MUHAMMAD IJAZ KHAN, J. Through the instant criminal revision petition, the petitioner has challenged the order of learned trial Court dated 20.07.2024, whereby, the application submitted by Shah Agha, the brother of the deceased, to examine the complainant of this case namely Shahid Haroon through video link as the said complainant is residing at Germany was dismissed.
2. When this case was taken up for hearing, notice was issued to the respondent/accused. Today, learned counsel appeared on his behalf Arguments of learned counsel for both the parties were heard and record perused with their able assistance.
3. At the very outset, learned counsel representing the respondent/accused did not seriously challenge the impugned order, however, he showed apprehensions qua the identity of the complainant namely Shahid Haroon and in this regard he made reference to his card issued by the authority of the German. On the merit of the case when learned counsel for the respondent/accused was confronted that what prejudice would cause to the accused if the complainant is examined through a video link, he was unable to submit any satisfactory answer. It may be reiterated that in this age of technology examination of witnesses or conducting Court proceedings through video link/conference requires to be encouraged as observed by the Apex Court in many judgments including case titled "Meera Shafi v. Ali Zafar" reported as PLD 2023 SC
211. The relevant portion of the aforesaid judgment is reproduced below.
20. Before turning to the facts of the present case, for examining the prayer of the petitioner on the touchstone of the above two conditions, we would like to say a few words on the precedent cases of Munawar Hussain and Muhammad Israr cited by the learned counsel for the petitioner, and20 21 on the rules and laws of other countries on the subject of recording evidence through video conferencing referred to by the learned counsel for the respondent. In these cases, the Lahore and Peshawar High Courts while relying, among other cases, upon the Aijazur Reitman case of the Sindh High Court and the Praful Desai caseof the Indian Supreme Court have observed that the word "presence" used in section 353 of the Code of Criminal Procedure 1898 includes "constructive presence" through video conferencing, and by referring to Article 164 of the QSO have held that the statement of a witness can be recorded through video conferencing in a criminal case.
Although we agree, in principle, with the exposition of law made in the cited two cases as to the permissibility of recording evidence of a witness through video conferencing in a criminal case, the point on which we have some reservations is that in these cases both the High Courts have prescribed a long list of guidelines/protocols to be complied with by the courts in allowing evidence of a witness to be recorded through video conferencing and have made the compliance therewith obligatory. The learned counsel for the respondent has also asked us to lay down such guidelines in line with the rules and laws of the other countries referred to by him. However, we are not inclined to undertake such an exercise in the present case and find it appropriate that it should be left to be done by the High Courts in the exercise of their rule-making power under Article 202 of the Constitution of the Islamic Republic of Pakistan 1973, on the administrative side, after due deliberation. In doing so, the High Courts may, if deemed appropriate, look into the rules and laws made by other countries on the subject. Till then, the courts may exercise their power to allow recording evidence through video conferencing and may consider the guidelines provided by the two High Courts in the said cases. The requirement of strict adherence to the guidelines prescribed by the High Courts in the present case may, however, impede the application of the very law declared therein; therefore, we think it proper to make it clear that those guidelines are to be followed by the courts to the extent it is found just and proper to follow them in the facts and circumstances of a particular case. For instance, where there is a serious apprehension that the witness would be under the influence of or tutored by some other person in the course of recording his evidence, or his very identity is disputed on substantial, not flimsy, grounds, the court may require his presence in the Pakistan Embassy in the country concerned and engage some officer of the Embassy in the process of recording his statement through video conferencing, as provided in those guidelines. But without any such serious apprehension or substantial dispute, requiring all such witnesses in every case to go to the Pakistan Embassy and engaging some officer of the Embassy in the process would also involve some unnecessary delay, expense or inconvenience. This matter should, therefore, be left to the discretion of the court concerned, which shall obviously exercise it judiciously for valid reasons.
4. Accordingly, in view of the above the impugned order dated 20.07.2024 passed by learned trial Court is set aside and the learned trial Court is directed to make necessary arrangement to examine the complainant namely Shahid Haroon through video link. Needless to mention here that the identity of the complainant is to be ascertained before recording his statement. With these observations, this criminal revision petition is allowed.