Re-Examining Cross Examination
A Legal Study into the Nuances of Cross Examination
By
A Legal Study into the Nuances of Cross Examination
By
Usman Khan Yousafzai
Usman Khan Yousafzai
Table of Contents
Introduction ......................................................................................................................1
PART I: Lacunas Present in Cross Examination Law........................................................ 2
Chapter One: Unproduced Document..................................................................... 2
Chapter Two: Unmarked Public Document............................................................. 7
Chapter Three: Fact Not subjected to Cross Examination..............................................9
Chapter Four: Rights of Cross Examinationer....................................................... 11
Chapter Five: Conclusion....................................................................................... 13
Introduction ......................................................................................................................1
PART I: Lacunas Present in Cross Examination Law........................................................ 2
Chapter One: Unproduced Document..................................................................... 2
Chapter Two: Unmarked Public Document............................................................. 7
Chapter Three: Fact Not subjected to Cross Examination..............................................9
Chapter Four: Rights of Cross Examinationer....................................................... 11
Chapter Five: Conclusion....................................................................................... 13
Introduction
Introduction
Cross Examination is the interrogation/questioning of a witness by the adverse party and in some countries it is preceded by direct examination or examination in Chief. Pakistan has inherited most of British Law and with it the Law of Evidence and while Evidence law has seen various amendments, most notable of them is Qanoon e Shahadant Ordinance 1984, the law itself has struggled to legally evolve. This is largely due to the lack of legislations to aid in its growth and the absence of proper Case Laws, have stalled the growth of evidentiary law in Pakistan.
The repeal of Law of Evidence with Qanoon e Shahadat impeded the process rather than aid legal growth since the newly formed ordinance held several faults and lacunas that plague the legal system to this day. The legislative has ignored these important shortcomings. Amongst these important shortcomings were the ones related to Cross Examination.
Cross Examination is an important right allotted to parties in both Criminal and Civil and is one of the tools available for the ascertaining of truth of the matter in question. Both sides rely on Cross Examination to empower their standing and the legal and factual point that they were brining to highlight yet unfortunately the faults within the law allow for the truth of the matter to be concealed repeatedly and the Cross Examiner is often left feeling discouraged and constrained in his effort. In the following Chapters we will look into the limitations of Cross Examination and how those hurdles could be removed. We will look into foreign judgments and foreign courts as well to bring forth our point. Lastly we will also discuss the importance of Cross Examination afforded by the court and understand what rights are available to the Cross Examiner.
PART I: Lacunas Present in Cross Examination Law
The Law of Cross Examination is one that is home to several flaws and incompletions. The law itself is one of the least studied subjects in Pakistan Law, despite its importance within the judicial system. Most scholarships focuse on the implementation of the law and the shortcuts afforded towards its proper usage whereas the limitations are rarely brought to question and are home to limited researches. It is such that has allowed for the Law of Cross Examination to have faced such neglect allowing for flawed principles and concepts to become customs in the doing of Cross Examination.
The law of Cross Examination is covered from Chapter X Examination of Witness in QSO (Qanoon e Shahadat Ordinance 1984) and is covered in Section 133-146 where the sections detail to the right and limitations of Cross Examination of Witness. While the first reading may make the reader believe that the law is comprehensive however in practice, it becomes clear that the law has several limitations which are covered in the following chapters.
Chapter One: Unproduced Document
One of the most important questions in common law and ignored in Pakistan law is whether a witness who is a party can be cross examined as to the contents of an unproduced document and this one of the most common aspects that is witnessed in Practical Law. In many cases the opposing parties do not bring forth documents that are vital to the case and in some they argue that such cannot be reproduced whereas there exist other documents that are important to the facts of the case but are not attached to the case. This limitation has been witnessed several times in the court of Law and often judges strike down any question that pertains to the contents of an unproduced document. Let us first peruse the contents of Foreign Courts to better understand how this nuance of law is defined from their point of view.
At common law there was a debate about whether a witness who is a party can be crossexamined as to the contents of an unproduced document, the contents of which are within the witness’s personal knowledge. See Glass’s Seminars on Evidence and McHugh Cross Examination on Documents . Alchin v Commissioner for Railways supports the proposition however there is express authority to the contrary. As is pointed out in the article in 1 Aust. Bar Review, page 56, without objection parties are frequently asked to make admissions concerning the contents of documents whether or not they were in fact made by that person for example, minutes of meetings provided the contents are within the personal knowledge of the party.
If the document is that of the witness then s.43 applies and thewitness may be cross-examined in that very limited way and If the unproduced document is that of another person then s.44 applies and unless the requirements of s.44(2) are satisfied, that is evidence of the representation must have either been admitted or the court must be satisfied that it will be admitted, that is an end of the matter because the procedure in s.44(3) requires that the document must be produced to the witness and that the cross examiner is not to identify the document or disclose any of its contents.
Let me reproduce those said Articles. These are from Evidence Act 1995 of Australia
43 Prior inconsistent statements of witnesses
(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not--complete particulars of the statement have been given to the witness, or
a document containing a record of the statement has been shown to the witness.
If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner--
informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and
drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.
For the purpose of adducing evidence of the statement, a party may re-open the party's case.
44 Previous representations of other persons
Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.A cross-examiner may question a witness about the representation and its contents if-
-
(a) evidence of the representation has been admitted, or (b) the court is satisfied that it will be admitted.
(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows-- (a) the document must be produced to the witness,
if the document is a tape recording, or any other kind of document from which sounds are reproduced--the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents,
the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given,
neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.
(4) A document that is so used may be marked for identification.
In R v Bedington [1970] Qd R 353, an accused had been cross-examined at trial about his knowledge of events following the robbery in respect of which he had been charged. The accused was shown by the prosecutor two newspaper articles and questioned about their contents. One of those articles was later tendered. At 359, the court said:
“…The use made of the newspapers…was quite wrong. The limited use which can be made in cross-examination of documents of this kind is or should be well known. A document made by a person other than the witness, and not being a document which can be used to refresh memory, may, even if inadmissible in evidence, be put into a witness’ hands and that witness may be asked whether, having looked at the document, he adheres to his previous testimony. But this is the extent to which the cross-examiner may go; he may not suggest anything which might indicate the nature of the contents of the document.”
We can see here that while the court commented on the limitation of such methods in cross examination, nevertheless the court held that in a limited manner, such documents could be produced and placed in the hand of the witness. This was witnessed again in The case of R v Seham Yousry involved Yousry, an Egyptian woman, who had been charged with criminal liable. She had written in a letter that a man, Collins, was a bigamist. She had lived with him in Cairo and had borne him two children. He had then returned to England and married. Yousry alleged that she had married Collins in Cairo. She gave evidence that she and Collins had gone through a ceremony of marriage in Cairo. During her cross-examination, the prosecutor gave her a document which he described as “a report from the Cairo police as to her origin”. After having shown her the document, the prosecutor then asked her “… [D]o you adhere to your answer?”.
The document was not attached to the file not marked. It was unproduced and we see here that not only was its presentation not objected, the witness was compelled to answer the question placed by the prosecutor. Another fact to notice here, which we shall discuss in detail in the next chapter is that the production of such was a public document aka a police file. Such methods have ofcourse attracted criticism and this is the most blatant example of unproduced or unmarked documents but it is to help you understand that the Cross Examiner does have powers to ask questions on the contents of unproduced documents especially if those documents are unmarked.
Indian Law provides the same in the Landmark case Onkar Bhikaram v. Balmukund AIR 1957 Madh. Bharat 135 it was held
"Once a party, even by mistake comes to the witness-box and swears and is examined about a document, he would become a witness and will be liable to be cross-examined by his opponent. Under section 138, Evidence Act, cross-examination cannot be confined to the facts to which the witness testified in his examination-in-chief. He can be cross-examined as to the whole of the case.
The Court's act in debarring the opponent of his right to cross -examine so, would amount to an illegal assumption of jurisdiction not vested in it. It is also an error of procedure in the course of the trial which is material as it is bound to affect the ultimate decision of the case and would amount to an illegality or material irregularity in the exercise of jurisdiction within the meaning of section 115(c), C.P.C."
Thus we can see that the same is provided in Indian Law as well and the vast right of the Cross Examiner is not ignored and cemented that this right cannot be debarred no matter what.
Pakistani law has been silent on the rights of Cross Examiner to question regarding contents of an unproduced document. Some judges have even disallowed such a question however there exists several cases where courts have examined this right and these cases can be used to infer power of such. For this we need to examine Article 133(2)
“The Examination and Cross Examination must relate to relevant facts but the Cross
Examination need not be confined to the facts to which the witness testified on his examination in chief.”
This was held in PLJ 2002 CRC LAH 172 where the court held that
“The defense can put any question which is related to the incident and even the character of the witness can be challenged.”
The word ‘any question’ is very important here as the court gave great powers to the defense to cross examine the prosecution witness and as long as that question is related to the incident, it could be asked and the witness compelled to answer. This could relate to unproduced documents as well since those documents only have to be related to the case and judge convinced to such. This was again cemented in another case PCRLJ 2005 988 where the honorable court held the following
“In Cross Examination the Defense can put any question related to the incident.”
And reading the above with the following held in NLR 2003 CRL LAH 275
“Ambit of Cross Examination is not limited to the facts which the witness states in Examination in Chief.”
And again 2002 PCrLJ 1231. Ch. Zulfiqar Ali V/S The State (Lahore)
“Requisitioning of record and recalling witness for cross-examination. Trial court dismissed application of accused seeking requisitioning of record and recalling witness for crossexamination primarily on the ground that since documents to which reference was made by applicant had not been relied upon by the prosecution, therefore, no question could be asked from the witness nor he could be asked to produce the said record. Validity. Provisions of Art.133(2) of Qanoon-e-Shahadat would indicate that scope of cross-examination was not limited to facts which a witness would state in examination-in-chief. Right of cross-examination was a valuable right granted by Legislature to a party or an accused to challenge veracity of a witness. Accused was entitled to cross-examine prosecution witness to adduce facts in support of his defence from said witness though facts could have no relation to facts of which witness had testified in his cross-examination. Only precondition was that it must relate to “relevant facts”. “Relevant fact” would be any fact/circumstances relevant to prosecution case or to plea raised in defence by the accused. Prima facie it would be relevant to bring on record legal sources of income of the accused.”
The above is a milestone case where the courts interpreted the powers of Article 132 and held that Article 132(2) empowered the Cross Examiner to ask questions on documents that were not presented to the court as the only pre-condition to this was that it must be relevant to the facts of the case. This landmark case provides strong bases for lawyers to argue that their right to Cross Examine cannot be limited and all questions relevant to the facts are fair game.
Then we can understand that the powers of Cross Examination are actually vast and cannot be restrained on account malicious non-production of document and the contents of such document could utilized in cross examination.
In the most recent judgment the court in citation 2021 PCRLJ 537 LAH held the above that “Ambit of Cross Examination is not limited to the facts which the witness states in Examination in Chief.”
This repeated insinuation gives credence to the juristic opinion that the contents of an unproduced document could be used in Cross Examination. The Cross Examiner could use the above grounds to defend his question and should use such to bring forth proper legal evolution.
Cross Examination on documentation is thus a very important piece of legal evidence and if court is placing reliance on unproduced or untendered document then it must allow the same to be Cross Examined. This was witnessed in three major cases similar in setting. The citations for such are
2015 YLR 2214 Quetta BHC-----2014 CLD 111 Quetta BHC----- 2014 MLD 90 Quetta BHC
Here the Trial court had based its findings on several documents but those said documents were neither tendered nor exhibited. When the adverse party demanded their right to Cross Examine based on the contents of those documents and on those documents, their right was denied on those evidences. The High Court held that those documents should not have been relied on as to their veracity, there were limitations and then denying the fundamental right of Cross Examination was an injustice and by doing so the trial court had erred.
Over here we see that the High Court had raised major questions on the absence of Cross
Examination even if those documents were not exhibited within the file. The powers of the Cross Examiner are vast as long as he stays to the relevance of facts and this must never be forgotten by the Cross Examiner.
Chapter Two: Unmarked Public Document
Public documents are given grave importance in Law and are considered as certified as held in Article 90 and 91 which are reproduced below. Article 85 to 101 deals with Public documents.
Presumption as to genuineness of certified copies: (1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Federal Government or a Provincial Government to be genuine: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. (2) The Court shall also presume that any officer by whom any such document purports to be signed or certified, held when he signed it, the official character which he claims in such document.
Presumption as to documents produced as record of evidence: Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding Or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and 22 purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume— that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it are true and that such evidence, statement or confession was duly taken.
Lending credence to such Pakistani Supreme Court in PLD 2002 SC 446
“Public Document cannot be ignored merely because the same is not confronted and is not produced within 7 days. “
Over here we can see that the courts have given great importance to Public documents by stating that their existence cannot be ignored and if such cannot be ignored then it means that Public document will always be in the purview of court and this was brought to question in the Honorable Supreme Court where the Justices held in PLJ 2006 SC 600
“Official Gazette falls within the category of public document status whereof has to be accepted in terms of Article 85 of QSO 1984. Where Public Documents were not formally tendered in evidence but the same was before the Court, it has to be accepted as proof.” This sanctity of such is held again by the Supreme Court in PLD 2004 SC 570
2005 SCMR 767 makes similar judgment where the court held that
“Official gazette falls within the category of public documents and it’s status as such in terms of article 85 of QSO has to be accepted. Gazette us one of the documents covered by article 92 and it is enough if it is before the court even if not formally tendered in evidence.”
The same was held in Bashir Ahmed vs shaukat Ali PLD 2004 SC 570
“All such documents which are prepared by Public Servants in discharge of his official duties and are kept as record are public documents. Such documents do not require any sort of verification.”
With the above we can understand that the court has always provided special consideration to Public documents and the content of these documents could be used in Cross Examination as well, whether they are marked or not, since these documents are verified and thus they could be utilized to question the Witness. Their absence in evidence cannot be used as justification to contain the Cross Examination.
In the most recent of judgments the BHC adjudged a matter relating to the evidentiary value of a document that is placed on record but is not exhibited. The case Muhammad Imran vs The State 2021 PCRLJ 804 where the honorable court held
“Mere placing a document on evidence cannot be considered as evidence.” The court advanced the judgment by placing reliance on Shaukat Hayat vs The State 1982 PCRLJ 48 where it was held
“apart from the question as to whether the commission to notify the appointment of the inspector in the official gazette detracts from his authority to function under the drugs act which may be dealt with an appropriate case in future record shows that no order of appointment has been produced at all in this case. There are only two notifications on record. Neither notification is indeed a notification of appointment stipulated by section 17 of the act”
Similar view has been forwarded in The State vs Iqbal Ahmed Khan 1996 SCMR. 767 wherein it was held
“..The requirement of law and precondition imposed for prosecution have to be compiled with by the complainant and the prosecuting agency. It was duly of the prosecution to have produced relevant notification for appointment of inspector along with complainant. It was not the duty of the accused or the defense counsel to have asked the complainant to produce any notification to prove his capacity to institute prosecution as required by section 30. This requirement of law is meant to be compiled with by the prosecution and if no objection has been raised by the defense at the trial, it would not validate the proceedings which otherwise are vitiated for non-compliance of section 30. A prosecution can only be instituted by a federal inspector or a provincial inspector. The complainant did not hold those positions.”
It holds that the requirements of law are meant to be complied with by the prosecution and even if no objection is raised, such would not validate a proceeding otherwise vitiated for noncompliance. We will see this in Chapter 3 as well. The prosecution neither produced a notification of appointment and the prosecution contention that such technicalities should be ignored, was not entertained by the court as the court held that the proper procedure should be proscribed and notification issued and properly placed.
Chapter Three: Fact not subjected to Cross Examination
It is an interesting precedent where some argue that if a Fact is not confronted or subjected in
Cross Examination then that fact is considered to be admitted automatically. The Legal history of Pakistan has produced variant judgments on this and the major difference arrives on whether such produces an automatic admission or does the court have to decide whether it is such an admission.
In 1996 PCRLJ 1076 the court held
“Fact given in chief was not subjected to cross examination, would deemed to have been admitted and accepted by the party failing to cross examine.”
However the Peshawar High Court took a different view and held in PLD 2008 Pesh 3
“If a witness is not Cross Examined on a fact and his statement went unrebutted and unquestioned, such a statement. As a matter of law and principle, could be taken to be correct.” If you would notice that there was a change in language where ‘Deemed’ was used and ‘Could’ was used. Both hold different Legal meanings and responsibilities.
‘Deemed’ is defined as To accept the proposition of a document, a status or an event as conclusive of it in the absence of evidence or facts which would normally be required to prove that status. In the famous case of The Queen (R) v Norfolk County Justice Cave held the following
“When you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless it is to be deemed to be that thing.”
In one Australia case before the High Court of Australia Justice William John Victor Windeyer adopted these words:
"Deemed is commonly used for the purpose of creating a statutory fiction that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced....
The verb deem, or derivatives of it, can be used in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote. This is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect. After all, to deem means simply to judge or reach a conclusion about something.
"The words deem and deemed when used in a statute thus simply state the effect of meaning which some matter or thing has - the way in which it is to be adjudged. This need not import artificiality or fiction.”
In St. Leon Village, Justice Shultz of the Manitoba Court of Appeal wrote:
"The words deem, deemed and shall be deemed when used in statutes usually imply an element of finality, but that meaning is not inflexible or invariable. In some cases these words, or words of identical import, are construed to establish a conclusive presumption....”
With the importance and finality of ‘deemed’ understood, let us consider the possibilities of ‘Could’. ‘Could’ is used in judgments and law when it is held that the user of ‘Could’ has the power to commit an act but it is not mandatory upon him to commit such an act. Foreign legal language places little distinguish between ‘Could’ and ‘May’ and indeed the idea of ‘May’ being used solely for formal purposes only gained traction in the last 200 years or so. The
Legal dictionary defines ‘May’ as
“ a choice to act or not, or a promise of a possibility, as distinguished from "shall," which makes it imperative. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative.”
So we see in the above that the two words hold entirely different meanings and with these we can deduce that there is a variance of thought on whether a fact that has not been confronted is to be automatically admitted.
The same was asked in 2003 YLR 110 where the court held
“It may constitute admission but rule is not absolute and cannot be diverted from the overall consideration.”
And again in 1991 MLD 1576
“Failure would discredit such a statement even if not rebutted in Cross Examination.” The same was again held in 1991 CLC 949
“An unchallenged statement would be tested on its own merits.”
And again ‘Could’ was used in PLD 2002 Peshawar 21. Haji Din Muhammad V/S Mst. Hajra Bibi & Others.
“Witness not cross-examined on a fact. Effect. Where statement of a witness went unrebutted and unquestioned, such statement as a matter of law and principle could be taken to be correct.”
It can be seen here that the courts have repeatedly held that blind reliance cannot be placed and the statement must stand on its two feet. This is important to understand as lawyers simply surrender and do not pursue such statements. They must repeatedly remind the court of its duty in such cases.
It is advisable for lawyers to confront any such assertion that any fact not considered in Cross Examination should be automatically accepted. The courts should also look to take grave care in this matter.
Chapter Four: Rights of Cross Examiner
Cross examination is an important right afforded to the parties and is considered as one of the major tools of justice that can uncover the truth of the matter and the courts have provided such importance to this right.
In the PLJ 2011 CRC LAH 16 the court held that
“Cross examination of a witness was not just a formality but is a vested right and best method if ascertaining truth.”
This has been further enhanced in the cases cited PLJ 2012 SC AJK 40 & PLD 1991 AJK 76 where in the latter the court held that the scheme of cross examination provides ample scope to resolve any controversy arising out of the testimony of the witness.
Other cited cases provide credence to the importance of Cross Examination such as PLD 1967 S.C. 167 Muhammad Shafi referred. 1996 SCMR 3 Muddasar.
The Lahore High Court even went further in PLD 1997 LAH 26 by highlighting
“Engine of Cross Examination is one of the greatest inventions for the discovery of truth.”
This was further held in 2020 PCRLJ LAH 1315 where the court reiterated the above and highlighted that the there is no provision which allows for the trial court to guillotine the right of Cross Examination. It pointed out that this could not be held hostage however the right could not closed arbitrarily. Extending another opportunity for Cross Examination, the court held that while no provision allowed for the court to remove the right of Cross Examination, the court could appoint a counsel for the defendants and conduct Cross Examination. The same principle was held in 2020 MLD 594 AJK and cemented in PLD 2020 334 SC.
Appointment of Counsel is an important manner to combat delay or Cross Examination by the Accused himself. This was done in 2020 PCRLJ ISB 1179 where the court held that the accused did not just have the ‘Right to Cross Examination’ but ‘Right to PROPER Cross Examination.” For this purpose the courts should leave no stone unturned and provide for the Accused defense Counsel and this was the Accused’s Fundamental Right.
His Lordship Mr Justice Mahmud Ahmad Bhatti in the case titled Mujahid Hussain v/s the State etc as reported in PLJ-2015 has held that instead of closing the right of accused to cross examine, it is better to provide him the services of a counsel at state expenses. A comprehensive procedure has been provided vide the above quoted Notification for such services. A counsel engaged shall be paid according to the amount prescribed for each Court right from Court of Magistrate up to the Supreme Court of Pakistan. Question of fixation of fee, if a defense counsel is engaged as per Law Department manual has also been answered by LHC. The courts held that there is no way an
Accused can be compelled to Cross Examine the witness himself and must be provided with a
Counsel. The same was echoed in 1993 SCMR 550 and 2001 MLD 1206. Muhammad Javed V/S The State (Karachi) Cross-examination was the “great legal engine” ever invented for the discovery of truth. The Court held that opportunity to cross-examine a witness contemplated by the law must be real, fair and reasonable. Person who was not trained in legal procedure, was not expected to cross-examine the prosecution witness in absence of his Advocate. Accused though did not cross-examine the prosecution witnesses, yet cross-examination by the accused himself was not a substitute of cross-examination by the counsel.
The right of Cross Examination is such that it is considered as an important part of evidence on every piece of evidence including Eye Witness. In 2020 YLR 1769 FSC the Federal Shariah Court held that the Cross Examination of an Eye witness was not mere formality but was a valuable piece of evidence and the ignoring of such was a major error by the trial court. This valuable right can neither be taken nor removed.
The important relation between a Cross Examination and Document was brought to importance again in 2020 CLC 1716 Quetta BHC
“Once a Document has been placed, it cannot be placed again to fill lacunas left by witness surfaced in Cross Examination.”
Chapter Five: Conclusion
From the above, we can see that the Law of Cross Examination is a vast law and we saw how the powers of the Cross Examiners are expansive and this is a legal principle found all over the world. This power cannot be contained nor lessened and we have seen that even the right of such cannot be taken away and courts have held that no matter what the right of Cross Examination will be respected even if a new Counsel is to be allotted for such a task. The relationship between Public Document and Cross Examination was also perused and here we saw how there exist various Case-Laws which could empower the Counsel to argue for such in his favor. The important thing here is to understand that a Counsel must look to argue for the right and not merely stand back. These citations are tools whereas the usage of such a tool depends entirely on the capability of the Counsel.It was also concluded in the above that there are many shortcomings in our Law of Cross Examination and while the courts have tried to define this Law, contradictory judgments do exist which only leads to legal confusion, impeding the legal process and the evolution of law. In such circumstances it is imperative that the legislature brings forth proper legislation to define the Law of Cross Examination and amend the QSO so that these lacunas present can be addressed. We can see notable examples from Australian Legal system where the law has looked to define and evolve Cross Examination this was not only done by Jurists and judges but by the legislative as well.
The Courts must also make sure to not pass contradictory judgments and look to properly define this important Law so that the confusion surrounding it can be removed and the innocent people no longer suffer under harsh evidentiary judgments. The powers of the Cross Examiner, especially in criminal litigation, must be kept in mind by the Trial court and the court should look to empower the Cross Examiner wherever possible as long as his question remains within the ambit of Relevant Fact.
In the end it can only be stated that proper evolution of law is not only the job of courts or jurists but also of the legislative and absconding from this duty is not only negligent to the duty of the legislature but is also harmful to the legal evolution of the Law of the land and a mere perusal of the Laws of United Kingdom, United States or Commonwealth of Australia along with the Pakistani Law shows a world of difference not just in the implementation of Law but in the Quality of Law as well.
Referenced Laws
Qanoon E Shahadat 1984Presumption as to genuineness of documents kept under any law: The Court shall presume the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
Presumption as to maps or plans made by authority of Government: The Court shall presume that map or plans purporting to be made by the authority of the Federal Government or any Provincial Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.
Presumption as to collections of laws and reports of decision: The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the law of that country, and of every book purporting to contain reports of decisions of the Courts of such country.
Presumption as to powers-of-attorney: The Court shall presume that every document purporting to be a power-of attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul, or representative of the Federal Government, was so executed and authenticated.
Presumption as to certified copies of foreign judicial records: (1) The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of Pakistan is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Federal Government in or for such country to be the manner commonly in use in that country for the certification of copies of Judicial records. (2) An officer who with respect to any territory or place not forming part of Pakistan, is a political Agent therefore, as defined in Section 3, clause (40), of the General Clauses Act, 23 1897(X of 1897) shall for the purposes of clause (1), be deemed to be a representative of the Federal Government in or for the country comprising that territory or place.
Presumption as to books, maps and charts: The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.
Presumption as to telegraphic messages: The Court may presume that message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.
Presumption as to due execution, etc., of document not produced: The Court shall presume that every document called for and not produced after notice to produce was attested, stamped and executed in the manner required by law.
Presumption as to documents thirty years old: Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation: For the purposes of this Article and Article 92, documents are sold to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be, but no custody is improper if it is proved to have had, a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. Illustration (a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land, showing his titles to it. The custody is proper. (b) A produce deeds relating to landed property of which he is the mortgage. The mortgagor is in possession. The custody is proper. (c) A, a connection of B, produces deeds relating to lands in B’s possession which were deposited with him by B for safe custody. The custody is proper.
Certified copies of documents thirty years old: The provisions of Article 100 shall apply to such copy of a document referred to in that Article as is certified in the manner provided in Article 87 and is not less than thirty years old, and such certified copy may be produced in proof of the contents of the document or part of the document of which purports to be a copy.
Order of production and examination of witnesses:- The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
Judge to decide as to admissibility of evidence:- (1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant, and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such lastmentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of the one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Illustrations
It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Article 46.The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
A is accused of receiving stolen property knowing it to have been stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property.
The Court may in its discretion, either require the property to be identified before the denial of the possession is proved or permit the denial of possession to be proved before the property is identified.
It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact-in-issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact-in-issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.
132. Examination-in-chief, etc.:- (1) The examination of a witness by the party who calls him shall be called his examinationinchief.
The examination of a witness by the adverse party shall be called his cross-examination.
The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his reexamination.
133. Order of examinations:- (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) crossexamined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.
Cross-examination of person called to produce a document:- A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.
Witnesses to character:- Witnesses to character may be cross-examined and re-examined.
Leading questions:- Any question suggesting to answer which the person putting it wishes or expects to receive is called a leading question.
When leading questions must not be asked:- (1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
(2) The Court shall permit leading questions as to matters which are introductory or undisputed; or which have, in its opinion been already sufficiently proved.
When leading questions may be asked:- Leading questions may be asked in cross-examination.
Evidence as to matters in writing:- Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any documents, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle that party who called the witness to give secondary evidence of it.
Explanation. A witness may give oral evidence of statement made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.C deposes that he heard A say to D “B wrote a letter accusing me of theft. And I will be revenged on him”. This statement is
relevant, as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
Cross-examination as to previous statements in writing:- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Questions lawful in cross-examination:- When a witness cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend,---
to test his veracity,
to discover who he is and what is his position in life, or
to shake his credit, by injuring his character, although the answer to such question might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
When witness to be compelled to answer:- If any such question relates to a matter relevant to the suit or proceeding, the provisions of Article 15 shall apply thereto.
Court to decide when question shall be asked and when witness compelled to answer:- If any such question relates to a matter not relevant to the suit or proceeding, except insofar as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:--
such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testified;
such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testified;
such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavourable.
144. Question not to be asked without reasonable grounds:- No such question as is referred to in Article 143 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.
Illustrations
An advocate is instructed by an attorney that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.An advocate is informed by a person in Court that an important witness is a dakait. The informant, on being questioned by the advocate, given satisfactory reasons for his statement. This is reasonable ground for asking the witness whether he is a dakait.
A witness, of whom nothing whatever is known, is asked at random whether he is a dakait. There are here no reasonable grounds for the question.
A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait.
Procedure of Court in case of question being asked without reasonable grounds:- If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any advocate, report the circumstances of the case to the High Court or other authority to which such advocate is subject in the exercise of his profession.
Indecent and scandalous question:- The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions, before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether on not the facts in issue existed.
Procedure of Court in cases of defamation, libel and slanders:- When a person is prosecuted or sued for making or publishing an imputation of a defamatory, libelous or slanderous nature, the Court shall, not, before it has recorded its findings on the issues whether such person did make or publish such imputation, and whether such imputation is true, permit any question to be put to any witness for the purpose of injuring the character of the person in respect of whom such imputation has, or is alleged to have, been made, or any other person, whether dead or alive, in whom he is interested, except insofar as any such question may the necessary for the purpose of determining the truth of the imputations alleged to have been made or published.
Questions intended to insult or annoy:- The Court shall forbid any question which appears to it to be intended to insult or annoy; or which, though proper in itself, appears to the Court needlessly offensive in form.
Exclusion of evidence to contradict answers to questions testing veracity:- When a witness has been asked and has answered any question which is relevant to the inquiry only insofar as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.
Exception 1:- If a witness is asked whether he has been previously convicted of nay crime denies it, evidence may be given of his previous conviction.
Exception 2:- If a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted.
Illustrations
A claim against an underwriter is resisted on the ground of fraud.The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
A witness is asked whether he was not dismissed from a situation for dishonesty.
He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
A affirms that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Faisalabad. He denies it.
Evidence is offered to show that A was on that day at Faisalabad.
The evidence is admissible, not as contradicting A on a fact which effects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not had a blood-feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
Question by party to his own witness:- The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
Impeaching credit of witness:- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. Illustrations
A sues B for the price of goods sold and delivered to B, C says that A delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.
The evidence is admissible.
A is indicated for the murder of B.
C says that B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.
The evidence is admissible.
152. Questions tending to corroborate evidence of relevant fact admissible:- When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration
A, an accomplice, gives an account of robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.
Former statements of witness may be proved to corroborate later testimony as to same fact:- In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
What matters may be proved in connection with proved statement relevant under Article 46 or 47:- Whenever any statement, relevant under Article 46 or 47, is proved, all matters may be proved either in order to contradict or corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
Refreshing memory:- (1) A witness may, while under examination of afresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
Whenever a witness may refresh memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:---
Provided that Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatise.
156. Testimony to facts stated in document mentioned in Article 155:- A witness may also testify to fact mentioned in any such document as is mentioned in Article 155, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
Illustration
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.Right of adverse party as to writing used to refresh memory:- Any writing referred to under the provisions of the two last preceding Articles must be produced and shown to the adverse party if he requires it such party may, if he pleases, crossexamine the witness thereupon.
Production of document.- (1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any objection shall be decided on by the Court.
The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence; and, if the translator disobeys such direction, he shall be held to have committed an offence under Section 166 of the Pakistan Penal Code (Act XLV of 1860).
Giving, as evidence, of document called for and produced on notice.- When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the partly calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
Using, as evidence, of document production of which was refused on notice.-When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.
Illustration
A sues B on an agreement and gives B a notice to produce it.At the trial A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.
161. Judge’s power to put question or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he places, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or things and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:---
Provided that the judgment must be based upon facts declared by this Order to be relevant, and duly proved:---
Provided also that this Article shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the question was asked or the document was called for by the adverse party: nor shall the Judge ask any question which it would be improper for any other person to ask under Article 143 or 144; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.
