Said Jalal Vs Anwar Ali & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 905-P/2025

Said Jalal Vs Anwar Ali & another

JUDGMENT

Date of hearing: 14.01.2026

Appellants by: Mr. Shabbir Hussain Gigyani, Advocate.

The State by: Mr. Noman-ul-Haq Kakakhel, Addl. AG.

Respondent / Complainant by: - Mr. Aurangzeb Khan, Advocate.

SAHIBZADA ASADULLAH, J.- Through this criminal appeal, appellant Said Jalal has questioned the judgment of the learned Judge Child Protection Court/ Additional Sessions Judge-VI, Mardan delivered in case FIR No.688 dated 12.09.2022 under sections 376 PPC read with section 50/53 CPA at police station Shahbaz Ghari, District Mardan whereby, the appellant Said Jalal was convicted and sentenced as under:

i. Under section 376 (3) PPC to imprisonment for life and to pay a fine of Rs.5,00,000/- (five lac) to the victim and in default of payment, he shall further suffer simple imprisonment for six (06) months.

ii. Under section 53 of the Khyber Pakhtunkhwa Child Protection & Welfare Act, 2010 to imprisonment for fourteen (14) years and to pay a fine of Rs.1,00,000/- (one lac) to the victim and in default of payment, he shall further suffer simple imprisonment for six (06) months.

iii. Under section 50 of the Khyber Pakhtunkhwa Child Protection & Welfare Act, 2010 to imprisonment for seven (07) years and to pay a fine of Rs.1,00,000/- (one lac) to the victim and in default of payment, he shall further suffer simple imprisonment for six (06) months.

All the sentences so awarded shall run concurrently. Benefit

of section 382-B Cr.PC was extended in favor of the appellants.

2.Facts forming the background of the instant case are that on 12.09.2022, complainant Anwar Ali son of Mairaj reported the matter to the local police to the effect that Said Jalal son of Sartaj Nabi took his minor daughter Mst. Malaika aged bout 8/9 years to his shop where he committed Zina with her hence, the present FIR.

3.After completion of the

investigation, complete challan was submitted before the Court. The provisions of section 265-C CrPC were duly complied with and the appellant was charge-sheeted, to which he pleaded not guilty and claimed trial. The prosecution examined its relevant witnesses and, after a full-fledged trial, the appellant was convicted and sentenced vide judgment dated 13.12.2023. Feeling aggrieved, the appellant filed Criminal Appeal No. 1693-P/2023 before this Court, which was remanded to the learned trial Court with the direction to examine the

victim and thereafter, record the statement of the accused under section 342 CrPC vide judgment dated 21.05.2025. Pursuant to the remand, the learned trial Court summoned the victim on 25.07.2025; however, she was declared incompetent to testify, as she failed to respond to the preliminary testing questions.

Thereafter, the learned trial Court once again convicted and sentenced the appellant vide the impugned judgment, hence the present appeal.

4.Arguments heard and available

record scanned through.

5.This appeal, though arising from a single interlocutory order of the trial court, raises questions that go to the heart of criminal adjudication in cases involving child victims.

The issue is not merely whether a particular child witness was rightly or wrongly declared incompetent. The larger issue is how the courts understand competency itself, how they approach the testimony of children, who come before them carrying the weight of trauma, and how procedural rigidity may sometimes obstruct the very justice it is meant to serve.

The learned trial court, by its impugned order, declared the minor prosecutrix, aged about seven to eight years, incompetent to testify.

The basis for this conclusion was that the child could not identify the court room, did not know who the judge was, and was unable to explain the nature of court proceedings. The simplicity of these reasons conceals a deeper legal error.

For they reveal not merely an incorrect conclusion, but a misunderstanding of the governing legal standard itself therefore, it is necessary to pause and reflect as to what the law truly means when it speaks of

“competency”. In every criminal trial, the first inquiry concerning a witness is not whether the witness is believable, nor whether the testimony is strong or weak. The first inquiry is whether the witness is capable of testifying at all. This is the concept of competency.

Competency is not a measure of credibility; but it is a threshold inquiry into capacity. The law does not demand brilliance, education, or sophistication, rather it demands something far more basic, the ability to understand questions

put by the court and the ability to give rational answers. This is why Article 17 of the Qanun- e-Shahadat Order, 1984 uses functional language and it speaks of understanding, of rational response, of cognitive capacity, not of institutional awareness, social exposure, or procedural knowledge. This distinction is not technical. It is fundamental. A witness may be simple, rustic, illiterate, or socially inexperienced, yet fully competent in the legal sense. Conversely, a person may be educated and articulate, yet incompetent due to mental incapacity or inability to comprehend.

Competency, therefore, is concerned with mental function, not social familiarity. When the witness is a child, the inquiry becomes even more delicate. Childhood is not merely a younger version of adulthood. Cognitive science and developmental psychology have long showed that children process information differently. Their understanding is concrete, rather than abstract. Their memory is episodic rather than analytical. Their communication is shaped by fear, trust, environment, and

emotional safety. A child who has experienced sexual abuse carries an additional burden.

Trauma alters recall, it suppresses speech and it induces silence, hesitation, and confusion. If courts insist on adult standards of articulation and composure, they will not obtain better truth, they will obtain silence. For this reason, modern criminal jurisprudence has steadily moved away from rigid formalism toward child-sensitive adjudication. This is not leniency, rather it is realism. The Anti-Rape (Investigation and Trial) Act, 2021 reflects this evolution. The legislature has expressly recognized that sexual offence trials, particularly those involving minors, require procedural adaptation. The Act mandates in- camera proceedings, protection of privacy, dignity of victims, and child-friendly practices.

These provisions are not ornamental, rather they are corrective in nature. They seek to prevent what is now widely known as “secondary victimization”, the phenomenon whereby the judicial process itself becomes a source of renewed trauma. When courts ignore

this statutory philosophy and apply ordinary courtroom rigidity to a child witness, they do not merely violate procedure, but they damage the purpose of the law. The understanding that competency of a child witness must be assessed through functional capacity, rather than procedural familiarity is not unique to this jurisdiction. It represents a broader evolution in criminal jurisprudence, shaped by judicial experience, legislative reform, and modern understanding of child psychology. A brief survey of comparative law reveals a remarkable convergence of principle across common law systems. In India, where courts frequently adjudicate cases involving child victims under the Protection of Children from Sexual Offences (POCSO) Act, the Supreme Court has consistently emphasized that age is not a disqualification. What matters is the ability of the child to understand questions and furnish rational answers. As early as “Rameshwar v. The State of Rajasthan”, (AIR 1952 SC 54), the Court laid down the foundational rule that the competency of a

child witness does not depend upon numerical age, but upon mental capacity and comprehension. This principle was reaffirmed in “Dattu Ramrao Sakhare vs. State of Maharashtra” (1997) 5 SCC 341, where the Court categorically held that a child who is capable of understanding questions and responding rationally, cannot be excluded merely on account of tender years. The jurisprudence was further refined in “Virender v. State (NCT of Delhi)”, (2002) 3 SCC 341 where the Supreme Court of India went beyond abstract evidentiary standards and addressed courtroom realities. The Court cautioned trial judges against intimidating formality and emphasized that proceedings involving child victims must be conducted in a manner that is humane, non-threatening, and sensitive to emotional vulnerability. The Court recognized that the atmosphere of the courtroom itself can operate as an invisible barrier to truthful testimony if not consciously moderated. The United Kingdom has institutionalized this sensitivity through statutory reform. The Youth

Justice and Criminal Evidence Act introduced special measures for vulnerable witnesses, including children, precisely because conventional adversarial procedures were found unsuitable for those exposed to trauma.

In “R vs. Barker”, [1941] 2 KB 381, the Court of Appeal clarified that competency is not to be judged on the basis of familiarity with legal ritual or court room hierarchy, but on the ability of the witness to understand questions and communicate intelligible answers. The law thus, deliberately shifted focus from procedural awareness to communicative capacity.

Canadian jurisprudence has advanced this approach by incorporating scientific understanding of child development. In “R vs.

Khan” [1990] 2 S.C.R. 531, and later in “R vs.

J.S.” [2003] N.J. No. 225, the Supreme Court of Canada recognized that evidentiary rules must evolve in light of developmental psychology. The Court held that competency assessments must concentrate on meaningful communication and comprehension, rather than formal articulation or institutional

awareness. The Canadian courts have consistently acknowledged that rigid application of adult court room norms may distort, rather than assist, the truth-finding process when dealing with children. The United States Supreme Court has likewise acknowledged that the State has a compelling interest in protecting the psychological well- being of child victims. In “Wheeler v. United States” 159 U.S. 523 (1895), it was held that competency depends on intelligence and understanding rather than age. Subsequently, in “Maryland v. Craig” 497 U.S. 836 (1990), the Court recognized that procedural modifications may be necessary to prevent trauma to child witnesses, even when balancing constitutional confrontation rights. The American approach thus, reinforces the principle that child protection and evidentiary integrity are not competing values, but complementary objectives. Turning to Article 17 of the Qanun- e-Shahadat Order establishes a functional standard of competency by requiring the ability to understand questions and give rational

answers. This statutory formulation is in harmony with comparative jurisprudence.

Furthermore, the Anti-Rape (Investigation and Trial) Act, 2021 reflects legislative recognition that sexual offence trials involving minors require child-sensitive procedures, in-camera proceedings, protection of dignity, and an environment conducive to truthful testimony.

When these comparative strands are examined collectively, a clear pattern emerges. Across jurisdictions, courts have rejected the notion that competency is linked to institutional knowledge, courtroom exposure, or procedural sophistication. Instead, modern jurisprudence consistently adopts a child-centric and functional approach, grounded in comprehension, communication ability, and psychological safety. What therefore emerges is not divergence, but convergence. Different legal systems, operating under distinct constitutional frameworks and procedural traditions, have arrived at the same essential conclusion that the testimony of a child must be facilitated through accommodation and

sensitivity, not filtered out through rigid adult formalism. Justice in such cases is not served by demanding that children rise to the level of courtroom ritual. It is served when courts consciously adapt their methods to the realities of childhood, vulnerability, and trauma. This comparative wisdom offers important guidance. It reinforces that the duty of the trial court is not merely to apply evidentiary rules mechanically, but to create conditions in which a child can speak without fear, confusion, or intimidation. Only then the law can fulfill its dual mandate of protecting the vulnerable and discovering the truth. Against this doctrinal and comparative background, the approach adopted by the learned trial court becomes not merely questionable, but fundamentally flawed. The record reveals that the minor prosecutrix was not subjected to any meaningful assessment of her cognitive capacity in terms of law. She was not tested on her ability to comprehend simple factual inquiries. She was not asked whether she could distinguish between truth and falsehood in age-

appropriate language. She was not invited to narrate any neutral event from daily life, so as to gauge her communicative ability. No attempt was made to explore whether she could understand questions when framed in simple, familiar terms. Instead, the inquiry was diverted toward matters entirely foreign to the legal test of competency. The child was asked whether she recognized the courtroom, whether she knew who the presiding officer was, and whether she understood the nature of judicial proceedings. These questions, with respect, do not measure legal competency, rather they measure social exposure and the distinction is vital. Competency relates to mental capacity; exposure relates to environment. When courts substitute one for the other, the result is not law, rather it is exclusion by circumstance. A child of seven or eight years, coming from a rural and modest social background, cannot reasonably be expected to possess knowledge of institutional structures, courtroom hierarchies, or procedural formality. To equate such

unfamiliarity with legal incompetence is to import standards of privilege into the domain of justice. The law does not permit such substitution. Article 17 of the Qanun-e- Shahadat Order does not ask whether a witness understands court architecture or judicial designation. It asks whether the witness can understand questions and provide rational answers. That statutory mandate was not followed.

6.What further aggravates the

situation is the complete absence of any attempt to create a child-sensitive environment.

There is no indication on record that the proceedings were adopted to reduce intimidation. There is no reflection that the emotional vulnerability of the child was considered. There is no suggestion that the questioning tone was softened, or that the physical setting was made less formal. The process remained rigid; the subject was fragile and the the imbalance is apparent. Courts must remain conscious that when a child enters the witness box in a sexual offence case, she does

not arrive merely as a witness, rather she arrives carrying fear, confusion, and often silent trauma. If the judicial environment reproduces authority without empathy, structure without sensitivity, and formality without accommodation, the law inadvertently erects barriers where it should have built bridges. When a trial court applies an incorrect legal test, the resulting order cannot be sustained merely on the ground of discretion.

This is not an area where subjective preference governs, rather it is an area governed by statutory command and constitutional duty. By equating institutional awareness with legal competency, the learned trial court misdirected itself in law. By overlooking the protective framework of the Anti-Rape (Investigation and Trial) Act, 2021, it failed to exercise jurisdiction in the manner contemplated by the legislature. By excluding the testimony of the child at the threshold stage, it prematurely foreclosed the truth-finding process. Such an approach, if allowed to stand, would produce consequences far beyond this case. It would

establish a precedent where vulnerable victims are filtered out not because they lack capacity, but because the justice system fails to adjust itself to their reality. That would invert the purpose of criminal law itself. Appellate interference, therefore, is not corrective alone, but it is preventive and it serves not only to remedy error in the present case, but to realign trial practice with lawful standards.

7.In light of the foregoing

discussion, this Court is of the considered view that the learned trial court applied an erroneous legal standard while determining the competency of the minor witness, in derogation of Article 17 of the Qanun-e- Shahadat Order, 1984, and the procedure adopted was inconsistent with the protective and child-centric mandate of the Anti-Rape (Investigation and Trial) Act, 2021. This Court is constrained to hold that the manner in which the competency of the child witness was assessed by the learned trial court suffers from material legal infirmity and procedural impropriety, which has vitiated the process of

recording her statement. The failure to conduct a proper voir dire examination, coupled with non-observance of settled safeguards applicable to vulnerable witnesses, has resulted in a serious miscarriage of procedural justice, thereby rendering judicial interference not only justified but inevitable. As such, the learned trial Court is directed to remain mindful of the delicate nature of testimony of a child witness and to strictly observe the mandatory requirement of conducting a proper voir dire examination before recording such evidence.

Keeping in view the tender age, emotional vulnerability, and limited understanding of a child, the Court shall adopt a patient, compassionate, and non-intimidating approach, ensuring that the atmosphere of the courtroom does not create fear, pressure, or confusion in the mind of the witness. The object is not to test academic intelligence, but to satisfy judicial conscience that the child is capable of understanding the questions put to her and of giving rational and truthful answers. For this purpose, the learned trial Court shall put

simple, clear, and age-appropriate questions to the child witness and shall assess her competency in the following manner: -

(i)Regarding Moral Responsibility and Understanding of Truthfulness:

1.If a child tells lies again and again, will people trust him or not?

2.If you tell the truth, will Allah be happy or angry?

3.If you speak the truth and someone becomes angry, is it still right to tell the truth?

(ii)Regarding Memory and Observation Ability:

4.What did you eat this morning?

5.What color clothes are you wearing today?

6.What did you do yesterday?

7.Who is sitting near you in the court room right now?

(iii)Regarding Understanding of Court Duty:

8.Do you promise to tell only the truth in court today?

9.Will you tell the Judge only what you really saw or heard?

10.Will you say “I do not know” if you do not remember something?

The learned trial Court shall

carefully record both the questions and the responses of the child witness and shall, on the basis thereof, record a reasoned satisfaction regarding her competency. It must be ensured that the child possesses sufficient mental capacity, clarity of understanding, and moral awareness to distinguish between truth and falsehood and to appreciate the solemn duty of speaking the truth before a Court of law. Only after such satisfaction is duly recorded, supported by reasons on the judicial file, the testimony of the child witness shall be permitted to be recorded, so as to ensure fairness of trial, reliability of evidence, and advancement of the ends of justice. Wisdom is derived from the guiding principles laid down in case titled “Sudesh Jhaku vs. K.C.J & Ors” 1996(38)DRJ22. Accordingly, the instant appeal is allowed and the matter is remitted back to the learned trial court for proceeding as directed. Any deviation from these mandatory

requirements shall expose the proceedings to further judicial correction. The object of these directions is not merely procedural compliance, but to secure the true spirit of fair trial, protect the rights of all stakeholders, and uphold the sanctity of the administration of criminal justice.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *D.B* Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr. Justice Dr. Khurshid Iqbal, J