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At 5:00 a.m. on an April morning in 2002, Kabir was woken up a neighbour and told that his sister Shamim had been murdered by her husband. Kabir rushed to his sister’s home where he found her lying dead in a pool of blood. The only eye witness to the murder was Shamim’s seven year old daughter, Iram. Iram’s father was imprisoned for life on the evidence given by Iram. During the appeal, the primary objection raised by the defence was that Iram was not competent to testify and that she had been tutored by her uncle Kabir to depose against the murderer. The Appeallate Court examined the testimony of Iram and her replies in cross examination and held that she was capable of understanding and answering the questions put to her and hence her testimony was relied upon. The sentence of her father was upheld. The position has been consistent. Courts have since before partition of the sub-continent applied the principle that a child witness is not debarred from testifying only on the basis of his age. However, the evidence of a child is to be treated with great caution and in most cases it is advisable that other evidence corroborates such testimony. Up till 1984, Pakistan’s law of evidence was governed by an 1872, British introduced legislation. In 1984, the laws of 1872 were changed by a Qanun-e-Shahadat Order 1984. A lot of the 1872 legislation was however, adopted by the 1984 law. One such example was Article 3. This Article stipulates who can testify as a witness. This Article 3 states: “All persons should be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rationale answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind; ………” The words “tender years” in the aforementioned Article do not specify any particular age of a witness; it is only the capacity of a witness to understand things rationally and then to reply to them that qualify him as a competent witness. There is no precise age that determines the question of competency. Competency of a witness depends upon the capacity and intelligence of the child, his appreciation of the difference between falsehood and truth as well as his duty to tell the latter. What the law requires is not the factor of age but the intelligence of a particular child witness in the circumstances of the case. The Courts have consistently held that a testimony of a child must be accepted after great caution and circumspection. In a 1933 case the Court remarked “when considering the evidence of a child witness it should not be forgotten that children often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety”. The same sentiment has been echoed over the years in successive judgments of the superior courts of Pakistan. The law vests in the Court discretion to decide whether a child is or is not disqualified to be a witness by reason of understanding or lack of understanding. There is no statutory provision of law that requires the court to test the intelligence of a child witness at the initial stage to find out whether he is capable of understanding questions and giving intelligent answers. It is however highly desirable that the intelligence of the child witness should be tested before commencement of his examination so that if he is found deficient in intelligence, valuable time of the court may be saved by not examining him. Therefore, before deciding that the witness is a competent witness, the Court must come to the conclusion that by reason of age the child is not intellectually deficient. If the Court is satisfied about the general intellectual capacity of the child to give evidence, then, the witness would be a competent witness and would be the duty of the Court to assess the evidence of the child on the particular topics deposed by him. The courts of Pakistan have given no hard and fast rules as to how the intelligence of a child may be tested. It has been however held that a judge should put simple and ordinary questions to a child witness and should record the answers. The judge should then briefly record his observations and give a ruling as to whether in his opinion the child has the capacity to testify. In one case a judge asked a child witness whether she knew what was meant by an oath. She replied that she had come to speak the truth about what she saw and that if she would lie God would punish her. The judge proceeded to record her evidence. It is desirable. that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that; otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. If the Judge who examined the child witness records a note that he is satisfied that the witness is intelligent and capable of understanding the questions that are likely to be asked of it, there is nothing in law to prevent the Appellate Court from accepting that the note is sufficient proof of the capacity of the child to be a witness. Such a note having been made during the course of the trial should be presumed to represent the truth unless the presumption with regard to its correctness is somehow displaced. But a failure to record an opinion as to the competency of a child witness alone will not be a reason to treat the evidence as inadmissible. Thus a Judge who recorded the statement of a girl of seven or eight years certified that she did not understand the sanctity of an oath and accordingly he did not administer one to her. He, however, did not certify that the child understood the duty of speaking the truth. It was held that the irregularity did not affect the admissibility of evidence of the girl * The writer is an advocate admitted to practice in all the High Courts of Pakistan. He can be reached at [email protected]. Further information