Gathering Evidence in Aid of Foreign Litigation Guide |
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Pakistan |
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(Asia Pacific)
Firm
RIAA Barker Gillette
Contributors
Mayhar Kazi |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Pakistan is not a signatory to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Section 78 of the Code of Civil Procedure, 1908 (“CPC”) makes applicable to commissions issued by foreign courts the provisions in CPC for the execution and return of commissions for the examination of witnesses. The applicable procedure is set out in Order 26, Rules 19 to 22 of the CPC. Conditions under which a High Court will issue a commission A High Court will issue a commission for the examination of a witness if it is satisfied (a) that a foreign court situated in a foreign country wishes to obtain evidence of a witness in a proceeding before it; (b) the proceeding is of a civil nature and (c) the witness is residing within the local limits of the High Court’s appellate jurisdiction. In satisfying itself of conditions (a) – (c), a High Court will take into consideration (i) a certificate signed by the highest consular officer of the foreign country in Pakistan and transmitted to the High Court through the Government of Pakistan; (ii) a letter of request issued by a foreign court and transmitted to the High Court through the Government of Pakistan (iii) a letter of request issued by a foreign court and produced before the High Court by a party to the foreign proceeding. Who must apply to the High Court for issuance of the commission? The High Court will issue a commission (a) upon application by a party to the proceeding before the foreign court or (b) upon an application by a law officer of the Provincial Government under instructions from the Provincial Government. To whom the commission may be issued? The commission may be issued to (a) any court within the local limits of whose jurisdiction the witness resides or (b) where the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court, to any person whom the court thinks fit to execute the commission. In case of (b), the High Court will most likely appoint a practicing lawyer. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes, the request must be letters of request from foreign courts and must be approved by the High Court within the limits of whose appellate jurisdiction the witness resides. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Order 26, Rule 22 makes applicable to commissions issued at the instance of a foreign court the provisions of inter alia Order 26, Rule 16, under which the commissioner appointed has the power, unless the order of appointment directs otherwise, to:
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| Who bears the burden of showing whether any privileges apply? | There is no provision in the CPC dealing with this issue in the context of the evidence in aid of foreign litigation nor has it been decided in any reported judgment of a Pakistani court. Ordinarily, the burden of proving that any evidence is privileged lies upon the person claiming such privilege. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | There is no provision in the CPC dealing with this issue in the context of the evidence in aid of foreign litigation nor has it been decided in any reported judgment of a Pakistani court. The approach taken in Indian jurisprudence, where the identical provisions of the (Indian) Code of Civil Procedure, 1908 apply, is that the question of admissibility of evidence is to be considered by the foreign court issuing the letter of request and will not be decided by local courts. If the issue arises, Pakistani courts are likely to follow the same approach and refrain from deciding on the admissibility aspect of any evidence required by the foreign court as set out in the letter of request. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | There is no specific statutory provision that stipulates that depositions may be conducted remotely via means of videoconferencing. However, in light of the COVID-19 pandemic, some courts in Pakistan have relied on Article 164 of the Qanoon-e-Shahadat Order, 1984 (the "Pakistani Law of Evidence") to allow depositions to be conducted remotely via means of videoconferencing. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | There are no restrictions under Pakistan law on citizens voluntarily giving evidence in foreign civil proceedings. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Yes. Section 78 read with Order 26, Rules 19 – 22 of the CPC apply only to requests for evidence by foreign courts. These provisions are not applicable to evidence gathered in aid of foreign arbitration. |
Gathering Evidence in Aid of Foreign Litigation Guide
Pakistan
(Asia Pacific) Firm RIAA Barker GilletteContributors Mayhar Kazi Yousaf Khosa
Updated 24 Mar 2022Yes.
Pakistan is not a signatory to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).
Section 78 of the Code of Civil Procedure, 1908 (“CPC”) makes applicable to commissions issued by foreign courts the provisions in CPC for the execution and return of commissions for the examination of witnesses. The applicable procedure is set out in Order 26, Rules 19 to 22 of the CPC.
Conditions under which a High Court will issue a commission
A High Court will issue a commission for the examination of a witness if it is satisfied (a) that a foreign court situated in a foreign country wishes to obtain evidence of a witness in a proceeding before it; (b) the proceeding is of a civil nature and (c) the witness is residing within the local limits of the High Court’s appellate jurisdiction. In satisfying itself of conditions (a) – (c), a High Court will take into consideration (i) a certificate signed by the highest consular officer of the foreign country in Pakistan and transmitted to the High Court through the Government of Pakistan; (ii) a letter of request issued by a foreign court and transmitted to the High Court through the Government of Pakistan (iii) a letter of request issued by a foreign court and produced before the High Court by a party to the foreign proceeding.
Who must apply to the High Court for issuance of the commission?
The High Court will issue a commission (a) upon application by a party to the proceeding before the foreign court or (b) upon an application by a law officer of the Provincial Government under instructions from the Provincial Government.
To whom the commission may be issued?
The commission may be issued to (a) any court within the local limits of whose jurisdiction the witness resides or (b) where the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court, to any person whom the court thinks fit to execute the commission.
In case of (b), the High Court will most likely appoint a practicing lawyer.
Yes, the request must be letters of request from foreign courts and must be approved by the High Court within the limits of whose appellate jurisdiction the witness resides.
Order 26, Rule 22 makes applicable to commissions issued at the instance of a foreign court the provisions of inter alia Order 26, Rule 16, under which the commissioner appointed has the power, unless the order of appointment directs otherwise, to:
- Examine the parties themselves and any witness they produce and any other person the commissioner thinks proper to call upon to give evidence;
- Call for and examine documents and other things relevant to the subject of inquiry; and
- At any reasonable time enter upon or into any land or building mentioned in the order.
There is no provision in the CPC dealing with this issue in the context of the evidence in aid of foreign litigation nor has it been decided in any reported judgment of a Pakistani court.
Ordinarily, the burden of proving that any evidence is privileged lies upon the person claiming such privilege.
There is no provision in the CPC dealing with this issue in the context of the evidence in aid of foreign litigation nor has it been decided in any reported judgment of a Pakistani court.
The approach taken in Indian jurisprudence, where the identical provisions of the (Indian) Code of Civil Procedure, 1908 apply, is that the question of admissibility of evidence is to be considered by the foreign court issuing the letter of request and will not be decided by local courts.
If the issue arises, Pakistani courts are likely to follow the same approach and refrain from deciding on the admissibility aspect of any evidence required by the foreign court as set out in the letter of request.
There is no specific statutory provision that stipulates that depositions may be conducted remotely via means of videoconferencing. However, in light of the COVID-19 pandemic, some courts in Pakistan have relied on Article 164 of the Qanoon-e-Shahadat Order, 1984 (the "Pakistani Law of Evidence") to allow depositions to be conducted remotely via means of videoconferencing.
No.
There are no restrictions under Pakistan law on citizens voluntarily giving evidence in foreign civil proceedings.
Yes. Section 78 read with Order 26, Rules 19 – 22 of the CPC apply only to requests for evidence by foreign courts. These provisions are not applicable to evidence gathered in aid of foreign arbitration.