SC Ruled: Witness Testimony Must Be Recorded Verbatim

By Muhammad Imran, Staff Member, SAHSOL-LUMS and Ali Hamza Alvi, Final Year Law Student, SLC, Superior University

The Honorable Supreme Court of Pakistan has ruled that the accurate recording of witness testimony lies at the heart of every fair criminal trial, as the credibility of judicial findings is fundamentally dependent upon the authenticity of the evidence placed before the court. Any omission, inaccuracy, or distortion in the recording of a witness’s statement not only compromises its evidentiary value but also undermines the constitutional guarantees of due process and a fair trial.

In Mst. Nayab v. The State (Criminal Petitions Nos. 1033 & 1036 of 2024), the Supreme Court of Pakistan reaffirmed that the duty of a trial court extends beyond merely documenting evidence; it encompasses ensuring that a witness’s testimony is recorded faithfully, accurately, and as nearly verbatim as possible. Interpreting Section 360 of the Code of Criminal Procedure, 1898, in the light of Article 10-A of the Constitution, the Court emphasized that procedural law must function as an instrument for the administration of justice rather than a technical obstacle to it. The judgment also underscores the growing significance of technological tools, such as video-recorded testimony, in safeguarding the integrity of criminal proceedings. By directing the rectification of material discrepancies through comparison of the written record with the electronic recording, the Supreme Court reinforced the principles of judicial accountability, procedural fairness, and evidentiary accuracy, thereby setting an important precedent for trial courts across Pakistan.

The petitioner, Mst. Nayab, was a prosecution witness in FIR No. 33 of 2018 registered under Sections 302, 109, 449 read with Section 34 of the Pakistan Penal Code. During the trial before the First Additional Sessions Judge, Hyderabad, her testimony was recorded through a video link from Islamabad with the permission of the Trial Court. After obtaining a certified copy of her statement, she discovered that it had not been recorded verbatim and contained several material inaccuracies, including the incorrect recording of the date of occurrence as 30.05.2018 instead of 31.05.2018, along with other discrepancies in both her examination-in-chief and cross-examination. She consequently filed an application under Section 360 Cr.P.C. seeking rectification through comparison with the video recording. The application was dismissed by the Trial Court, and her criminal revision before the High Court also failed, compelling her to invoke the jurisdiction of the Supreme Court.

The principal issue before the Supreme Court was whether a witness is entitled, under Section 360(2) Cr.P.C., to seek correction of a statement that has not been accurately or verbatim recorded. The Court also examined whether the Trial Court and the High Court erred in refusing to compare the written statement with the available video recording despite allegations of material discrepancies, and whether such refusal infringed the constitutional guarantee of a fair trial under Article 10-A of the Constitution.

The Supreme Court held that Section 360(1) Cr.P.C. requires a witness’s testimony to be read over and corrected, where necessary, before obtaining the witness’s signature. Section 360(2) further empowers a witness to object where the testimony has not been accurately recorded, requiring the Trial Court to prepare a memorandum of such objection together with its own remarks. The Court observed that procedural provisions exist to facilitate justice rather than frustrate it, and that the accurate recording of evidence is an indispensable component of due process and the right to a fair trial guaranteed under Article 10-A of the Constitution. It further noted that the High Court’s revisional jurisdiction under Section 435 Cr.P.C. exists to rectify such procedural irregularities.

Upon examining the USB containing the petitioner’s video-recorded testimony, the Supreme Court found that the written statement materially differed from what had actually been deposed. The petitioner had clearly stated that the occurrence took place on 31.05.2018, whereas the Trial Court had erroneously recorded it as 30.05.2018. The Court also identified several other inaccuracies in both the examination-in-chief and cross-examination. Significantly, counsel for the respondents candidly conceded the existence of these discrepancies and did not object to their correction. The Supreme Court concluded that both the Trial Court and the High Court had failed to exercise the jurisdiction vested in them under Sections 360(2) and 435 Cr.P.C., respectively, thereby committing a procedural illegality that adversely affected the evidentiary value of the witness’s testimony and compromised the fairness of the criminal proceedings.

The Supreme Court allowed the petitions, set aside the orders of the Trial Court and the High Court, and directed the Trial Court to compare the petitioner’s written statement with the video recording in the presence of the accused, counsel for the parties, and the Prosecutor. It further directed the Trial Court to prepare a memorandum under Section 360(2) Cr.P.C. incorporating the correct version of the witness’s testimony wherever discrepancies, omissions, or inaccuracies were found. The exercise was ordered to be completed within fifteen working days, after which the Trial Court was directed to hear fresh arguments and decide the case within thirty working days in accordance with law.

The judgment conveys an unequivocal message to trial courts that the accurate recording of witness testimony is not merely a procedural formality but a solemn judicial obligation. Trial courts are duty-bound to record a witness’s testimony faithfully and, as far as practicable, verbatim, since any inaccuracy, omission, or alteration may diminish its evidentiary value and prejudice the administration of justice. The Supreme Court emphasized that Section 360 Cr.P.C. must be applied in both letter and spirit by reading over the statement to the witness, making necessary corrections, and preparing a memorandum under Section 360(2) whenever the witness disputes the accuracy of the recorded testimony. The Court also encouraged the use of technological tools, including video-recorded testimony, to verify and rectify recording errors wherever available. Stressing that procedural law is intended to facilitate rather than frustrate justice, the Court cautioned against an overly technical approach and linked the accurate recording of evidence directly to the constitutional guarantee of a fair trial under Article 10-A of the Constitution.

The decision is a significant reaffirmation of the principle that procedural law exists to advance, rather than obstruct, the administration of justice. By recognizing that the accurate and verbatim recording of witness testimony is indispensable to a fair criminal trial, the Supreme Court strengthened the procedural safeguards contained in Section 360 Cr.P.C. and harmonized them with the constitutional guarantee of due process under Article 10-A. The judgment commendably rejects a rigid technical approach and instead requires trial courts to exercise their statutory powers to rectify genuine recording errors whenever they are brought to the court’s attention.

A notable strength of the judgment is its practical recognition of technology as a tool for ensuring judicial accuracy. By directing comparison of the written statement with the available video recording, the Court acknowledged the value of technological evidence in preserving the integrity of judicial proceedings and enhancing public confidence in the criminal justice system. Equally important is the Court’s insistence that failure to exercise statutory jurisdiction under Sections 360(2) and 435 Cr.P.C. constitutes an illegality, thereby reinforcing judicial accountability.

Nevertheless, the judgment leaves certain practical issues unresolved. While emphasizing the importance of recording testimony verbatim, it does not lay down a detailed framework for determining the permissible scope of corrections where disputes relate to interpretation rather than obvious transcription errors. Nor does it prescribe safeguards against frivolous applications intended to delay criminal trials. Furthermore, although the Court relied upon the availability of a video recording, it did not address cases where no electronic recording exists. Consequently, the broader implementation of the principles laid down in this case may depend upon the gradual institutional adoption of audio-video recording systems in criminal courts.

Overall, the judgment constitutes a progressive development in Pakistani criminal procedural law. It affirms that the accuracy of judicial records is not merely a procedural requirement but a substantive component of the constitutional right to a fair trial. By harmonizing statutory procedure with constitutional guarantees and encouraging the use of technology to verify witness testimony, the Supreme Court has laid down an important precedent that is likely to improve the quality, credibility, and fairness of criminal adjudication in Pakistan.