MODE OF EXAMINATION OF WITNESS:  WHEN A WITNESS MAY BE CROSS-EXAMINED (OR) PERMITTED FORM OF QUESTIONS IN CROSS-EXAMINATION:  WHAT QUESTIONS MAY BE LAWFULLY ASKED FROM A WITNESS DURING CROSS-EXAMINATION:

PRELIMINARY NOTE:

Cross-examination of a witness is one of the most effective methods of discovering the truth and exposing falsehoods. During the examination-in-chief, the witness may say things favorable to the party on whose behalf they tender evidence and may deliberately conceal facts that could constitute part of the opponent's case. The art of cross-examination lies in questioning the witness in a manner that brings out the concealed truth.

Cross-examination is a double-edged weapon, as often it wounds the person who wields it as much as the one at whom it is aimed. To wield it to advantage requires great practice and natural skill. Cross-examination involves questioning a witness immediately after their examination-in-chief by the legal representative of the opposing party or by the opposing party in person. The examination of a witness by the adverse party is called their cross-examination. The purpose of cross-examination is to test the veracity of the witness. No evidence affecting a party is admissible against that party unless the latter had an opportunity of testing its truthfulness through cross-examination. Articles 141 to 149 of the Qanun-e-Shahadat Order 1984 provide guidelines for questions that can and cannot be asked during cross-examination.

The permitted forms of questions in cross-examination can be conveniently considered in light of the objectives of cross-examination. These are twofold:

1. To elicit evidence that supports the cross-examiner's version of the facts in issue.

2. To cast doubt upon the witness's evidence.

RELEVANT PROVISIONS:

Chapter X & Articles 140-149 of Qanun-e-Shahadat Order 1984:

MODE OF EXAMINATION OF WITNESS:

Article 133:

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

2. The examination and cross-examination must relate to relevant facts, but cross-examination need not be confined to the facts to which the witness testified during examination-in-chief.

3. Re-examination shall be directed to explaining matters referred to in cross-examination. If new matters are introduced during re-examination with the court's permission, the adverse party may further cross-examine on those matters.

OBJECT/PURPOSE OF CROSS EXAMINATION:

The objective of cross-examination is to impeach the accuracy, credibility, and general value of the evidence given in chief; to shift the facts already stated by the witness; to detect and expose discrepancies; or to elicit suppressed facts that will support the case of the cross-examining party.

ESSENCE OF CROSS-EXAMINATION:

The essence of cross-examination is the interrogation by the advocate of one party of a witness called by the opposing party, with the objective either to obtain admissions favorable to their case or to discredit the witness.

CASES WHERE WITNESS CANNOT BE CROSS-EXAMINED:

1. A witness summoned merely to produce a document.

2. A witness sworn by mistake.

3. If a person is presented by the assessee as their witness, they can only conduct an examination-in-chief and do not have the right to cross-examine their own witness.

4. A witness whose examination has been stopped by the judge before any material questions have been put is not liable to cross-examination.

5. A witness who provides replies in answer to questions by the Court can only be cross-examined as to credibility.

6. A witness who has given no evidence in chief may not be cross-examined as to credibility.

7. The Court may disallow cross-examination if it is used solely to oppress and not for the purpose of justice.

8. Witnesses to character, though liable to be cross-examined, are rarely subjected to it.

WHEN A WITNESS MAY BE CROSS-EXAMINED (OR) PERMITTED FORM OF QUESTIONS IN CROSS-EXAMINATION (Article 140):

A witness may be:

1. Cross-examined to impeach credibility:
   Questions may be asked regarding omissions or inconsistencies in previous statements made by the witness in writing, with the aim of discrediting them and implying unreliability or lack of truthfulness.

2. Cross-examined as to matters in issue/questions:
   A witness may also be cross-examined about matters relevant to the case in order to detect discrepancies or to elicit suppressed facts that will support the case of the cross-examining party.

WHAT QUESTIONS MAY BE LAWFULLY ASKED FROM A WITNESS DURING CROSS-EXAMINATION:

1. Questions that may discredit the previous statements of the witness (Article 140).

2. Questions about relevant matters in issue (Article 140).

3. Leading questions (Article 138).

4. Questions to test the veracity of the witness (Article 141).

5. Questions to discover who the witness is and what their position in life is (Article 141).

6. Questions to shake the witness's credibility by injuring their character, even if the answer may incriminate them or expose them to penalties (Article 141).

7. Questions related to matters relevant to the suit or proceedings (Article 142).

8. Questions decided by the court (Article 143).

9. Questions based on reasonable grounds (Article 144).

10. Indecent and scandalous questions relating to facts in issue or determining the issue (Article 146).

11. Questions tending to corroborate evidence of relevant facts (Article 152).

CAN INDECENT AND SCANDALOUS QUESTIONS BE ASKED IN CROSS-EXAMINATION? (Article 146):

The Court may forbid any question or inquiry that it regards as indecent or scandalous, even if such questions have some bearing on the case, unless they relate to facts in issue or to matters necessary to determine the existence of those facts.

CHECKS IMPOSED ON THE UNFETTERED POWER OF CROSS-EXAMINATION:

1. Court to decide when questions shall be asked and when the witness shall be compelled to answer (Article 143):
   If a question relates to a matter not relevant to the suit or proceedings, except insofar as it affects the credit of the witness by injuring their character, the Court shall decide whether or not the witness shall be compelled to answer it. The Court may also warn the witness that they are not obliged to answer it. The Court will consider factors such as the truth of the imputation conveyed by the question and its impact on the witness's credibility.

2. Questions not to be asked without reasonable grounds (Article 144):
   No such question should be asked unless the person asking it has reasonable grounds to believe that the imputation it conveys is well-founded.

Illustrations:

• If an advocate is instructed that an important witness is a dakait (criminal), it is reasonable to ask the witness whether they are a dakait.

• If a witness is questioned about being a dakait without any reasonable grounds, the question is improper.

1. Procedure when questions are asked without reasonable grounds (Article 145):
   If the Court finds that a question was asked without reasonable grounds, it may report the advocate to the High Court or other relevant authority.

2. Court's authority to forbid insulting or annoying questions:
   The Court shall forbid any question intended to insult or annoy the witness, or any question that is unnecessarily offensive in form, even if the question is otherwise proper.

JUDGE'S POWER TO ASK QUESTIONS TO ANY WITNESSES OR PARTIES TO DISCOVER THE TRUTH (Article 161):

The Judge may, in order to discover or obtain proper proof of relevant facts, ask any question in any form, at any time, of any witness or party about any fact, whether relevant or not. The Judge may also order the production of any document or thing. Neither the parties nor their agents may object to any such question or order. However, the judgment must be based on facts declared relevant and duly proved. The Judge cannot compel a witness to answer any question or produce any document if the witness is entitled to refuse under Articles 4 to 14. The Judge also cannot dispense with primary evidence of any document except as provided in the law.

CONCLUSION:

Cross-examination is a vital tool in the legal system, aimed at uncovering the truth and challenging the credibility of witnesses. While it holds great potential for revealing critical information, it is bound by rules and limitations to prevent abuse. Courts regulate the questioning process to ensure fairness and to protect witnesses from unnecessary harm or offense. Ultimately, the power of cross-examination serves the broader goal of achieving justice by exposing contradictions, revealing hidden facts, and testing the veracity of evidence presented in the courtroom.