Competence Of Witness (Child Witness)

witness

Competence Of Witness (Child Witness)

Article 3 of the Qanoon-e-Shahadat Order 1984 deals with the competency of a witness. A witness is a person who deposes some relevant fact in an issue or testifies in order to prove or disprove any matter in question. It is worth noting here that, the competency to testify as a witness is a condition precedent to administer witness on oath, and is a distinct matter from the credibility of the witness.

Relevant Provisions:

Article 3 and 17 of the Qanoon-e-Shahadat Order 1984

Interpretation of relevant terms:

Competency:

Competency of witnesses as provided under Article 3 of the Qanoon-e-Shahadat Order 1984:

Article 3 provides that in general every person is competent to testify before the court, the only parameter to determine the competency of the witness is satisfaction of the court that the person before the court is capable of giving testimony. However, this general principle is qualified by the Article itself by providing the following exceptions to it.

Incapacity to be rational:

In general if a person is unable to understand the question put to them or give a rational answer, he or she is barred to testify as a witness to the suit.

Extreme old age:

If a person has lost his or her consciousness due to extreme old age to the extent that he or she is unable to understand the question put forward or to give a rational answer, the testimony is inadmissible before the court.

Tender age:

A minor is restricted to testify any fact before the court if he or she is not yet able to understand the question put forward or to give rational answers to the said questions. But if, minority or tender age has not created any obstacle to understand the question or to give rational answers, the testimony will be counted as valid.

Any bodily injury:

If bodily injury is of such type that it renders the witness unable to understand the question put to him or to give rational answers, the witness’s testimony is inadmissible. Seeing, speaking and hearing inabilities are examples of such injury but if such inability can be overcome then the witness becomes valid.

Any mental injury:

A mental incapacity also puts a bar on the ability to testify any fact in an issue.

Perjury:

Perjury is an offence, it is to deliberately give false evidence before the court. Any person who has been convicted for perjury is debarred from testifying any fact before the court. Such person cannot be considered a trustworthy witness. However, if in the opinion of the court said person is penitent, then the testimony can be accepted.

Females in Hadood laws:

Under Hadood laws the testimony of a woman is inadmissible.

Witness of accomplice in Hadood cases:

Under Article 16 of the Qanoon-e-Shahdat Order 1984 an accomplice is an admissible witness.

Touchstone to determine the competency of witness:

Under Article 3 and 17 it is expressly stated that the Quran and Sunnah is the only criteria to determine the competency of the witness. It can be construed as the duty of the court to keep in mind the injunctions of Islam as laid down in the Holy Quran and Sunnah. It has been determined by the court in PLD 185 Lah 730 that only when the competence of a witness is challenged, the court is required to determine such incompetence in accordance with qualifications prescribed by the injunctions of Islam, as laid down in the Holy Quran and Sunnah.

Rule of determination of competence of a witness according to injunctions of Islam:

The jurists have put forward the concept of Tazkiya al Shahood as a rule to determine the competency of a witness according to the injunctions of Islam. They are of the view that only this rule contains all necessary instructions relating to the competency of a witness.

Concept of Tazkiya al Shahood:

According to Islam the concept of Tazkiya al Shahood is defined as the “purgation of witness”.

Modes of conducting Tazkiya:

According to Fatawa-e Alamgiry there are two modes of conducting Tazkiya;

  1. Open inquiry as to the competency of a witness; or
  2. Secret inquiry into the competency of a witness.

Open inquiry is conducted by asking people to give their opinion by either raising hands or by oral testimony. However, secret inquiry is conducted through writing – this method is called “masturah”.

Persons who can be questioned:

Help of the following persons can be taken while conducting Tazkiya;

  1. Persons who are reliable;
  2. Persons who are acquainted with the life and character of the witness whose competency is being challenged.

Purpose of inquiry:

The purpose is to make an independent inquiry into the conduct of the witness. This must be done through an independent and reliable source so that a person is not condemned on the “evidence of unjust person”.

Number of witnesses:

The Article states that guidance as to the required number of witnesses in order to prove or disprove any fact in an issue shall be taken from the injunctions of Islam, as laid down in the Holy Quran and Sunnah. However, this Article embodies the required number of witnesses in various circumstances.

Number of witnesses in financial matters:

In financial matters, two male witnesses, or one male and two female witnesses (so that one may remind the other if one forgets), are sufficient.

Number of witnesses required in cases of future obligations:

Two male or one male and two female witnesses are sufficient.

In criminal matters:

One male or female witness is sufficient.

In Hadood cases:

Matters in this case may be proved either by confession of the accused or by testimony of two or four witnesses (varies from cases to case).

Case Law:

  1.  NazirHussain versus State  (PLD 1984 Lah 509): Where the testimony of an eight year old girl was accepted and she was considered to be a competent witness.
  2. Idaho versus Wright 497 US 805 (1990): A child’s response to a leading question should not be considered unreliable automatically, rather all of the circumstances surrounding the statement should be taken into account.
  3. Panchhi versus State of UP (AIR 1998 SC 2726)The evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if the witness is a child the evidence shall be rejected, even if it is found reliable. The law is that, the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him or her and thus he or she is an easy prey.
  4. M.Feroz versus State (NLR 2003 Cr. 474): The rationale is that commonly child witnesses are more likely to be taught the views that they should enunciate, often through some inducement or fear.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Zulqarnain Ali Raja

The writer holds a B.A. LLB (hons) degree and is a Shariah & Law Scholar at the International Islamic University Islamabad. He is also the Chairperson of the Law Students Council, Pakistan.



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