What is the Competency of witnesses?

RELEVANT PROVISIONS

Art 3 and 17 of QSO

DEFINITION OF WITNESS

BLACK’s LAW DICTIONARY

“A person, who testifies about a particular fact that he has seen, heard or perceived it.”

COMPETENCY OF WITNESS:

There are certain qualifications for the competency of the witness. Law imposes the following restriction on competent witnesses:

WHO MAY TESTIFY:

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind:

TO WHOM COURT THINKS COMPETENT:

Satisfaction of the court is another essential element for the competency of witness. If court does not consider witness as competent he cannot appear as competent witness even witness is person of sound mind or generally considered competent.

WHO DETERMINES THE COMPETENCY OF WITNESS

It is presiding officer of court who determines the competency of witness by putting some questions to him.

GENERAL RULE

All persons are competent witnesses who are able to understand question. Understanding capability: Competent witness must understand what court of law wants to enquire. He must have capability to answer the questions of court.

EXCEPTIONS/INCOMPETENT WITNESS

Law has debarred some persons to appear as a competent witnesses. Detail of those is as follows: 1. Incapacity of rational response: A person who is incapable to understand the question put to him or who cannot give rational answers of the court is not a competent witness. 2. Young age factor: Although no age limit is prescribed for the competency of a witness it does not mean that person of every age can appear as a competent witness. A person who due to the young age factor cannot understand the requirement of evidence is not considered a competent witness. 3. Old age factor: Old age does not matter but it matters a lot. A person who due to the old age factor could not understand the rationality of the questions and answers put to him in court is not a competent witness. 4. Bodily infirmity: A person who is bodily infirm is not a competent witness. 5. Mental infirmity: Person of unsound mind is debarred to appear as a competent witness, i.e., who was a person of unsound mind at the time of occurrence of incident. 6. Conviction in false evidence: Person is not competent who has been convicted in false evidence except where he has been repented and mended his ways. 7. Unable to understand: the person who is unable to understand the question is not competent to witness. 8. Qazaf: where the person convicted of Qazaf is incompetent to testify. (AL-QURAN) 9. Habitual lair: The person is known for lying and would be disqualified for witness. 10. Where is interest: where the person has a financial interest or he has a certain relationship with the party of litigation he will not be treated as a competent witness. 11. false perjury: a person who is convicted of false perjury is also disqualified as witness. 12. Female in hudood: females in hadood cases can’t be regarded as witness. 13. True Muslim: In certain cases, only a true Muslim is a competent witness particularly in Hudood crimes. He must be a person of those qualifications which Quran and Sunnah prescribe for a witness. Tazkiashahood: Tazkia-Al-Shahood:

Tazkiah

is an obligation on Qazi for ascertaining the competency and righteousness of a witness by himself or through the medium of purgatory when competency of a witness is challenged, that (i) The witness should be clean from deeds which attract Hadd punishment (ii) The witness should be free from sins (iii) The witness should be Adil (iv) Maturity witness must be a person of mature mind and understanding. (V) Eye-sight witness must possess eye-sight in case of facts capable of being seen. (VI) Speech witness must possess the capacity to speak or communicate in cases of Hooded. (VII) memory witness must be of a good memory and a person with a bad memory is not considered as a competent witness.(viii) MuslimThe jurists agreed that Islam is a condition for the acceptance of testimony and the testimony of disbeliever is not permitted but the jurists did not agree regarding its permissibility in bequests made on a journey. Abu Hanifah said that it is permitted upon the conditions mentioned by Allah, while Malik and Shafi said that it is not permitted. 14. Male (only in hudood cases): the only males in hudood cases are competent to witness. Such as in Zina 4 male witnesses are required and in other cases, two male witnesses are required. DETERMINATION OF COMPETENCY OF WITNESS: Where there is any doubt of competency of witnesses, the only court shall determine his competency by putting questions to him. His response shall explore his competency.

EXCEPTIONS

Law has prescribed certain exceptions for the competency of the witness such as: 1. Ordinary witness: Where a person of the qualifications prescribed in Quran and Sunnah is not available, the court may take the evidence of the person who is available to testify the fact in issues. 2. Repented person: A person who had been debarred to appear as a witness due to his disqualification by way of false evidence or any other major sins, can be considered as a competent witness if the court thinks that he has mended his ways and repented. 3. Lunacy while testifying: A person who was a person of sound mind at the time of occurrence of the incident is not an incompetent witness if he loses his memory or becomes a person of unsound mind while he testifies the truth before court. The court shall give him a reasonable time for recovery so that he may testify the truth before court. Time relaxation is provided to reach truth and conclusion. 4. Child witness: The child is a competent witness provided the court thinks him competent by testifying as to his ability to give evidence. The set question cannot be asked to determine his ability to give evidence. ZATOON BIBI VS. THE STATE (1998 PCRLJ 1680 SC AJ & K)Qanun-e-Shahadat Order 1984 —-Art. 3—competency of a witness to testify—child witness —Law requires the intelligence of a child witness to testify in the circumstances of the case and not the factor of his or her age.

NUMBER OF WITNESSES

In certain matters different number of witnesses are required such as: Hudood crimes: As far as hadood crimes are concerned Quran and Sunnah determine the number of witnesses. Such as in Zina 4 male adult Muslim witnesses are required and in other hadood cases, 2 Muslim males are required who fulfill the criteria of tazkiya e shahood. Financial and future obligations: need two males or one male and two females witnesses for conviction. In civil cases: one male or one female witness can be accepted. Cases where one woman witness is sufficient: Those matters where there is the presumption that one woman is available, her evidence would be acceptable such as in the matters of childbirth.