Muhammad Aslam Alias Papu vs The State etc.

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Criminal Appeal No. 468/2022 Muhammad Aslam alias Pappu Vs. The State and another Capital Sentence Reference No. 1/2022 The State Vs. Muhammad Aslam alias Pappu

JUDGMENT

Date of hearing: 03.07.2025 For the Appellant: Syed Zeeshan Haider, Advocate. For the State: Ch. Asghar Ali Gill, Deputy Prosecutor General. For the Complainant: Nemo.

Tariq Saleem Sheikh, J. – Through this judgment, we propose to decide Crl. Appeal No. 468/2022 and Capital Sentence Reference No. 1/2022, arising from the judgment dated 30.07.2022 delivered by the Additional Sessions Judge, Liaquatpur.

2.On 21.08.2021, PW-1 Nazir Ahmad (the “Complainant”) submitted a written application (Exh. PA) to Muhammad Shahbaz/SI (PW-4) at Police Station Pacca Laran, District Rahimyar Khan, for registration of an FIR. He stated that on 19.08.2021 at about 1:00 p.m., he and his wife went to fetch grass for their cattle. Their 16/17-year-old daughter, F.B., who is deaf, mute, and physically disabled, was alone at home. Taking advantage of her solitude, Muhammad Aslam alias Pappu (the “Appellant”) trespassed into the house, took her into a bedroom, and ravished her. When the Complainant and his wife returned home, they heard F.B. screaming. They raised an alarm upon which Rab Nawaz and Haji Ahmad came there. The Appellant climbed over the boundary wall and fled. Based on this application, FIR No.353/2021 (Exh. PA/2) was registered.

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3.Sumaira Rafique/ASI (PW-7) investigated this case, and on the basis of the evidence collected, concluded that the Appellant was involved. She submitted a report under section 173 Cr.P.C. accordingly.

4.On 20.04.2022, the Additional Sessions Judge indicted the Appellant under section 376(3) PPC who denied the charge and claimed trial. The prosecution examined ten witnesses to prove its case. Complainant Nazir Ahmad (PW-1), F.B. (PW-2), and Rab Nawaz (PW-3) reaffirmed the contents of the application Exh. PA and FIR No.353/2021 (Exh. PA/2). Muhammad Shahbaz/SI (PW-4) registered FIR No.353/2021 (Exh. PA/2). Kaneez Fatima 2460/LC (PW-5) took the victim to the hospital for her medical examination. Dr. Waseem Akram (PW-6) provided the evidence regarding the Appellant’s fitness to engage in sexual activity. Sumaira Rafique/ASI (PW-7) gave the details of the investigation and the evidence she collected in this case. Ghulam Shabbir 986/HC (PW-8) was the Moharrar of the police station and testified about the safe custody of the sealed parcels containing the F.B’s clothes and swabs. Shakeel Ahmad/SSET (PW-9) testified that during the investigation, he was engaged to translate and interpret F.B.’s actions for recording her statement before the Investigating Officer. Dr. Hina Siddiqui (PW-10) medically examined the victim. The public prosecutor gave up PWs Haji Ahmad and Latif Bibi as unnecessary and closed the prosecution evidence after tendering the forensic report Exh. PH.

5.After the prosecution completed its evidence, the Additional Sessions Judge recorded the Appellant’s statement under section 342 Cr.P.C. and confronted him with the incriminating material brought against him during the trial. He refuted it and professed innocence. He neither opted to make a statement on oath under section 340(2) Cr.P.C. nor examined any witness in his defence.

6.On the conclusion of the trial, vide judgment dated 30.7.2022, the Additional Sessions Judge convicted the Appellant under section 376(3) PPC and sentenced him to death with a direction to pay compensation in the sum of Rs.200,000/- to the F.B. under

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section 544-A Cr.P.C. and, in default thereof, to suffer simple imprisonment for further six months.

7.The Appellant has challenged his conviction and sentence through Criminal Appeal No.468/2022, while the Additional Sessions Judge has sent Capital Sentence Reference No.1/2022 to this Court under section 374 Cr.P.C. for the confirmation of his death sentence.

8.The Universal Declaration of Human Rights (UDHR) (1948) recognizes the inherent dignity and equality of all individuals. Articles 7 and 8 guarantee equal protection before the law and the right to an effective remedy. The International Covenant on Civil and Political Rights (ICCPR) (1966) reinforces these principles through Article 14, which guarantees equality before courts and tribunals. However, these instruments do not expressly mandate procedural accommodations for persons with disabilities who are unable to communicate conventionally. Over time, regional and international developments addressed these lacunae, including landmark rulings from the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights. This evolution culminated in the Convention on the Rights of Persons with Disabilities (CRPD) (2006), the first comprehensive treaty specifically addressing the rights of persons with disabilities. Article 13 of the CRPD obligates States to ensure effective access to justice for persons with disabilities “on an equal basis with others”. This includes providing accommodations that are appropriate to the person’s age and specific disability. Article 16 further mandates the protection of such persons from violence and abuse and requires that perpetrators be held accountable through accessible legal mechanisms.

9.The Committee on the Rights of Persons with Disabilities, in General Comment No. 1 (2014) on Article 12 (Equal Recognition Before the Law), has stated that States Parties are obligated to ensure that persons with disabilities enjoy access to justice on an equal basis with others. In many respects, the recognition of legal capacity is fundamental to realizing this right. To enforce their rights and obligations equally, persons with disabilities must be acknowledged as persons before the law and afforded equal standing in

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courts and tribunals. States Parties must also guarantee that persons with disabilities have access to legal representation on the same basis as others.1 These obligations are reaffirmed in General Comment No. 3 (2016) on Article 6 (women and girls with disabilities)2 and General Comment No. 7 (2018) on participation of persons with disabilities.3 They emphasize that legal and procedural accommodations must not be discretionary but guaranteed.

10.The UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, which extend to persons with disabilities, emphasize the need for trained professionals, privacy protections, and procedural adaptations to ensure meaningful participation.4

11.It is well settled that Article 10A of the Constitution of Pakistan, 1973, which guarantees the right to a fair trial and due process, is not confined to the accused. It applies equally to victims, including those with disabilities. Article 10A must be interpreted in consonance with Pakistan’s international obligations under the CRPD5 and the interpretive guidance provided in the Committee’s General Comments. The denial of reasonable procedural accommodations constitutes a breach of both domestic and international law.

12.A person with a disability may be involved in criminal proceedings as an accused, a victim, or a witness. In cases of sexual violence, the victim is often the principal witness. In each case, the court must consider the nature and extent of the disability, whether it is UN Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014): Article 12 – Equal recognition before the law, UN Doc CRPD/C/GC/1 (19 May 2014) https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC /1&Lang=en accessed 28 July 2025.

UN Committee on the Rights of Persons with Disabilities, General Comment No. 3 (2016): Article 6 – Women and girls with disabilities, UN Doc CRPD/C/GC/3 (2 September 2016) https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC /3&Lang=en accessed 28 July 2025.

UN Committee on the Rights of Persons with Disabilities, General Comment No. 7 (2018): Article 4(3) and 33(3) – Participation of persons with disabilities in the implementation and monitoring of the Convention, UN Doc CRPD/C/GC/7 (9 November 2018) https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC /7&Lang=en accessed 28 July 2025.

UN Economic and Social Council, Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (20 April 2005) UN Doc E/2005/20/Rev.1 https://www.ohchr.org/sites/default/files/Documents/Publications/GuidelinesRightsChild.pdf accessed 28 July 2025.

Pakistan signed the UN Convention on the Rights of Persons with Disabilities (CRPD) on 25 September 2008 and formally ratified it on 5 July 2011. However, it has not ratified the Optional Protocol to the CRPD,

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physical, psychosocial, or intellectual, and whether it is temporary or permanent. Psychosocial disabilities, such as depression or anxiety, are sometimes confused with intellectual disabilities, but the two are distinct.6 Intellectual disabilities are developmental conditions that impair a person’s ability to learn, communicate, and perform routine tasks. They usually emerge at birth or in early childhood and persist throughout life. In contrast, psychosocial disabilities may develop at any age and are often manageable with medication. Persons with intellectual disabilities generally do not take medication for the disability itself. This distinction is important when assessing the person’s capacity to understand and respond to questions and determine the type of support required to facilitate meaningful participation in the proceedings.7

13.In cases of sexual violence, the testimony of the victim often forms the cornerstone of the prosecution’s case. These offences typically take place in private, leaving little direct evidence apart from what the victim can recount. Where the victim is a person with a disability, it is all the more important that the investigating officer makes a sincere effort to preserve and present their version of events. This requires an early assessment of the victim’s ability to communicate. If the victim has limited or no verbal capacity, the officer must seek assistance from a qualified professional (such as a sign language interpreter, special education teacher, or speech therapist) who can help record the victim’s statement in a reliable manner. The mode of communication should be adapted to the victim’s individual needs and may involve the use of signs, writing, pictorial aids, or gestures. What matters is that the method adopted enables the victim to express themselves as clearly and comfortably as possible. The police record should reflect the support provided and how the statement was obtained.

Louis Oyaro and Dianah Msipa, Testimonial competence of persons with intellectual and psychosocial disabilities in criminal proceedings in South Africa (2022), Centre for Human Rights, University of Pretoria.

https://www.chr.up.ac.za/images/researchunits/dru/files/Report_on_Testimonial_Competence_003. pdf

ibid.

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14.At the trial stage, the outcome of a criminal case often turns on the credibility and coherence of the witnesses. Their testimony forms the foundation for the court to decide guilt or innocence. Article 3 of the Qanun-e-Shahadat 1984 outlines the essential criteria for a competent witness. Its relevant part reads as follows:

3.Who may testify. – All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years. extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Provided that ...

Provided further that ...

Provided further that ...

Explanation. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

15.As is evident from Article 3, the law does not exclude any category of persons from testifying solely on account of age, illness, or disability. A child, an elderly person, or someone suffering from physical or mental impairment may testify if they are able to understand the questions and provide rational answers. The following excerpts from Wigmore on Evidence help understand the law on the subject:

“§ 498. ... [I]n earlier times, all persons afflicted with marks of feeble-mindedness (“idiots”), or natal mental defects, even the deaf-mute or the mute, were presumed to be incapable of testifying, until the contrary was shown. Today, this presumption has disappeared. No doubt it may sometimes be wise to examine into the capacity of such persons, but ordinarily the only question will be as to the possibility of communicating with them by some certain system of signs. So far as such persons are shown to be mentally defective, the principles applicable to lunatics will govern. It may be noted here that the capacity to consent to a rape, being a question of the criminal law, is not to be used as the standard for capacity to testify; hence, a female legally incapable of such consent may still be mentally able to give a dependable account as a witness.” “§ 931. The general organic idiocy capacity to observe, recollect, and narrate must exist to a certain minimum degree in order that the witness may be admitted at all. Insanity, idiocy, and the like, if existing to such a degree as practically to destroy the mental capacities, render the witness incompetent to that extent. But the defect may not exist to such a degree, and yet the capacity may by no means be of the normal sort, and this may therefore be made to appear for the purpose of discrediting the witness The modern tendency ... is to avoid treating any such mental condition as a cause of total incompetency, except in extreme cases, and to admit the person as a witness, leaving the defect in question to have whatever weight it deserves as discrediting the witness’ powers of

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observation, recollection, or communication. This tendency enlarges and emphasizes the application of the present principle.”

16.Where the court feels that a witness is incompetent to testify due to a disability, or where any party raises an objection, it must conduct a brief preliminary inquiry, often referred to as a voir dire. The purpose is to determine whether the witness can understand the questions, respond rationally, and communicate their responses reliably. If the witness has difficulty in speaking, hearing, or comprehending, the court must consider whether those limitations can be addressed through assistance, such as interpretation, writing, or other modes of communication. The court should also satisfy itself that the witness understands the nature and obligation of taking an oath or making a solemn affirmation. This assessment should be recorded in the file so that the basis of the court’s satisfaction is evident. A finding of incompetence should not be made lightly, especially where the disability is physical or developmental, and the witness is otherwise capable of conveying what they observed or experienced.

17.Section 119 of the Indian Evidence Act, 1872, allows a witness who cannot speak to give evidence through writing or signs, provided this is done in open court. Although the Qanun-e-Shahadat, 1984, does not contain a provision identical to section 119, our courts have consistently held that the evidence of a deaf and mute witness may still be recorded under the existing legal framework. In Muhammad Darvaish and others v. The State (2019 PCr.LJ 1086), a Division Bench of this Court observed that such testimony can be admitted through necessary implication of Articles 3 and 59 of the Order, read with section 543 of the Code of Criminal Procedure, 1898 (“Cr.P.C.”). The Court emphasized that a person should not be disqualified merely because they cannot speak. Where interpretation is required, the trial court may seek the assistance of a qualified expert. If any alternative method of communication is used (such as sign language, writing, or pictorial aids) it must be accurately interpreted and properly recorded by someone who is impartial. The

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entire process should be documented so that the appellate court can examine it.8

18.Section 543 Cr.P.C. mandates that where the court requires a trained professional or any other person who can understand the witness’s language or signs to assist with the interpretation of testimony, such interpreter is bound to interpret the evidence faithfully and accurately. In Muhammad Mansha v. The State (2019 SCMR 64), the trial court concluded that “M was well versed with his language of signals,” but the record did not show how the court arrived at that conclusion. It was also unclear whether M acted as a translator or as an expert within the meaning of Article 59 of the QSO. The Supreme Court held that the trial court should have administered an oath to M, and because it failed to do so, M’s testimony could not be relied upon. In Anjum Latif v. The State (2023 PCr.LJ 735), a Division Bench of this Court held that the trial court must first ascertain whether the witness can communicate effectively by writing or signs. If the witness can write, that is generally the more satisfactory method of recording evidence. If writing is not possible, the witness may use signs to convey meaning. Where a witness testifies through signs, those signs must be recorded by the trial court (not merely their interpretation) so that the appellate court can assess the accuracy of the interpretation. It is not safe for a trial court to examine a deaf and mute witness without the assistance of an expert or a person familiar with the witness’s usual method of communication. The interpreter should not be an interested person, should have no connection with the investigation, and not be a witness in the same trial. Ideally, the interpreter should come from the same surroundings as the witness but must remain disinterested and be administered an oath before interpreting testimony.

19.We respectfully reiterate the principles laid down in Muhammad Mansha and Abdul Latif and add three further safeguards. First, the trial court must ensure that neither the witness nor the interpreter is prompted while evidence is being recorded.

Also see: Allah Noor v. The State (2008 PCrlJ 1666).

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Second, the defence must be afforded a fair opportunity to cross- examine the interpreter, particularly where the testimony turns on the meaning or accuracy of signs or gestures. Third, the testimony of both the witness and the interpreter should be documented not only in the trial record but also through video recording to enable effective appellate review of the interpretation. These safeguards are essential to preserve the integrity of the trial.

20.It is necessary to point out that an interpreter does not ordinarily constitute a separate witness in the evidentiary sense. His function is limited to facilitating communication between the court and a witness who cannot speak, hear, or understand the language of the court. However, where the interpreter has also played a role in the investigation (such as assisting in the recording of a statement under section 161 Cr.P.C., participating in recovery proceedings, or possessing personal knowledge of any fact in issue) he must be treated as a formal witness and examined separately. In such cases, his dual role may create a conflict and undermine the fairness of the proceedings. The interpreter must then testify independently, under oath, and be subject to cross-examination. Even when the interpreter acts solely in that capacity, as discussed, the court must administer the oath to him and ensure that the method of communication and the interpretation are properly documented. Where an interpreter is not a formal witness, limited cross-examination or challenge should be allowed on matters affecting the reliability or neutrality of interpretation. This is essential for ensuring procedural fairness and the accused’s right to challenge the evidence being presented.

21.In the present case, the prosecution’s case primarily rests on the testimonies of Complainant Nazir Ahmad (PW-1), the victim F.B. (PW-2), and Rab Nawaz (PW-3), as well as medical and forensic evidence. Nazir Ahmad (PW-1) testified that F.B. was “dumb and crippled.” Dr. Hina Siddiqui (PW-10), who medically examined the victim on 21.08.2021, stated that since F.B. was deaf and mute, she recorded the statement of her father on oath for the purposes of examination. Shakeel Ahmad (PW-9), a Special Education Teacher, testified that on 13.12.2021 the Investigating

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Officer submitted an application to the Principal, Special Education Centre, Liaquatpur, for the appointment of a translator. The Principal deputed him for that purpose. PW Shakeel Ahmad further stated that after interacting with F.B., he concluded that she was unable to communicate either verbally or through sign language and described her as a child with cerebral palsy. Interestingly, when F.B. appeared in court as PW-2, the trial judge observed: “Since the victim is dumb and physically crippled, her statement is being recorded through Shahzadi Qurat-ul-Ain, Junior Special Education Teacher for Hearing-Impaired Children at the Government Secondary Special Education Centre, Liaquatpur, Expert Sign Language.” Thereafter, the trial Judge recorded F.B.’s testimony on oath based on the interpretation of Shahzadi Qurat-ul-Ain.

22.The record does not show that the trial court conducted a voir dire to assess F.B.’s competence to testify or recorded any order/observation expressing satisfaction in that regard. There is also no indication that Shahzadi Qurat-ul-Ain was administered an oath or that her qualifications and interpretive method were documented. The testimony of Shakeel Ahmad (PW-9), recorded later in the trial, casts serious doubt on the credibility of the interpretation of F.B.’s testimony. PW Shakeel Ahmad’s deposition should have prompted the trial court either to summon Shahzadi Qurat-ul-Ain as a Court Witness under section 540 Cr.P.C. to explain her method of interpretation, or summon another independent expert to resolve the conflict. The court did neither. Moreover, the defence was not afforded an opportunity to cross-examine Shahzadi Qurat-ul-Ain. This failure undermined the procedural fairness of the trial and compromised the evidentiary value of the most crucial prosecution witness.

23.The above defects go to the root of the proceedings. In the circumstances, we are of the view that F.B.’s testimony must be recorded afresh in accordance with law. The trial court shall first conduct a voir dire with the assistance of a qualified expert, if necessary, to assess F.B.’s competence to testify. If satisfied on that point, it shall administer an oath to the interpreter, record the method

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of communication used, and ensure that the testimony is properly documented. The defence must be afforded a fair opportunity to cross-examine both the witness, to the extent possible, and the interpreter. After recording F.B.’s testimony afresh, the trial court shall reappraise the evidence and render a fresh judgment.

24.We wish to clarify that this remand is not intended to afford the prosecution an opportunity to fill lacunae in its case. The procedural defects identified above arose from errors committed by the trial court in the manner in which it recorded the testimony of a victim with a disability without the necessary safeguards. The remand is therefore remedial in nature and strictly limited to rectifying those deficiencies.

25.In view of the foregoing analysis, Criminal Appeal No. 468/2022 is allowed, and the judgment dated 30.07.2022 is set aside. The matter is remanded to the trial court for further proceedings in accordance with paragraph 23 above. Capital Sentence Reference No. 1/2022 is answered in the negative, and the death sentence awarded to the Appellant is not confirmed. The Appellant shall be treated as an under-trial prisoner until the post-remand judgment is delivered.

26.Before parting with this judgment, it is essential to highlight some vital provisions of the Anti-Rape (Investigation and Trial) Act, 2021, and the rules framed thereunder. Section 12 of the Act mandates that the trial of scheduled offences shall be conducted in camera, and authorizes the court to adopt protective measures such as screens or video link to shield victims and witnesses from trauma or intimidation. Section 13(3) further requires that the testimony of victims, accused, and witnesses be video recorded, preserved, and reduced to writing. Section 14 stipulates that the victim’s statement under section 164 Cr.P.C. shall be recorded only once on video and reduced to writing, with procedural safeguards to prevent direct cross-examination by the accused. The Anti-Rape (Investigation) Rules, 2022, complement these statutory provisions by prescribing duties for the police and investigators to ensure the victim’s privacy, dignity, and safety, including the presence of a

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female police officer during medico-legal examinations and the recording of statements. In the present case, the evidence was not video recorded, particularly F.B.’s testimony and the interpretation provided by Shahzadi Qurat-ul-Ain. This omission constitutes a serious legal violation. In the post-remand proceedings, the trial court shall ensure that the entire process is video recorded in accordance with law.

27.All courts seized of cases under the Act of 2021 must likewise ensure strict adherence to the procedure prescribed by the aforementioned statute.

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge Naeem

Announced in open court on _________________

Approved for reporting

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge