostile, virtual examination, cyber security, Skype,
whatsapp

INTRODUCTION
The judicial system of Pakistan is adversarial system2. The criminal case is
based on evidence collected by investigation officer and produced in the court
alongwith charge sheet. The evidence so collected during investigation, is to be
proved through witnesses. The witnesses produced or arrayed as witnesses on the
side of victim are generally termed as Prosecution Witnesses (PWs) and the
witnesses produced by defense/accused are termed as Defense Witnesses (DWs). It
is the requirement of law that documents produced in the court are to be proved
through production of witnesses unless such witness is explicitly excluded by law.
On appearance of a witness before the court, he may be examined on oath or without

1
Quanoon-e-Shahadat Order, 1984 Chapter-x
2
KHOSO, LIAQAT ALI, Prevailing Criminal Justice System in Pakistan (Adversarial System)
https://ssrn.com/abstract= retrieved on 03.8.2023.

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oath. Where a witness is required to be examined on oath, he shall be subjected to
cross-examination to check his truthfulness or otherwise to shake his credibility.
Cross-examination is the ever best tool in criminal case to check truthfulness,
veracity of witness. The examination of a witness is mainly dealt with by the
provisions of the Quanoon-e-Shahadat Order, 1984 under chapter X Articles 130 to
161 and 164. There are certain provisions in the Code of Criminal Procedure, 1898
which relate the examination of witnesses and accused on oath or otherwise without
oath.

Definitions
Examination: The word examination is a noun derived from examine.
Examine literally means to look at or into critically or methodically in order to find
out the facts, condition, etc of something/someone; to investigate, inspect, scrutinize
or inquire into. To test by carefully etc 3 The Concise Oxford Dictionary defines
Examine as investigate, scrutinize (accounts, person in or on subject, organ, baggage
for contraband goods, theory, statement, one’s own conscience, whether), inquire
into.4
Technically it means that the process of asking someone questions to find out facts
e.g. the questioning of a prisoner by a magistrate (or an advocate).5
Examination-in-Chief: or Evidence in Chief: the questioning of a witness by the
party who called them.6 The examination-in-chief is also called direct examination.
Cross-examination: The term Cross-examine, literally means to question closely, law
to question a witness produced.7 Technically it is a process to question witnesses
called by the other side in a case, in the hope that one may discredit him or weaken
the evidence.8
Re-examination It means that after cross-examination-in-chief and cross-
examination of a witness when the party who called him as his witness, intends to
examine his own witness on certain facts came in cross-examination which require
some clarification.
Further cross-examination: if adverse party intends to cross examine the witness on
his re-examination, the witness may be subjected to further cross-examination.

Examination-in-chief, cross-examination and re-examination

Quanoon-e-Shahadat Order 1984 defines, Under Article 132, the Examination
of a witness by the party who calls him shall be his examination-in-chief. The
examination of a witness by the adverse party shall be called his cross-examination.
The examination of a witness subsequent to the cross-examination by the party who

3
Neufeldt Victoria, The Webster’s New World Dictionary (Prentice Hall, New York, 1993) see word Examine
4
Fowler H.W. and Fowler F.G. ,The Concise Oxford Dictionary of Current English, The Oxford Press Clarendon
Press, 1912 See Word Examination
5
P.H. Collin, The Law Dictionary, 4th Edition (Bloomsbury Publishing Plc, (1986) 2004) See word examination
6
P.H. Collin, The Law Dictionary, 4th Edition (Bloomsbury Publishing Plc, (1986) 2004) See word evidence in
chief
7
Neufeldt Victoria, The Webster’s New World Dictionary (Prentice Hall, New York, 1993) see word Cross-
examine
8
P.H. Collin, The Law Dictionary, 4th Edition (Bloomsbury Publishing Plc, (1986) 2004) See word cross
examination

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called him shall be his re-examination. It is legal position that the witness shall be
first examined-in-chief, then if other side desires, may cross examine him. After
cross-examination the witness may be re-examined by the party who called him. The
examination-in-chief and cross-examination must relate to relevant facts. The cross-
examination may not be confined to the facts disclosed in examination-in-chief by
the witness. The Examination in chief is also known as direct examination. It is
normal practice in state cases that the examination in chief is to be conducted by the
state counsel whereas in private cases or direct complaints it is to be conducted by
the counsel of complainant or applicant as the case may be or it is also to be done by
the witness in person.
Facts deposed by witness in his examination-in-Chief must be subject to cross-
examination. The facts deposed by witness are not confronted by adverse party in
cross-examination, shall be deemed to have been admitted as it is. Where the
circumstances appear in examination-in-chief to adverse party that no material
incrimination was made against him and he opts the cross-examination to be Nil, the
presumption of admission of facts does not arise for accused. Suffice to accused to
adopt the court of Nil for cross-examination as no evidence was brought on record
against him.

Leading Question
Leading question means the reply of same should come in yes or no forms.
E.G It is correct to suggest, it is fact that, you may agree that… so on so forth? No
leading question is to be asked in examination in chief or re-examination where
adverse party has objection on such question. Leading question may be asked with
permission of the court. The court has to decide the objection of the adverse party
firstly and then to decide whether permission is granted or objection is sustained.
The only exception to the leading question which it pertains to introductory or
undisputed facts or already proved facts.

Exception to general rule

The general rule is that the evidence should be recorded by the competent
person in judicial proceedings who is authorized to take such evidence. The
evidence shall be taken in presence of adverse party and there should be right of
cross-examination to such witness. There are only two exceptions to this general
rule. First exception is given in Article 46 of the Quanoon-e-Shahadat Order, 1984.
The person makes a statement as to the cause of his death and he dies due to such
cause, his such statement is made admissible under Article 46 QSO. Such statement
is also called as Dying Declaration of a deceased person. Where such person gave
statement the same was given in absence of adverse party but his such statement is
made admissible in evidence despite of the fact that it is not general rule of evidence.
Second exception if section 512 Cr.P.C where accused has absconded away and the
make is permissible to preserve the evidence of witness with a view that if at his trial
any such witness is either dead or has become incapable of giving evidence or his
presence cannot be acquired without unnecessary delay, his statement previously
recorded at the back of accused can be taken into evidence.

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 Cross-examination is not a formality, as seen, during practice in the court
proceedings; rather it is one of the best technique and valuable right of accused to
ascertain truth of the statement given by witness. It is held in the case of Ghulam
Haider vs State9 that cross-examination is valuable right of accused and it is best
method for ascertaining the truth. The cross-examination is most important part of
evidence and it continuity of the examination of a witness but not a separated part.
Where a witness has recorded his examination in chief but he could not come
in witness box for cross-examination his whole statement cannot be considered and
cannot come on record. It is held in the case of Muhammad Abid vs Mst. Nasreen
yousuf 10 that cross-examination is continuing part of the whole statement rather
more important than examination-in-chief. Where a party has abstained from giving
evidence in his own case about the facts in his personal knowledge, presumption is
that the truth was on the other side. Affidavit in evidence has no legal value unless
the witness made himself available for test of cross-examination in the trial. The
Honourable Supreme Court of Pakistan has held in the case of Arbab Tasleem v/s
State11 that examination of eye-witness in the form of examination in chief though
found legal and admissible in evidence yet its evidentiary value could not be
equated with such statement subjected to cross-examination, therefore, for giving
weight to the statement of such witness, it would have to be seen whether the
examination-in-chief, intrinsically rang true and whether or not same was supported
by circumstantial evidence.

Examination of witness in absence of counsel for accused

Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 provides
the right to fair trial. The person so prosecuted under a law in Pakistan shall have the
right to fair trial and due process. Under section 340 sub section (1) of the Code of
Criminal Procedure, 1898 the accused is entitled as a matter of right to be provided a
Pleader on state expenses. The section 340 (1) Cr.P.C is reproduced as under:
‘340. Right of person against whom proceedings are instituted
to be defended and his competency to be a witness: (1) Any
person accused of an of an offence before a Criminal Court or
against whom proceedings are instituted under this Code in any
such court, may of right be defended by a pleader’.
Circular 6 of Chapter VII of the Federal Capital and Sindh Courts Criminal
Circulars provides that services of defence counsel shall be provided to the appellant
in the cases of Capital punishment. Rule 35 of the Sindh Chief Court Rules also
(appellate Side) also deals with the same proposition. In the cases involving capital
punishment shall not be proceeded in absence of pleader of accused. Even
examination in chief may not be recorded in absence of pleader of accused. It is held
in the case of Shafique Ahmed alias Shahjee v/s The State12 that the proceeding were
abolished as the same were conducted in absence of any pleader of accused. The
court should have given an opportunity to accused, to engage pleader to defend the

9
2018 MLD 450 Karachi
10
2004 YLR 1999 Karachi
11
PLD 2010 SC 642
12
PLD 2006 Karachi 377 (Para 13)

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accused. In case, the accused are unable to engage advocate the court is empowered
to get services of an advocate on state expenses to defend accused. Where an accused
has failed to cross examine or to give reply of questions put to him in his statement
under section 342 Cr.P.C, the court is empowered to engage a counsel on state
expenses, lest the entire trial would become illegal. It is held in the case of Ghulam
Rasool Shah v/s State 13 that accused failed to engage an advocate and he has also
refused to reply the questions put to him under section 342 Cr.P.C, the Honourable
Supreme Court of Pakistan has remanded the case for denovo trial, and declared the
entire trial as illegal.
It is the fundamental right of a person under the Constitution of Islamic
Republic of Pakistan that an accused be dealt in accordance with law, his liberty, life
and fair trial are inalienable rights protected in the constitution. It is also
internationally accepted proposition that a person shall have a right of fair trial. The
same proposition is discussed in the case of Faisal v/s The State 14 by the Honourable
Sindh High Court. The question was examined by United States’ court in a case of Gideon
v. Wainwright (1963) 372 US 335. It was observed as under :–

“Not only these precedents but also reason and reflection requires us to recognize that in our
adversary system of criminal justice, any person held into court, who is too poor to hire a
lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to
be an obvious truth. Governments, both State and Federal quite properly spend vast sums of
money to establish machinery to try defendants accused of crimes, Lawyers to prosecute are
everywhere deemed essential to protect the public’s interest in an orderly society. Similarly,
there are few defendants charged with crime, few indeed, who fail to hire the best lawyers
they can get to prepare and present their defences. That government hires lawyers to
prosecute and defendants who have the money hire lawyers to defend are the strongest
indications of the widespread belief that lawyers in criminal Courts are necessities, not
luxuries. The right of one charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but is in ours. From the very beginning our
State and national constitutions and laws have laid great emphasis on procedural and
substantive safeguards designed to assure fair trials before impartial tribunals in which
every defendant stands equal before the law. This noble ideal cannot be realized if the poor
man charged with crime has face his accusers without an lawyer to assist him.”

In another case of Jon Richard Argersinger v. Raymond Hamlin (1972) 407 US 25 while
dealing with the philosophy of free legal services Douglas J. observed as under :–

“The right to be heard would be, in many cases of little avail if it did not comprehend the
right to be heard by counsel. Even the intelligent and educated layman has small and
sometimes no skill in the sciences of law. If charged with crime, he is incapable, generally of
determining for himself whether the indictment is good or bad. He is unfamiliar with the
rules of evidence. Left without the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his
defence, even though he has a perfect one. He requires the guiding hand of counsel at every
step in the proceedings against him. Without it, though he be not guilty, he faces the danger

13
2011 SCMR 735
14
PLD 2007 Karachi 544

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of conviction because he does not know how to establish his innocence. If that be true of
men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble
intellect.”.

It has further been observed as under : –

“The right to free legal services is, therefore, clearly an essential ingredient of
reasonable, fair and just’ procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21. This is a constitutional right of every accused person
who is unable to engage a lawyer and secure legal services on account of reasons such as
poverty indigence or incommunicado situation and the State is under, a mandate to provide
a lawyer to an accused person if the circumstances of the case and the needs of justice so
required provided of course the accused person does not object to the provision of such
lawyer. We would, therefore, direct that on the next remand dates, when the under-trial
prisoners, charged with bailable offences, are produced before the Magistrates, the State
Government should provide them a lawyer at its own cost for the purpose of making an
application for bail, provided that no objection is raised to such lawyer on behalf of such
under-trial prisoners and if any application for bail is made, the Magistrates should dispose
of the same in accordance with the broad outlines set out by us in our judgment date 12th
February, 1978. The State Government will report to the High Court of Patna its compliance
with this direction within a period of six weeks from today.”

Private Counsel for a party in criminal trial and his mandate

It is generally seen that parties also engage private advocate on their own
expenses, despite of the fact that government has provided Public Prosecutors free of
cost to the complainant. Such Public Prosecutors are controlled by the provincial
government through Prosecution Department. The Criminal Prosecution
Departments are established by virtue of Act of legislation and the rules thereunder.
The parties engage an advocate in their cases to assist and provide more firsthand
information and help to the prosecutor in a criminal trial to seek the justice. The
advocates engaged by the parties are generally expert and well trained in the field.
Where a private counsel is engaged by a party to represent such party, he shall act
under the instructions of Public Prosecutor incharge of such case in a particular
court. The relevant provision of the Code of Criminal Procedure, 1898 is section 493
which is reproduced herein below for ready reference:
"493. Public Prosecutor may plead in all Courts in cases under his charge
Pleaders privately instructed to be under his direction. The Public
Prosecutor may appear and plead without any written authority before
any Court in which any case of which he has charge is under inquiry, trial
or appeal, and if any private person instructs a pleader to prosecute in any
Court any person in any such case, the Public Prosecutor shall conduct the
prosecution, and the pleader so instructed shall act therein, under his
directions."
The provision of section 493 Cr.P.C provides the words “and if any private
person instructs a pleader to prosecute in any court any person in any such case....”
means that any private person in any case may engage counsel/advocate. The
section does not restrict any person who has any right in any case to engage a
private counsel and instruct him to prosecute. Likewise, such advocate may be

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engaged in any case and may prosecute any person in any case. It is the provision of
section 493 Cr.P.C provides the words “and the pleader so instructed shall act
therein” which does not restrict the private counsel regarding specific act done by
him during the proceedings. The words “any party” in section 493 Cr.P.C does not
mean a complainant rather it is an open word which may include any person whose
rights are vested in the case. He may be an injured person, a legal heir of a deceased,
other than a complainant or even a complainant. In many cases, the complainant
may not be legal heir or he may be a police officer on behalf of state. In such
situations the legal heir or an injured person may engage an advocate to represent
him and act under control of the Public Prosecutor.
The private counsel may also cross examine a witness if it is necessary for
such private party to do so. The court cannot restrict such private advocate to
conduct prosecution and act under section 493 Cr.P.C. However such private
counsel cannot bypass the spirit of section 493 Cr.P.C, as held in the case of Haji
Pathan Khan v/s State15 The word plead and act are two different words used in
section 493 Cr.P.C. the word “act” has a vast meaning in its interpretation. The
prosecutor is main actor in the criminal case to proceed and plead on behalf of
prosecution whereas the private advocate engaged by any party, is under control of
the Public Prosecutor. The embargo created by the legislator is not a complete
restraint on private counsel to act. Otherwise the engaging of a private counsel shall
have nothing but to engage a deaf and dumb person who has no part to play in the
game or proceedings. All the acts done by private counsel for a party, shall be under
instructions and control of the Public Prosecutor. The private advocate is not
engaged antagonistically to that of Public Prosecutor. The private party’s advocate
and the Public Prosecutor are sailing in the same ship in the same sea to the same
destination. So it is hardly thought that engaging a private counsel by private party
in a state case would be adverse to Public Prosecutor. However all the acts done by
the private counsel would be controlled and mandated by the Public Prosecutor. The
private counsel may move all his requests at appropriate stages of the criminal trial
in writing, either countersigned by the Public Prosecutor or by consent of Public
Prosecutor. Such countersign or consent is sufficient that the act done by private
counsel is controlled by Public Prosecutor. The consent of the Public Prosecutor need
not be in writing. The aim of the court is to reach at a just and fair decision. The
services of a private counsel cannot be restricted rather the same can be liberally
adopted to give effect to the fundamental rights of parties for fair trial and dealing
them in accordance with law.

Restrictions during cross-examination

The Quanoon-e-Shahadat Order, 1984 provides certain provisions to protect
the witness and to protect the time of court under Articles 141 to 149. Only lawful
question are permitted to be asked from a witness during cross-examination. The
questions as to testify veracity of witness, his introduction and status in society, to
shake his credit by injuring his character are allowed by be asked as lawful questions
despite of the fact that such answer may expose him to penalty or forfeiture directly
or indirectly. However, any question asked by the adverse party to compel witness
15
2005 YLR 134 Karachi

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to answer, shall be decided by the court, which may be not relevant to the
proceedings. the court has to decide whether the witness shall be compelled or not to
answer such question. It is observed, that during evidence, the courts note that the
objection shall be decided at the time of judgment. Such practice is not justified
under Article 143 of the Quanoon-e-Shahadat Order 1984. The court has to decide as
to whether such questions are proper or improper to affect the credibility of witness
on such matters under which he testifies. Such questions would be improper if there
is remote relation between imputation of credibility of witness and the evidence he
adduces. It is also statutory bar upon asking only relevant questions in cross-
examination. There should be some reasons behind the asking questions. In case an
irrelevant question is asked by adverse party, the court has to ask the reasonable
grounds for such question. In case no reasonable grounds are there, the court may
disallow such question being improper under Article 143 Quanoon-e-Shahadat
Order, 1984.16 No question can be allowed to be asked from a witness randomly
without any reasonable grounds. An irrelevant question without any reasonable
ground exposes an advocate or a party asking such question to consequences. If the
court in its opinion finds that an irrelevant question was asked by an advocate; the
court may report such circumstances to the controlling authority of advocate or to
high court concerned. The court may restrict to ask any indecent question although it
may be relevant, unless the facts are not determined by asking such question.
Likewise, the court shall restrain asking insulting question from witness.

Technique and Art of cross-examination

It the general proposition that the cross-examination of a witness is not law
but it is an art. The cross-examination is a natural flow of questions on the footprints
of the replies of a witness. The cross-examination cannot be made understood in
form of points or questions. It is a natural flow of questions put to a witness in
accordance what he has deposed in the court and whatever documents he has
produced during evidence. It is the best techniques to unearth the trustworthiness of
a witness and truth of his evidence. The unpredictable replies by a witness during
cross-examination may lead to a different track or a zigzag track which may ruin the
entire case of the party who called the witness to support. Cross-examination is
considered the most important part of a proceeding in a case and test of an advocate.
It is not necessary that a most genius advocate or a most significant orator should
win a case by art of his cross-examination. Some time a great lawyer may not be able
to competently cross examine a witness yet a mediocre grade advocate may twist
and ruin the case of prosecution17. It is necessary for a professional advocate to have
clarity in mind and thoughts, infinite patience and self control, power to read mind
of witness, ability to act with vigor and brevity, masterful of knowledge of the
subject matter/case and related law. In addition to all of the above qualities, the
professional advocate should have ability to discover feeble spot in the witness. The
advocate may not have a physical vigor to counter a bold witness but it is the
mental and intellectual vigor and duel between advocate and witness. Thus the
witness on his side should be alert and the advocate should be very careful and

16
S.144 Quanoon-e-Shahadat Order, 1984
17
Francis L. Wellman, The Art of Cross examination, the Macmillan company, New York 2012(1927)

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mindful about an unexpected reply which may or may not be in favor of accused.
When a witness is being examined by the court, his examination-in-chief is the most
important portion of case file. It is to be noted during examination of witness.
Following are some most important questions to be taken into consideration by both
parties regarding evidence of the witness:
a. What facts the witness has testified and what facts he failed to disclosed to
the court?
b. What facts are in favor of prosecution and what against accused?
c. Which side of both parties are injured by testimony of witness?
d. Whether witness has testified such facts in such manner which impressed
the judge/court?
e. Is it necessary for adverse party to cross examine witness or no need to
cross examine him at all?
f. Whether the testimony of witness is against the record made available by
the party called him? If so, whether there is need to declare witness as
hostile and cross own witness?
There is difference in discrediting the witness and discrediting his testimony.
The eye contact with witness is the most important thing during examination of a
witness and cross-examination. The lawyer must have, unlike a lion in the play; he
has something more to do than a roar, to do more. An advocate must be a good actor
in the court. He should have a sense of humor with caution and care.

Matter of cross-examination
While cross examining the witness one should be most careful and vigilant
and quiet dignifiedly take it. It cannot be always believed that if the tract taken by
witness in his Examination-in-chief may be twisted in cross-examination of same
tract and facts. The defense has to frame his own track and try to step witness on the
track of defense. The question in cross-examination must be based on some purpose.
Flagrant and confused questions may not help the case of defense. Likewise, the
witness must be vigilant while under cross-examination. The witness should be
mindful of what he has deposed and what he has earlier replied in his cross-
examination so that he may not counter his own version in cross-examination. It is
generally observed during practice that good advocates get started with the
questions which are the weakest points in the evidence of witness. So one should not
beat about the bushes; rather question on the matter directly, where he find a weak
point. Every witness is important in a case. The witness is concerned twofold in a
case. Firstly, he is related to the case as his person and secondly, his testimony is
concerned in the case. Thus the cross-examination is also two fold in the same
manner. The defense has to discredit the witness and also to discard his testimony.
The cross examination of an expert witness is very much difficult for an
advocate who might have not gone through the protocols of such field and having
less concern with the field of an expert witness. Mostly, observed that the advocates
do not cross examine expert witness. The Medical, radiological, handwriting and
forensic experts are commonly called in witness box to produce the reports,
generated by such expertise process or monitored by such witnesses. It is observed
that the forensic experts are hardly trailed out from what they deposed in the court.

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However, if the counsel is having basic knowledge of the protocols of the forensic
laboratory tests and have gone through the entire material collected and the process
adopted, then he may only be able to get some favorable replies from the expert
witness of a forensic section. Now a days, the data are retrieved from Laptops,
computers’ hard discs, smart phones etc. the reports are generated by toolkits of
different versions. It is very hard for an advocate to cross examine such an expert
witness who generated the report through machine process. Likewise, the reports
generated by firearm experts by comparison microscope, regarding arms and
ammunition and its matching with crime weapons or crime empties and bullets. It
requires a great deal of knowledge of working and generation of such reports. The
data of mobile phones are generally retrieved in soft copy which is converted into
hard copy. The soft copy are generally not produced in the courts during the trial
proceeding.

Examples of cross-examination
At a trial between certain music publishing houses, as to an alleged piracy of
a popular song, Tom Cooke, a wellknown actor and musician, was subpoenaed as an
expert witness by one of the parties. On his cross-examination by Sir James Scarlett,
that learned gentleman rather flippantly questioned him in this wise:- "Sir, you say
that the two melodies are the same but different. Now, what do you mean by that?"
To this Cooke promptly answered, “ I said that the notes in the two copies are alike,
but with a different accent, the one being in a common time and the other in six-
eighth time; and consequently the position of the accent of the notes was different. "
Sir James. "What is a musical accent?" Cooke. "My terms are nine guineas a quarter,
sir." [A laugh]. Sir James (rather ruffled) . "Never mind your terms here; I ask you,
what is a musical accent? Can you see it?" Cooke. "No, Sir James." Sir James. "Can
you feel it?” Cooke. "A musician can. " [Great laughter]. Sir James (very angry) . "
Now, pray, sir, don't beat about the bush, but explain to his Lordship, and the jury,
who are expected to know nothing about music, the meaning of what you call
accent. " Cooke. "Accent in music is a certain stress laid upon a particular note in the
same manner as you would lay a stress upon a given word for the purpose of being
better understood. Thus, if I were to say, ' You are an ass,' the accent rests on ' ass' ;
but if I were to say, ' You are an ass, ' it rests on you, Sir James. "18
The most important thing in cross examination of a witness is to slip the witness
from his testimony by inducing him to give a voluntary mistake by explaining a fact.
The best of all such cross examination in the history, is the cross examination of
Socrates to Melteus, the prosecutor against Socrates. Socrates, a famous Greek
Philosopher, was formally charged at the Athenian courts for his philosophical teachings and
its effect on the people of Athens. He was presented in front of hundreds of jury men and
unsupportive audience to defend himself against charges that were set by Meletus, one of his
prosecutors. Normally a person would plead with the jury to free himself from receiving
harsh punishments, but Socrates was not among them. Despite of knowing the fact that the
result of the trial would be death, Socrates presented a powerful speech and tactfully cross
examined Meletus to prove to the audience and the jury that Meletus accused Socrates of an

18
Francis L. Wellman, The Art of Cross examination, the Macmillan company, New York 2012(1927)

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issue (the corruption of the youth) that Meletus himself was ignorant about. As Socrates says
“But in fact Meletus, you have sufficiently displayed that you never yet gave any thought to
the young. And you making your own lack of care plainly apparent, since you have cared
nothing about the things for which you bring me here” First of all, Meletus accuses Socrates
of corrupting the minds of the youth. When Socrates questioned to Meletus who is it that has
a good influence on youth, Meletus replied the laws. Socrates then asked him to be more
specific in terms of people, and Meletus said it were the jurymen. In response to Socrates
persistent questions, Meletus mistakenly makes an absurd overstatement that the entire
population of Athens has a positive influence on youth except for Socrates. Socrates then,
draws an analogy that involves horses, saying that horse-trainers, specialized people that
possess skills on how to deal with horses, can possibly have a positive influence, whereas
other people would have negative influence. Socrates believes that this analogy must be
correct in terms of all animals along with human beings because if it takes an expertise to
improve a horse, than it would certainly be incorrect to think that everyone in the society can
help make young people better. Meletus’ overstatement and his inability to defend himself
gives more authority to Socrates as it seems that Meletus is just arguing for the sake of it and
that he does not have any true evidence that would prove Socrates guilty of corrupting the
19
youth.

Statement of accused under section 342 Code of Criminal Procedure, 1898

Section 342 Cr.P.C empowers the court to examine an accused to enable him
to explain any circumstances appearing in evidence against him. The court may
examine accused at any stage of any inquiry or trial. The court may not warn
accused that his statement is being recorded. However, it is seen in practice during
proceedings of the cases, that normally when all the prosecution witnesses are
examined by the court and the prosecution has closed its side or the side of evidence
of prosecution is closed by the court suo motu, and prior to calling accused for his
defense (statement on oath under section 340 (2) Cr.P.C) then statement of accused is
recorded under section 342 Cr.P.C. The statement of accused is a material piece in
the criminal case. The words “any circumstances appearing in the evidence” used
in section 342 Cr.P.C is of much worth. Any incriminating material produced or
adduced by the prosecution during evidence shall be brought to accused in his
statement under section 342 Cr.P.C. The statement of accused is generally based on
certain question; the reply is to be given by accused. The statement u/s 342 Cr.P.C is
taken without oath hence any reply given by the accused, shall not be subject to
cross-examination.20 In the case of Allah Dino v/s The State 21 it was held that each
and every circumstance and material evidence was not put in statement of accused
to enable him to defend himself, hence it was material irregularity and appeal
against conviction was allowed. It is settled by judgments of the superior courts that
statement of accused should be recorded in shape of questions to enable him to

19
West, Thomas G., and Grace S. West, trans. Four Texts on Socrates. New York: Cornell
UP, 1984. 73-76
20
See sub-section 4 of Section 342 Code of Criminal Procedure, 1898 (as amended by Ordi.XXVII of 1981).
21
2018 PCrLJ 200 KARACHI

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defend himself. stereotype questions without fact that role of each accused was
distinguished, is not a statement as provided under section 342 Cr.P.C. In the case of
Tassaduque Hussain alias Shaikh v/s State 22 , it was held as under:
“Purpose of recording the statement of accused under
S.342, Cr.P.C. was to inform him of prosecution case .so
that he be enabled to explain any circumstances
appearing in evidence against him and prepare himself in
his defence accordingly---Such statement was to be in
form of questions and answers and was to be recorded
per S.364, Cr.P.C., i.e. in English language and if accused
did not understand English language then it was to be
explained to him in language which he could
understand---Statement, thereafter, was to be signed both
by Judge and accused and a certificate was to be
appended by the Judge that said statement contained full
and true account of the same---Statements of
accused/appellants under S.342, Cr.P.C. showed that
each of the accused had been asked the same question to
which they gave the same reply, though as per evidence
brought on record the role of each accused played in
commission of offence was distinct” (Note: Emphasis
applied)
The statement of accused under section 342 Cr.P.C (taken without oath) and
the statement of accused under section 340 (2) Cr.P.C recorded on oath, are two
different statements and have two different values in the criminal case. Both the
statements can neither be equated nor be substituted with each other. Statement
under section 342 Cr.P.C is not to be considered as an evidence on oath. The same
proposition is held in the case of Mukhtar Ahmed alias Bholi v/s State. 23 The court
has to consider the provisions of section 364 Cr.P.C by appending a certificate to the
end of the statement of accused recorded u/s 342 Cr.P.C. It is generally held that
when certificate is not written by the judge with his own handwriting, the cases are
remanded for recording statement of accused afresh as per section 364 Cr.P.C. in the
case of Kafeeluddin vs State24, and in the case of Mehboob Karim v/s The State25, it
is held that violation of section 364 Cr.P.C is irregularity and curable by remanding
the case to the trial court for retrial after recording of statement of accused. However
it is not sole ground for remand of a case or violation of section 364 Cr.P.C that
certificate under the statement of accused was not written by hand by the judge.
Where certificate mentions that the statement was recorded in hearing and presence
of accused and he understood its contents to be true and correct and then affixed his
signature/LTI. The accused did not raise any objection at the time of recording such
statement or even at the time of final hearing of the case. Where accused is not
otherwise prejudiced by such defect in statement of accused, then it would not be a

22
2006 MLD 1880 Karachi
23
1991 PCr.LJ 350 Lahore
24
1989 PCr.LJ 251 Karachi
25
1987 MLD 1536 Karachi

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ground for vitiating the trial. It is held in the case of Naimatullah v/s State26 that
where accused is not prejudiced or no any injustice and injury caused to defense of
accused then it would not be a sole ground for accused. Naimatullah case supra was
remanded on other grounds.
The statement of Accused is not just a formality but it is based on the judicial
maxim audi alterm partem. The court has not only ask formal questions to the
accused on generality of the evidence brought by prosecution but also to put all
incriminating pieces of evidence including documents produced in the evidence.
Where a dying declaration is relied upon by the prosecution and such declaration is
in written form, the same shall be put in statement of accused to the accused with
reference of its Exhibit Number (mark of identification on documents so produced).
For instance:
1. What do you (accused) say about dying declaration of
deceased ABC s/o XYZ dated: 20.12.1984 produced at
Exh.5/C?
2. What do you say about the Post Mortem Report
No:999/1984 produced at Exh.5/D?

Online or Virtual examination of witness and cross-examination

After corona virus situation, Covid-19 pandemic in 2020, when each and
every field of life has been shocked due to lock down. The people stuck down
wherever they were. It has a deep effect on performance of courts and examination
and cross examination of witnesses and appearance of accused in the court. The
alternate process, due to technology of mobile and internet, was virtual meeting and
virtual proceedings. The Honourable Supreme Court of Pakistan has also adopted
such steps for hearing of cases virtually. Such experience was proved very effective
and economical on multidimensional sides. The questions arose regarding the legal
validity of examination of witnesses on line by the trial courts. The most highlighted
case regarding examination of a witness virtually was Misha Shafi case.27 In this case
the Honourable Supreme Court of Pakistan has held that personal attendance of
witness for cross examination was not necessary rather her virtual attendance was
sufficient. It was also held that witness need not to go to any embassy office where
she lived, for here cross examination virtually. The legislative intent and use of
modern technology was thoroughly discussed in Meera Shafi v/s Ali Zafar28 Case,
prominently known in media as Meesha Shafi Case. The Honourable Supreme Court
has held that role of a judge is to understand the purpose of law in the society and to
help the law to achieve its purpose. The updating construction of law by use of
technology and scientific development is need of hour. The provisions of Article 164
the Quanoon-e-Shahadat Order, 1984 permits the court to use modern technology.
It is also observed in the cases of sexual harassment and gender based
violence case, the victim women or girls and their families avoid to adduce evidence

26
2007 MLD 1101 Karachi
27
https://tribune.com.pk/story/2387426/sc-allows-meesha-shafis-cross-examination-
via-video-link retrieved on 3.8.2023.
28
PLD 2023 SC 211

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and feel discomfort by their physical appearance before the court where offender
and his companions and relatives used to attend. In such like situations, the online
or virtual examination of witness may ease to proceed the case.
The protocols for recording virtual evidence of witness are also provided in
the case of Munawar Hussain v. State29 and in the case of Muhammad Israr v/s
State.30 The courts have to follow such protocols. it is held in Muhammad Israr case,
supra, that the whatsapp call or any other independent mode of call the witness may
be considered present in the court albeit without any strong supervision at the
witness end, there will be always difficult and awkward situation for the trial court
particularly if witness commits contempt of court or perjuries himself and it
immediately notices that he has purges himself. Identification of witness and
administration of his oath to the extent that he be examined online and recording of
evidence should be done in open court. The Honourable Peshawar High court has
observed protocols in conducting online examination of witnesses in the case of
Muhammad Israr, supra, which is affirmed by the Honourable Supreme Court of
Pakistan in Meera Shafi case, supra, hence now become applicable in the whole
Pakistan. The protocols, as held in Muhammad Israr Case are reproduced for ready
reference:
"The following protocol/guidelines shall be observed by the trial
courts in the province of Khyber Pakhtunkhwa.
1. Guidelines for conducting proceeding between trial court
and court where witness shall appear.
For the purpose of these guidelines, reference to the "trial
court" shall mean, where the trial is pending and witness attendance
required, whereas the "witness end" shall be the place/court, where
witness appears for recording his statement via video link.
i. In appropriate cases, the trial court may direct or allow a
witness to be examined on video link.
ii. At any time, on application of a party or on its own initiative,
the trial court may make direction in open court or in chamber for
recording any testimony of a witness intra province, inter province
or oversees Pakistan.
iii. The direction of the court for recording evidence of witness
on behest of parties be sought through a proper application at the
earliest, showing reasonable ground for inability of the witness to
personally appear before the trial court. Notice of such application
be given to the other party or counsel on the same date of filing
application and the trial court may discuss it with the party under
notice. In case of consensus between the parties the trial court shall
proceed further, however in case of contest of application, the trial
judge after hearing the parties shall pass an appropriate order in
writing, granting leave or otherwise.
iv. The proceedings by way of video conference shall be
conducted as judicial proceedings and the same courtesies and
protocol shall be observed at both end viz trial court and court
where witness is appearing for making statement. All the relevant
provision of procedural and penal Code including the provision of

29
2020 PCr.LJ 1184 Lahore
30
PLD 2021 Peshawar 105

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 Qanun-e-Shahadat Order shall apply to the recording of evidence
by video technology; however, these guidelines shall not be
applicable to proceedings under section 164 of Cr.P.C.
2. There shall be coordinator at both sides i.e. trial court as well
as at the witness end. The trial judge shall act as coordinator at trial
court side while at the witness end, the coordinator may be any of the
following officials.
a. Where the witness is to be examined intra province, the
judicial officer of equal jurisdiction of the trial court or the Session
Judge of District at witness end or any judicial officer not below the
rank of Additional Sessions Judge shall be coordinator.
b. Whereas the witness is to be examined is in other province
including Azad Kashmir and Gilgit-Baltistan, and Islamabad, the
judicial officer of the equal jurisdiction or the Session Judge of the
district where the witness is permanently or temporarily settled
subject to availability of video link facility at that District shall be
coordinator. In case of non-availability of internet/video link facility
at the witness end, the coordinator shall be nominated by the
Registrar of the concerned High Court in any other nearest districts.
c. Whereas the witness to be examined is abroad and overseas,
the trial court through Registrar of the High Court shall coordinate
with the Foreign Ministry to nominate the official of Embassy/High
Commissioner/Consulate of Pakistan to be a coordinator as well to
arrange all necessary requirements including virtual court at witness
end. The responsible officer Embassy/High Commissioner/Consulate
shall be deputed for supervision, identification and administering
oath etc to the witness. The officer shall be vested with the power of
trial court for purpose of recording of statement.
d. Whereas the person to be examined is a convict or otherwise in
a jail in connection with any offence, the concerned jail superintendent
shall produce him before the Sessions Judge of the District where the
convict prisoner is lodged. For production of the witness, the
Superintendent Jail shall adhere to the order of District and Session
Judge at the witness end. In case the witness is juvenile lodged at
Borstal House or a lady with residence at shelter home/Dar-ul -Aman
etc, the concerned Incharge shall be under obligation to follow the
directions of Sessions Judge at the witness end.
e. Whereas the witness is to be examined is hospitalized in any
Provincial or Federal hospital or public sector hospital, the
coordinator (Sessions Judge of concerned District) shall of its own or
appoint any judicial officer as commissioner to visit the hospital for
recording the statement of patient/witness. The Coordinator shall
make correspondence with the Medical Officer or Incharge of the
hospital for providing necessary internet facilities at the premises of
patient/witness. The Medical Superintendent/Incharge of the
Hospital shall associate the Sessions Judge or his nominee at the
witness end.
f. In case of any other person/witness, as may be ordered by the
Sessions Judge at witness end.
3. The Sessions Judge or his/her nominee at the witness end shall
ensure the attendance of witness through all means prescribed by the

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 provisions of Procedural, Penal Codes and Qanun-e-Shahadat Order,
1984. The prosecutors shall assist the court at trial court as well as at
witness end.
4. In case, the person is witness of record, the prosecution shall
be under obligation to provide the attested copies of entire record to
witness to enable him/her in recording of his/her examination in
Chief/Cross examination/re-examination or to confront him with any
document etc. The trial court, at the time of allowing witness to be
examined on video link, shall record the direction, of the prosecution
in the case to make all necessary arrangements for ensuring the
production of witness and availability of record at witness end.

Advantages of online or virtual examination

The modern age of internet and digitalization has, on one hand, made the life
easier and faster and at the same time on the other hand made the life vulnerable at
the technical hands. The courts have to adopt the modern technology in proceeding
of the cases faster, easier and inexpensive so also lesser time consumption. It is also
need of the hour to legislate new laws and formulate rules to adapt with the modern
age of science and technology. The online or virtual recording of evidence save
precious time and also save evidence quickly without any delay or incurring
expenses. The same date may also be kept in digital format to make it easily
available with the courts under a uniform coding system so that the same may be
retrieved at any time before any competent court during trial or even at appellate
stage.

Problems with online or virtual examination of witness

The real life or physical interaction of a witness in the court of law cannot be
equated, at any cost, with that of virtual attendance of witness. The credibility of a
witness and strength of witness testimony is the most important point in on line
examination. The eye of camera may only be able to capture the face of witness or at
a limited area only unlike a physical attendance of witness in the court room. The
body language of witness cannot be easily read by the court at the time of virtual
examination. The quality and reliability of the virtual conference and technological
security are main concerns in examination. The breakdown of network, electricity,
connection errors, software and hardware issues are also caused, which may also
cause change in the ID numbers and passwords on each re-connection.
The ready reference to the documents produced or relied upon or even cross-
examined upon during online and virtual examination of witness is a big deal for the
court and the parties at litigation. The tutoring of witness or coaching off-camera or
on another screen in face of witness. Change of time zone is few cases and
availability of all stake holders, is also a main issue to be resolved. The court shall
deal a complex situation in complicated cases involving many accused having
separate counsel located at various jurisdictions. Assistance to the witness in online
evidence recording in front of camera to be required, which is beyond control of the
court. In few cases, the bulk of documents are to be shared online by witnesses or
even the adverse party, which documents require a considerable storage on cloud
based system. The safety and security of the documents and the evidence recorded

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virtually is big concern. The split system of recording of evidence eg skype link is
used with screen sharing, the voice transmission by phone and documents sharing
by any other source create a risk based system. The Witness may be unfamiliar with
online environment and technology of internet. The witness may not concentrate on
camera due to some reasons and the court may presume adverse inference of
conduct of the witness. Demeanour of witness may be recorded on certain facts
which might have not occurred but due to online/virtual communication such event
happened. Availability of witness, adverse party and the presiding officers at one
time to access online proceedings as there is possibility of change of time zone in few
cases eg the court timing in Pakistan is totally different to that of United States of
America, Canada, Cuba or Mexico. Where the witness is residing in Canada, USA or
Japan then the time difference in Pakistan may also create hurdles on one hand on
the other hand the date of recording of evidence would be marked differently in
some situations due to change of time zone. It may create situations in later stage of
the criminal cases. The evidence recorded on a date which may come prior to date
where evidence is being taken by presiding officer in Pakistan. In some situations,
the availability of translators is also a big deal at the time of recording evidence.
.privacy and security are highly probable risk in the online proceedings. In most of
the cases, when witness, counsel and court are using multiple networks to become
online at one point, the same is attractive situation for hackers to crash the virtual
situation of proceedings. Intruding the court proceedings cannot be ruled out
completely with certainty. Data protection, privacy and cyber security are main
concern in connection with online or virtual examination of witness in court
proceedings. Prior to proceeding with evidence of witness, security measures
regarding hacking, cyber theft, cyber manipulation should be ensured. Technology
for recording virtual evidence either may not be available in remote and rural areas
or the quality of network access may not be up-to the mark. The interruption in
signals and network errors may cause errors in understanding of the exact words
and sentences, which might be typed erroneously at the other end. The errors in
such situation may prejudice case of either party contesting it. Agreement of parties
on virtual examination, sometimes, becomes a hard task. Particularly, where many
persons are involved in the case. The adverse party may not agree on virtual cross-
examination of witness. In most of the work places in judiciary proper arrangements
for video conferencing system are not reasonable. As sometimes the court rooms
may not be fit place for recording evidence virtually. The court rooms usually are
congested and fad up with litigating parties and their counsel.

Conclusion
Examination of a witness and that of an accused during trial is one of the
most important stages in the criminal trial. The responsibility of the advocate is to
assist the court in getting the ultimate justice to the parties. The advocate helps the
parties to deal with complex procedures of laws at the relevant time and at the
relevant stages of trial. The importance of an advocate cannot be denied in a criminal
trial. The modern technology has also found its ways, like all other fields, in the legal
frame work and judicial system. It is need of the time that advocacy be equipped
with modern trainings and technologically upgraded. It is the need of hour to equip

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the courts with modern technology and training. The laws in Pakistan are generally
framed since more than one century. It is the need of hour to the modern legal. As
we have observed in the above discussion that there is dire need of legislation in
connection with modern technology and use of techniques in the trial of cases.
Though there are a few certain provisions available in the existing laws but yet the
same does not fulfill the requirements of the modern technology. Thus the superior
courts find need to frame and formulate certain SOPs. Recording of evidence, online
or virtually, is a great deal of work in the courts. On one hand there are advantages
for adopting modern technology on the other hand there are certain risk factors, for
which no legislation is specifically available in Pakistan. The Government is
expected to take notice to such legislation to muddle through these problems and
control over the misuse of technology.
******The End*******

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