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CHAPTER II

Of Witnesses

3. Who me testify: All persons shall be competent to testify unless the court considers that
they are prevented from understanding the question put to him, or from giving rational
answer to those questions, by tender years, extreme old age, disease, whether of body or
mind or any other cause of the same kind.

Synopsis

1. Scope 2. Related witnesses

3. Child Witness 4. Tazkiyah al-Shahood
5. Evidence of Co-accused 6. Convicted Witness
1. Scope

Article 3 of the order contemplates that all the persons shall be competent to
testify unless the court considered that they are prevented from understanding the question
put to them or from giving rational answer to these questions by tender years.

2002 PCRLJ - 41

Person of tender age or extreme old age unable to understand the proceedings,
court can refuse to call.

2002 YLR- 504

Statement of witness is of no consequence if he was not borne when the mutation

was affected.

2008 YLR-396

2. Related Witness

Article 3 of QSO provides that all persons are competent to testify unless court
consider they are.

2007 CRLJ 888

2007 SCMR 1639

Person related to the party is not disqualified to testify as witness

1999 SCMR 1418

2005 SCMR-1756

2006 SCMR-1731

2007 CRLJ 888

2014 SCMR-1227
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Article 3 if Qanoon e Shahadat 1984 provides that all persons are competent to
testify unless the court considers that they are prevented from understanding the question
put to them or from giving rational answer to these questions by tender year, extreme old
age, disease.

PLD 1995 -SC 1

3. Tazkiyah al-Shahood

Tazkiyah al-Shahood, prosecution was to produce two male Muslims of Tazkiyah

al-Shahood appointment of Muzakki (Purgatory) to satisfy requirements of Tazkiyah al-
Shahood.

The Holy Quran

O believers stand form for Allah and bear true testimony do not let the hatred of
people lead you to injustice. Be just! that is closer to righteousness. And be mindful of
Allah. Surely Allah is all aware of what you do. (Surah Al-Maida verse 8 Translation
Alama Moudoodvi)

The ingredients of Tazkiyah al-Shahood are as follows

I. There must be evidence of victim followed by at least two witnesses

II. In case of discrepancy on vital aspects between two witnesses both shall be
rejected
III. Tazkiyah al-Shahood is a condition precedent to impose the sentence of hadd.
IV. There should be one or more "Muzakki "(the person who testifies about the
truthfulness of the witness)
V. The Muzakki should be present when the witness gaves evidence.
VI. The Muzakki should also be questioned about antecedents, character and dealings.
VII. It is the responsibility of the court to satisfy itself about the credibility of a witness
and it can for the matter select open or secret mods of inquiry are both.
VIII. The court may frame a questionnaire on which the Muzakki should collect
information to supply to the court.
IX. The court should also examine the Muzhabi after he submit his report.
X. The court should ask searching questions from the witness and cross examine him,
to discover facts which might show his credibility pirety otherwise.

PLJ 1996 Peshawar 228

PLD 1990- FSC 38

4. Child Witness

Witness of tender age testimony of victim cannot be discarded because of his

tender age but court had to be very cautious in relying on the evidence of such witness.

1995 PCRLJ -803

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2018 YLRN 259

2018 PCRLJ 537

2020 PCRLJ 1419

Trial court has to determine as to whether or not a witness is prevented from

understanding the question put to him because of his tender age

2022 YLRN -48

Article 3 of this order must reflect the application of legal mind; such object can
least be attained through questionnaire to a child witness.

2020 PCRLJ -598

Person in receipt of conviction for perjury is not competent to testify unless the
court is satisfied that he has repented from doing so and has mended his way.

2020 PCRLJ 598

Supreme Court observed that the rationality test and the practice that had
developed with time was for the same to be carried out by the presiding judge prior to
recording the evidence of child witness.

PLD 2020-SC-146

5. Evidence of Co-accused

According to article 16 of Qanoon e Shahadat 1984, an accomplished Shell be

competent witness against an accused person, except of an offense punishable with hadd
and a conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice.

Accomplice would be a competent witness against an accused person except in

case of an offense punishable with hadd

2006 -SC-354

2020 SCMR-828

2021 YLR -940

Article 16 of Qanoon e Shahadat would apply only be accepted as an accomplice

turned approver against accused.

1994 SCMR 932

2012 PCRLJ 210

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Otherwise, evidence of an accomplice would be dealt with article 129 (b) of

Qanoon e Shahadat. “That an accomplice is unworthy of credit unless he is corroborated
in material particulars”.

Accomplice fell within the category of which person in the term of the verse of
the Holy Quran, therefore before acting upon his testimony, the truthfulness of it should be
verified from other corroboration.

2022 PCRLJ 1466

2021 YLR 940

PLD 2020 LH 690

PLD 2009 SC 814

2014 CRLJ 475

2011 PCRLJ 1601

1982 SCMR 321

4. Judges and Magistrates. No Judge or Magistrate shall, except upon the special order of
some Court to which he is subordinate, be compelled to answer any questions as to his own
conduct in Court as Judge or Magistrate, or as to anything which come to his knowledge in
Court as such Judge or Magistrate; but he may be examined as to other matters which
occurred in his presence whilst he was so acting.
Illustrations
(a) A, on his trial before the Court of Session, says that a deposition was improperly taken
by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the
special order of a superior Court.
(b) A is accused before the Court of Session of having given, false evidence before B, a
Magistrate. B cannot be asked what A said, except upon the special order of the superior
Court
(c) A is accused before the Court of Session of attempting to murder a police officer whilst
on his trial before B, a Sessions Judge, B may be examined as to what occurred.

Although court has to decide whether communication has been made in official
confidence it is public officer concern who has been made the sole judge weather the
public would suffer by disclosure.

PLD 1960 -1189