2023 YLR 2562
Lord Denning said that in exercising this power , the court must actively participate in the trial to elicit the truth and to protect the weak / innocent . He must not assume the role of a prosecutor in putting questions . Any question put by the judge must be so as not to frighten , coerce , confuse or to intimidate the witness .
A judge is empowered to ask clarifying questions , but must not cross examine , impeach , badger , harass ,humiliate or belittle the witness .
In criminal trial , it is not uncommon to see himself / herself into the proceedings and a judge inserting ask questions to a witness directly . A judge is , by law , permitted to question the witness . However , this power is not without limits .
The trial court is vested with ample authority to put questions to the witness under Article 161 of Qanun-e-Shahadat Order , 1984 , however , certain limitations upon such powers are as under :
i. Power of this amplitude must be exercised with caution and circumspection . " Inhaf Ullah v . The State and another " ( 2021 SCMR 1725 )
iii . Such powers are used with great care and only when it is absolutely necessary in the interest of justice . " Muhammad Abid v . Mst . Nasreen Yousuf and another " ( 2002 CLC 655 ) ;
iv. While exercising such power the Court shall weigh the scales of justice evenly . " Javed Shamshad and 3 others v . The State " ( 1996 PCr.LJ 3 ) ;
v. A Court should normally refrain from warning the witness of his unsatisfactory demeanour because the effect of such warning would be to put the witness on his guard and his subsequent demeanour will not be his natural demeanour . " Syed Kanchan Ali v . Shahjahan and others " ( PLD 1962 Dacca 192 ) ;
vi . The Court should normally refrain from putting itself in the position of a prosecutor or a defence lawyer . " Syed Kanchan Ali v . Shahjahan and others " ( PLD 1962 Dacca 192 ) ;
vii . When it is absolutely necessary in the interest of justice ( For reference see State v . Balahari Dass Sutradhat PLD 1962 Dacca 467 ( D.B. ) and Kanchan Ali v . Shahialian PLD 1962 Dacca 192 ( D.B. ) ) . " Muhammad Abid v . Yousuf and Mst . Nasreen another " ( 2002 CL C 655 ) ;
viii . The power construction of the said Article in its totality would be in our humble view that the above power is to be exercised by the Court to resolve any ambiguity or confusion found in the evidence and to clear away the doubts created by different pieces of evidence but while exercising such power the Court shall weigh the scales of justice evenly . " Javed Shamshad and 3 others v . The State " ( 1996 PCr.LJ 3 ) .
2023 YLR 2562
It may also be mentioned that under subsection ( 2 ) of section 265 - F , Code Cr.P.C. of the of Criminal under an Procedure , the Court is obligation to ascertain from the Public Prosecutor or the complainant the names of the persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution , and thereafter , summon such persons to give evidence before it . This provision is not merely a procedural step but it manifests a positive intent to advance the cause of justice for meeting a situation when any material evidence is left out for whatever motive .
The purpose of section 540 , Cr.P.C. is to enable the court to reach at the truth of the matter and imposes a duty on the court to summon a person in the witness box , whose evidence is essential for just decision of the case . Under first part of the section , the court my in its discretion summon or recall a person or a witness for examination or re - examination but under the second part , it is obligatory for the court to summon and examine or recall or re - examine any person if his evidence appears essential for just decision of the case , but the court cannot use the power under section 540 , Cr.P.C. to advance the case of prosecution or that of the defence . However , this discretionary power should be used in a case in which the examination of a person is material and is essential to come to a proper conclusion .
2023 YLR 2562
0 Comments