Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has issued important directions regarding courtroom practice, expressing concern over protracted cross-examination and the practice of repeatedly asking witnesses similar questions by multiple defense attorneys.
In a recent ruling, it warned that such tactics could constitute an abuse of the right to cross-examination and advised trial judges to actively monitor cases and reject irrelevant or humiliating questions aimed at harassing witnesses.
The court also ordered that witnesses be given seats while recording their testimony. It noted that there is no legal requirement for witnesses to take the stand during their evidence.
It said that forcing individuals – especially victims of sexual abuse – to stand for long 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 rejected a criminal petition to consolidate 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 the cases can proceed independently, holding that the two offenses constitute different 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 for consolidation of two criminal cases stemming from separate FIRs related to the same sequence of events.
According to the written order authored by Justice Panhwar, the case arose out of complaints filed by medical student Khadija Ghafoor in Faisalabad in August 2022.
The complainant initially approached the Cybercrimes Division of the Federal Investigation Agency, claiming that a video of her assault had been recorded and circulated online.
The following day, she filed 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 illegal confinement.
Another FIR was subsequently registered by the FIA under the 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 challenges being filed in courts operating under different laws, including the Anti Rape (Investigation and Trial) Act 2021.
The accused had repeatedly sought consolidation of the trials, arguing that both the FIRs related to the same incident and therefore should be tried together to avoid conflicting verdicts.
However, the High Court and later the Sessions Court rejected the request. The case 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, the petitioner’s counsel argued that registration of two FIRs for the same incident violated legal principles laid down in earlier judgments, including the well-known Sughran Bibi case, which discourages multiple FIRs for the same incident.
The lawyer also argued that the provisions of the Criminal Procedure Act of 1898 allow offenses arising from the same transaction to be tried together, and warned that parallel trials could constitute 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 subsequent dissemination of the video were separate acts with different 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 concept is not expressly defined in the Criminal Procedure Code and must be decided by the 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 found that the two sets of claims were clearly separable. The court noted that the first phase involved the physical commission of the alleged offence, while the second phase concerned the dissemination of its recording via electronic means.
According to the court, the motives behind these acts could also be different, with the original offense potentially driven by sexual gratification and the subsequent dissemination aimed at humiliation, degradation or extortion.
The court further held that provisions allowing joint prosecutions under the CrPC are discretionary rather than mandatory. The use of the word “may” in the relevant sections indicates that the courts have the power to order a joint trial when appropriate, but are not required to join cases simply because it is legally permissible.
The judgment also highlighted that the two cases were dealt with under separate statutory regimes with separate investigative mechanisms, one involving special courts dealing with sexual offenses and the other relating to cybercrime investigations.
Consolidation of such proceedings may create jurisdictional complications and disrupt the procedural structure already in place.
The bench observed that the trials had already progressed considerably and prosecution evidence had been partially recorded. At such an advanced stage, the court noted, consolidation of the case would require amending the charges and restructuring the trial, which could undermine procedural continuity.
