WHO MAY TESTIFY AS A WITNESS? :  COMPETENCY OF A CHILD AS A WITNESS:    WHO MAY TESTIFY AS A WITNESS? (OR) COMPETENCY OF A WITNESS: NUMBER OF WITNESSES REQUIRED IN HADOOD CASES

PRELIMINARY NOTE:
Articles 3 and 17 deal with the reception and the credit attached to the testimony of witnesses and lay down two-fold principles: either the testimony is rejected ab initio, or it is recorded and left to the discretion of the court to determine its truthfulness.
Article 17 also specifies the numerical requirement of proof required in any case.

CONCERNED LAW AND PROVISIONS:
Articles 3 and 17 of the Qanun-e-Shahadat Order, 1984

GENERAL RULE REGARDING COMPETENCY AND COMPELLABILITY:

All witnesses are competent and compellable to give evidence that may assist the court in determining the issues. However, Articles 4 to 15 of the Q.S.O. 1984 provide exceptions to the general rule where a witness is competent but not compellable to testify.

WHO MAY TESTIFY AS A WITNESS? (OR) COMPETENCY OF A WITNESS:

According to Article 3:
“All witnesses shall be competent to testify:

• if they possess the physical capacity to understand the questions and rationally answer them, and

• if they possess the qualifications prescribed by the injunctions of Islam as laid down in the Holy Quran and Sunnah.”

However, Proviso 3 of Article 3 provides that if a competent witness is not forthcoming, the court may take the evidence of any available witness.

HOW THE COURT DETERMINES THE COMPETENCY OF A WITNESS:

The court determines the competency of a witness based on the following criteria:

1. Witness Must Possess Physical Capacity – Article 3

The witness must be physically capable of understanding and rationally answering questions. This includes:
a) Not being of tender years
b) Not being of extreme old age
c) Not suffering from any disease affecting the body or mind
d) Not suffering from any other similar condition affecting physical or mental capacity

2. Witness Must Not Be Convicted of Perjury – Article 3 (Proviso 1)

A person convicted by a court of perjury or giving false evidence is not competent to testify.
However, Proviso 2 provides an exception: if the court is satisfied that such a person has repented and reformed, they may be considered competent.

Reference (Quran – Surah Noor, Verses 4-5):
“And those who launch a charge against chaste women and produce not four witnesses—flog them with eighty stripes and reject their evidence ever after—for such men are wicked transgressors, unless they repent thereafter and amend their conduct. For Allah is Oft-Forgiving, Most Merciful.”

3. Witness Must Possess Islamic Qualifications – Article 3 (Proviso 3)

The court shall determine competence in accordance with the qualifications prescribed by Islamic injunctions.
Exception: If the person is disqualified under Islamic injunctions but no other competent witness is available, the court may still record the available testimony.

COMPETENCY OF A CHILD AS A WITNESS:

Common law treats child competency differently. Article 3 disregards the testimony of children of tender years unless the court is satisfied that:

• The child possesses the capacity to understand and rationally answer questions, and

• The child understands the importance of truth and the consequences of falsehood.

Key Judgments:

• Muhammad Ismail vs. State (1995): Evidence of a child witness with sufficient understanding can be relied upon for conviction.

• State vs. Farman Hussain (1995): Child witness evidence must be received with care and caution.

Child Witness Evaluation Factors:
a) Capacity to understand and respond rationally
b) Understanding of truth and falsehood
c) Psychological condition
d) Polite and gentle cross-examination
e) Great caution in accepting testimony

COMPETENCY OF A LUNATIC AS A WITNESS:

Lunacy is a bar to competency only if the lunatic is incapable of understanding or rationally answering questions.
Explanation of Article 3: A lunatic is not incompetent unless his condition prevents rational testimony.

COMPETENCY OF A DEAF AND DUMB PERSON AS A WITNESS:

Traditionally, Muslim jurists did not accept such testimony. However, under the principle of necessity, if no other witness is available, a deaf and dumb person may testify using signs.
Such evidence must be corroborated.
Exception: In Hudood cases, their testimony is not accepted.

NUMERICAL REQUIREMENT OF PROOF – Article 17

This article provides that the competency of a person and the required number of witnesses shall be determined in accordance with Islamic injunctions laid down in the Holy Quran and Sunnah.

NUMBER OF WITNESSES REQUIRED IN DIFFERENT CASES:

a) Hudood Cases

• Haraabah or Theft: 2 Muslim adult male witnesses

• Zina: 4 Muslim adult male witnesses

• Qazf (false accusation of Zina): 2 Muslim adult male witnesses

• Shurb (drinking alcohol): 2 Muslim adult male witnesses

b) Special Law Cases

(Determined by the relevant special law)

c) Financial or Future Obligations – Article 17(2)(a):

2 male witnesses OR
1 male and 2 female witnesses

d) All Other Matters – Article 17(2)(b):

1 male or 1 female witness
OR such other evidence as the circumstances of the case may warrant