Legal Insights: Exploring Modes of Examination in Court

Analysis of Modes of Examination of Witnesses in the Evidence Act/Qanun-E-Shahadat Order, 1984

Overview:

When a witness appears in court, they undergo a series of examinations to ensure the reliability of their testimony. It is imperative to thoroughly examine a witness before accepting their statement. The examination process unfolds in three distinct modes, recognizing the crucial role witnesses play in the administration of justice. This prompts questions about the timing, methodology, and limitations of these examinations. The Qanun-e-Shahadat Order 1984 (Evidence Act 1872) outlines the provisions governing these examinations, addressing queries surrounding their conduct and constraints.

Relevant Provisions:

The following are relevant provisions related to the topic;

Article 132, 133 of Q.S.O 1984.

Section 137,138 of Evidence Act 1872

Meaning of Examination and Witness: 

Meaning of Examination: 

(i) Literal meaning:

The term examination literally means detailed inspection or scrutiny. 

(ii) Legal meaning:

Whereas in the legal lexicon “Examination” means formal questioning to a witness.

(iii) According to the Oxford Dictionary of Law:

The questioning of a witness on oath or affirmation. 

Definition of Witness: 

(i) General Definition:

Any person, adult and sane, not subject to sovereign or diplomatic immunity (except the parties to litigation) who divulges facts of the event that happened and establishes evidence before the court is pronounced as a witness. It may be even that person who has taken part in the commission of a crime or an event but is not being tried. 

Case Law Definition:

It was observed in the case. "PLD 2003 Lah 291"

“Persons who are acquainted with the circumstances of the case are to be termed as witnesses. Only such persons whose testimony is operational are to be termed as witnesses and not those whom the prosecution calls for evidence.” 

Meaning of Examination of Witness:

Examination of a witness means examination-in-chief, cross-examination, and re-examination if any as provided by Articles 132 and 133 of Q.S.O.1984. [PLJ 1983 Kar 283]. 

Modes of Examination of Witness;

Under Article 132 of Q.S.O.1984 or Section 137 of Indian Evidence Act 1872:

A witness, after having called in a witness box, is examined in three different modes. Qanun-e-Shahadat Order 1984 also provided the sequence of these modes in which they have to be carried Out, which is as under:

• Examination-in-Chief
• Cross-examination
• Re-examination

Examination-In-Chief: 

Meaning under Article 132(1) of Q.S.O.1984 or Section 137 of Indian Evidence Act 1872: 

The examination of a witness by the party who calls him shall be called his examination-in-chief. It is also known as direct examination.

Examination-in-chief is the legal art of crafting a compelling narrative through the testimony of witnesses. This mode of examination, governed by Section 137 of the Indian Evidence Act 1872 in India or Article 132(1) of Q.S.O.1984 in Pakistan, serves as the foundational canvas upon which the case is painted. In this phase, the presenting counsel seeks to elicit information from witnesses in a manner that is clear, chronological, and conducive to building a strong case.

Form of Examination-In-Chief: 

The form of examination-in-chief typically takes the shape of a connected narrative, where the witness provides a detailed and coherent account of the relevant events or facts in response to questions posed by the party calling them

Explanation:

During the examination-in-chief, it is crucial to limit discussions to the facts directly related to the issue at hand. The disclosed facts should fall within the witness's personal knowledge and recollection. Typically, hearsay evidence is not considered, emphasizing the importance of direct oral evidence. Questions posed during this phase should specifically address factual aspects rather than legal matters. This ensures a focused and relevant exploration of the case.

The object of Examination-In-Chief: 

The primary objective of the examination-in-chief is to enable the party presenting a witness to elicit a comprehensive and unbiased account of relevant facts, events, or circumstances that support their legal claims or defenses. Through open-ended and non-leading questions, the examining counsel aims to establish a clear and credible narrative, introduce key evidence, and demonstrate the witness's reliability. The purpose is to build a solid foundation for the case, presenting a favorable portrayal of events and witnesses, thereby influencing the court or jury in favor of the party conducting the examination-in-chief. The primary purpose of the examination-in-chief is to elicit from the witness all the facts in order to prove the case of the party calling him. 

Who may conduct Examination-In-Chief: 

Examination-in-chief must be conducted by the party, who presents him in the Court.

Explanation: The party who produces the witness conducts the examination-in-chief. The examiner-in-chief must obtain all the information regarding material issues, in the party's favor from the witness.

Time to conduct: 

By virtue of Art 133(1) of Q.S.O.1984, or 137 of Indian Evidence Act 1872, witnesses shall be first examined-in-chief and then, if the adverse party so desires, cross-examined.

Explanation:

Examination-in-chief is always conducted whenever the party presents the witness for the first time before the court. The examiner is bound to complete his examination before the opponent's cross-examination begins.

Questions which are permitted in examination-in-chief:

The general rule is that a witness may be asked any question in examination-in-chief, that is relevant to facts in issue in the proceeding, and which is not inadmissible by virtue of an exclusionary rule.

Golden rules regarding examination-in-chief:

The following golden rules have been laid down by David Paul Brown:

• (i)  Never ask a question without an object, nor without being able to connect that object with the case.
• (ii) Never call a witness whom your adversary will be compelled to call. This will afford you the privilege of cross-examination
• (iii) Do not question for the question's sake but for an answer.

Limitations on examination-in-chief: 

(a) As to leading questions:

As a general rule, no leading questions may be asked in examination-in-chief.

(b) Opinion and view are not allowed:

Unless evidence of reputation is admissible, witnesses must in general merely speak to facts within their own knowledge, and they will not be permitted to express their own belief or opinion except where opinion evidence is relevant. But sometimes his opinion becomes relevant under Articles 59 to 65 of the Q.S.O.1984 order.

(c) Not to impeach the credit of the witness:

Ordinarily, a party cannot impeach the credit of his own witness but it may do so to the hostile witness with the permission of the Court, e.g. when a witness becomes hostile to the party calling him.

Cross-Examination:

Cross-examination is a critical phase in legal proceedings where opposing counsel questions a witness presented by the other party. This method aims to test the credibility of the witness, challenge their statements, and uncover any inconsistencies in their testimony. The cross-examiner seeks to elucidate alternative perspectives or cast doubt on the reliability of the witness's account. Effective cross-examination plays a pivotal role in influencing the court's perception of the case, shaping the overall narrative, and impacting the final judgment.

Cross-examination is as essential as examination-in-chief for extracting from a witness Material which is to constitute evidence.

John Henry Wigmore

"Cross-examination is the greatest legal engine ever invented for the discovery of truth.” 

Irving Younger

“The purpose of cross-examination is to discredit the witness and weaken the opponent’s case.

Robert Mueller

“Cross-examination should be like a sword, it should be sharp, it should be short, and it should cut.” 

(I) Meaning of Cross-Examination:

Under Article 132(2) or 137 (2) of the Indian Evidence Act 1872:

The examination of a witness by the adverse/opponent party shall be called his Cross-examination.

Cross-examination is a legal process during a trial where the opposing party's attorney questions a witness who has already testified.

(II) Objects of cross-examination:

According to Powell, the objects of cross-examination are:

• (i) To impeach the accuracy, credibility, and general value of the evidence given in examination-in-chief.
• (ii) To sift the facts already stated by the witness.
• (iii) To detect and expose discrepancies, or 
• (iv) To elicit suppressed facts that will support the case of the cross-examination party.

The purpose of cross-examination is to assist the court and bringing the truth to light by disclosing or clarifying matters which witness may wish to conceal or confuse. 

The object of cross-examination is three-fold.

• (i) To weaken or destroy the case of the opponent party.
• (ii) To establish the party's own case by probing into:
• (a) the facts which he had disclosed in examination-in-chief. 
• (b) the facts, which the witness has not deposed but to which the cross-examiner thinks, he is able to depose.
• (iii) To impeach the credit of the witness.

(III) Who May Conduct Cross-Examination :

The responsibility for conducting cross-examination typically falls on the opposing party during legal proceedings. However, there is a provision, as outlined in Article 150, where the court may grant permission for a party to cross-examine its own witness. This occurs when the witness is deemed hostile, demonstrating an adversarial disposition, and necessitates the intervention of the party presenting the witness to scrutinize or challenge their testimony directly

(IV) Right of Cross-Examination:

[2019  MLD  162 Federal-Shariat-Court]

Cross-examination was the great legal engine invented for the discovery of truth. The opportunity to cross-examine contemplated by the law must be real, fair, and reasonable as the Cross-examination was not an empty formality but a valuable right and best method for ascertaining the truth. Cross-examination was a weapon, which could be used for the purpose of testing the veracity of the statement made by the witness.

Order to conduct cross-examination:

By virtue of Art 133, witnesses shall be first examined-in-chief and then, if the adverse party So desires, cross-examined. 

(V) Scope and extent of cross-examination:

According to Art 133(2), the cross examination must relate to relevant facts but it need not be confined to the facts to which the witness testified on his examination-in-chief, but extends to the whole case.

According to Phipson: The witness can be asked not only as to facts in issue or directly relevant there to, but all questions which though otherwise irrelevant tend to impeach his credit in the manner provided.

Cross-examination is a critical phase where the opposing party questions the witness who has already been examined-in-chief by the party calling them.

 Here are the key aspects of the scope and extent of cross-examination:

Relevance to Matters in Examination-in-Chief:
The primary scope of cross-examination is to inquire into relevant matters that were covered during the examination-in-chief. The questions should relate to the facts and issues raised by the party calling the witness.

Testing Credibility and Veracity:
Cross-examination provides an opportunity to test the credibility, accuracy, and consistency of the witness's testimony. The cross-examiner may question the witness about any inconsistencies or contradictions in their statements.

Impeachment of Witness:
Cross-examination allows for the impeachment of the witness's credibility. The cross-examiner may question the witness about prior inconsistent statements, bias, interest, or any other factors that might affect the reliability of their testimony.

Exploring Personal Knowledge:
The cross-examiner can explore the personal knowledge of the witness regarding the events in question. This includes probing the witness's ability to perceive, remember, and accurately recount the details.

Exposing Biases and Motivations:
Cross-examination allows for the exploration of any biases, motivations, or prejudices that may influence the witness's testimony. This is particularly relevant in cases where the witness might have a vested interest in the outcome.

Court's Discretion:
The court has the discretion to limit or disallow certain questions during cross-examination if they are deemed irrelevant, prejudicial, or intended solely to harass the witness.

(VI) Limitations on cross-examination:

(a) Lengthy and irrelevant cross-examination:

Unnecessarily lengthy and irrelevant cross-examination of witnesses should be avoided as far as possible to minimize the agony of the accused. [1996 PCrl.J 870]

(b) Indecent or Scandalous questions:

All questions or inquiries which are indecent or scandalous, unless they relate to facts in issue, are to be avoided under Article 147.

(c) Insulting or Annoying questions:

All questions that are calculated to insult or annoy or couched in a needlessly offensive form should not be permitted under Article 148.

(d) Repetition of Question:

Generally, repetition of questions should be avoided. 

(e) Witness summoned to produce a document: 

No cross-examination can be allowed of a witness who is summoned to produce a document under Article 134.

(f) Where the witness is not competent to speak:

Where a witness is asked a question about a matter which he had no opportunity to know or on which he is not competent to speak, it may be disallowed. [AIR 1946 Bom 216]

Omission to cross-examine witness:

The omission to cross-examine a witness on a material part of his evidence would give rise to an inference that the truth of his statement had been accepted. [2001 CLC 942]

Duty of Court:

The court had an obligation to protect witnesses from any type of embarrassment or humiliation at the hands of the opposite party through the tool of cross-examination [PLD 2003 Pesh 179]

Re-Examination: 

(i) Meaning of Re-Examination

Under Article 132(3):

The examination of a witness subsequent to the cross-examination by the party who called him shall be called his re-examination.” 

(ii) Object of Re-Examination:

it was observed in the following case; "NLR 2001 Lah 441" 

“Witness can be re-examined with the permission of the Court in case any ambiguity Crops up during cross-examination which needs Clarification or elucidation.” 

(iii) Who can conduct a Re-Examination:

Under Article 133(1), it is the party, who calls him, can re-examine him after the completion of cross-examination.

(iv) Questions which may be asked in of Re-Examination:

During re-examination, the party possesses the right to inquire about any questions deemed appropriate for clarifying the meaning of expressions used by witnesses during cross-examination, particularly if those expressions are inherently ambiguous. Additionally, the party can delve into the motives or provocations that led the witness to use such expressions. This allows for a comprehensive exploration of the context and intent behind the witness's statements, contributing to a more thorough understanding of the testimony presented during the legal proceedings.

Introduction of new matter in re-examination: 

A new matter can only be introduced in re-examination with the permission of the Court and not otherwise. 

Right of adverse party to cross-examine: 

When a new matter is introduced, in re-examination, the adverse party may further cross-examine that matter. 

(v) Object and Scope of Re-examination: 

The scope of re-examination encompasses the opportunity for a party to clarify and elaborate on matters brought up during cross-examination. It allows the party, whose witness has been subject to questioning, to address any ambiguities, explain the meaning behind expressions used by the witness, and delve into the motives or provocations that may have influenced their testimony. Essentially, re-examination serves as a valuable tool for ensuring a more thorough understanding of the evidence presented and reinforcing the credibility of the witness's statements in the legal proceedings.

(vi) Limitations on re-examination:

(a) Leading questions; Under Article 137:

Leading questions must not, if objected to by the adverse party, be asked in re-examination except with the permission of the Court. 

(b) To undo the effect of the previous statement:

The questions, which give a chance to the witness to undo the effect of the previous statement, never be allowed.

(c) Question omitted in examination-in-chief:

If a question has been omitted in the examination-in-chief, it should not be allowed in re-examination as not arising out of the cross-examination, except with the permission of the Court.

Conclusion:

In conclusion, when a witness is called upon to provide testimony in court, the examination process is conducted orally, known as viva voce, and follows a structured format of questions and answers. This process unfolds in three key stages: examination-in-chief, cross-examination, and reexamination. The completion of these stages strengthens the admissibility of the witness's testimony as it undergoes comprehensive scrutiny. The party cross-examining the witness is empowered with certain tools, such as impeaching the witness's credibility, to cast doubt on the veracity of their testimony. Interestingly, there are instances where even the party presenting the witness may challenge their credibility. This multifaceted examination approach minimizes the risk of admitting false or fabricated testimony into legal proceedings, ensuring a more reliable and trustworthy evidentiary process.

FAQs Frequently Asked Questions

Q. Examining a witness is one of the modes of ascertaining the value of his evidence. Discuss in detail various modes of examination provided in the QSO? 

Q. Discuss in detail examination in chief, cross-examination, and re-examination?

Q. Examining a witness is one of the modes of ascertaining the value of his evidence. Discuss in detail declared to be admissible?