‘Court must protect witnesses’ dignity’

ISLAMABAD:

The Supreme Court has issued important directions regarding courtroom practices and expressed concern over lengthy cross-examinations and the practice of repeatedly asking witnesses similar questions by multiple defence counsel.

In a recent verdict, it warned that such tactics could amount to abuse of the right of cross-examination and advised trial court judges to actively supervise proceedings and disallow irrelevant or humiliating questions intended to harass witnesses.

The court also directed that witnesses must be provided with seating arrangements while recording their testimony. It observed that there is no legal requirement for witnesses to stand during their statements.

It said that forcing individuals—particularly victims of sexual offences—to remain standing for extended periods could undermine their dignity and ability to testify effectively.

The court directed the SC registrar to circulate the judgment to all high courts for implementation across subordinate courts and tribunals.

A three-member bench dismissed a criminal petition seeking consolidation of two separate trials in cases involving rape and the subsequent online dissemination of related material.

The bench headed by Justice Muhammad Hashim Khan Kakar and comprising Justice Salahuddin Panhwar and Justice Ishtiaq Ibrahim ruled that separate trials in cases can proceed independently, holding that the two offences constitute distinct acts under different legal regimes.

The petition filed by Maham Fatima challenged an order of the Lahore High Court (LHC) which had earlier rejected a plea seeking the consolidation of two criminal trials arising from separate FIRs related to the same sequence of events.

According to the written order authored by Justice Panhwar, the case originated from complaints filed by medical student Khadija Ghafoor in Faisalabad in August 2022.

The complainant initially approached the cybercrime wing of the Federal Investigation Agency, alleging that a video of her assault had been recorded and circulated online.

The following day, she lodged another complaint at a women’s police station, leading to the registration of a separate case under various provisions of the Pakistan Penal Code relating to rape, assault, abduction and unlawful confinement.

A second FIR was subsequently registered by the FIA under provisions of the Prevention of Electronic Crimes Act 2016 for recording and sharing the alleged video of the incident.

Investigations were conducted by different agencies under separate statutory frameworks, resulting in two challans being submitted before courts functioning under distinct laws, including the Anti Rape (Investigation and Trial) Act 2021.

The accused had repeatedly sought consolidation of the trials, arguing that both FIRs related to the same incident and should therefore be tried together to avoid conflicting judgments.

However, the trial court and later the sessions court rejected the request. The matter eventually reached the LHC, which upheld the earlier decisions and refused to order a joint trial, prompting the petitioner to approach the Supreme Court.

Before the apex court, counsel for the petitioner argued that registration of two FIRs for the same occurrence violated legal principles established in earlier judgments, including the well-known Sughran Bibi case, which discourages multiple FIRs for the same incident.

The counsel also contended that provisions of the Code of Criminal Procedure 1898 allow offences arising out of the same transaction to be tried together and warned that parallel trials could amount to double jeopardy and undermine the constitutional guarantee of a fair trial.

However, lawyers for the complainant and the state opposed the request, arguing that the alleged rape and the later circulation of the video were separate acts with distinct motives, falling under different statutory regimes and therefore requiring independent proceedings.

In its judgment, the Supreme Court examined the legal concept of “same transaction,” noting that the term is not expressly defined in the criminal procedure law and must be determined by courts based on factors such as continuity of action, community of purpose and the causal connection between events.

Applying these principles to the case, the court held that the two sets of allegations could be clearly separated. The bench observed that the first phase involved the physical commission of the alleged offence, while the second phase concerned the dissemination of its recording through electronic means.

According to the court, the motives behind these acts could also differ, with the initial offence potentially driven by sexual gratification and the subsequent dissemination aimed at humiliation, degradation or blackmail.

The court further held that provisions allowing joint trials under the CrPC are discretionary rather than mandatory. The use of the word “may” in the relevant sections indicates that courts have the authority to order a joint trial when appropriate but are not obligated to merge proceedings merely because it is legally permissible.

The judgment also highlighted that the two cases were being tried under separate statutory schemes with distinct investigative mechanisms, one involving special courts dealing with sexual offences and the other concerning cybercrime investigations.

Consolidating such proceedings could raise jurisdictional complications and disrupt the procedural structure already in place.

The bench noted that the trials had already progressed significantly and that prosecution evidence had partially been recorded. At such an advanced stage, the court observed, consolidating the proceedings would require alteration of charges and restructuring of the trial process, which could undermine procedural continuity.