When a Written Deposition Differs from the Video Record: Supreme Court Clarifies Section 360 Cr.P.C.

Independently written and published by Shahbaz Shah Legal Journal.

Why this ruling matters

A criminal trial is decided on the record placed before the court. If a witness says one thing but the written deposition records another, the difference can affect credibility, cross-examination and ultimately the outcome of the case. The Supreme Court of Pakistan has now treated the accuracy of that record as a matter of fair trial, rather than a minor clerical concern.

In Mst. Nayab v. The State through P.G. Sindh and others, Criminal Petitions Nos. 1033 and 1036 of 2024, a two-member Bench comprising Justice Jamal Khan Mandokhail and Justice Salahuddin Panhwar clarified the duty of a trial court under Section 360 of the Code of Criminal Procedure, 1898. The reasons, issued on 23 June 2026, were approved for reporting.

Background of the case

The petitioner was a prosecution witness in FIR No. 33 of 2018, registered at Police Station District Jacobabad under Sections 302, 109 and 449 read with Section 34 of the Pakistan Penal Code. With permission of the Trial Court at Hyderabad, she recorded her statement by video link from Islamabad in the presence of a coordinating Judge.

After obtaining a certified copy, she alleged that the written deposition did not reproduce her statement accurately. Most notably, the incident date spoken by her as 31 May 2018 had been written as 30 May 2018. She also pointed to other inaccuracies in the examination and cross-examination.

Her application under Section 360 Cr.P.C. was dismissed by the Trial Court. The Sindh High Court, Circuit Court Hyderabad, also dismissed her criminal revision on 1 March 2024. She then approached the Supreme Court.

What the Supreme Court examined

The Supreme Court called for the USB containing the video statement and compared it with the written deposition in the presence of counsel and the Additional Prosecutor General Sindh. The recording confirmed that the petitioner had stated 31 May 2018, while the written record mentioned 30 May 2018. The Court also noticed other discrepancies. Counsel for the respondent conceded that material mistakes existed and did not oppose rectification.

This direct comparison was decisive. The grievance was not based only on a later recollection by the witness; it was supported by an objective, contemporaneous video record of what she had actually said.

Meaning of Section 360 Cr.P.C.

The Court explained the two connected safeguards contained in Section 360:

• Under Section 360(1), once the evidence of a witness is completed, it must be read over to the witness in the presence of the accused or counsel and corrected where necessary.
• Under Section 360(2), when a witness disputes the correctness of the written evidence, the Magistrate or Sessions Judge must judicially deal with the objection by making a memorandum and adding appropriate remarks.

The purpose is to ensure that testimony is accurately recorded before the witness signs the deposition. Where a genuine objection later reveals that the written record is not verbatim, the court cannot reject the request through a purely technical approach.

The ultimate purpose of procedural law is to give voice to human suffering, not to silence it.

The Supreme Court connected this procedural duty with due process and the right to a fair trial guaranteed by Article 10-A of the Constitution. It observed that failure to exercise jurisdiction under Section 360 may damage the evidentiary value of the statement and prejudice the merits of the case.

The relief granted

The Supreme Court set aside the orders of both the Trial Court and the High Court. It directed the Trial Court to:

• Re-examine the video recording and compare it with the written examination and cross-examination.
• Conduct the comparison in the presence of the accused, counsel for the parties and the prosecutor.
• Record any discrepancy, omission or inaccuracy, together with the correct version, in a memorandum under Section 360(2) Cr.P.C.
• Complete this exercise within fifteen working days after receiving a certified copy of the order.
• Allow re-arguments and decide the criminal case within a further thirty working days, strictly on its own merits.

Legal commentary: accuracy protects both sides

The ruling should not be viewed as favouring only a witness or the prosecution. An accurate deposition protects every participant in a criminal trial. It prevents a witness from being confronted with words never spoken, prevents the prosecution from relying on a transcription error and protects the accused against a distorted evidentiary record.

The insistence on the presence of the accused, counsel and prosecutor is therefore significant. Correction is not to take place privately or administratively. It remains an adversarial judicial exercise in which all sides can see the source recording and address the proposed memorandum.

Why the memorandum matters

The Court did not authorize silent rewriting of a deposition. Its direction was to preserve transparency through a judicial memorandum containing the discrepancy, the correct version and the remarks of the Trial Court. This maintains an audit trail: the original written record remains identifiable, the objection is documented and the reason for correction becomes part of the judicial file.

That distinction is important. A correction process that simply replaces words without explanation could itself generate controversy. Section 360(2) instead requires a transparent bridge between the original deposition and the verified account.

Video-linked evidence now carries an audit function

The judgment also demonstrates an important consequence of recording evidence through video link. The recording is not merely a communication tool; where preserved, it can become the best available benchmark for checking the accuracy of the written deposition.

This does not mean that every dissatisfied witness may later improve or alter testimony. The present decision was anchored in a contemporaneous video, identifiable discrepancies and a concession by opposing counsel. Where no reliable recording exists, or where the complaint is an attempt to change the substance of testimony after reflection, the legal assessment may be different.

Revisional courts must correct serious procedural irregularity

The Supreme Court described the failure of the Trial Court under Section 360(2), and of the High Court under its revisional jurisdiction in Section 435 Cr.P.C., as an illegality. The message is that revisional review should not remain passive when an irregularity in recording evidence may affect fair trial and the merits of the case.

Practical guidance for courts and lawyers

• Evidence should be read over to the witness carefully before signatures are obtained.
• Video-link recordings should be securely preserved and clearly identified as part of the case record.
• Any objection should identify the relevant page, sentence and, where possible, the corresponding point in the video.
• The Trial Court should hear all sides and use a memorandum rather than informally overwriting the deposition.
• Counsel should compare important certified depositions with available recordings without unnecessary delay.

Conclusion

Mst. Nayab is a practical ruling on the integrity of criminal evidence. Its broader contribution is the recognition that procedural accuracy is not separate from substantive justice. When the spoken testimony and written record materially diverge, Section 360 Cr.P.C. gives the court both the power and the duty to confront the error transparently. The record must reflect what the witness actually said, while the method of correction must equally protect the rights of the accused and the fairness of the trial.