SC allows Meesha Shafi to be cross-examined via video link | Wbactive

ISLAMA BAD:

The Supreme Court ruled that the testimony of a witness who was not physically present in court could be recorded in a civil proceeding using the modern technology of video conferencing within the existing legal framework.

A 12-page ruling by Judge Syed Mansoor Ali Shah, overturning the Lahore High Court (LHC) decision, approved singer Meesha Shafi’s lawsuit, saying she did not have to come to Pakistan to make a statement.

Judge Mansoor Ali Shah said Meesha Shafi has lived in Canada since 2016 and is a mother of two children, she does not need to come to Pakistan just to testify.

The court order said the singer didn’t even have to go to the Pakistani embassy in Canada for cross-examination.

According to the order text, Shafi has been interrogated for the past eight months and regrets that delaying tactics in cross-examination have unfortunately put pressure on the party concerned to change the statement.

Virtual Participation

The judgment found that the virtual presence of a witness in court thus appears to be the type of species of “presence” required by Rule 4 and satisfies the legislative purpose and policy that the presence of a witness in court for the record demands his evidence.

“Therefore we can rightly conclude that the word ‘presence’ used in rule 4 can be expanded to ‘virtual presence’ and the word ‘presence’ mentioned in this rule means not only ‘physical presence’ but also ‘virtual ‘Presence’ encompassed is made possible by the modern technology of video conferencing,” she added.

A divisional bench of the Apex Court, headed by Judge Qazi Faez Isa, had been deliberating on whether the testimony of a witness who is not physically present in court should be recorded in a civil proceeding using modern videoconferencing technology within the existing legal framework can frame.

Rule 4 of Order 18 of the CPC states that the hearing of witnesses present shall be oral in open court in the presence and under the personal guidance and supervision of the judge.

The ruling noted that a witness’s “virtual presence” in court via video conferencing allows the judge and others present in court to see the witness and hear what he is saying, and vice versa.

Such a presence thus takes place in fact in open court, and his evidence is also recorded under the judge’s personal supervision. The judge, under whose direction the evidence recorded by videoconference is recorded, can satisfy himself of the free will of the witness present on the screen as of the witness present physically in court, by questioning him in this regard and making sure that he is not directly influenced by any other Person.

“It goes without saying that a court can ensure the independence of a witness only from direct influence, not from covert influence, of another person in either situation, whether physically or virtually present in court. In the latter situation, the court can ensure that no other person is in the room where the witness is seated while his testimony is being recorded, by requiring him to provide a full view of that room on the screen the verdict .

It further explained that in the event of a dispute, the identity of the witness can also be verified by the judge by appropriate means. The witness can be confronted with documents produced or requested by one of the parties in court on the screen or, if necessary, the scanned copies of these documents can be sent via modern means of communication. In all matters necessary for the taking of evidence, there is no difference between the physical presence and the virtual presence of a witness in court.

The judgment noted that the CPC is admittedly silent on the issue of taking evidence by videoconferencing: there is no express provision that neither permits nor prohibits such a method of taking evidence.

And with regard to procedural law, the judgment noted that it is an established principle that “courts shall not act on the principle that any procedure shall be regarded as prohibited unless expressly provided for in the Code [of Civil Procedure]but according to the opposite principle, that every procedure is to be understood as permissible until it proves to be prohibited by law.

“In principle, a ban cannot be assumed. Intended are the provisions of Section 151, which empowers the civil courts to make orders necessary for purposes of administration of justice or to prevent abuse of procedure to eliminate the possibility of the civil courts being stuck in a situation due to a loophole in the CPC The inherent powers of the civil courts, salvaged by Section 151, are thus complementary to their powers expressly set out in the CPC and are to be exercised when the situation is not covered by any provision of the CPC.”

“It hardly needs lengthy argument to establish that, in the circumstances of a case, the physical presence of a witness in court involves unnecessary delay, expense or inconvenience, the court’s order permitting the virtual presence of a witness via video conferences serve the purpose of judiciary, and the rejection of an unjustified insistence by the opposing party to ensure the physical presence of such a witness in court is intended to prevent abuse of the court process.”

“An order allowing the virtual presence of the witness in such circumstances thus falls directly within the scope of Section 151 of the CPC.”

The ruling states that Article 164 of the QSO is indeed our gateway to allowing modern science and technology to enter our courtrooms. If justice is to be established, the law must not stagnate or become archaic as society moves forward. It must be accessible, understandable and change over time to respond to the realities of modern life, it added.

“In today’s age of information technology, no one can deny the benefits of using this technology in courts to improve the efficiency of the judicial process and reduce the delay in adjudication. This is the ultimate goal of the law. In order to serve society, courts must embrace and use technological developments with a pragmatic and dynamic approach to case management and trials in order to administer justice more efficiently and expeditiously.”

“The above interpretation of the various provisions of the law, which allow modern videoconferencing technology to be incorporated into the existing enactments, improves access to justice, promotes a fair trial and introduces a cheap and expeditious judiciary, thereby respecting the fundamental rights under Articles 9 and 10A and the principle promote the policy under Article 37(d) of the Constitution of the Islamic Republic of Pakistan, 1973.”

The judgment stated that it is a deplorable practice to use the tool of prolonged cross-examination for the purpose of misleading the witness by exhausting him with unnecessary and irrelevant questioning.

“This practice is not for disclosing the truth, but for manipulating error. In such a situation, the head of the court, the judge, should not remain a silent spectator but act as a watchful overseer, for the right of cross-examination is neither unlimited nor rampant If the judge finds that the right of cross-examination is being abused by asking questions, which are irrelevant and intended to prolong the cross-examination to manipulate errors, outrage, insult or offend the witness should he intervene and dismiss such questions.”

The Apex Court found that the Trial Court and the High Court erred in law by not allowing this to happen. Your orders to refuse the petitioner’s prayer are untenable.

The present application for admission of the appeal is therefore converted into an appeal and this is granted. The judgment under appeal is set aside and the petitioner’s request for revision is granted by overturning the order of the trial court and accepting the petitioner’s request to video-record her remaining cross-examination, she added.

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