Law: Penal Code (XLV of 1860)

Section: 365, 376

Penal Code (XLV of 1860)---

----Ss. 365 & 376---Abduction, forcible intercourse/rape---Appreciation of evidence---Mentally impaired victim---Competency to testify---Alternative means to record testimony---Accused were charged for committing rape with the mentally impaired daughter of the complainant after her abduction---During the trial, Female Medical Officer testified that victim was deaf and dump and unable to speak; that she was mentally retarded and unable to tell about previous such incidents or give relevant gynecological history---Prosecution submitted an application before the Trial Court to determine whether victim was competent to testify---Consequently, the Court summoned victim, conducted a voir dire test and found her unable to testify---However, Trial Court failed to explore whether victim's testimony could have been recorded through alternative means, which declared her incompetent to testify under Arts. 3 & 17 of the Qanun-e-Shahadat, 1984, without seeking the opinion of a qualified psychiatric or psychological expert---Absence of expert evaluation constituted a serious procedural lapse, as mental incapacity did not automatically preclude a witness from providing testimony---Law did not rigidly assume that persons with disabilities were wholly incapable of expressing themselves---In criminal cases involving victims with cognitive or intellectual disabilities, their testimony should not be rejected outright due to their condition--Instead, appropriate procedural accommodations must be made to facilitate their meaningful participation in the legal process---Trial Court should have summoned an expert to assess whether victim communicated her experiences through alternative means before declaring her incompetent to testify---Thus, matter was remanded to the Trial Court with the direction to summon a forensic psychologist or psychiatrist to assess victim's capacity to communicate and the feasibility of recording her testimony through alternative means---Appeal was disposed of in the above terms.