PLJ 2023 SC 327

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