2020 P Cr. L J 1184
Recording of statement through video link---Scope---Evidence recorded through modern device---Scope---Petitioner moved the present application under S. 561-A, Cr.P.C., contended that a compromise had been effected between the parties and prayed that the Special Judge be directed to record the statement of one of the legal heirs of deceased, through video link or other modern device as he was working abroad and could not come---Scope---High Court observed that Chapt. XXV of the Code of Criminal Procedure, 1898, prescribed the method for taking and recording of evidence in inquiries and trials in criminal cases---Said Code did not provide for taking evidence by video conference---Nonetheless, there was no provision in the Code which prohibited it--- However, Art. 164, Qanun-e-Shahadat, 1984, empowered the court to admit any evidence that might have become available because of technological advancement---Said provision could reasonably be invoked for recording evidence through video link---Section 10 of the Punjab Witness Protection Act, 2018 could be invoked for the said purpose---If both the parties did not consent to a witness giving evidence by telephone or video-conference then it would be open to the court on motion or on its own initiative to make an order directing a video-conference on such terms as were just---Circumstances suggested that courts were allowed to record evidence through video conference; nevertheless, it had some problems; most important among them are the identification of the witness and were assurance that he was not being prompted when his statement was recorded---In the present case, witness whose statement was sought to be recorded was abroad and could not come to Pakistan without incurring a huge expense---Since, there was no legal impediment in granting permission for recording his statement on video link, the request was allowed, subject to the protocols---Application was allowed accordingly.
Evidence recorded through modern device---Protocols---Video conference could be held at the place approved by the court---If witness is in Pakistan, a commission was to be issued to the Magistrate of the first class under S. 503 or 506, Cr.P.C. to facilitate and supervise the process---If the witness resides in any country with which Pakistan has reciprocal arrangements, commission could be issued to such court or Judge having authority in that behalf as specified in terms of subsection (2-B) of S. 503, Cr.P.C.---Where no such arrangements existed, the statement of the witness must be recorded in Pakistan Embassy/High Commission or Consulate or, if the court permitted, in a Notary's office in the presence of an officer of that Embassy/High Commission or Consulate or the Notary, as the case may be---Judge, Magistrate, Officer of the Pakistan Embassy/High Commission, Consulate or Notary, as the case may be, must ensure that the witness is alone at the time of video conference and is not coached, tutored or prompted and he must submit his certificate to that effect to the court---Before examination of the witness under audio-video link, he must submit to the Judge, Magistrate, Officer of the Pakistan Embassy/High Commission, consulate or Notary, as the case may be, his original identity card, passport, driving licence or other document to prove his identity along with an affidavit (signed and thumb marked) duly verified before a Judge, or a Magistrate or a Notary that the person who is shown as the witness is the same person who is going to depose on the screen---Said identification document and affidavit must be shown on the screen to the other side and the officer concerned must forward a copy of those papers duly attested by him in a sealed cover to the court for which expenses must be paid to him in advance which must be made part of the record---As soon as the identification part is completed, oath should be administered to the witness (if required by law) through the media according to the Oaths Act, 1873, or any other law for the time being in force---Witness should, as far as possible, be examined during the working hours of the courts in Pakistan---Proceedings must be conducted, as far as practicable, without any interruption and no adjournment should be granted unless the court thinks that it is extremely necessary to meet the ends of justice---Court must provide to the witness copies of any documents that he might be entitled to demand under any law for the time being in force---Court must record any remark as is material regarding demeanour of the witness while on the screen and should note the objections raised during the proceedings either manually or mechanically---Deposition of the witness either in the question-answer form or in the narrative form must be reduced to writing by the court and must be read over to the witness and if possible his digital signature must be obtained as a proof of its correctness, and after that the Presiding Officer must also sign it and make the same part of record---Visual must be recorded at the court's end, secured with the seal of the court and made part of the record---If a video link failed during the proceedings, the court may adjourn the proceedings or make such other order as it may deem appropriate---In case of perjury, court would be competent to proceed not only against the witness who has given false evidence but against the person who abetted it---Unless the court directed otherwise, the expenses for the arrangements should be borne by the applicant who wanted that facility---Same should be deposited with the court in advance---Court may put such other conditions and issue directions as may be required in the circumstances of a case to meet the ends of justice and attain the object---Depositions of the Magistrate in terms of Letter No.2045/MIT/HC/2017 dated 27.1.2017, and other official witnesses should be recorded in accordance with the instructions issued by High Court from time to time---Court may at any time vary or revoke its direction/permission for examination of a witness on video link---Court must not make a direction for examining a witness on video link if: the necessary facilities are not available or could not reasonably be made available; or the court is satisfied that the evidence could more conveniently be given or made in the courtroom; or the court is satisfied that the direction would be unfair to any party to the proceedings; or the court is satisfied that the person in respect of whom the direction is sought would not give evidence or make the submission.
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