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Official Citation: 2025 PLD 512
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-01-15
Parties: Imdad Ullah vs The State and another
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-01-15, officially reported as 2025 PLD 512. In this matter between Imdad Ullah and The State and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2025 Lahore 512
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Muhammad Tariq Nadeem Title: Imdad Ullah vs The State and another Case No.: Criminal Appeal No. 448/2022 Date of Judgment:2024-01-15 Reported As: 2024 LHC 1462, PLD 2025 Lahore 512 Result: Order Accordingly
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. - This appeal is directed against the judgment dated 25.08.2022 delivered by the Additional Sessions Judge, Chishtian, in case FIR No. 37/2021 dated 04.02.2021 registered for an offence under section 377-B PPC at Police Station City A-Division Chishtian, District Bahawalnagar. 2. On 04.02.2021, Complainant Muhammad Javaid (PW-1) submitted a written application (Exh. PA) to Muhammad Aslam/SI (PW-5). He stated that his son B.J. (name withheld to preserve privacy), aged about 10 years, was a student of 4th Class in Evergreen Public School in Mehboob Colony, Tehsil Chishtian. On 02.02.2021, when B.J. returned from school, he was terrified and running a fever. Upon inquiry, he began crying, and in the presence of Muhammad Shabbir (PW-2), Muhammad Akram, and Muhammad Yasin, he stated that he would no longer attend school because his Principal, Imdad Ullah (the Appellant), called him daily into his office and molested him. On the mentioned day, shortly before the school ended, the Appellant summoned him to his office and, after bolting the door, sexually abused him. B.J. further stated that the Appellant threatened him with dire consequences and warned him not to tell anybody about the incident. The Complainant requested that legal action be taken against the Appellant for sexually abusing his child. Based on the said application, FIR No. 37/2021 (Exh. PC) was registered. 3. Muhammad Aslam/SI (PW-5) investigated this case. On 5.2.2021, he arrested the Appellant. After completing the investigation, he determined that he had committed the alleged offence. The report under section 173 Cr.P.C. was submitted accordingly. 4. On 03.03.2021, the Additional Sessions Judge indicted the Appellant, who denied the charge and claimed trial. The prosecution examined five witnesses to prove its case. Complainant Muhammad
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Javaid (PW-1), Muhammad Shabbir (PW-2), and B.J. (PW-3) reaffirmed the contents of the application Exh. PA (and FIR No.37/2021 Exh. PC). Dr. Muhammad Idrees (PW-4) provided evidence regarding the Appellant's medical fitness. The Investigating Officer, Muhammad Aslam/SI (PW-5), gave the details of the investigation and the evidence he collected in this case. The Deputy District Public Prosecutor gave up PWs Muhammad Yaseen and Muhammad Akram as unnecessary and closed the prosecution evidence. 5. After the prosecution completed its evidence, the trial court 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 the allegations and professed innocence. He maintained that the Chief Executive Officer (DEA), Bahawalnagar, also found him innocent in an inquiry. Subsequently, the CEO issued Letter No. 5745 dated 14.10.2021, confirming that no immoral activity was discovered in the Evergreen School owned by the Appellant. When asked why this case was registered against him and why the PWs deposed against him, the Appellant replied: "Complainant and PWs deposed falsely against me and a false case was registered against me in connivance with my ex-in-laws because I have divorced my ex-wife namely Naseem Kousar d/o Ilam-udDin caste Malik r/o 69-ED Tehsil Arif-wala, District Pakpattan, and I handed over dowry articles to her family on 24-01-2021. After a few days, my ex-in-laws, due to the grudge of my divorce, registered the instant false FIR against me in connivance with complainant and police because my ex-in-laws have a deep relationship with the complainant. So, in connivance and being in league with each other, they registered this false case against me." 6. The Appellant neither opted to make a statement on oath under section 340(2) Cr.P.C. nor examined any witness in his defence. However, he tendered in evidence the Certificate dated 14.10.2021 issued by the Chief Executive Officer (DEO), Bahawalnagar (Exh. DA) and a copy of the divorce deed (Mark-A). 7. On the conclusion of the trial, vide judgment dated 25.08.2022, the Additional Sessions Judge convicted the Appellant under section 377-B PPC and sentenced him to rigorous imprisonment for fourteen years with a fine of Rs.1,000,000/- and, in default thereof, to undergo simple imprisonment for further six months. The benefit of section 382-B Cr.P.C. was extended to him. Hence, this appeal. 8. In support of this appeal, Mirza Muhammad Nadeem Asif, Advocate, argued that the Anti-Rape (Investigation and Trial) Act, 2021 (the "2021 Act"), enacted on 4.12.2021, established Special Courts by section 3 to try the scheduled offences. The Additional Sessions Judge, who delivered the impugned judgment dated 25.8.2022, was not a Special Court constituted/notified under the 2021 Act. Consequently, the said judgment was without jurisdiction. On the case's merit, Mr. Mirza contended that the FIR was lodged with inexplicable delay, which impinged upon its credibility. He maintained that the Appellant was innocent. The Complainant had lodged a false case against him at the behest of his ex-wife, Naseem Kausar, and her parents. Mr. Mirza further argued that Complainant Muhammad Javaid (PW-1) and Muhammad Shabbir (PW-2) were not eyewitnesses to any wrongdoing by the Appellant. The prosecution had planted them to bolster its fabricated case. Regarding B.J.'s testimony, Mr. Mirza contended that it was inadmissible because the Additional Sessions Judge failed to assess his competence through the voir dire test. The counsel further argued that even if B.J.'s testimony was admissible without the said test, the Appellant could not be convicted on its basis due to the lack of corroboration. He prayed that the Criminal Appeal No. 448/2022 be accepted and the Appellant be acquitted of the charge. 9. The Deputy Prosecutor General, assisted by the Complainant's counsel, controverted the above contentions. He argued that the Additional Sessions Judge presiding over the Appellant's trial was duly notified as a Special Court under the 2021 Act. The Appellant's objection that the impugned judgment dated 25.8.2022 was without jurisdiction was misconceived and had no legal foundation. On the merits of the case, the Deputy Prosecutor General contended that the prosecution proved
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its case to the hilt. The victim, B.J., fully supported the prosecution case and withstood cross- examination with intelligence. Complainant Muhammad Javaid (PW-1) and Muhammad Shabbir (PW-2) corroborated B.J. on all crucial points. According to him, B.J.'s testimony was not vitiated merely because the Additional Sessions Judge did not carry out the voir dire test. The Appellant had not adduced any evidence suggesting that the FIR against him was mala fide. The contention that he has been falsely implicated in this case at the instigation of his ex-wife Nasreen Kausar and her parents was implausible. He prayed for the dismissal of the Appellant's appeal. 10. We heard the learned counsel and examined the record with their assistance. 11. The prosecution alleges that the Appellant habitually molested B.J. but the present case centres on the incident of 2.2.2021. During this episode, it claims, the Appellant summoned B.J. to his office, locked the door, and subjected him to sexual abuse. The boy disclosed this to his father, Muhammad Javaid (PW-1), in the presence of Muhammad Shabbir (PW-2) and two others. The incident was reported to the police at 4:20 p.m. on 4.2.2021 upon which FIR No.37/2021 (Exh. PC) was registered. The Additional Sessions Judge, Chishtian, indicted him on 3.3.2021 for an offence under section 377-B PPC. 12. Parliament has enacted the Anti-Rape (Investigation and Trial) Act, 2021 to ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special courts providing for efficacious procedures, speedy trial, evidence and incidental matters.[1] It was published in the Gazette of Pakistan on 4.12.2021 and extends to the entire country. However, section 1(3) of the 2021 Act stipulates that it shall come into force on a date the Federal Government may appoint. Section 3(1) provides that the Federal Government, in consultation with the Chief Justice of the High Court concerned, shall establish as many Special Courts throughout the country, as it may deem necessary, to try the scheduled offences. Section 3(3) states that, in addition to or in lieu of the establishment of Special Courts under section 3(1), the Federal Government may, in consultation with the Chief Justice of the High Court concerned, designate as many courts of Additional Sessions Judges or such other courts as Special Courts, as it may deem fit. The proviso to section 3(3) adds that where gender-based violence (GBV) courts, juvenile courts or child protection courts have already been designated, they shall be deemed to be the Special Courts under this Act. Section 18 states that any person aggrieved by the final judgment of a Special Court may file an appeal to the High Court in whose jurisdiction the Special Court which rendered the judgment is situated. A Division Bench of the High Court decides such an appeal. 13. Section 23 of the 2021 Act stipulates that the Special Court shall have exclusive jurisdiction to try the scheduled offences. Once the Act comes into effect, any ongoing trial of scheduled offences in any other court will be automatically transferred to the Special Court having jurisdiction under the Act. The Special Court will then proceed with the case from the point at which it was pending immediately before the transfer. Section 377-B PPC is one of the scheduled offences under the 2021 Act. 14. The Federal Government, while exercising powers under section 3(3) of the 2021 Act, designated Mr. Muhammad Nawaz Bhatti, Additional District & Sessions Judge, Chishtian, as Special Court vide notification dated 11.5.2022. 15. Mr. Zafar Iqbal Tarar, Additional Sessions Judge, conducted the Appellant's trial. He recorded the prosecution evidence and the Appellant's statement under section 340(2) Cr.P.C. He fixed the case for final arguments but, in the meantime, the notification dated 15.5.2022 was issued. Thereupon, the case was transferred to Mr. Muhammad Nawaz Bhatti. He heard the parties and delivered the impugned judgment dated 25.8.2022 as the Special Court designated under section 3(3) of the Act. 16. Mr. Mirza, the Appellant's counsel, does not dispute the above facts. His objection to the impugned judgment is based on the fact that Mr. Bhatti did not mention his designation as the
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Special Court when signing it. This objection is overly technical because Mr. Bhatti was duly notified and had jurisdiction in the matter. His failure to explicitly write "Special Court" under his signature has no legal consequence. In Piao Gul v. The State [PLD 1960 SC (Pak) 307], the trial for offences under section 8 of the North-West Frontier Province Corps Law, 1941, could only be competently conducted before a Court of Session, and for the Khyber Agency, the Court of the Political Agent served as such a court. Mr. Faridullah Shah conducted Piao Gul's trial in his capacity as a Court of Session under the Criminal Procedure Code, 1898, as applied to the Khyber Agency. However, he described himself as a District Magistrate while framing the charge. The Supreme Court of Pakistan ruled that as long as the person conducting the proceedings had the jurisdiction, any misdescription would not affect the legality of the trial. In Muhammad Ramzan v. Mst. Khalida Parveen (PLD 1971 Lahore 813), the Senior Civil Judge and the Additional District Judge, Sheikhupura, disposed of the suit and the appeal, respectively, as an ordinary civil suit and appeal. The appellant argued that the trial Judge, Malik Mushtaq Ahmed, incorrectly designated himself as the "Senior Civil Judge, Sheikhupura," instead of "Judge, Family Court, Sheikhupura." Subsequently, while deciding the appeal, the Additional District Judge referred to the trial court as the "Civil Judge" instead of the "Judge, Family Court." The appellant argued that the matter had all along been treated as one governed by the Civil Procedure Code and urged the High Court to treat the case filed before it as a Second Appeal under section 100 of the Code. The High Court rejected this argument, holding that the validity of a judgment or order depends on whether the court had jurisdiction, not on the fact that the court in question misdescribed itself or put an incorrect designation under its orders. Further reference may be made to Allah Jiwaya v. Judge Family Court and another (1990 MLD 239), and Matiullah v. Mst. Saddipa (2017 MLD 1871). 17. In view of the above, the impugned judgment dated 25.8.2022 rendered by Mr. Bhatti is to be reckoned as that of the Special Court under the 2021 Act. The Appellant's objection in this respect is rejected. It is also essential to highlight that this appeal has been categorized and treated as an appeal under section 18 of the Act, which is why it has been referred to a Division Bench of this Court for adjudication. 18. Now, we delve into the merits of the case. Mr. Mirza has taken a strong exception to the fact that Muhammad Javaid (PW-1) lodged the FIR with a delay of two days and wants us to throw out the prosecution case on this ground alone. We must not do so. While the law generally encourages prompt reporting of crimes, courts recognize that child abuse is a sensitive issue. Several factors can contribute to delays in reporting child sexual abuse, including fear, shame, threats from the perpetrator, or a lack of awareness. Hence, the courts in our country do not consider the delay in making a report to the police material[2] unless the circumstances are such that they warrant an adverse view.[3] The legal system aims to balance the need to protect children from abuse with the principles of fairness and due process. In the present case, the Appellant has not referred us to any circumstance which may require us to take an adverse view against the prosecution because of the delay. 19. The victim, B.J., who testified as PW-3, is the key prosecution witness. In his examination-in-chief, he reiterated the allegations levelled against the Appellant in the application Exh.PA and FIR No.37/2021 Exh. PC. Mr. Mirza's primary contention is that the trial judge recorded his testimony without the voir dire test which, according to him, was mandatory. Consequently, he claims that his testimony is inadmissible. This raises the following two questions for this Court's determination: first, whether the voir dire test is mandatory to assess the competency of a child witness and whether his testimony is inadmissible without it. Second, whether an individual can be convicted on the basis of solitary uncorroborated testimony of a child who is a victim of sexual abuse. We shall answer these questions seriatim.
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20. In R v. DAI [2012] 2 LRC 633, the Supreme Court of Canada distinguished between three often conflated distinct concepts: (i) the competence of the witness to testify, (ii) admissibility of their evidence, and (iii) the weight of the testimony (its evidentiary value). The rules governing these concepts share a common objective: to ensure that convictions are based on reliable evidence and that the accused receives a fair trial. Competence pertains to whether a proposed witness has the capacity to provide evidence in court. The purpose of this principle is to exclude worthless testimony at the outset on the grounds that the witness lacks the fundamental capacity to communicate evidence. Competence is a threshold requirement. Although it is presumed in witnesses as a matter of course, it may be challenged in cases involving children and adults with mental disabilities. The second concept is admissibility, determining which evidence from a competent witness can be received in the court record. Admissible evidence must be relevant and not subject to exclusionary rules. Admissibility rules aim to enhance the accuracy of fact-finding, respect policy considerations, and ensure trial fairness. The third concept involves the responsibility of the trier of fact to decide whether to accept evidence, assuming the witness is competent and admissibility rules are followed. The judge or jury evaluates factors like demeanour, internal consistency, and consistency with other evidence to determine acceptance. Conviction requires the prosecution to establish all elements of the offence beyond a reasonable doubt. 21. In R. v. Marquard [1993] 4 R.C.S. 223, Justice McLachlin from the Canadian Supreme Court meticulously described the standards for evaluating the competency of a child witness. She elucidated that the assessm ent of testimonial competence encompasses three key aspects: (a) the capacity to observe (including interpretation), (b) the capacity to recollect, and (c) the capacity to communicate. The judge must ensure that the witness possesses these capacities by determining whether the witness can observe, remember, and communicate the events. The focus is on assessing the minimum threshold for the evidence to be receivable, not its credibility. McLachlin J. emphasized that the inquiry is into the capacity to perceive, recollect, and communicate, not whether the witness actually perceived, recollects and can communicate about the events. Generally, a witness's performance during the trial provides the most reliable measure of their capacity, and according to common law, a witness demonstrating the ability to testify is permitted to do so. McLachlin J. stated that there is no need to establish in advance that a child perceives and remembers the precise events under consideration in the trial as a prerequisite for admitting their testimony. This requirement does not apply to adult witnesses and should not be imposed on children. McLachlin J. clarified that the test she introduced was not founded on assumptions about the incompetency of children as witnesses, nor was it intended to make it difficult for children to testify. Instead, the test outlined the essential abilities that individuals, including children, must possess to testify. Once this capability is established, any deficiencies in the witness's perception or recollection of events can be addressed as factors affecting the weight of the evidence. 22. In Pakistan, the competency of a witness is determined under Articles 3 and 17 of the Qanun-e- Shahadat, 1984 ("QSO"),[4] while the credibility of a witness is a question of fact which the court decides following the principles settled for the appraisal of evidence. Article 3 of the QSO does not explicitly specify any particular age qualification for a witness. Before the enactment of QSO, Pakistan followed the Evidence Act of 1872, which is still in force in India with certain modifications. The 1872 Act has similarities with the QSO, especially regarding the underlying assumptions, basic concepts, and terminology. Section 118 of that Act resembles Article 3 of the QSO, minus the provisos. The legal principles established in India and the pre-QSO Pakistan regarding section 118 of the 1872 Act provide valuable insights into understanding Article 3. 23. Under Article 3 of the QSO, a child is competent to be a witness if he possesses the capacity and intelligence to understand and respond rationally to questions - a criterion known as the "voir dire
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test. ,[5] In certain jurisdictions, specific guidelines and procedures exist for evaluating a child's competency to testify. In R. v. DAI, [2012] 2 LRC 633, while considering section 16 of the Canada Evidence Act, the Supreme Court of Canada provided guidelines concerning witnesses with challenged mental capacity. These guidelines, which are also applicable to child witnesses, include: (i) The voir dire on a proposed witness's competence is an independent inquiry and should not be combined with other issues, such as the admissibility of their out-of-court statements. (ii) The voir dire should be brief and it is preferable to consider all available relevant evidence before precluding a witness from testifying. A witness should not be found incompetent hastily. (iii) The primary source of evidence for a witness's competence is the witness himself. Their examination should be permitted, with special consideration and accommodation for adults with mental disabilities, ensuring that questions are phrased patiently in a clear and simple manner. (iv) Individuals familiar with the proposed witness and their everyday situation, often from their surroundings, may be called as fact witnesses as they are the best sources of evidence on their development. (v) Expert evidence may be produced if it meets admissibility criteria, with a preference for experts having personal and regular contact with the proposed witness. (vi) During the voir dire on competence, the trial judge must inquire whether the proposed witness understands the nature of an oath or affirmation and can effectively communicate the evidence. (vii) The second inquiry into the witness's ability to communicate evidence requires the trial judge to explore whether the witness can relate concrete events, understand and respond to questions, and differentiate between true and false everyday factual statements. (viii) If the witness passes both parts of the test, they testify under oath or affirmation; if they pass only the second part, they promise to tell the truth.[6] 24. Satisfaction of the court in terms of Article 3 of the QSO is not a mere procedural formality but a legal obligation. Hence, it must be discharged with utmost care and caution. In Raja Khurram Ali Khan and others v. Tayya ba Bibi and another (PLD 2020 SC 146), the Supreme Court of Pakistan ruled that the "rationality test" which the presiding Judge applies at the start of a child witness's examinationin-chief, should extend throughout his entire testimony. The Supreme Court approvingly cited Marquard and added: "This threshold has been referred to as passing the 'rationality test' and the practice that has developed with time in our jurisdiction is for the same to be carried out by a presiding Judge prior to recording the evidence of the child witness ... the 'rationality test', which is applied by the presiding Judge at the commencement of the examination-in-chief of a child witness, should be made applicable throughout the testimony of the child witness. If at any stage, the presiding Judge observes any hindrance or reluctance in the narration of events, the evidence should be stopped, and remedial measures should be taken to ease the stress and anxiety the child witness might be under, and if required, the case be adjourned to another date. And further, in case the child witness is still unable to narrate his testimony with ease, then the presiding Judge ought to record his findings on the demeanour of the child witness, conclude his evidence, and relieve him as a witness." 25. Courts have considered the issue of whether an omission by the judge or a magistrate to conduct a preliminary examination of a child witness would, by itself, render his evidence inadmissible in various cases. In Rameshwar v. The State of Rajasthan (AIR 1952 SC 54), the trial judge certified that the witness did not understand the nature of an oath and did not administer one. Despite this, he took her evidence without any objection from the accused. The Supreme Court of India underscored the importance of judges and magistrates recording their opinions regarding the child's comprehension of the duty to speak the truth and provide reasons therefor. However, it clarified that the absence of a formal certificate does not automatically reduce the witness's credibility. In this specific case, considering the circumstances of the case and the lack of objection
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by the accused, the Supreme Court concluded that the child witness was competent, and her evidence was admissible. 26. In State of Orissa v. Machindra Majhi and another (AIR 1964 Ori 100), while considering section 118 of the Indian Evidence Act 1872, the Orissa High Court ruled that the said provision allows all individuals to testify unless the court determines they are incapable of understanding or responding rationally to questions due to factors like tender years, extreme old age, disease, or other similar causes. The section is framed negatively, indicating that if the court deems a witness incapable of comprehension and rational responses, their evidence will not be accepted. Although there is no specific legal provision mandating…
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