Cross-Examining Doctor on Medico-Legal Examination: A Guide for Defence Lawyers in Pakistan
The case of 2024 PCrLJ 808 deals with the right of the defence to ask questions from the doctor/PW (Prosecution Witness) about the medico-legal examination of accused persons. The procedure is explained in the light of Articles 152, 155, and 156 of the Qanun-e-Shahadat Order, 1984 read with section 265-F(7) of the Cr.P.C.
Here's a summary of the key points:
Objectives of Cross-Examination There are four main objectives of cross-examination:
- Laying the foundation for your case
- Putting your case forward
- Eliciting additional and useful facts
- Discrediting the prosecution's evidence
Aim of Cross-Examination The aim of cross-examination is to advance the case of the accused and to weaken the prosecution's case.
Cardinal Rule of Cross-Examination A cardinal rule of cross-examination is that while cross-examining the witness on a fact, the defense must put their case forward at that time by asking questions about related facts known to the defense but hidden by the prosecution or not part of the examination-in-chief. Otherwise, it would be seen as a later invention to label it as fabricated or an afterthought.
Principles Governing Cross-Examination There are two main principles governing cross-examination:
- Undermining the prosecution's case: This means limiting the testimony and discrediting it.
- Advancing the case of defense: This means eliciting favorable testimony and developing the defense's case.
These two principles are reflected in Articles 139, 140, 141, 151, and 152 of the Qanun-e-Shahadat Order, 1984. Articles 139, 140, 141, and 151 deal with discrediting the prosecution's case, while Article 152 is an exception to the general rule and relates to advancing the case of defense.
Right of Defence Counsel During Cross-Examination In light of the above provisions and case law, the defense counsel has the right to:
- Ask questions from the medical officer about the medico-legal examination during cross-examination.
- Refer to MLCs (Medico-Legal Certificates) and radiologist reports while asking questions.
- Show these documents to the witness to refresh their memory (as allowed by Article 155 of the Qanun-e-Shahadat Order, 1984).
- Call the medical officer as a witness to testify about the facts mentioned in the MLCs and radiologist report.
Right of Prosecution During Cross-Examination of Defense Witness The prosecution also has the right to:
- Cross-examine the medical officer if the defense calls them as a witness on the MLCs and radiologist report, but only with permission from the court (as per Article 150 of the Qanun-e-Shahadat Order, 1984).
Documents During Cross-Examination During cross-examination, the defense counsel can only refer to the documents (MLCs and radiologist reports). They can only be tendered as evidence at the stage mentioned in Section 265(7) of the Cr.P.C.
Medical Officer Refreshing Memory During Cross-Examination The medical officer can use the MLCs (Article 155(1)) and the radiologist report (Article 155(2)) to refresh their memory when responding to the defense's questions.