Cross-examination is a procedural mechanism in legal trials where one party questions a witness presented by the opposing party. It is conducted after the examination-in-chief (the witness’s initial testimony). The objective is to test the witness’s credibility, challenge the accuracy of their testimony, and potentially elicit facts that support the questioning party’s case. In civil cases, cross-examination is governed by the Qanun-e-Shahadat Order, 1984, specifically under Articles 133 to 146, which outline the rights and limitations of questioning witnesses.
Case law analysis and Key Legal Principles
Reported judgements help us understand essential principles about cross-examination in civil cases and its interplay with the Qanun-e-Shahadat Order, 1984. These principles illustrate the foundational role of cross-examination as a mechanism for testing the veracity and reliability of evidence presented by parties, as well as the evidentiary presumptions that arise from a failure to adequately challenge evidence during cross-examination.
Below, are the key principles derived from these cases and the relevance of the Qanun-e-Shahadat:
(1) Unchallenged Testimony and Adverse Inferences: In Muhammad Ashraf v. Mehmood Elahi (2014 CLC 1060), the court held that if evidence provided on oath remains unchallenged during cross-examination, it may be presumed as accepted by the opposing party. This principle reflects the application of Article 132 of Qanun-e-Shahadat, which governs cross-examination as a means of impeaching the credibility of a witness’s testimony. Failure to deny or controvert a material fact may result in its deemed acceptance.
(2) Necessity of Confrontation During Cross-Examination: In cases such as Bashir Ahmad v. Muhammad Bakhsh (2016 PLD 130) and Sardar Abdul Rehman v. Abdul Kareem Khetran (2021 SCMR 82), the courts highlighted that documents or prior statements must be confronted with the relevant party or witness during cross-examination to allow the opportunity to clarify or rebut their contents. Article 140 of the Qanun-e-Shahadat underpins this, requiring a witness to be confronted with any document or evidence that may discredit them.
(3) Presumption of Truth When Evidence is Not Adequately Challenged: In Mst. Sana Aslam v. Ali Imran (2024 CLC 550), the court recognised that unrebutted evidence presented by one party may strengthen its credibility. Similarly, in Muhammad Yousaf v. Ajab Noor (2016 CLCN 31), the principle was reinforced that cross-examination allows a party to dismantle or weaken the opponent’s evidence. Without it, the court may attach weight to the unchallenged evidence.
(4) Scope and Limitations of Cross-Examination: The judgments in Muhammad Saeed v. Mumtaz (2013 PLD 5) and Haji Muhammad Abbas v. Additional District Judge (2016 PLD 610) clarified that cross-examination cannot be overly expansive or irrelevant to the issues framed. Article 133 of Qanun-e-Shahadat, which governs the scope of cross-examination, ensures that it is limited to relevant matters and aimed at assessing the credibility or truthfulness of evidence.
(5) Burden of Proof and Cross-Examination: In Ijaz Nizam v. NIB Bank (2017 CLD 361) and Muhammad Saeed v. Mumtaz (2013 PLD 5), it was affirmed that the burden of proof lies on the party asserting a claim. Cross-examination becomes a vital tool to shift or weaken the burden by exposing inconsistencies in the opponent’s evidence. Article 118 of Qanun-e-Shahadat mandates the party asserting a fact to prove it, and cross-examination facilitates testing the probative value of such assertions.
(6) Procedural Obligations for Cross-Examination: Shakeel Ahmed v. Abdul Jalil (2017 CLC 347) and Trading Corporation of Pakistan v. Muhammad Alam (2016 CLD 2106) demonstrated the procedural necessity of cross-examination to uphold the principles of natural justice. Courts must allow adequate opportunities for cross-examination while ensuring procedural fairness under Order XVIII, Rule 3 of the CPC.
(7) Impact of Non-Appearance in Cross-Examination: In Sana Aslam v. Ali Imran (2024 CLC 550), the failure of a party to appear for cross-examination on critical issues led to adverse inferences under Article 129(g) of Qanun-e-Shahadat, which presumes against a party who deliberately avoids the cross-examination process.
(8) Discretionary Power of Courts to Recall Witnesses: Courts have inherent powers to recall witnesses for further cross-examination under Order XVIII, Rule 17 of the CPC and Section 151 of the CPC, provided that such action is in the interest of justice. This power must be exercised judiciously and cannot be invoked to fill lacunae in evidence (1998 MLD 678, Nazir Hussain v. Abdul Mannan; 1997 CLC 763, Ilyas Marine & Associates Ltd. v. Muhammad Amin Lasania). This ensures that justice prevails over procedural technicalities.
(9) Right to Cross-Examine Witnesses: Cross-examination is a fundamental right, integral to the adversarial system, allowing a party to challenge the credibility and veracity of the opposing witness. As highlighted in 1996 SCMR 1057 (Bilquis Fatima v. Nasim Ahsan), courts must afford parties a fair opportunity for cross-examination to avoid judgments based on untested or incomplete evidence.
(10) Unchallenged Testimony: The failure to cross-examine a witness on crucial points often results in the acceptance of their testimony as true. In 2002 CLC 1770 (Ghulam Rasool v. Muhammad Saleem), the courts acknowledged that evidence left unchallenged by cross-examination stands admitted.
(11) Judicial Safeguards Against Abuse of Process: Courts are cautious of parties attempting to abuse cross-examination as a delaying tactic or to derail proceedings. For instance, in 1996 SCMR 1967 (Muhammad Tayyab v. Muhammad Sharif Malik), the judiciary upheld the trial court’s refusal to extend repeated adjournments, reinforcing the principle that cross-examination must not obstruct the expeditious administration of justice.
(12) Judicial Intervention in Exceptional Cases: Courts may intervene in appellate or revisional jurisdictions to address grave procedural irregularities where cross-examination rights are denied. As in 1995 SCMR 773 (Ali Muhammad v. Murad Bibi), appellate courts remanded cases to trial courts to permit proper cross-examination, ensuring substantive justice.
(13) Evidence Introduced via Affidavits: Affidavit-based evidence without offering the deponent for cross-examination lacks probative value. This principle is highlighted in 2004 PLD 290 (Mst. Shahnaz Begum v. Muhammad Shafi), where the court held that affidavits must be tested through cross-examination to carry evidentiary weight under Article 133 of the QSO.
(14) Presumption of Documents and Cross-Examination: The presumption of genuineness under the QSO, particularly Articles 72 and 79, can be challenged or upheld through cross-examination. Where cross-examination exposes inconsistencies, the evidentiary value of documents or statements may diminish, as demonstrated in 2001 CLC 1194 (Muhammad Ilyas v. Muhammad Sharif).
(15) Burden of Proof and Cross-Examination: Cross-examination is a critical tool for shifting or undermining the burden of proof. For example, in 2007 CLD 114 (Abdul Rauf v. Farooq Ahmed), cross-examination of marginal witnesses validated the plaintiff’s claims under a negotiable instrument, reinforcing the presumption of consideration under the Negotiable Instruments Act, 1881.
(16) Role of Trial Courts in Avoiding Mistrials: Procedural lapses, such as denying cross-examination or not permitting re-examination when warranted, can lead to mistrials, as seen in 2007 YLR 2675 (Muhammad Jafar v. Haji Zakria Baluch). Trial courts are expected to adhere strictly to procedural norms and grant necessary opportunities for cross-examination.
(17) Failure to Cross-Examine Constitutes Admission
In 1987 MLD 694 (Hote Khan v. Mst. Khanzadi), it was held that the failure to challenge a material assertion in cross-examination amounts to an admission of the facts stated in the examination-in-chief. This principle aligns with Article 132 of the Qanun-e-Shahadat, which requires that evidence be subject to cross-examination to test its veracity.
(18) Neglect of Procedural Duty Weakens Defence
1986 CLC 288 (Sakina v. Hussain) and 1984 MLD 287 (Shahzada Ahmed Shah v. M.M.A. Siddiqui) both reinforce that averments in pleadings carry no evidentiary weight unless supported by oral testimony and subjected to cross-examination. This reflects Article 3 of the Qanun-e-Shahadat, mandating direct examination to support documentary evidence.
(19) Adverse Inference for Non-Production of Evidence
In 1988 MLD 1651 (Mst. Maryam Mirza v. M.M. Kazi), the defendant’s failure to appear in court to substantiate his pleas and undergo cross-examination led to adverse inferences. This is consistent with Article 129(g) of the Qanun-e-Shahadat, allowing the court to presume adverse facts when a party deliberately abstains from producing evidence.
(20) Judicial Discretion in Cross-Examination and Adjournments
Cases such as 1998 MLD 678 (Nazir Hussain v. Abdul Mannan) emphasise the court’s discretionary powers under Order XVIII, Rule 17, C.P.C. to recall witnesses for cross-examination in the interest of justice. Such discretion must be exercised judiciously, ensuring procedural equity while balancing the dictates of justice.
(21) Substantive Evidence Must Be Tested Through Cross-Examination
In 1987 CLC 792 (Rehmatullah v. Tufail Hussain) and 1986 MLD 1350 (Bhabha Ltd. v. United Oriental Steamship Co.), reliance on affidavits or documentary evidence without offering the opportunity for cross-examination was deemed procedurally flawed. These rulings align with Articles 33 and 132 of the Qanun-e-Shahadat, stipulating that evidence must be tested through cross-examination to be probative.
(22) Denial of Opportunity to Cross-Examine Breaches Procedural Fairness
The Supreme Court in 1996 SCMR 1057 (Bilquis Fatima v. Nasim Ahsan) and 1995 SCMR 773 (Ali Muhammad v. Murad Bibi) highlighted the detrimental impact of denying parties the right to cross-examine witnesses, leading to remands for fair adjudication. The Qanun-e-Shahadat further protects this right, ensuring that evidence is admissible only when tested.
(23) Admissions in Cross-Examination Bind the Party
The evidentiary value of admissions made during cross-examination, as seen in 1989 CLC 1164 (Shahzad Khan v. Abdul Aziz Khan), underscores the principle that such admissions are conclusive unless rebutted.
(24) Use of Cross-Examination for Procedural Completeness
In 1987 MLD 469 (Muhammad Shafiq v. Muhammad Ashraf), the tenant’s absence during cross-examination weakened his case, illustrating that cross-examination is integral to procedural diligence and case development.
Synthesis of Principles with Qanun-e-Shahadat
The Qanun-e-Shahadat reinforces the adversarial nature of civil litigation by framing cross-examination as a critical tool for determining the truthfulness and reliability of evidence.The QSO complements the CPC in ensuring that procedural fairness is not sacrificed at the altar of expediency, as seen in remand cases like 1996 SCMR 1057. While cross-examination is pivotal for truth discovery, courts under the QSO and CPC consistently bar its misuse to cure defects in evidence, ensuring equitable justice (1997 CLC 763).
- Article 132 sets out cross-examination procedures, making it the stage for testing the accuracy and credibility of a witness’s testimony.
- Article 133 ensures that cross-examination remains relevant to the issues in dispute.Article 133 of the QSO codifies the right to cross-examine a witness, ensuring that testimony is thoroughly tested for reliability. The interplay between procedural provisions in the CPC and evidentiary rules in the QSO underscores the importance of cross-examination as a tool for verifying facts, exposing inconsistencies, and upholding the principle of fairness.Article 133, read in conjunction with the cited judgments, stresses that uncontroverted testimony is presumed true unless rebutted.
- Article 140 requires prior statements and documents relied upon by witnesses to be put to them during cross-examination.
- Article 118 correlates with the burden of proof and shifts it based on evidence tested through cross-examination.
- Article 129(g) allows adverse presumptions against parties who fail to provide relevant evidence or participate in cross-examination.
Tips for Cross Examination
Cross-examination is a critical phase of civil proceedings, where the credibility of witnesses and the strength of evidence are rigorously tested. Both plaintiffs and defendants must approach cross-examination with a clear strategy, guided by their legal counsel. This primer aims to equip clients with an understanding of the process, its rules, and their role.
Understanding Cross-Examination
Cross-examination is conducted after the examination-in-chief and allows opposing counsel to challenge the testimony of witnesses. Its primary purposes are to:
Test Credibility: To assess whether a witness is truthful and reliable.
Expose Inconsistencies: To identify contradictions in testimony or between oral and documentary evidence.
Elicit Favourable Evidence: To gather information supporting the client’s case.
Undermine Opponent’s Case: To highlight weaknesses in the opposing side’s evidence.
Key legal provisions governing cross-examination in Pakistan include the Qanun-e-Shahadat Order, 1984 (Arts. 133-146), which outlines the rules for questioning witnesses.
Role of Plaintiffs in Cross-Examination
As a plaintiff, your goal during cross-examination is to:
Preserve the integrity of your evidence.
Counter attacks on your credibility.
Strengthen the overall narrative of your case.
Do’s for Plaintiffs
Be Prepared: Familiarise yourself with your testimony and all related documents. Ensure your statements align with the evidence submitted.
Remain Composed: Opposing counsel may attempt to provoke you into making errors. Stay calm and focused.
Answer Honestly: Avoid fabrications; inaccuracies can undermine your case.
Clarify Ambiguous Questions: Request clarification if you do not understand a question.
Stick to the Facts: Avoid volunteering additional information that may complicate your case.
Don’ts for Plaintiffs
Don’t Guess: If you don’t know the answer, state so confidently.
Avoid Overexplaining: Stick to precise answers to avoid inadvertently providing unnecessary information.
Role of Defendants in Cross-Examination
As a defendant, cross-examination serves to:
Challenge the plaintiff’s evidence.
Highlight inconsistencies or inaccuracies in their testimony.
Present alternative interpretations of the facts.
Do’s for Defendants
Work Closely with Counsel: Coordinate with your lawyer to anticipate likely questions and prepare responses.
Highlight Weaknesses: If you notice inconsistencies in the plaintiff’s testimony, bring them to your lawyer’s attention for use during cross-examination.
Stay Credible: Ensure that your answers are consistent with your written submissions.
Use Relevant Evidence: Provide documents or records to your lawyer to substantiate your claims during cross-examination.
Don’ts for Defendants
Don’t Be Defensive: Aggressive reactions can appear untruthful.
Avoid Generalisations: Be specific and precise to prevent misinterpretation.
Key Strategies for Witnesses
Whether you are a plaintiff, defendant, or supporting witness, the following strategies are critical during cross-examination:
Anticipate Questions: Prepare for questions regarding inconsistencies, documentary evidence, and statements made in prior depositions.
Be Mindful of Non-Verbal Cues: Body language and tone of voice can influence perceptions of credibility.
Maintain Neutrality: Avoid showing bias or hostility toward the opposing counsel.
Client-Specific Scenarios
Scenario 1: Challenging Legitimacy (1987 MLD 694)
Advice for Plaintiffs: If legitimacy is questioned, ensure documentary evidence (e.g., birth certificates, marriage records) is aligned with your oral testimony. Emphasise familial recognition or public acknowledgments that support your claim.
Advice for Defendants: Direct cross-examination towards inconsistencies in the evidence and the absence of key documentation. Raise doubts about the plausibility of the plaintiff’s claims.
Scenario 2: Absence During Cross-Examination (1987 MLD 469)
Advice for Plaintiffs: Ensure that your witnesses are prepared and available for cross-examination. Absence may weaken your case.
Advice for Defendants: Use procedural delays strategically, but avoid negligence. Courts view repeated absences unfavourably.
Scenario 3: Documentary Evidence (1986 MLD 1350)
Advice for Plaintiffs: Authenticate documents before introducing them as evidence. Be prepared to defend their accuracy during cross-examination.
Advice for Defendants: Question the authenticity of documents, especially if originals are unavailable. Highlight gaps in the chain of custody or inconsistencies in dates.
Common Pitfalls in Cross-Examination
Failure to Prepare: Both sides must know the case file thoroughly.
Overreliance on Counsel: While lawyers lead the process, your familiarity with the facts is essential.
Emotional Reactions: Avoid displays of anger, frustration, or fear, which may undermine credibility.
Inconsistent Testimony: Align your statements with prior pleadings and affidavits to avoid discrepancies.
Special Considerations
Hostile Witnesses: If a witness is declared hostile, cross-examination becomes a vital tool to elicit favourable facts (Qanun-e-Shahadat Order, 1984, Art. 140).
Vulnerable Witnesses: Courts may impose special protections to ensure fair treatment (1982 PLC (CS) 892).
Experts and Affidavits: Challenge experts on their qualifications and the foundation of their opinions (1996 CLC 741). Affidavits carry little weight unless the deponent is cross-examined (1995 MLD 690).
Court’s Role in Cross-Examination
Courts possess discretion to:
Disallow irrelevant or harassing questions.
Permit recall of witnesses under exceptional circumstances (1998 MLD 678).
Intervene to clarify ambiguous testimony (1994 MLD 174).
Remember! Cross-examination is both a strategic tool and a potential pitfall. As a client, your active preparation, collaboration with counsel, and understanding of the process can significantly influence the outcome of your case. Remember, honesty, consistency, and composure are your strongest allies.
Example scenarios of cross-examination where legal strategy becomes important (for Plaintiffs)
Scenario 1: Disputed Facts and Claims
Advice: Proactively Address Key Points in Examination-in-Chief
Anticipate Defence Challenges: In cases where legitimacy, relationships, or material facts are disputed (e.g., 1987 MLD 694, Hote Khan v. Mst. Khanzadi), plaintiffs should ensure their examination-in-chief preempts challenges by providing clear, credible testimony on contentious issues.
Insist on Cross-Examination: If the defence fails to cross-examine on key points, this omission will amount to an admission, as seen in 1987 MLD 694. Plaintiffs should highlight this in subsequent arguments.
Scenario 2: Documentary Evidence
Advice: Authenticate and Supplement Documents
Produce Supporting Witnesses: Documentary evidence must be corroborated by oral testimony, as per 1986 CLC 288 (Sakina v. Hussain) and 1988 MLD 1651 (Mst. Maryam Mirza v. M.M. Kazi). Plaintiffs should present witnesses to authenticate documents and confirm their contents.
Highlight Absence of Objections: If the defendant fails to challenge the authenticity of a document during cross-examination (1986 MLD 1350, Bhabha Ltd.), emphasise this as a tacit acceptance of its validity.
Scenario 3: Defendant’s Non-Appearance or Negligence
Advice: Exploit Procedural Defaults
Seek Swift Judgments: In cases where the defendant fails to appear for cross-examination or neglects proceedings (1987 MLD 469, Muhammad Shafiq v. Muhammad Ashraf), plaintiffs should move for adverse orders, such as closing the defence or an ex parte decree.
Maintain Procedural Vigilance: Plaintiffs should avoid granting the defendant leniency in applications to reopen evidence unless strongly justified, relying on decisions like 1996 SCMR 1057, Bilquis Fatima.
Scenario 4: Affidavits and Written Statements
Advice: Demand Oral Testimony
Challenge Opponent’s Affidavits: An affidavit carries no evidentiary weight unless the deponent is cross-examined (1984 MLD 287; 1987 CLC 792). Plaintiffs must insist on the physical presence of deponents for cross-examination.
Strengthen Own Submissions: Plaintiffs should ensure that affidavits or written statements filed on their behalf are supported by credible oral testimony.
Scenario 5: Defendant’s Admissions During Cross-Examination
Advice: Exploit Admissions to Strengthen Case
Highlight Key Concessions: In cases like 1989 CLC 1164 (Shahzad Khan v. Abdul Aziz Khan), admissions made by defendants during cross-examination carry significant evidentiary weight. Plaintiffs must capitalise on such statements in arguments and pleadings.
Frame Targeted Questions: Plaintiffs should instruct counsel to frame cross-examination questions that compel the defendant to admit facts that support the plaintiff’s case.
Scenario 6: Procedural Delays or Adjournments
Advice: Oppose Unnecessary Adjournments
Push for Stringent Compliance: As seen in 1996 SCMR 1967, Muhammad Tayyab v. Muhammad Sharif Malik, repeated adjournments to delay cross-examination can be treated as abuse of process. Plaintiffs should argue for the closure of the defence side in such cases.
Request Costs for Adjournments: If an adjournment is unavoidable, plaintiffs should seek costs, as noted in 1982 PLC (CS) 892, S. Waliur Rehman v. Messrs National Construction Company.
Scenario 7: Revisional and Appellate Strategies
Advice: Use Procedural Flaws as Grounds for Appeal
Challenge Denial of Cross-Examination Rights: If procedural irregularities, such as denial of cross-examination or evidence, occur, plaintiffs should rely on precedents like 1996 SCMR 1057 to seek remand or appeal.
Insist on Fresh Evidence: In appellate cases (1988 CLC 1780, Khalid Pervaiz v. Grindlays Bank), plaintiffs should push for the inclusion of overlooked or newly discovered evidence that bolsters their claim.
Scenario 8: Summary Procedures
Advice: Prepare for Robust Defence in Negotiable Instruments Cases
Substantiate Consideration: In claims under Order XXXVII, C.P.C., as seen in 1996 CLC 741 (Khalid Mukhtar), plaintiffs should ensure that witnesses and documents unequivocally prove the existence of consideration for instruments like promissory notes or cheques.
Focus on Gaps in Defence: Highlight any failure of the defendant to adequately cross-examine or rebut plaintiff’s evidence.
Scenario 9: Factual Complexity or Lack of Evidence
Advice: Rely on Court Discretion for Recalling Witnesses
Request Recalling of Witnesses: In exceptional cases, plaintiffs can invoke Order XVIII, Rule 17, C.P.C. or Section 151, C.P.C., as in 1998 MLD 678, Nazir Hussain v. Abdul Mannan, to request the court to recall witnesses if it serves the interests of justice.
Key Takeaways for Plaintiffs
Be Thorough in Examination-in-Chief: Preemptively address key issues to avoid weaknesses that can be exploited during cross-examination.
Maintain Procedural Vigilance: Monitor the defence’s compliance with court procedures and take advantage of any lapses.
Utilise Adverse Presumptions: Where the defendant fails to cross-examine or produce evidence, rely on Article 129(g) of the Qanun-e-Shahadat to argue adverse presumptions.
Engage Experienced Counsel: Effective cross-examination and procedural navigation require skilful advocacy. Plaintiffs should invest in counsel with expertise in civil procedure and evidentiary law.
Scenario based legal strategy for Defendants facing cross examination
Scenario 1: Challenging Plaintiff’s Testimony
Advice: Diligent Cross-Examination of Material Assertions
Avoid Omissions: Any failure to cross-examine critical assertions in the plaintiff’s examination-in-chief may amount to admission, as seen in 1987 MLD 694 (Hote Khan v. Mst. Khanzadi). Ensure all disputed facts, including legitimacy, relationships, and claims, are rigorously tested during cross-examination.
Target Credibility: Frame questions to expose inconsistencies or contradictions in the plaintiff’s testimony. This can undermine their credibility, especially where their evidence relies heavily on oral statements.
Scenario 2: Documentary Evidence
Advice: Question Authenticity and Relevance
Demand Proof of Authenticity: Challenge the admissibility and authenticity of documents presented by the plaintiff. Cross-examine witnesses to reveal gaps in their knowledge or contradictions, as in 1986 MLD 1350 (Bhabha Ltd.).
Focus on Chain of Custody: Highlight any discrepancies in how the plaintiff obtained, maintained, or presented documentary evidence, particularly in cases involving negotiable instruments (1996 CLC 741).
Scenario 3: Non-Appearance or Procedural Defaults
Advice: Mitigate Consequences of Absence
Provide Justifiable Reasons: If unable to appear for cross-examination or a hearing, ensure the reason is well-documented and supported by evidence, such as medical certificates (1987 MLD 469, Muhammad Shafiq).
File Restoration Applications Promptly: In cases of ex parte orders or procedural lapses (1994 MLD 174), defendants should act swiftly to reopen the case, showing good cause for non-appearance.
Scenario 4: Affidavits and Written Statements
Advice: Strengthen Documentary Submissions with Oral Testimony
Support Affidavits with Oral Evidence: Avoid relying solely on written statements or affidavits without appearing for cross-examination. Failure to testify undermines the evidentiary value of such documents (1988 MLD 1651, Mst. Maryam Mirza v. M.M. Kazi).
Challenge Plaintiff’s Affidavits: Demand the cross-examination of any deponents whose affidavits are relied upon by the plaintiff (1987 CLC 792).
Scenario 5: Admissions During Cross-Examination
Advice: Minimise Impact of Inadvertent Concessions
Be Cautious During Testimony: Ensure that responses in cross-examination are precise and consistent with written submissions. Admissions made during cross-examination can significantly weaken the defence, as in 1989 CLC 1164 (Shahzad Khan v. Abdul Aziz Khan).
Prepare for Cross-Examination: Collaborate with legal counsel to rehearse responses and anticipate questions likely to be raised by the plaintiff.
Scenario 6: Adjournments and Procedural Delays
Advice: Use Adjournments Strategically, but Avoid Overuse
Request Adjournments Sparingly: Courts are less inclined to grant adjournments for defendants who repeatedly delay proceedings (1996 SCMR 1967, Muhammad Tayyab). Ensure that adjournment requests are reasonable and backed by compelling grounds.
Seek Costs for Plaintiff’s Adjournments: Where the plaintiff seeks adjournments, defendants should argue for costs or press for the dismissal of the suit for lack of prosecution.
Scenario 7: Revisional and Appellate Strategies
Advice: Challenge Procedural or Evidentiary Errors
Highlight Procedural Violations: If denied the opportunity to cross-examine or present evidence, defendants should argue for remand or retrial, as seen in 1995 SCMR 773, Ali Muhammad v. Murad Bibi.
Utilise Newly Discovered Evidence: In appellate proceedings, seek permission to introduce critical evidence omitted during the trial due to oversight or procedural irregularities (1988 CLC 1780).
Scenario 8: Negotiable Instruments and Financial Claims
Advice: Shift Burden of Proof
Question Consideration: In claims involving negotiable instruments, such as promissory notes or cheques, challenge the presumption of consideration under the Negotiable Instruments Act (1996 CLC 741). Failure by the plaintiff to prove consideration or undue influence strengthens the defence.
Highlight Procedural Deficiencies: If the plaintiff fails to establish foundational facts or produce credible witnesses, move for dismissal.
Scenario 9: Factual Complexity or Inadequate Evidence
Advice: Leverage Court’s Discretion for Recalling Witnesses
Request Witness Recall: Under Order XVIII, Rule 17, C.P.C., seek permission to recall witnesses for further cross-examination if new facts emerge or prior evidence needs clarification (1998 MLD 678).
Challenge Weak Evidentiary Links: Where the plaintiff relies on hearsay or circumstantial evidence, argue for its exclusion or diminished weight.
Scenario 10: Plaintiffs’ Procedural Missteps
Advice: Exploit Plaintiff’s Failures
Oppose Incomplete Evidence: If the plaintiff fails to present complete evidence or their witnesses avoid cross-examination (1996 MLD 674), argue for the dismissal of their claims.
Capitalise on Delays or Negligence: Use the plaintiff’s lack of diligence in pursuing their case as grounds for dismissal (1989 MLD 3431).
General Advice for Defendants
Prepare Thoroughly for Cross-Examination: Collaborate with legal counsel to anticipate and rebut the plaintiff’s assertions.
Document Procedural Compliance: Maintain detailed records of all court proceedings, adjournments, and communications to safeguard against adverse procedural findings.
Insist on Equitable Treatment: Advocate for leniency in procedural defaults, citing precedents that emphasise the importance of justice over technicalities (1994 MLD 174).
Challenge Presumptions: Use provisions of the Qanun-e-Shahadat Order, such as Article 118 (burden of proof) and Article 133 (cross-examination), to shift evidentiary burdens back to the plaintiff.
By leveraging these strategies, defendants can effectively counter plaintiffs’ claims, mitigate potential liabilities, and increase their chances of success in civil litigation.
Frequently Asked Questions on Cross Examination in Civil Proceedings
1. What is the role of cross-examination in civil proceedings? Cross-examination serves to test the credibility of a witness, expose inconsistencies, and elicit facts favourable to the cross-examiner’s case (1987 MLD 694).
2. Can written statements replace oral testimony during cross-examination? No, written statements are not substantive evidence unless the witness personally supports them in court and submits to cross-examination (1984 MLD 287).
3. What happens if a party does not cross-examine a critical witness? Failure to cross-examine can be considered acceptance of the testimony, and such evidence may be treated as undisputed (2002 CLC 1770).
4. Can a party request additional cross-examination if new evidence arises? Yes, courts have discretion to allow further cross-examination to serve the interests of justice, but only under special circumstances (1998 MLD 678).
5. Is it permissible to recall a witness for cross-examination after closing one’s case? Yes, recalling witnesses is permissible under exceptional circumstances to ensure justice and equity (1997 CLC 763).
6. How does the omission of cross-examination affect documentary evidence? Documents introduced without cross-examination on their authenticity can still be relied upon if their validity remains uncontested (1986 MLD 1350).
7. Can prior statements of a witness be used against them during cross-examination? Yes, but the witness must be confronted with such statements during cross-examination to provide an opportunity for explanation (1987 CLC 1453).
8. Does a refusal to allow cross-examination on affidavits affect their probative value? Yes, affidavits lose probative value if the deponent is not made available for cross-examination (1971 PLD 585 SC).
9. How does cross-examination influence the assessment of a witness’s credibility? A witness’s responses under cross-examination significantly impact their credibility and the weight of their testimony (1996 SCMR 1057).
10. Can non-production of a witness for cross-examination lead to an adverse inference? Yes, failure to produce a witness for cross-examination can weaken the credibility of their testimony (1995 MLD 690).
11. What is the effect of cross-examination on admissions made during examination-in-chief?
Admissions made during examination-in-chief may be challenged or clarified during cross-examination, potentially reducing their evidentiary weight (1987 MLD 469).
12. Can a party object to cross-examination if it introduces irrelevant questions?
Yes, objections can be raised if cross-examination strays into irrelevant matters not pertinent to the case (1973 PLD 491).
13. Is it mandatory to cross-examine on every point raised in a witness’s testimony?
While not mandatory, failure to cross-examine on significant points may be deemed an acceptance of those assertions (1986 CLC 288).
14. Can a party waive their right to cross-examine?
Yes, but waiver of cross-examination could lead to adverse consequences, as the unchallenged testimony may be taken as true (1987 MLD 2774).
15. Does cross-examination affect the authenticity of documentary evidence?
Yes, the authenticity of documents is strengthened when supported by witness testimony and cross-examination (1986 MLD 1350).
16. What is the impact of failing to confront a witness with key evidence during cross-examination?
Failure to confront a witness with key evidence may preclude reliance on such evidence later in proceedings (1987 CLC 1453).
17. Can a party introduce new evidence during cross-examination?
Cross-examination is limited to the scope of the testimony given during examination-in-chief, although courts may allow questions for clarification (1994 MLD 2414).
18. Is it permissible to ask leading questions during cross-examination?
Yes, leading questions are generally permitted during cross-examination to challenge the witness’s testimony (1998 MLD 678).
19. Can a court limit the scope of cross-examination?
Courts may limit cross-examination to ensure it remains relevant and does not waste time or harass the witness (1996 SCMR 1967).
20. What happens if a party’s witness refuses to undergo cross-examination?
Testimony of a witness who refuses cross-examination may be disregarded by the court (1995 MLD 690).
21. Can a court compel a witness to answer during cross-examination?
A court can compel answers unless the witness claims privilege or the question is irrelevant or inadmissible (Qanun-e-Shahadat Order, 1984, Art. 133).
22. How does cross-examination differ in summary proceedings?
In summary proceedings, cross-examination focuses on the limited scope of issues permitted under procedural rules (1996 CLC 741).
23. Can a witness’s credibility be impeached during cross-examination?
Yes, cross-examination is a primary tool for impeaching the credibility of a witness through inconsistencies or contradictions (1989 MLD 4554).
24. Is cross-examination allowed in cases decided on affidavits?
Cross-examination on affidavits is allowed if requested in good faith, otherwise the affidavit’s probative value diminishes (1971 PLD 585).
25. Can a cross-examination extend beyond the facts pleaded in the case?
Cross-examination should generally be confined to facts within the scope of pleadings, though courts may allow broader questioning if relevant (1987 MLD 469).
26. Does the absence of cross-examination imply admission?
Yes, the absence of cross-examination on material points is often taken as an admission of those facts (1986 MLD 1350).
27. Can a party recall a witness for further cross-examination after a judgment?
No, unless the judgment has been set aside or reopened for specific reasons that justify further cross-examination (1996 SCMR 1057).
28. What is the effect of contradictions exposed during cross-examination?
Contradictions weaken a witness’s reliability and may undermine their entire testimony (1992 MLD 2378).
29. Can cross-examination rectify errors in the examination-in-chief?
Cross-examination cannot alter facts already stated but can clarify ambiguities or explain inconsistencies (1987 CLC 792).
30. What are the consequences of an evasive witness in cross-examination?
An evasive witness may lose credibility, and adverse inferences may be drawn against their testimony (1996 SCMR 1967).
31. Can cross-examination explore a witness’s bias?
Yes, exploring bias is a legitimate purpose of cross-examination to challenge the impartiality of the witness (Qanun-e-Shahadat Order, 1984, Art. 3).
32. How does cross-examination deal with hearsay evidence?
Cross-examination can expose the inadmissibility of hearsay evidence and prevent its reliance by the court (1998 MLD 678).
33. Can a party refuse to cross-examine a hostile witness?
While a party may refuse to cross-examine a hostile witness, doing so forfeits the opportunity to challenge their testimony (1994 MLD 174).
34. What if a party seeks to cross-examine a witness on irrelevant matters?
Courts may disallow questions that do not relate to the issues in the case (1973 PLD 491).
35. Can a party cross-examine its own witness?
Yes, a party may cross-examine its own witness if declared hostile by the court (Qanun-e-Shahadat Order, 1984, Art. 140).
36. What happens if a witness contradicts their affidavit during cross-examination?
Such contradictions can render the affidavit unreliable and diminish its evidentiary value (1995 MLD 690).
37. Can a party be penalised for not cross-examining a critical witness?
Yes, failure to cross-examine may lead to the acceptance of the witness’s testimony as unchallenged (1996 CLC 741).
38. Is there a time limit for cross-examination?
While no strict time limit exists, courts may impose reasonable constraints to ensure efficiency and relevance (1997 CLC 763).
39. Can an admission in cross-examination be withdrawn?
Admissions made during cross-examination are binding unless satisfactorily explained or retracted (1989 CLC 1164).
40. Does cross-examination extend to documentary evidence submitted during proceedings?
Yes, cross-examination can test the authenticity and relevance of documentary evidence (1986 MLD 1350).
41. Can a party cross-examine witnesses called by a co-defendant?
Yes, a party can cross-examine witnesses called by a co-defendant if their testimony affects the interests of the cross-examining party (1994 MLD 1947).
42. Is a party entitled to cross-examine a witness not previously listed in the witness list?
A party may object to the examination of unlisted witnesses, but if allowed by the court, cross-examination rights are preserved (1995 SCMR 773).
43. Can cross-examination reveal a witness’s prior inconsistent statements?
Yes, prior inconsistent statements may be introduced during cross-examination to challenge the witness’s credibility (1987 CLC 1453).
44. What happens if a witness refuses to answer specific questions in cross-examination?
The court may compel answers or draw adverse inferences if the refusal appears unjustified (1971 PLD 585).
45. Can a party be allowed to reopen cross-examination after closing its case?
Reopening cross-examination is generally allowed only in exceptional circumstances where justice demands it (1998 MLD 678).
46. How does cross-examination address the reliability of expert witnesses?
Cross-examination challenges the methodology, qualifications, and objectivity of expert witnesses to assess their reliability (1996 CLC 741).
47. Is cross-examination allowed on privileged communications?
No, privileged communications such as attorney-client or spousal privilege cannot be questioned in cross-examination (Qanun-e-Shahadat Order, 1984, Art. 9).
48. Can cross-examination be conducted on affidavits submitted in interlocutory matters?
Cross-examination on affidavits in interlocutory matters is generally limited unless exceptional circumstances justify it (1957 PLD 635).
49. What if a party seeks cross-examination after the conclusion of final arguments?
Cross-examination at this stage is rarely permitted unless a significant procedural oversight is identified (1994 MLD 174).
50. Can a witness be declared hostile during cross-examination?
Yes, a witness can be declared hostile during cross-examination if their testimony is inconsistent with their previous statements or prejudices the calling party (Qanun-e-Shahadat Order, 1984, Art. 140).
51. Does failure to cross-examine on an important point render the evidence unassailable?
Yes, failure to cross-examine on critical points may result in acceptance of the evidence as uncontroverted (1986 MLD 1350).
52. Can cross-examination address a witness’s moral character?
Questions regarding moral character are allowed only if relevant to the case or the witness’s credibility (Qanun-e-Shahadat Order, 1984, Art. 146).
53. Can a court restrict cross-examination to written questions?
Courts have discretion to allow written questions in exceptional cases, such as when dealing with vulnerable witnesses (1973 PLD 491).
54. Is it permissible to cross-examine a witness about irrelevant past conduct?
Irrelevant past conduct is generally inadmissible unless it directly pertains to the case or credibility (1996 SCMR 1967).
55. Can a party challenge the admissibility of evidence during cross-examination?
Yes, a party can challenge the admissibility of evidence during cross-examination, but the court decides its relevance and probative value (1988 CLC 1780).
56. Does the credibility of a witness improve if cross-examination fails to expose contradictions?
Yes, the credibility of a witness is bolstered if cross-examination does not reveal contradictions or inconsistencies (1992 CLC 1128).
57. Can a party be penalised for intimidating a witness during cross-examination?
Yes, intimidation or harassment of a witness during cross-examination is prohibited and may result in penalties or adverse inferences (1995 SCMR 773).
58. Can cross-examination explore facts beyond the witness’s knowledge?
No, cross-examination must focus on matters within the witness’s knowledge or observation (Qanun-e-Shahadat Order, 1984, Art. 133).
59. How does cross-examination handle implied admissions in testimony?
Implied admissions can be clarified, challenged, or reinforced during cross-examination (1986 CLC 288).
60. Can a court reject evidence solely on the basis of inadequate cross-examination?
No, but inadequate cross-examination may weaken the weight of evidence (1998 MLD 678).
61. What happens if a party consistently avoids cross-examining witnesses?
Avoidance of cross-examination may be considered negligence, leading to adverse consequences for the party (1996 SCMR 1967).
62. Can cross-examination establish a witness’s financial interest in the case?
Yes, financial interest is a valid area for cross-examination to establish potential bias or partiality (1992 MLD 2378).
63. Can a witness refuse to answer incriminating questions during cross-examination?
Witnesses may invoke privilege against self-incrimination to avoid answering such questions (Qanun-e-Shahadat Order, 1984, Art. 13).
64. Is it mandatory to confront a witness with their written statement during cross-examination?
Yes, a witness must be confronted with any written statements they have made if these are being used to challenge their credibility (1987 CLC 1453).
65. How does cross-examination deal with conflicting expert opinions?
Conflicting opinions are examined through questions on methodology, qualifications, and factual bases to determine reliability (1996 CLC 741).
66. Can a party cross-examine witnesses who have already been examined-in-chief?
Yes, cross-examination is conducted only after examination-in-chief is completed (Qanun-e-Shahadat Order, 1984, Art. 133).
67. Can cross-examination explore hypothetical scenarios?
Yes, hypothetical scenarios can be explored if relevant to the facts in dispute or the witness’s expertise (1996 SCMR 1057).
68. Can a court direct cross-examination on specific issues?
Yes, courts can limit or direct cross-examination to specific issues to avoid wasting time on irrelevant matters (1973 PLD 491).
69. What happens if a witness contradicts themselves during cross-examination?
Contradictions may reduce the witness’s credibility and influence the court’s assessment of their testimony (1986 MLD 1350).
70. Can a witness’s demeanor during cross-examination affect their credibility?
Yes, courts may consider the demeanor of a witness during cross-examination when assessing credibility (Qanun-e-Shahadat Order, 1984, Art. 132).
71. Can cross-examination discredit a witness’s testimony based on their past criminal record?
Yes, if the criminal record relates to the witness’s honesty or credibility, it may be raised during cross-examination (Qanun-e-Shahadat Order, 1984, Art. 146).
72. Is it permissible to ask leading questions during cross-examination?
Yes, leading questions are allowed during cross-examination to clarify or challenge a witness’s testimony (Qanun-e-Shahadat Order, 1984, Art. 138).
73. Can a party cross-examine their own witness if declared hostile?
Yes, a party may cross-examine their own witness if they are declared hostile, subject to court approval (Qanun-e-Shahadat Order, 1984, Art. 140).
74. How is cross-examination handled in cases involving vulnerable witnesses?
Courts may impose special procedures or restrictions to protect vulnerable witnesses, such as children or victims of sensitive crimes, during cross-examination (Qanun-e-Shahadat Order, 1984, Art. 151).
75. What is the effect of improper cross-examination on the overall case?
Improper cross-examination may result in objections, exclusion of evidence, or adverse inferences if it demonstrates bad faith or irrelevance (1989 CLC 1164).
76. Can cross-examination explore a witness’s personal relationships?
Yes, personal relationships may be questioned if they suggest bias, interest, or prejudice relevant to the case (1987 MLD 694).
77. What happens if cross-examination questions exceed the scope of the examination-in-chief?
The court may disallow such questions unless they are directly relevant to the issues in dispute (1996 CLC 741).
78. How does cross-examination address inconsistencies in documentary evidence?
Cross-examination can highlight discrepancies between oral testimony and documentary evidence to challenge credibility (1986 MLD 1350).
79. Can a witness refuse to answer questions about sensitive information during cross-examination?
Sensitive information may be withheld if it is irrelevant or protected by privilege, but the court may compel disclosure if essential to justice (1956 PLD 55).
80. Can cross-examination be used to assess a witness’s mental state?
Yes, a witness’s mental state may be questioned if it affects their ability to perceive or recall events accurately (Qanun-e-Shahadat Order, 1984, Art. 132).
81. What is the importance of timely objections during cross-examination?
Timely objections ensure that improper questions are excluded from the record and prevent prejudice against the objecting party (1989 MLD 4554).
82. Can a party waive their right to cross-examination?
Yes, failure to exercise the right to cross-examination constitutes a waiver, and the evidence may be deemed unchallenged (1992 CLC 1470).
83. Can cross-examination include questions about hearsay evidence?
Yes, but hearsay evidence generally carries less weight unless exceptions apply under the Qanun-e-Shahadat Order, 1984 (Art. 46).
84. Can a party recall a witness for additional cross-examination after new evidence emerges?
Yes, courts may allow recalling witnesses if new evidence significantly impacts the issues under consideration (1998 MLD 678).
85. Can cross-examination expose collusion between parties or witnesses?
Yes, collusion can be revealed by questioning the consistency and plausibility of testimonies (1987 MLD 694).
86. Is a party entitled to cross-examine expert witnesses on their qualifications?
Yes, cross-examination may assess an expert’s qualifications, expertise, and bias (1996 CLC 741).
87. Can cross-examination involve questions about procedural irregularities?
Yes, procedural irregularities affecting the witness’s testimony may be explored during cross-examination (1994 MLD 656).
88. How does cross-examination handle discrepancies in prior sworn statements?
Discrepancies in prior statements can be used to impeach a witness’s credibility (1987 CLC 792).
89. Can cross-examination be conducted on affidavits submitted in evidence?
Yes, affidavits must be supported by oral testimony and are subject to cross-examination if challenged (1995 MLD 690).
90. Can cross-examination challenge the credibility of an anonymous witness?
Anonymous witnesses may be cross-examined to the extent their testimony affects the case, subject to safeguards for their protection (Qanun-e-Shahadat Order, 1984, Art. 151).
91. What happens if a witness retracts their testimony during cross-examination?
Retractions weaken the reliability of the witness’s evidence and may result in adverse inferences (1989 MLD 3431).
92. Can a party cross-examine a witness through written questions?
Written cross-examination is permissible in exceptional cases, such as for witnesses unable to attend court (Qanun-e-Shahadat Order, 1984, Art. 151).
93. How does cross-examination address conflicts in testimony between multiple witnesses?
Cross-examination explores contradictions to determine the reliability and consistency of the witnesses’ accounts (1989 CLC 1164).
94. Can a witness refuse cross-examination on religious grounds?
Witnesses may not refuse cross-examination on religious grounds unless the questions violate specific protections under the law (1982 PLC (CS) 892).
95. How does cross-examination deal with witnesses presenting fabricated evidence?
Cross-examination aims to expose inconsistencies and contradictions in fabricated evidence (1996 SCMR 1967).
96. Can a party conduct cross-examination on matters excluded by pre-trial orders?
No, cross-examination must adhere to the court’s rulings on permissible evidence and scope (1988 CLC 220).
97. Can cross-examination assess the reliability of hearsay testimony admitted under exceptions?
Yes, the credibility of hearsay testimony admitted under exceptions can be challenged during cross-examination (Qanun-e-Shahadat Order, 1984, Art. 46).
98. Can a court intervene during cross-examination to clarify questions?
Yes, the court may intervene to clarify ambiguous or misleading questions in the interest of justice (1994 MLD 174).
99. Can cross-examination address a witness’s failure to disclose material facts earlier?
Yes, omissions in prior disclosures can be probed to assess the credibility and completeness of the testimony (1986 CLC 288).
100. What happens if cross-examination reveals misconduct by a party?
Misconduct revealed during cross-examination may lead to sanctions, adverse inferences, or a reevaluation of the party’s claims (1994 MLD 2414).
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