Tariq Saleem Sheikh. - On 28.05.2022, around 9:40 a.m., the Petitioner's brother, Husnain Ali Nasir, was attacked near lawyers' chambers in Tehsil Courts, Daska, and was grievously injured. On the same day, the Petitioner lodged FIR No.722/2022 at Police Station City Daska under sections 324, 109, 34 PPC against Respondents No. 3 to 7 regarding the incident. The police investigated the case and concluded that Respondents No. 3 to 7 were involved in the occurrence and submitted a report under section 173 Cr.P.C. accordingly. Respondents No. 3 to 7 are currently facing trial before the Judicial Magistrate Section 30, Daska.
2. Husnain's lower part of the body was paralyzed in the attack. He is presently undergoing treatment in the United States.
3. Husnain is one of the accused in FIR No.186/2019 dated 25.05.2019 registered under sections 324, 109 PPC and FIR No.326/2019 dated 25.12.2019 registered under sections 302, 34, 109 PPC at Police Station Bambanwala, District Sialkot. He has been declared a proclaimed offender in both these cases.
4. In FIR No.722/2022, the Petitioner (who is the complainant of the case) moved an application before the Judicial Magistrate praying that Husnain be allowed to record his evidence through a video link. Her request was declined by an order dated 28.03.2024. She then filed a revision petition before the Additional Sessions Judge, Daska, which was also dismissed vide order dated 29.05.2024. Both courts held that a "fugitive from law loses his normal rights." They noted that Husnain had left the country without the permission of the court concerned and was declared a proclaimed offender after due process. They further observed that permitting him to testify via video link in this case, where he is an injured prosecution witness, would be unfair to Respondents No.3 to 7, particularly because he remains a proclaimed offender in two other cases (FIR Nos.186/2019 and 326/2019) lodged by the same rival party. The Petitioner has challenged the vires of orders dated 28.03.2024 and 29.05.2024 in this Court through this petition.
5. The Petitioner's counsel, Rana Jamshed Hussain Khan, contends that on 28.05.2022, when Respondents No. 3 to 7 attempted to murder Husnain, he was on his way to attend a court hearing in one of the cases lodged by his rivals. According to counsel, this demonstrates that he had submitted to the process of law and was not evading it. He further submits that Husnain was taken to the United States for treatment after the attack and is presently there for that purpose. Although he was declared a proclaimed offender, he is not a fugitive in the true sense and intends to return to Pakistan and face trial in FIR Nos. 186/2019 and 326/2019 when his health permits. Mr. Khan maintains that there is no legal impediment to recording Husnain's evidence through video link in FIR No. 722/2022. He contends that the declaration of proclaimed offender status in other criminal cases does not disqualify him from testifying in this case. He concludes that the impugned orders dated 28.03.2024 and 29.05.2024 are perverse and unsustainable.
6. The Deputy Prosecutor General and the counsel for Respondents No.4 to 7 have controverted the above contentions and supported the impugned orders.
Opinion
7. In criminal law, the terms "fugitive," "proclaimed offender", and "absconder" are often used interchangeably, but they each carry distinct legal meanings and implications, particularly under the Criminal Procedure Code, 1898 (Cr.P.C.). A fugitive is a person who evades arrest, detention, or prosecution at any stage of the criminal process. The term is broad and may apply before or after indictment or even after conviction. The defining feature is the wilful evasion of lawful authority. A fugitive may forfeit certain rights, such as the right to appeal while at large, and courts may restrict access to legal remedies.
8. In contrast, an absconder is a person who deliberately avoids appearance after legal proceedings have been initiated, typically by failing to attend court after the process has been served. Although both fugitive and absconder describe evasion, the distinction lies in context. A fugitive refers to anyone attempting to escape justice at any stage, while an absconder refers explicitly to an individual who has already been summoned and then deliberately fails to comply with court orders. Legal consequences for absconding may include cancellation of bail and denial of certain procedural protections.
9. A proclaimed offender is a person who has been formally declared as such by a court, typically under section 87 Cr.P.C. This occurs when a court has issued an arrest warrant, made repeated attempts to apprehend the person, and found that he is intentionally avoiding arrest or legal proceedings. This declaration entails more serious legal consequences than being a fugitive. Once someone is declared a proclaimed offender, his property may be attached under section 88 Cr.P.C., and he may face further restrictions in both criminal and civil matters. While absconding may precede proclamation, the latter requires formal judicial determination and results in broader procedural restrictions.
10. Let me now refer to some leading precedents. In Chan Shah v. The Crown (PLD 1956 FC 43), the accused was acquitted of a murder charge by the Sessions Judge. The Provincial Government appealed. The Lahore High Court allowed the appeal and convicted and sentenced the accused to death. At the time the appeal was admitted, the High Court issued a warrant for his arrest, which was duly executed. The accused was subsequently granted bail and remained on bail when the conviction and sentence were pronounced.
Thereafter, he neither surrendered to custody nor could the authorities apprehend him. As a result, the High Court's judgment could not be executed. After his conviction and while absconding, the accused executed a power of attorney authorizing an advocate to file a petition for special leave to appeal before the Federal Court. The Court dismissed the petition, holding that it would not lend its aid to a person who was a fugitive from justice. It emphasized that submission to legal process is a fundamental requirement of the administration of justice and observed: "We cannot conceive of a more flagrant violation of this condition than a case like the present where the individual seeks the interference of the Sovereign to obtain revision of a judicial order when he is himself engaged in setting that judicial order at naught."
11. In Gul Hassan and another v. The State (PLD 1969 SC 89), Gul Hassan and Bahadur Khan absconded from police custody after being convicted and sentenced to death by the trial court. Bahadur Khan was later recaptured, but Gul Hassan remained a fugitive. Before fleeing, both had executed powers of attorney, which their attorney relied upon to file an appeal in the High Court. During the hearing, the question arose whether Gul Hassan's sentence could be confirmed in his absence. The High Court upheld their convictions. However, the Supreme Court held that appeals filed on behalf of a fugitive from justice, such as Gul Hassan, should not have been entertained. The Court cautioned that moving petitions on behalf of fugitives could amount to contempt of court and rescinded the leave earlier granted to Gul Hassan. It further ruled that a death sentence may be upheld in the absence of a convict who has absconded.
12. In Ehsan Ullah v. The State (2012 SCMR 1137), the Additional Prosecutor-General and the complainant's counsel argued that the accused-petitioner, having remained a proclaimed offender for over a year, should not be granted bail. The Supreme Court disagreed. It ruled that bail is a right in cases warranting further inquiry and should not be denied due to mere absconding.
13. In Muhammad Mushtaq v. Additional Inspector-General of Police (Investigation), Lahore, and others (2005 YLR 2427), the petitioner registered an FIR against several individuals who were later declared proclaimed offenders. The Inspector-General of Police entertained an application of one of the proclaimed offenders for the transfer of investigation. The High Court ruled that fugitives from justice lose their rights under procedural and substantive law. Hence, the petitioner's aforesaid application could not be entertained unless he surrendered to the authorities.
14. In Tahir Sadiq v. Faisal Ali and others (2024 SCMR 775), the Returning Officer rejected the petitioner's nomination paper for a seat in the National Assembly because he was a proclaimed offender. However, the Appellate Tribunal later accepted the nomination. When the matter was brought before the Lahore High Court, the petitioner's nomination was again rejected. The Supreme Court ruled that, in the absence of proceedings under section 87 Cr.P.C., an accused cannot be considered a proclaimed offender. It further observed that denying discretionary relief to a proclaimed offender is a matter of propriety, and when it conflicts with a legal right, the right must prevail. The Court explained that any disadvantage arising from a person's status as a proclaimed offender is ordinarily confined to the specific case in which the proclamation was made and does not extend to unrelated legal matters, such as pursuing or defending a civil claim or contesting elections. The Supreme Court further noted that neither Articles 62 and 63 of the Constitution nor sections 231, 232, or 62(9) of the Elections Act, 2017 disqualify a proclaimed offender from contesting elections.
No provision of the Act requires the physical presence of a candidate during the electoral process. Even if such a requirement exists, the candidate's absence may carry consequences under that provision. His nomination paper cannot be rejected on that ground unless the legislature has expressly provided so in section 62(9) of the Act.
15. The legal principle that emerges from the foregoing precedents is that the justice system generally adopts a strict approach towards fugitives to prevent them from benefiting from the law while evading the legal process. However, this rule is not absolute. Absconding does not constitute an automatic bar in all eventualities. Where a distinct legal right is involved, or the accused makes out a case of further inquiry under section 497(2) Cr.P.C., courts may still extend relief despite the individual's status as a fugitive.
16. In the present case, the following two legal questions arise for consideration:
(i) Whether the testimony of a witness may be recorded through a video link in criminal proceedings; and
(ii) Whether such testimony may be recorded in one case even if the witness is a proclaimed offender in another.
17. Video conferencing is a technological development that enables real-time visual and auditory communication between individuals in different places. Its use in judicial proceedings, including criminal trials, has expanded considerably in recent years. Courts have adopted it to reduce delays, protect vulnerable witnesses, and address logistical or security challenges while maintaining procedural fairness. However, its use is subject to each jurisdiction's legal framework and judicial discretion.
18. In the United States, in Maryland v. Craig [497 U.S. 836 (1990)], the U.S. Supreme Court held that recording of evidence by video conferencing did not violate the Sixth Amendment (Confrontation Clause) and accepted child witness testimony through a one-way video. In David Harrell v. State of Florida [709 So.2d 1364 (1998)], the Florida Supreme Court sustained a robbery conviction that was based primarily on the two-way video testimony of complainants testifying from Argentina. Similarly, in United States v. Gigante [166 F.3d 75, 84 (2d Cir.1999)], the Court of Appeals permitted video link testimony where the witness was medically unfit to attend. It observed that the defendant (accused), jury, and counsel could see the witness and exercise full rights of cross-examination.
19. In the United Kingdom, the Criminal Justice Act 1988 and the Youth Justice and Criminal Evidence Act 1999 permit vulnerable or intimidated witnesses, including children, to testify via video link in criminal proceedings.
In addition, section 51 of the Criminal Justice Act, 2003, empowers courts to allow live video link testimony for witnesses outside the UK or those who cannot attend due to illness or disability. The courts retain discretion to determine whether video testimony is in the interest of justice, considering factors such as the nature of the testimony, the witness's availability, and the impact on the fairness of the trial. Video links can also be used for preliminary hearings and procedural matters, saving time and resources by eliminating the need for physical court appearances.
20. In India, the use of video links in criminal proceedings has expanded significantly over the past two decades through amendments in laws, including the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973, as well as judicial decisions. In the State of Maharashtra v. Dr. Praful B. Desai (AIR 2003 SC 2053), the Supreme Court of India considered whether a witness, Dr. Greenberg (a U.S.-based medical expert), must be compelled to appear in person to testify. It held that recording evidence through video link was valid under section 273 of the Code of Criminal Procedure, which requires that evidence be recorded in the presence of the accused. The Court ruled that "presence" does not necessarily mean physical presence and that video conferencing technology can satisfy this requirement. It further emphasized that the Code is a dynamic statutory instrument and that the doctrine contemporanea expositio est optima et fortissima in lege (the language of a statute must be understood in the sense in which it was understood when it was passed) has no application in its interpretation. The Court described video conferencing as a technological advancement that allows one to see, hear, and speak to a person at a distance with the same facility as if the person was physically present. The accused and counsel could observe the witness's demeanour as clearly as if the witness was seated before them, and in some instances, more clearly than in a crowded courtroom.
They could also review the testimony using playback and confront the witness with documents or other material in the same manner as in traditional in-court proceedings.
21. In Pakistan, the case Salman Akram Raja and another v. Government of Punjab and others (2013 SCMR 203) laid the foundation for the use of video link technology in judicial proceedings. In that case, the Supreme Court of Pakistan directed that in appropriate cases, evidence of rape victims should be recorded through video conferencing so that the victims, particularly the juvenile, may not have to come to the court.[1] Subsequently, in Khawaja Anwer Majid v. National Accountability Bureau and another (PLD 2020 SC 635), video link participation in the investigation and before the Accountability Court was permitted on medical grounds. In Mian Muhammad Nawaz Sharif v. The State and another (PLD 2018 Islamabad 148), the Islamabad High Court allowed the recording of testimony of witnesses residing abroad through video link. In Munawar Hussain and another v. The State (2020 PCr.LJ 1184), this Court allowed the recording of a compromise statement of legal heirs of the deceased through a video link. Similarly, in Muhammad Israr v.
The State and another (PLD 2021 Peshawar 105), the Peshawar High Court permitted the recording of a prosecution witness through a video link. In Imran Ahmad Khan Niazi v. Federation of Pakistan etc. (Writ Petition No. 839/2023),[2] the writ petitioner was facing multiple inquiries and criminal investigations in Islamabad and other parts of the country. He approached the Islamabad High Court seeking a direction to the State to facilitate his participation and appearance through a video link. The Court held that video link technology may be used in criminal matters subject to the statutory framework and the fundamental principles of the criminal justice system. It ruled that the physical presence of the accused is mandatory at critical stages, such as investigation (to enable proper interrogation and confrontation with evidence), the delivery of documents requiring acknowledgment (e.g., under section 265-C Cr.P.C.), pleading to the charge, and recording of the accused's statement under section 342 Cr.P.C. It further observed that an accused may be allowed to appear through video link at other stages of trial proceedings if the court permits. In bail- before-arrest proceedings under section 498-A Cr.P.C., physical presence is "absolutely necessary" at the initial and final hearings. However, at the court's discretion, virtual attendance may be permitted on other dates to prevent delays.[3]
22. In Meera Shafi v. Ali Zafar (PLD 2023 SC 211), a civil case, the Supreme Court held that the word "attendance" in Order XVIII Rule 4 CPC does not refer solely to "physical attendance" but also encompasses "virtual attendance" made possible by modern video conferencing technology.
23. Parliament has also incorporated provisions in various laws to facilitate the use of modern technology.
Article 164 of the Qanun-e-Shahadat, 1984 (QSO), 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, Facebook Messenger, Line, and video conferencing.[4] Section 30B(1)
(iii) of the Prevention of Electronic Crimes Act, 2016 (PECA), requires the Federal and Provincial Governments to establish victim and witness protection systems through rules, which must include, inter alia, arrangements for recording testimony through video conferencing, audio-video links, and other modern means. Section 30C(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. Provincial legislatures are also making comparable strides. For example, section 10 of the Punjab Witness Protection Act, 2018, provides for the recording evidence of witness through a video link. Similar provisions exist under the Family Courts Act.
Additionally, this Court has issued administrative instructions to subordinate courts from time to time to facilitate the use of video technology where appropriate.
24. To sum up, the use of video conferencing for the recording of evidence is well established in comparative and domestic jurisprudence. The legal frameworks in various jurisdictions, including Pakistan, permit its use where appropriate, subject to judicial discretion and procedural safeguards.
25. Now, I turn to the second question. 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. A person convicted of perjury or giving false evidence is not competent unless the court is satisfied that he has since repented and reformed. The court must also assess the competence of a witness in light of the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Quran and Sunnah. However, where such a witness is not forthcoming, it may record the testimony of any available witness.
26. It is necessary to emphasize that competency is distinct from credibility. Competence relates to a witness's legal capacity to testify, which is determined at the threshold. On the other hand, credibility concerns the weight attached to that testimony and is assessed by the court in light of the surrounding circumstances.
27. Article 3 of the QSO sets out an exhaustive framework for determining the competence of a witness. It does not disqualify a fugitive, absconder, or proclaimed offender from testifying. Courts are bound to apply that provision as enacted and may not introduce new disqualifications or conditions, as the Supreme Court affirmed in Tahir Sadiq's case, supra. Accordingly, the mere fact that a person has been declared a proclaimed offender in one case does not render him incompetent to testify in another.
28. The courts below expressed concern that it would be unfair to Respondents No.3 to 7 if Husnain's testimony was recorded through video link in this case, given that he is a proclaimed offender in two other cases involving the same parties (i.e., FIR Nos. 186/2019 and 326/2019). As already discussed, courts cannot lawfully introduce any additional condition or disqualification into Article 3 of the QSO.
29. In cases like the present, the trial court 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 must also be vigilant to ensure that the video link facility is not misused to evade the judicial process under the pretext of illness.
30. Husnain's medical record confirms that his physical appearance is presently not feasible. Accordingly, this petition is accepted, and the impugned orders dated 28.03.2024 and 29.05.2024 are set aside. The trial court shall record Husnain's evidence through a video link in FIR No. 722/2022 in accordance with the law.
1. In Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 362), the Supreme Court explained the importance of modern forensic techniques and science in the criminal justice system.
[2]https://mis.ihc.gov.pk/frmRdJgmnt?cseNo=Writ%20Petition-839-2023%20%7C%20Citation%20Awaited &cseTle=Imran%20Ahmad%20Khan%20Niazi-%20VS%20-FOP%20etc.%20&jgs=Honourable%20Chief %20Justice%20Mr.%20Justice%20Aamer%20Farooq&jgmnt=/attachments/judgements/158024/1/W.P._No.839- 2023_638259931051968712.pdf
3. In Imran Ahmad Khan Niazi v. Special Judge, ATC., etc. (PLD 2024 Lahore 486), the Special Judge, Anti- Terrorism Court, granted the accused ad-interim pre-arrest bail. However, during the pendency of this bail, the accused was convicted and sentenced in another case by the Additional Sessions Judge, Islamabad (West), and was subsequently taken into custody and imprisoned. This fact was brought to the Special Judge's attention through a written application with a request for exemption from personal attendance. The Special Judge declined the request dismissed the pre-arrest bail application due to the accused's non- appearance/non-prosecution. A Division Bench of this Court ruled that the Special Judge should have exempted the accused from personal attendance on the relevant date and allowed him to appear via video link. The Division Bench based its decision on the precedent set in Farhan Masood Khan v. The State [PLJ 2021 Cr.C. (Lahore) 550].
[4]Article 164 of the Qanun-e-Shahadat was amended by Act XXXVII of 2023. Before amendment, it read as follows:
164. Production of evidence that has become available because of modern devices, etc. - In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.
Provided that conviction on the basis of modern devices or techniques may be lawful.