Khalil Haider

Roll No. 01
LLM 2017-19

Comparative Study of Testimony of Child in Islamic

Human Rights Law and Western Human Rights Law

Gillani Law College

Bahauddin Zakariya University,
Multan
Comparative Study of Testimony of Child in Islamic
Human Rights Law and Western Human Rights Law

Children are often called to give evidence in court. They are required to give
evidence as victims of heinous crimes or as otherwise witnesses to crimes. The
basic concern is to determine the position of testimony of child in Islamic Human
rights law and the Western Human Rights Law.

Before determining the position of testimony of child in the abovementioned

schools of thought, a significant point is to first answer the question ‘Who is a
child?’ Under International Law, a human being below the age of eighteen years
is considered to be a child. As Convention on Rights of child, 1989 Article#01
defines ‘Child’ as:

Article 1
For the purposes of the present Convention, a child means every human being
below the age of eighteen years unless under the law applicable to the child,
majority is attained earlier.

Islamic Law, on the other hand, considers a human being as a child who has not
attained puberty. Generally under the Sharia’h law, puberty is normally attained
by menstruation for a female or the capability to ejaculate sperm for a male. In
the absence of these signs, puberty of a person will be determined according to
his or her age. Muslim scholars however have different views in determining the
appropriate age of puberty. According to Shafi’i and Hanbali, the age of puberty
for both male and female is fifteen years old. Therefore if someone reaches the
age of fifteen, he or she will be considered as an adult.

After going through the definition of ‘child’ in both schools of thought, we move
forward to know the position of testimony of child in these legal frameworks.
International Law of Human Rights, under Article.12 of The Convention on Rights
of Child (CRC), 1989, makes child a competent witness. However, the provision
limits the scope of the competency of the child witness to the proceedings
affecting the same child. The verbatim of the Article is:

Article 12
1. States Parties shall assure to the child who is capable of forming his or her own
views the right to express those views freely in all matters affecting the child,
the views of the child being given due weight in accordance with the age and
maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child, either
directly, or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law.

So, where a child is affected like in the cases of child abuse and molestation,
The victim child, under International law, will be a competent witness to
prosecute and try the abuser.

Before discussing the credibility of testimony of the child in Islamic Law, it is

important to go through the incidents of Hazrat I’sa (A.S). The relatives and the
people of neighborhood were surprised when they saw Maryam was carrying a
baby in her arms. When a woman is seen carrying a newborn baby, it is on
assumption that she is married. Otherwise, it will be held that she had committed
adultery. It was only when they heard the newborn baby (the Prophet Isa A.S.):

“He (Jesus) spoke: Verily, I am a slave of Allah, he has given me the Scripture and
made me a Prophet. And He has made me blessed wheresoevere I be, and has
enjoined on me Salat (Prayer), ad Zakat, as long as I live……”1

Indirectly, it shows the admissibility of child’s evidence in Islamic Law. However, a

serious objection maybe raised for the Prophet I’sa (A.S) being a special child.
Therefore, Muslim jurists put certain limitations on the competency of children in
giving evidence because they feel that a child lacks understanding and discerning
power which is inherent in persons of tender years, thus preventing them from

1
Chapter: 19 (Maryam) Verse: 30,31
understanding the nature of certain events. Nevertheless, there are certain
exceptions to the general rule. The evidence of a child may be
accepted in certain cases to preserve and protect the rights and interest of
people.

In Pakistan, enactment regarding the evidence is Qanun-e-Shahdat Order,1984

which is based on the Islamic injunctions as per its preamble that states as
following:

“Whereas it is expedient to revise, amend and consolidate the law of evidence

so as to bring it in conformity with the injunctions of Islam as laid down in the
Holy Qur'an and Sunnah…”

The Order,1984 has provisions regarding the competency of witness. Article#03

states :

“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:

Provided that a person shall not be competent to testify if he has been convicted
by a Court for perjury or giving false evidence:

Provided further that the provisions of the first proviso shall not apply to a person
about whom the Court is satisfied that he has repented thereafter and mended
his ways:

Provided further that the Court shall determine the competence of a witness in
accordance with the qualifications prescribed by the injunctions of Islam as laid
down in the Holy Qur'an and Sunnah for a witness, and. where such witness is
not forthcoming the Court may take the evidence of a witness who may be
available.
Explanation: A lunatic is not incompetent to testify unless he is prevented by his
lunacy from understanding the questions put to him and giving rational answers
to them.”

So, Pakistani law of evidence, being based upon the injunctions of Islamic law,
presses upon the intelligence and prudence of witness and not on the age of the
same. It was held:

“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. Child in the age of 8/9 years, if gave
statements which indicated that the said witness understood the questions and
gave answers intelligently and rationally, then the same could not be ignored
merely due to tender age of the witness.”2

However, there are a lot of precedents that requires the judges to keep Rule of
Caution, along with the rule of law, in mind while admitting a child as a witness.
For instance, in a case, the learned judge concluded:

“Evidence of a child is a delicate matter and normally it is not safe to rely upon it
unless corroborated as rule of prudence. Great care is to be taken that in the
evidence of child element of coaching is not involved. Children are the most
untrustworthy class of witnesses, because when in tender age they often mistake
dreams for reality, repeat glibly as of their own knowledge that they have heard
from others and are greatly influenced by the fear of punishment, by hope of
reward and the desire of notoriety. Rule of prudence requires that the testimony
of child witness should not be relied upon unless it is corroborated by some
evidence on the record.”3

2
(2011 MLD 873) Nazir Hussain vs State:

3
2011 YLR 1899 M.Ferouz v State
However, in Hudood cases, Islam explicitly prohibits the testimony of a child. In
the like way, Hudood Ordinances, 1979 consider the child’s testimony altogether
inadmissible. For instance, the Section.09 of THE PROHIBITION (ENFORCEMENT
OF HADD) ORDER, 1979:

“Proof of drinking liable to hadd: The proof of drinking liable hadd shall be in one
of the following forms, namely:-
(a) the accused makes before a court of competent jurisdiction a confession of
commission of drinking liable to hadd; and
(b) at least two Muslim adult male witness, about whom the court is
satisfied, having regard to the requirement of tazkiyah al-shuhood, that they are
truthful persons and abstain from major sins (kabair), give evidence of the
accused having committed the offence of drinking liable to hadd.
Explanation.- In this Article, tazkiyah al-shuhood means the mode of inquiry
adopted by a court to satisfy itself as to the credibility of a witness.”

And the Section 02 of the Ordinance defines the term ‘Adult’ as:

(a) "adult" means a person who has attained the age of eighteen years or
puberty.

Almost the same provisions are made in other Hudood Ordinances, Section.08 of
The Offence of Zina (Enforcement of Hudood) Ordinance, 19794, Section.07 of The
Offences against Property (Enforcement of Hudood) Ordinance,1979 5 , The
Offence of Qazf (Enforcement of Hadd) Ordinance, 19796 and resultantly render a
child altogether an incompetent witness.

4
Section.08
5
Section.09 & 16
6
Section.06