PESHAWAR – In a landmark judgment aimed at reforming the judicial approach toward minors, the Peshawar High Court (PHC) has ruled that implementing child-friendly procedures, conducting in-camera proceedings, and ensuring the privacy and dignity of victims are mandatory requirements under the Anti-Rape (Investigation and Trial) Act, 2021.
The division bench, comprising Justice Sahibzada Asadullah and Justice Dr. Khurshid Iqbal, observed that the 2021 Act serves as a legal recognition that cases involving child victims require a sensitive methodology, a conducive environment for truthful testimony, and protection from the rigors of traditional courtroom settings.
Judicial Error in Determining Witness Competency
The PHC issued these directives while’s accepting the appeal of a convict previously sentenced to life imprisonment for the sexual assault of a seven-year-old girl. The bench remanded the case to the trial court, ordering a fresh determination regarding the victim’s competency as a witness.
Previously, the Child Protection Court in Mardan had declared the young victim incompetent to testify. The trial court based this disqualification on the child’s inability to identify the courtroom, her lack of knowledge regarding the judge’s role, and her failure to describe the nature of judicial proceedings during preliminary questioning.
Critiquing this approach in a 21-page detailed judgment, Justice Sahibzada Asadullah noted:
“The issue is not merely whether a particular child witness was rightly or wrongly disqualified. The larger issue is how courts themselves perceive ‘competency,’ how they approach the testimony of children who come before them bearing the weight of trauma, and how procedural rigidity sometimes becomes an obstacle to the very justice it is meant to deliver.”
Cognitive Capacity vs. Social Familiarity
The PHC highlighted a “profound legal flaw” in the trial court’s reasoning, asserting that the lower court misunderstood the prevailing legal standards. The bench ruled that the record showed no meaningful assessment of the minor’s cognitive capacity.
The judgment clarified that:
- Cognitive Assessment: The court failed to test if the child could understand simple factual questions or distinguish between truth and falsehood in age-appropriate language.
- Mental Function: Competency relates to mental function, not social familiarity or an understanding of legal hierarchies.
- Developmental Psychology: Citing cognitive science, the bench noted that children process information concretely rather than abstractly, and their memory is episodic rather than analytical.
Preventing “Secondary Victimization”
The PHC emphasized that a child survivor of sexual abuse carries an “additional burden” where trauma alters memory and suppresses articulation. The bench warned that if courts insist on adult standards of composure, they will elicit silence rather than truth.
“This is not leniency; it is realism,” the court stated, adding that the Anti-Rape Act of 2021 reflects a shift toward child-sensitive adjudication. The primary goal of these laws is to prevent secondary victimization, a phenomenon where the judicial process itself replicates the original trauma.
Global Legal Context
To support its findings, the bench provided a comparative legal analysis of practices in the United Kingdom, United States, Canada, and India, noting a global evolution toward protecting vulnerable witnesses.
The High Court concluded that when trial courts apply “ordinary judicial rigor” to child witnesses, they ignore the underlying legal philosophy and undermine the very purpose of the law.
