THE CONCEPT OF RE-EXAMINATION

By:
FAIZ RASOOL KHAN JALBANI
Advocate High Court

The proverb "Do as the Romans do" has its own wisdom in itself but simultaneously, it may be inferred, while keeping in mind the aforesaid proverb, that it is another justification to maintain status quo rather retrogression.

Now and then some things creep into the practice and with the passage of time get the status of law having no legal backing thereto. In this way, the apprehension of becoming a provision of law redundant overwhelms.

The purpose of what I have narrated hereinabove, particularly, at this juncture, is to refer to Articles 132 (3) and 133 (3) of the Qanun-e-Shahadat Order, 1984, which on practical levels, seems to have become redundant.

Three steps are provided for the purpose of recording of evidence. First Step is called examination in chief: Second Step is called Cross-examination and the Third Stage is called re-examination i.e Article 133 (3) of the Order 1984. In this regard a reference of the said Articles i.e 133 and 132 may substantiate what I am going to allege. Article 132 of Qanun-e-Sahadat Order, 1984 is reproduced here in below:--

ARTICLE 132

(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.

(2) The examination of a witness by the adverse party shall be crossed his cross-examination.

(3) That examination of a witness subsequent to the cross-examination by the party who called him, shall be called his re-examination.

ARTICLE 133

(1) Witnesses shall be first examined-in- chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined.

(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be continued to the facts to which the witness testified on his examination-in-chief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.

Now the concept of Re-examination is introduced under Article 132 (3) and Article 133 (3) of the Order, 1984 vapors out when viewed in the prospect of what is preceded in the Trial Courts as a matter of routine.

According to Article 133 of the Qanun-e-Shahadat Order, 1984 the order of examination of witnesses has been set down. The witnesses shall be first examined-in-chief and then if the adverse party so desires shall be cross-examined. The re-examination, however, is limited to the explanation of matters referred to in-cross-examination and if permission in this respect is granted by the Court. It would thus, be seen that the voluntary statement by a witness in cross-examination has no legal evidentiary value. It is not permissible for a witness to foist into his answer, statement or any material which is not in answer to or explanatory of his answer to the questions put to him. In jurisprudence, such voluntary evidence is denominated as "ir-responsive" testimony and the introduction of such evidence shall be against the rule of re examination as contemplated under Article 133 of the Qanun-e-Shahadat Order, 1984.

Now, as a matter of routine the Trial Courts trend to dictate the version of a witness during the course of Cross-Examination by employing the words like volunteered or explained or further stated in the situation when the very witness tries to explain or say something additional in response to question put to him. Under such circumstances, the use of abovesaid words inherently negates the very concept of Re-Examination as introduced by the Qanun-e-Shahadat Order, 1984.

In this regard I venture to rely on the judgment, reported in 2003 YLR 406. The perusal of the said judgment passed by Honourable High Court clearly suggests that it decides a question of law and enunciates a principle of law as well. I have researched and tried to know whether the said decision of the Honourable High Court was challenged before the Apex Court or not and whether there exists some other judgments of the superior Courts running counter to abovereferred judgment but, again and again I found the abovereferred judgment never to be overruled, hence the same has binding authority on all Courts subordinate to it. There is no cavil in the proposition that it is incumbent upon the subordinate Courts to follow the pronouncements of Honorable Superior Courts of the Country.

Article 201 of the Constitution of Pakistan 1973 goes to say that subject to Article 189, any decision of a High Court shall, to the extant that it decides a question of law or is based upon or enunciates a principle of law, the binding of all Courts Subordinate to it.

The nutshell of what I have narrated above is that the Trial Courts must consider the wisdom and philosophy behind the enactment i.e 133 (3) of Qanun-e-Shahadat Order, 1984, as the same is a very important piece of legislation, having far reaching effects in the conduct of Trial. I further assertively maintain that a Trial may only be said to be conducted in due course of law, when each and every relevant provision of the Qanun-e-Shahadat Order, 1984, is adverted to as well as abode by. The very suggestion also gets force from the Constitutional provisions laid down under Article 10-A of the Constitution of Pakistan, 1973.