Mediation Practice Direction (Civil) Rules, 2023

 Mediation Practice Direction (Civil) Rules, 2023

To regulate the practice and procedure of Courts in relation to

Mediation in Civil Disputes

Mediation as a method of alternate dispute resolution is given statutory recognition by the Alternate Dispute Resolution Act 2017 (the Act). In furtherance of the Act, rules are being notified from time to time.

For mediation as a sub-specialty of alternate dispute resolution, the following rules have thus far been notified by the Federal Government:

(i) Alternate Dispute Resolution (Accreditation) Rules, 2023.

(ii) ADR Mediation Accreditation (Eligibility) Rules, 2023.

In furtherance of the supervisory function of the High Court, the Islamabad High Court issues these rules in the exercise of its powers under Article 202 of the Constitution of the Islamic Republic of Pakistan, 1973, to be known as the Mediation Practice Direction (Civil) Rules 2023, and to be practiced by all Courts within the jurisdiction of the Islamabad High Court.

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Contents

1 Notified Mediators; Notified ADR Centres

2 Consent to Mediate

3 Decree on Settlement Agreement

4 Court-referral without a suit

5 Inconclusive Mediation

6 Mediation Register

7 Annex – Mediation Consent Form

1 Notified Mediators; Notified ADR Centres: (1) Except for sufficient cause recorded in the order referring the dispute to mediation, Court-referred mediations in civil disputes should be referred for mediation by mediators notified under the Act, practising individually or under the aegis of an ADR Centre notified under the Act.

(2) The expression ‘Mediator’ henceforth in this Practice Direction means a mediator notified under the Act, practising individually or under the aegis of an ADR Centre notified under the Act.

(3) Notwithstanding sub rules (1) & (2), mediations in family cases may be referred to ‘agreed upon persons’1, who are not notified mediators. Such agreed upon mediators should preferably be the trusted elders of the families.

2 Consent to Mediate: (1) On the first appearance of a party, the Court shall direct such party to sign and file a Mediation Consent Form (per the Annex) for the parties’ respective stances on mediation to be brought on record.

(2) The Court shall also cause the parties to sign and file a Mediation Consent Form in cases already filed where the recording of evidence has not commenced. For the avoidance of doubt, the Court shall on the parties’ joint request refer the parties to mediation regardless of the stage the case has reached.

(3) Where the parties agree to mediate, the Court will refer the parties to mediation and the parties’ agreement to mediate shall be the foremost consideration for the Court.

(4) The Court’s assessment of ‘impossibility of mediation success’ and ‘intricacy of a question of fact or law’ per sections 3(1)(b) and (c) of the Act should entail a very high threshold of Court’s satisfaction to lean against mediation and, barring exceptionally strong reasons, should not override the parties’ willingness to mediate, it being understood that the essence of mediation process is for the parties to be able to find a workable solution regardless of the underlying intricacies of fact and law.

(5) Where a party declines to mediate, the order sheet will reflect the Court’s observations on the reasonableness of the refusal to mediate, and the order on costs at the conclusion of the trial will factor in an unreasonable refusal to mediate, not as a penalty, but as a reasonable estimate of the litigation costs the consenting party would have avoided if the case had gone to mediation, basing such estimate on the statement of litigation costs filed by the parties under the Costs of Litigation Act, 2017. This order will be made regardless of the party refusing mediation being successful in obtaining judgment in its favour2.

1 Section 5 of the Alternate Dispute Resolution Act, 2017

2 Section 35(1)(iii), Costs of Litigation Act, 2017

3 Decree on Settlement Agreement: (1) When mediation leads to a settlement, the settlement shall be reduced to writing as a Settlement Agreement, duly witnessed, and signed by the mediator and by the parties or their duly authorized representatives. It is mandatory to file the Settlement Agreement with the Court for Court-referred mediations3, and optional for non-Court-referred mediations4.

(2) The Court shall on notice to the parties pass judgment and decree in terms of the Settlement Agreement5, recording in the decree that it was passed in terms of the Settlement Agreement without formal adjudication by the Court and is executable6 as a decree by consent.

4 Court-referral without a suit: (1) Court-referred mediations include mediation referrals by Court on joint application by the parties without a suit filed by either party7. Such applications are to be registered as suits for record management purposes.

(2) The parties must demonstrate to the Court for their application being considered that they have applied, without success, to all notified ADR Centres for mediation, and the Courts shall not be requested, without good cause, to perform this function of ADR Centres.

5 Inconclusive Mediation: If mediation in a pending case does not lead to a Settlement Agreement within the timeframe stipulated in the Act, the case will be re-listed in the cause list of the Court for judicial proceedings to resume. It is clarified that there is no bar on either party or the Court proposing mediation again and the parties resorting to mediation at a later stage during the proceedings.

6 Mediation Register: Each Court will maintain a register of mediation referrals and will transmit the following particulars to the Registrar of the High Court on a monthly basis by the first week of the succeeding month:

i. number of mediation referrals, with referral dates,

ii. number of applications received and disposed of under section 8 of the Act

iii. number of successful mediations, reckoned from the date of decree.

Re-Examination is more important than examination

 PLJ 2014 Cr.C. (Lahore) 839

Present: Abdus Sattar Asghar, J.

MEHDI KHAN--Petitioner

versus

STATE, etc.--Respondents

Crl. Rev. No. 536 of 2012, decided on 19.6.2014.

Examination of witness--

----Principle--It is an established principle of law that examination of a witness would include examination-in-chief, cross-examination and re-examination in terms of Article 132 of Qanun-e-Shahadat Order 1984--Cross-examination is a continuing part, of statement rather more important than examination-in-chief.       [P. 841] A

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 439/435--Criminal revision--Credibility of a witness--There is no cavil to proposition that one of purposes of cross-examination is to test credibility of a witness--At same time object of cross-examination is to bring true facts on record which witness has either not brought on record or has deliberately concealed--In this case defence side intends to confront complainant with his previous statement for reason that in his cross-examination he has replied that he did not remember his previous statement regarding relevant fact, therefore defence has no option but to confront him with his version given in his previous statement while appearing before Court in former trial of this case--In attending circumstances, accused-petitioner cannot be denied to confront complainant with his previous statement--Trial Court in this case fell in error while refusing petitioner to confront complainant with his previous statement through impugned order which is untenable and liable to set aside.          [P. 842] B & D

PLD 2011 SC 554, ref.

Examination of witness--

----Principle--It is an established principle of law that defence side is not obliged to restrict its cross-examination only to the extent of the facts stated by a witness in his examination-in-chief rather it has a right to ask any question from a witness to impeach his credibility as well as to bring true and relevant facts on the record which the witness has either not brought on the record or has deliberately concealed. Needless to say that evidentiary value of any such statement of the witness is to be determined by the Court at the time of final judgment.     [P. 842] C

Ch. Farooq Haider, Advocate for Petitioner.

Mr. Muhammad Nawaz Shahid, DDPP for State.

Raja Muhammad Hanif, Advocate for Respondent No. 3.

Date of hearing: 5.6.2014.

Judgment

This Criminal Revision under Sections 435/439 of the Criminal Procedure Code 1898 is directed against the order dated 24.4.2012 passed by the learned Additional Sessions Judge Kharian District Gujrat whereby learned trial Court did not allow the petitioner/defence to confront Muhammad Ahmad/Respondent No. 3 who was appearing as PW-7 with his previous statement made on 04.05.2009.

2.  Brief facts leading to this petition are that the petitioner is facing trial before the learned Additional Sessions Judge Kharian as an accused in case FIR No. 334/2006 in the offences under Sections 302/148/149/109 of the Pakistan Penal Code 1860, Police Station Dinga District Gujrat. Muhammad Ahmad Respondent No. 3 complainant of the above said case FIR while appearing as PW-5 during earlier trial of the same case on 04.05.2009 in his cross-examination stated that "I made telephonic call to the police, attended by the constable. Police arrived at the spot, inspected the place of occurrence, interrogated the persons present there and also interrogated me and thereafter registered the case." During later trial Muhammad Ahmad complainant while appearing as (PW-7) on 24.4.2012 while facing the cross-examination replied the question from the defence side in the words, "I do not remember that if at earlier trial in my statement dated 04.05.2009 I got recorded that I made telephonic call to police in police station attended by the constable, then police arrived at the spot, inspected the place of occurrence interrogated the persons present there, then interrogated me and thereafter case was registered." At that stage defence side intended to confront the said witness with his above mentioned previous statement made by him on 4.5.2009 which was declined by the learned trial Court vide the impugned order dated 24.04.2012 in the following manner:

"As the PW is being examined at this trial independently and the PW has not mentioned this fact in his examination-in-chief recorded at this trial on 31.10.2011, Therefore, it cannot be considered that he had improved his statement and the statement recorded at earlier trial cannot be allowed to be confronted. Even otherwise the fact brought on the record during cross-examination cannot be considered as improvement and not to be allowed to be confronted with the previous statement of the PW. Therefore, the request of learned defence counsel is turned down."

3.  It is argued by the learned counsel for the petitioner that under Article 140 of the Qanune-e-Shahadat Order 1984 a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question; that the learned trial Court erred in law while declining the petitioner to confront the said witness with his previous statement dated 04.05.2009; that the impugned order being capricious, illegal is untenable and liable to set aside.

4.  On the other hand, learned counsel for Respondent No. 3 (complainant) contends that a fact brought on record by the defence himself through cross-examination cannot be equated with a previous statement in terms of Article 140 of the Qanun-e-Shahadat Order 1984 therefore the same cannot be used for the purpose of confrontation. Further contends that purpose of cross-examination is to test the credibility of a witness and not to trap the witness for the manipulation of error. Takes reliance upon Sher Muhammad and 2 others vs. The State (PLD 1995 SC 578). Also contends that the complainant while appearing in the witness-box as PW-7 in the later trial did not improve his previous examination-in-chief therefore there was no occasion for the defence to confront him with his previous cross-examination; that the learned trial Court rightly declined the defence side through the impugned order from confronting the complainant with his previous statement in cross-examination; that the impugned order does not suffer from any legal infirmity or material irregularity and jurisdictional error therefore the petitioner has no case to invoke the revisional jurisdiction of this Court.

5.  Arguments heard. Record Perused.

6.  It is an established principle of law that examination of a witness would include examination-in-chief, cross-examination and re-examination in  terms  of  Article  132  of  the  Qanun-e-Shahadat  Order 1984. Cross-examination is a continuing part, of the statement rather more important than the examination-in-chief. There is no cavil to the proposition that one of the purposes of cross-examination is to test the credibility of a witness. At the same time the object of cross-examination is to bring true facts on the record which the witness has either not brought on the record or has deliberately concealed. In this case defence side intends to confront the complainant (PW-7) with his previous statement for the reason that in his cross-examination he has replied that he did not remember his previous statement regarding the relevant fact, therefore defence has no option but to confront him with his version given in his previous statement while appearing before the Court in the former trial of this case. At this juncture it may be expedient to reproduce an extract from the dictum of the Hon'ble Supreme Court in the case of The State and others vs. Abdul Khaliq and others (PLD 2011 SC 554) which reads below:--

"--Article 140 of Qanun-e-Shahadat Order 1984 being a part of general law of evidence, has its own independent legal efficacy and application and any previous statement of the witness, which may have been made by him in some other judicial, quasi judicial, administrative, executive proceedings or inquiries or before such of the forums or even privately made through some instrument i.e. agreement or an affidavit, can be confronted to him, if relevant, in any criminal case, however, subject to its proof as stated earlier. Such statements can always be used by the defence for impeaching the credibility of a witness under Article 153(3) of the Qanun-e-Shahadat Order, 1984 as well."

It is an established principle of law that defence side is not obliged to restrict its cross-examination only to the extent of the facts stated by a witness in his examination-in-chief rather it has a right to ask any question from a witness to impeach his credibility as well as to bring true and relevant facts on the record which the witness has either not brought on the record or has deliberately concealed. Needless to say that evidentiary value of any such statement of the witness is to be determined by the Court at the time of final judgment.

7.  Case law cited by learned counsel for the respondent being distinguishable on facts is of no help to the respondent.

8.  In the attending circumstances, the accused-petitioner cannot be denied to confront the complainant with his previous statement. The learned trial Court in this case fell in error while refusing the petitioner to confront the complainant with his previous statement through the impugned order which is untenable and liable to set aside.

9.  For the above reasons this criminal revision is allowed, impugned order dated 24.04.2012 passed by the learned Additional Sessions Judge Kharian District Gujrat is set aside and the petitioner is permitted to confront Muhammad Ahmad Complainant/Respondent No. 3 (PW-7) with his previous statement made on 04.05.2009.

(A.S.)   Revision allowed

Evidence on new matter can be given in Re-Examination

 PLJ 2016 Cr.C. (Lahore) 439

[Multan Bench Multan]

Present: Qazi Muhammad Amin Ahmed, J.

EJAZ--Petitioner

versus

STATE and 10 others--Respondents

Crl. Rev. No. 146 of 2015, heard on 15.10.2015

Dispensation of Criminal Justice--

----Scope--Adversial in nature--Clerical mistake--Rectification--Prosecution can, however, dislodge that presumption of innocence on strength of evidence to be adduced in accordance with rules of procedure--Trial of an accused is to be conducted in accord with commands of procedure; it must be least embarrassing to accused’ enabling him to conveniently and comfortably meet prosecution half way--Without being hyper-technical rules of procedure are to be faithfully followed as these constitute an integral part of due process of law which is inexorably annexed with procedural fairness.                                                             [P. 441] A

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 133(3)--Evidence in criminal trial--Cross-examination--Rectification--Evidence in a criminal trial is to be recorded in a manner provided under Art. 133 of Q.S.O. which permits re-examination only in relation to explanation of matters referred to in cross-examination or with a new matter by permission of Court--Provisions of Art. 133(3) cannot be invoked for rectification of an alleged error as no such rectification is contemplated thereunder and instead at most an explanation may be solicited from a witness with regard to his deposition in cross-examination.   [P. 441] B

Ch. Saeed Ahmad Farrukh, Advocate for Petitioner.

Mirza Abid Majeed, DPG for State.

Mr. Shakil Javed Ch., Advocate for Respondents.

Date of hearing: 15.10.2015

Judgment

The petitioner, accompanied by his co-accused, is confronting indictment of homicide before a learned Addl. Sessions Judge at Chichawatni. One of the prosecution witnesses Manzoor Ahmad appeared as PW-3 and stated on oath that within his view Riaz, co-accused made two fire shots which hit Abdul Razzaq deceased on his back; this statement was made on 25-2-2015. On 31-3-2015, Manzoor Ahmad, PW-3 moved an application that injuries assigned to Riaz accused were in fact attributed by him to Ejaz, petitioner, however, due to clerical mistake, name of Ejaz found mention in the record; rectification was prayed for, contested by the petitioner, however, learned trial Judge vide impugned order dated 17-4-2015 recorded statement of Manzoor Ahmad (PW-3) afresh and thereby allowed him to rectify the alleged error through his re-examination. The defence, asked to cross-examine the witness, requested for adjournment to challenge the vires of re-examination in the High Court was declined with a forfeiture of right to cross-examination.

2.  Learned counsel for the petitioner contends that there was no occasion for the learned trial Judge to allow re-examination of Manzoor Ahmad (PW-3) on a belatedly made request and that after taking such a drastic step to the detriment of the petitioner facing a charge which may entail ultimate sentence, a reasonable opportunity ought to have been afforded to challenge the vires of impugned action before the High Court. Contrarily, the learned counsel for the complainant has defended the impugned order on the ground that it was a clerical error, rectification whereof is in consonance with the case set up by the complainant on the day one.

3.  Heard. Record perused.

4.  Our system of dispensation of criminal justice is adversarial in nature, casting primary responsibility on the prosecution to drive home charge beyond a shadow of doubt against the accused, who would confront indictment under a presumption of innocence. The prosecution can, however, dislodge this presumption of innocence on the strength of evidence to be adduced in accordance with the rules of procedure. Trial of an accused is to be conducted in accord with the commands of procedure; it must be least embarrassing to the accused’ enabling him to conveniently and comfortably meet the prosecution half way. Without being hyper-technical the rules of procedure are to be faithfully followed as these constitute an integral part of Due Process of law which is inexorably annexed with procedural fairness. Procedural safeguards are essential to procedural fairness.

Evidence in a criminal trial is to be recorded in a manner provided under Article 133 of the Qanun-e-Shahdat Order, 1984 which permits re-examination only in relation to the explanation of matters referred to in cross-examination or with a new matter by the permission of the Court. Provisions of sub-article (3) of Article 133 of the Order ibid cannot be invoked for the rectification of an alleged error as no such rectification is contemplated thereunder and instead at the most an explanation may be solicited from a witness with regard to his deposition in cross-examination. Even for the purposes of an explanation, prosecution is not to be readily obliged to fill up lacunas of its case. No doubt, the Court is vested with vast powers to allow such request, nonetheless, power of this amplitude is to be exercised with circumspection and caution and essentially in order to set the scales of justice in balance and not to bail out one of the parties before the Court. Being a neutral arbiter, Court owes no responsibility either to the prosecution or to the defence. Similarly, there was no occasion for the learned trial Judge to forfeit right of cross-examination with an unseemly haste. An accused, bracing the gallows, must be afforded a reasonable and meaningful opportunity to exclude every hypothesis of his guilt before the noose is cast around his neck. Impugned order dated 17-4-2015 is set aside, consequently proceedings drawn thereunder stand quashed. Revision allowed.

(R.A.)  Revision allowed