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ACROSS the world, when the court exercises civil jurisdiction, the trial judge occupies a unique place in the judicial hierarchy. He witnesses the trial unfold before his very eyes, unlike an appeal or revisional court judge. He is judge of the quality and quantity of the evidence, as well as the law.
In Pakistan, amongst the judicial functions unique to trial court judges is their duty to scrutinise plaints, rule on issues of jurisdiction and maintainability, frame issues, record evidence, issue rulings (on the relevance, admissibility and exclusion of evidence, etc), assess the credibility of witnesses, protect witnesses from harassment and otherwise regulate the order of trial.
The law ordains that the judgement of trial judges, with respect to the quality and quantity of the evidence, is deferred to by appellate court judges. While a civil appeal is broad in scope, a civil revision is narrow, and a civil petition for leave to appeal even narrower, and this is reflected in the language of Section 96 and 115 of the Code of Civil Procedure, 1908 (CPC), and Article 185 of the Constitution, respectively.
In the US, Federal Rule 52 (a) of Civil Procedure provides that: findings of fact made by a trial court shall not be set aside by an appellate court unless found to be “clearly erroneous”. In ‘United States vs Gypsum’ (1948) the US supreme court ruled that an appellate court should not disturb the findings of facts made by the trial court unless, upon examination of the entire record, the appellate court is “left with the definite and firm conviction that a mistake has been committed”.
Most trial judges in Pakistan don’t even see a trial through.
This exalted position of the trial judge exists in law because of his proximity to the evidentiary process and institutional advantage. The proximity and institutional advantage cannot be replicated, not even by the highest court in the land, hence, in ‘Brown vs Allen’ (1953), Justice Robert H. Jackson, in his concurring opinion for the US supreme court, famously wrote, “We are not final because we are infallible, but we are infallible only because we are final”.
Alas, the trial judge in Pakistan is not as proximate to the trial as the law envisages or the judiciary pretends. A visit to a civil court often gives rise not to a spectacle where the trial judge is conducting the trial, but a spectacle where the trial judge is leaning back, and simultaneously a series of trials are underway. Evidence is hardly ever recorded by the trial judge, and invariably by the parties themselves, through their lawyers. Plaints are almost never scrutinised by the trial judge, who retrenches in the name of preserving the ‘adversarial nature’ of proceedings, notwithstanding enabling amendments in the law, such as in Section 26 of the CPC, which propel the issue of jurisdiction to the forefront, and envisage a more participatory and inquisitorial role for the trial judge.
The demeanour of witnesses is never assessed, even though a combined reading of the CPC and the Qanun-i-Shahadat Order, 1984 (QSO), empowers a judge to assess demeanour, an important consideration in evaluating the credibility and weight to attach to a testimony. Historians say that in the 1960 US presidential debates, those who heard the debates over radio thought Richard Nixon had won, whereas those who watched them on television thought John F. Kennedy had won. The difference arose because of the ability to adjudge demeanour on television. While Nixon did fine in the transcripts and over audio, on television Kennedy exuded confidence, composure and radiated a more positive body language.
Order XVIII, Rule 12 of the CPC categorically states that “The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination”. Conversely, Section 161 of the QSO empowers the trial judge to ask any question “in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing”.
Despite such explicit authorisation, I am yet to come across a case where a trial judge has invoked his statutory powers in such an inquisitorial manner.
In fact, most trial judges don’t even see a trial through as trials take years to complete, whereas a trial judge is transferred in a year or two of posting, aggravating the lack of case management in Pakistan.
With the trial judge often unable to see the trial through, and constrained by long-standing customs and practices, though not the law, which militate against an inquisitorial and participatory approach, the purpose behind laws according deference to the judgement of the trial judge on the quality and quantity of evidence is woefully lost.
The writer is a practising barrister.
Published in Dawn, January 25th, 2026
