PESHAWAR: Peshawar High Court has ruled that in trials of sexual offences involving minors, anti-rape law mandates child-friendly practices, in-camera proceedings, protection of privacy and dignity of victims.
A bench consisting of Justice Sahibzada Asadullah and Justice Dr Khurshid Iqbal observed: “Furthermore, the Anti-Rape (Investigation and Trial) Act, 2021, reflects legislative recognition that sexual offence trials involving minors require child-sensitive procedures, in-camera proceedings, protection of dignity and an environment conducive to truthful testimony.”
The bench allowed an appeal filed by a convict sentenced to life imprisonment for sexually assaulting a minor girl of seven, and remitted the case back to trial court for deciding the issue related to competency of the victim to appear as a witness.
A child protection court in Mardan had declared the witness (victim) incompetent to testify, as she had failed to respond to some preliminary testing questions.
Bench releases detailed judgement on competency of child as witness
The bench, in its 21-page detailed judgement comprehensively discussed the matter. “The issue is not merely whether a particular child witness was rightly or wrongly declared incompetent. The larger issue is how courts understand competency itself, how they approach the testimony of children, who comes before them carrying the weight of trauma, and how procedural rigidity may sometimes obstructs the very justice it is meant to serve,” the bench observed.
It said that the trial court had declared the minor witness (victim), aged about seven to eight years, incompetent to testify for the reason that she could not identify the courtroom, did not know who the judge was, and was unable to explain the nature of court proceedings.
The bench pointed out: “The simplicity of these reasons conceals a deeper legal error. For they reveal not merely an incorrect conclusion, but a misunderstanding of the governing legal standard itself therefore, it is necessary to pause and reflect as to what the law truly means when it speaks of competency.”
The bench ruled that the record revealed that the minor victim (witness) was not subjected to any meaningful assessment of her cognitive capacity in terms of law. “She was not tested on her ability to comprehend simple factual inquiries. She was not asked whether she could distinguish between truth and falsehood in age appropriate language,” it added.
The court pointed out that no attempt was made to explore whether she could understand questions when framed in simple and familiar terms and instead, the inquiry was diverted toward matters entirely foreign to the legal test of competency.
The bench directed: “Courts must remain conscious when a child enters the witness box in a sexual offence case, she does not arrive merely as a witness, rather she arrives carrying fear, confusion and often silent trauma. If the judicial environment reproduces authority without empathy, structure without sensitivity, and formality without accommodation, the law inadvertently erects barriers where it should have built bridges.”
The bench observed that competency of a witness was concerned with mental function and not social familiarity. “When the witness is a child, the inquiry becomes more delicate.”
“Cognitive science and developmental psychology have long showed that children process information differently. Their understanding is concrete, rather than abstract. Their memory is episodic rather than analytical. Their communication is shaped by fear, trust, environment and emotional safety,” the bench ruled.
“A child, who has experienced sexual abuse, carries an additional burden. Trauma alters recall, it suppresses speech and it induces silence, hesitation and confusion.”
The bench maintained: “If courts insist on adult standards of articulation and composure, they will not obtain better truth, they will obtain silence. For this reason, modern criminal jurisprudence has steadily moved away from rigid formalism toward child-sensitive adjudication.”
It said: “This is not leniency, rather it is realism. The Anti-Rape (Investigation and Trial) Act, 2021, reflects this evolution.” The bench added that the provisions of the Act were not ornamental rather they were corrective in nature.
“They seek to prevent what is now widely known as ‘secondary victimisation’, the phenomenon whereby the judicial process itself becomes a source of renewed trauma. When courts ignore this statutory philosophy and apply ordinary courtroom rigidity to a child witness, they do not merely violate procedure, but they damage the purpose of the law,” maintained the judgement authored by Justice Sahibzada Asadullah.
The bench observed: “The understanding that competency of a child witness must be assessed through functional capacity, rather than procedural familiarity, is not unique to this jurisdiction. It represents a broader evolution in criminal jurisprudence, shaped by judicial experience, legislative reform and modern understanding of child psychology.”
The bench also presented a brief survey of comparative law prevalent in other countries including India, Canada, UK and the USA.
The bench pointed out that in India, where courts frequently adjudicated cases involving child victims under Protection of Children from Sexual Offences Act, the Supreme Court had consistently emphasised that age was not a disqualification and what matter was the ability of the child to understand questions and furnish rational answers.
The bench quoted from a judgement of Indian SC stating: “The court cautioned trial judges against intimidating formality and emphasised that proceedings involving child victims must be conducted in a manner that is humane, non-threatening and sensitive to emotional vulnerability. The court recognised that the atmosphere of the courtroom itself can operate as an invisible barrier to truthful testimony if not consciously moderated.”
The judgement stated: “Across jurisdictions, courts have rejected the notion that competency is linked to institutional knowledge, courtroom exposure or procedural sophistication. Instead, modern jurisprudence consistently adopts a child-centric and functional approach, grounded in comprehension, communication ability and psychological safety. What therefore emerges is not divergence, but convergence.”
It observed: “Different legal systems, operating under distinct constitutional frameworks and procedural traditions, have arrived at the same essential conclusion that the testimony of a child must be facilitated through accommodation and sensitivity, not filtered out through rigid adult formalism.”
“Justice in such cases is not served by demanding that children rise to the level of courtroom ritual. It is served when courts consciously adapt their methods to the realities of childhood, vulnerability and trauma.”
The bench ruled: “It reinforces that the duty of trial court is not merely to apply evidentiary rules mechanically, but to create conditions in which a child can speak without fear, confusion or intimidation. Only then the law can fulfil its dual mandate of protecting the vulnerable and discovering the truth.”
Published in Dawn, February 16th, 2026.
