بذریعہ ویڈیو لنک شہادت قلمبند کرنےکے بارے پشاور ہائیکورٹ کی تفصیلی ھدایات

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Qanun-e-Shahadat (10 of 1984)---

----Art. 164---Recording of statement through video link---Evidence recording through modern device---High Court formulated Protocol/ Guidelines for conducting proceedings and directed that such guidelines shall be observed by the Trial Courts of Khyber Pakhtunkhwa.

"The following protocol/guidelines shall be observed by the trial courts in the province of Khyber Pakhtunkhwa.

1. Guidelines for conducting proceeding between trial court and court where witness shall appear.

For the purpose of these guidelines, reference to the "trial court" shall mean, where the trial is pending and witness attendance required, whereas the "witness end" shall be the place/court, where witness appears for recording his statement via video link.

i. In appropriate cases, the trial court may direct or allow a witness to be examined on video link.

ii. At any time, on application of a party or on its own initiative, the trial court may make direction in open court or in chamber for recording any testimony of a witness intra province, inter province or oversees Pakistan.

iii. The direction of the court for recording evidence of witness on behest of parties be sought through a proper application at the earliest, showing reasonable ground for inability of the witness to personally appear before the trial court. Notice of such application be given to the other party or counsel on the same date of filing application and the trial court may discuss it with the party under notice. In case of consensus between the parties the trial court shall proceed further, however in case of contest of application, the trial judge after hearing the parties shall pass an appropriate order in writing, granting leave or otherwise.

iv. The proceedings by way of video conference shall be conducted as judicial proceedings and the same courtesies and protocol shall be observed at both end viz trial court and court where witness is appearing for making statement. All the relevant provision of procedural and penal Code including the provision of Qanun-e-Shahadat Order shall apply to the recording of evidence by video technology; however, these guidelines shall not be applicable to proceedings under section 164 of Cr.P.C.

2. There shall be coordinator at both sides i.e. trial court as well as at the witness end. The trial judge shall act as coordinator at trial court side while at the witness end, the coordinator may be any of the following officials.

a. Where the witness is to be examined intra province, the judicial officer of equal jurisdiction of the trial court or the Session Judge of District at witness end or any judicial officer not below the rank of Additional Sessions Judge shall be coordinator.

b. Whereas the witness is to be examined is in other province including Azad Kashmir and Gilgit-Baltistan, and Islamabad, the judicial officer of the equal jurisdiction or the Session Judge of the district where the witness is permanently or temporarily settled subject to availability of video link facility at that District shall be coordinator. In case of non-availability of internet/video link facility at the witness end, the coordinator shall be nominated by the Registrar of the concerned High Court in any other nearest districts.

c. Whereas the witness to be examined is abroad and overseas, the trial court through Registrar of the High Court shall coordinate with the Foreign Ministry to nominate the official of Embassy/High Commissioner/Consulate of Pakistan to be a coordinator as well to arrange all necessary requirements including virtual court at witness end. The responsible officer Embassy/High Commissioner/Consulate shall be deputed for supervision, identification and administering oath etc to the witness. The officer shall be vested with the power of trial court for purpose of recording of statement.

d. Whereas the person to be examined is a convict or otherwise in a jail in connection with any offence, the concerned jail superintendent shall produce him before the Sessions Judge of the District where the convict prisoner is lodged. For production of the witness, the Superintendent Jail shall adhere to the order of District and Session Judge at the witness end. In case the witness is juvenile lodged at Borstal House or a lady with residence at shelter home/Dar-ul­-Aman etc, the concerned Incharge shall be under obligation to follow the directions of Sessions Judge at the witness end.

e. Whereas the witness is to be examined is hospitalized in any Provincial or Federal hospital or public sector hospital, the coordinator (Sessions Judge of concerned District) shall of its own or appoint any judicial officer as commissioner to visit the hospital for recording the statement of patient/witness. The Coordinator shall make correspondence with the Medical Officer or Incharge of the hospital for providing necessary internet facilities at the premises of patient/witness. The Medical Superintendent/Incharge of the Hospital shall associate the Sessions Judge or his nominee at the witness end.

f. In case of any other person/witness, as may be ordered by the Sessions Judge at witness end.

3. The Sessions Judge or his/her nominee at the witness end shall ensure the attendance of witness through all means prescribed by the provisions of Procedural, Penal Codes and Qanun-e-Shahadat Order, 1984. The prosecutors shall assist the court at trial court as well as at witness end.

4. In case, the person is witness of record, the prosecution shall be under obligation to provide the attested copies of entire record to witness to enable him/her in recording of his/her examination in Chief/Cross examination/re-examination or to confront him with any document etc. The trial court, at the time of allowing witness to be examined on video link, shall record the direction, of the prosecution in the case to make all necessary arrangements for ensuring the production of witness and availability of record at witness end.

5. In case of any difficulty in understanding the court language by the witness, the prosecutor shall bring in to the notice of trial court, at initial stage, on his application. The District Prosecutor, at witness end, shall arrange a translator/interpreter, who, on closing of the statement of witness, shall furnish a certificate to that effect, duly signed digitally.

6. Whereas the witness is beyond Pakistan i.e overseas, the prosecution shall provide the record of the witness while the coordinator at witness end i.e. Ambassador/Consular/High Commission shall be appraised through foreign ministry of Pakistan to make necessary arrangements for translator/Interpreter as prescribed in preceding Para-5.

7. Where the person is to be examined as court witness, the prosecution and where a person is to be examined as defence witness, the defence counsel will be under obligation to confirm to the court the exact location and willingness of witness to be examined by video link at the witness end. In case the witness is an accused and his attendance is dispensed with by the trial court during trial, the counsel for defence will confirm his location and availability of video link facility at that side.

8. Where the person is an accused in the case and trial court allowed him/her to record his statement on video link, and where the defence counsel requested that in the course of recording statement on video link some privileged communication would be required between the counsel and accused, the trial court will pass an appropriate order and directions in that regard.

9. At the request of a person to be examined on video link, or the trial court on its own motion, taking in to account the best possible interest of the person to be examined and arrival at just and proper conclusion subject to relevant provision(s) of Procedural, Penal Codes and Qanun-e-Shahadat Order, 1984, shall pass appropriate direction to protect the privacy of witness keeping in mind his age, gender and physical condition.

10. The record of proceedings, including typing and preparation of hard copy of statement(s) of the witness(s), marking all exhibits on documents at judicial file shall be made and prepared by the trial court. In case signature of the witness or coordinator or Sessions Judge or witness is required to be taken on statement or document, the soft copy shall be transmitted to the Sessions Judge at witness end through electronic means including Fax, scan or E-mail, where it will be converted in to hard copy and after doing the needful, it will be returned in the same mode to the trial court.

11. If possible, the Audio Video record may be saved in the computer data at the trial court. The saved statement of Audio and Video record may be kept intact till decision of the case/appeal.

12. Any expenses incurred on recording of statement via video link shall be borne by the party, on whose application or behest the statement is to be recorded. In case the person to be examined is a court witness, or the trial court, on its own motion, in the interest of witness, has ordered to allow recording statement on video link, the cost of expenditure shall be paid by the party at trial court, in whose favor such statement is recorded.

13. Recording of statement of conclusion at video link shall ordinarily take place during the local hours at Pakistan. Where the witness is oversees, the trial court may pass suitable direction with regard to timing as the circumstances dictate.

14. The Information Technology (IT) expert shall be allowed to be present during recording statement of a witness, if he/she is not cited as witness in the case. The (IT) expert shall establish and regulate the connection disconnection and reconnection of links between the trial court and court or place at witness end. He/she shall further ensure and satisfy the trial court and judge/coordinator at witness end, about clear visibility and loud audible voice at both ends.

15. Before starts of the video link, the witness shall disclose his/her identity before the judge/coordinator at witness end and likewise picture/photograph of his/her national identity card/passport/domicile shall be pasted at screen for the purpose of identification in the trial court. As soon as the identification process is completed, oath would be administered to the witness by the judge/ coordinator at witness end, loudly audible and clearly visible at trial court end.

16. The learned judge/coordinator shall ensure that the witness is not coached, tortured or prompted by any person. The witness, if willing, shall be allowed to engage a counsel for his assistance or to remain present with him/her at the witness end, when the evidence is being recorded.

17. The trial court and judge/coordinator at witness end will ensure that once the process of recording of statement on video link commences, as far as practicable and possible, it shall be kept continued to proceed without any break, interruption and without any adjournment at any cause or cost.

18. The Sessions Judge/coordinator, if needed or observed, may record any remark or observation as is material regarding the demeanor, attitude or conduct of the witness end and will transmit it to the trial court through electronic mode of transmission.

19. The Registrar of this court shall ensure, at least, to equip all the District courts with minimum required electronic/digital appliances i.e. computer set, laptop, video cameras microphone and speaker, display unit, documents visualizers, scanner, setting arrangement in the court rooms at both sides, printer and uninterrupted fast internet connection.

20. These guidelines, are just directory and also not all inclusive and comprehensive, therefore the court while recording statement on video link may resort to legally permissible steps not in conflict to these guidelines though and befitting the facts and circumstances of a particular case. Any such matter with respect to which no express provision has been made in these guidelines, the trial court may adopt any permissible and convenient mode to meet the end of justice."

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