Declared PO can still testify in other cases: LHC

LAHORE: The Lahore High Court has observed that a person declared a proclaimed offender in one case can still testify in another case.

The courts are bound to apply the provisions of Qanune-e-Shahadat as enacted and may not introduce new disqualifications or conditions, the court added.

The court passed this order on a petition of Nosheen Ali Nasir who challenged the decision of a sessions court which did not allow her brother’s testimony through video link and declared that a “fugitive from law loses his normal rights.” The petitioner’s brother Husnain was paralyzed in an attack and is presently undergoing treatment in the United States. The court said that Husnain’s medical record confirms that his physical appearance is presently not feasible.

The court observed that the trial court in such like cases must ensure that the accused’s right to procedural fairness is not compromised. It must be satisfied on the basis of credible medical evidence that the witness’s physical appearance is genuinely not feasible and that his medical condition prevents him from attending in person, the court added. The court, therefore, accepted the petition and set aside the impugned orders. The court directed the trial court to record Husnain’s evidence through a video link in accordance with law.

The court observed that use of video conferencing for the recording of evidence is well established in comparative and domestic jurisprudence. Video links can also be used for preliminary hearings and procedural matters, saving time and resources by eliminating the need for physical court appearances, the court added.

The court said that Article 164 of the Qanun-e-Shahadat, 1984, also allows courts, depending on the nature and circumstances of the case, to admit evidence or witness testimony recorded through modern devices or techniques such as video calls, Viber, Skype, IMO, WhatsApp, Face book Messenger, Line, and video conferencing.

The court also said that Section 30 C(2) of PECA allows the court to conduct trials through video link where appropriate. Likewise, section 12(3) of the Juvenile Justice System Act, 2018, empowers the Juvenile court to waive the physical presence of the juvenile and permit participation in court proceedings through an audio-visual link.

Similar provisions exist under the Family Courts Act, the court added. Additionally, this court has issued administrative instructions to subordinate courts from time to time to facilitate the use of video technology where appropriate. However, its use is subject to each jurisdiction’s legal framework and judicial discretion, the court observed.

The court said Article 3 of the QSO provides that all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers due to tender years, extreme old age, disease, or any similar cause, the court concluded.

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