Sher Azam v. State: Supreme Court Rejects Chamber Review Without Hearing

Independently written and published by Shahbaz Shah Legal Journal.

The ruling in one sentence

In Sher Azam v. The State, the Supreme Court of Pakistan held that a death convict's first review petition could not lawfully be dismissed in chambers without affording him or his counsel an opportunity of hearing; it treated the earlier chamber order as legally non-existent, entertained the later petition as the first valid review, maintained the conviction under section 302(b) of the Pakistan Penal Code, and converted the death sentence to imprisonment for life.

The judgment is important beyond its immediate result. It places constitutional due process above an administrative court arrangement, distinguishes review from recall, and opens a serious question about other criminal and civil review petitions previously decided without a lawful opportunity of hearing.

Case at a glance

• Case: Sher Azam v. The State
• Main review: Criminal Review Petition No. 173 of 2017 in Criminal Petition No. 157 of 2011
• Connected proceeding: Criminal Miscellaneous Appeal No. 9 of 2017
• Court: Supreme Court of Pakistan, Appellate Jurisdiction
• Decision date: 19 May 2026
• Bench: Justice Malik Shahzad Ahmad Khan, Justice Aqeel Ahmed Abbasi, and Justice Shakeel Ahmad
• Earlier in-person review: Criminal Suo Motu Review Petition No. 45 of 2011
• Central constitutional provisions: Articles 4, 9, 10-A, 188, and 191 of the Constitution
• Result: conviction maintained; death sentence converted to life imprisonment; benefit of section 382-B Cr.P.C. extended
• Reporting status: the principal order is marked not approved for reporting, while Justice Shakeel Ahmad's supplementary opinion is marked approved for reporting

How the dispute arose

Sher Azam was tried with Mst. Farah Naz in FIR No. 184 of 2009, registered at Police Station Ghazi, District Haripur, under sections 302 and 109 PPC. The trial court convicted Sher Azam under section 302(b) PPC and sentenced him to death, with compensation of Rs. 200,000 and a default sentence. The co-accused was acquitted.

The High Court dismissed his appeal, and the Supreme Court dismissed Criminal Petition No. 157 of 2011 on 25 July 2011. An in-person review was then processed as Criminal Suo Motu Review Petition No. 45 of 2011. On 26 April 2012, it was dismissed in chambers by the author judge, with the other member of the bench concurring through circulation. Neither the convict nor counsel was heard.

When a further review was presented, the Registry treated it as a second review and returned it as not maintainable. That objection ultimately required the Court to decide whether the earlier chamber disposal was a valid first review at all.

The 1990 Full Court arrangement

The chamber practice originated in a Full Court administrative meeting held on 22 October 1990. According to the judgment, an in-person review petition filed by a represented death convict was to be placed before the author judge in chambers to determine whether the matter was fit for suo motu review. If the author judge considered that it should be entertained, it would then be placed before the remaining members of the bench by circulation.

The decisive point is that the Supreme Court Rules, 1980 were not amended to incorporate that arrangement.

Order XXVI Rule 8 required, so far as practicable, that a review be placed before the same bench that delivered the judgment. It did not authorise dismissal of a death convict's review in chambers without notice or hearing. Order XXII Rule 7 separately enabled the Court to arrange counsel for an unrepresented accused.

Article 191 of the Constitution authorises the Court to make rules regulating its practice and procedure, subject to the Constitution and law. The Court held that an administrative decision could not perform the legal work of a duly made rule, much less override the guarantees of Articles 4 and 10-A.

What the Court actually displaced

It is tempting to describe the judgment as setting aside a Full Court decision. Strictly speaking, that description requires refinement.

The Court did not overrule or set aside a judicial judgment delivered by a Full Court after adjudication. It rejected the legal effect of a Full Court administrative arrangement and the office order based upon it because that arrangement had not amended the Supreme Court Rules and could not prevail over the Constitution.

That distinction matters. The judgment is not a conventional exercise in overruling precedent. It is an application of the hierarchy of law: the Constitution prevails over statutes and statutory rules, and all prevail over an inconsistent administrative direction.

Why the chamber dismissal violated Article 10-A

Article 10-A guarantees a fair trial and due process in the determination of civil rights and obligations and in any criminal charge. The right of hearing expressed in the principle audi alteram partem is part of that guarantee.

The Court's reasoning was that the earlier review proceeding affected the convict's life and liberty, yet it was disposed of without giving him or counsel any right of audience. The defect was not a minor irregularity in scheduling. It went to the legitimacy of the adjudicatory process itself.

Justice Shakeel Ahmad's supplementary opinion described a chamber disposal contrary to fair trial and due process as coram non judice, procedurally illegal, and constitutionally infirm. In a capital case, Article 9 also becomes directly engaged because the consequence is irreversible.

The opinion developed the idea of super due process in death-penalty cases. This does not create a separate procedural code. It requires the most exacting observance of the existing guarantees of legality, fair hearing, careful assessment of guilt, and consideration of mitigating circumstances before the ultimate punishment can be affirmed.

Review, recall, and the bar on a second review

Order XXVI Rule 9 ordinarily bars a further review after the first review has been disposed of. The Court nevertheless held that the bar could not validate a proceeding that was itself constitutionally defective.

The judgment's distinction between review and recall is central:

• Review reconsiders a valid order within recognised review grounds, commonly because of an apparent error or another legally accepted basis.
• Recall sets aside an order whose making was fundamentally defective, such as where notice was not given, hearing was denied, or the order was passed in violation of due process.

A recall challenge is directed not only to whether the conclusion was correct but to whether a legally valid adjudicatory process ever occurred. On this reasoning, the 2012 chamber order could not count as the first valid review. The later petition was therefore not barred as a prohibited second review.

This is a narrow but powerful doctrine. It does not create an unrestricted right to file repeated reviews. It protects the Court's process from being insulated by finality when the supposed final order was made without a constitutional hearing.

The evidence and the sentence

The Court maintained Sher Azam's conviction. The occurrence was unseen, but his retracted judicial confession was treated as corroborated by recovery of a pistol at his instance and a positive forensic report. The Court concluded that the prosecution had proved the offence.

The death sentence, however, stood on a different footing. The alleged motive was Sher Azam's relationship with the deceased's wife, Mst. Farah Naz, who had been acquitted and whose acquittal had attained finality. The FIR had initially been registered against an unknown accused, and the prosecution case rested on circumstantial evidence and a retracted confession.

Because the asserted motive was not proved, the precise circumstances immediately preceding the occurrence remained uncertain. The Court held that death was too harsh and that life imprisonment would meet the ends of justice. It maintained the conviction under section 302(b) PPC, compensation, and the default sentence, while extending the benefit of section 382-B Cr.P.C.

The supplementary opinion added an important sentencing principle: where a capital case depends substantially on circumstantial evidence and a retracted confession, and the State itself accepts that the extreme penalty is not warranted, the law should lean towards life rather than death if reasonable doubt exists about the appropriateness of the sentence.

What about cases already dismissed under the same chamber practice?

This is the most important question left by the judgment.

The Court did not automatically reopen every review petition previously dismissed under the 1990 arrangement. It did not direct the Registry to identify all affected cases, order a systemic audit, notify prisoners or former litigants, or prescribe a general application procedure.

Yet the logic of the ruling cannot sensibly be confined to Sher Azam alone. If another person can establish that:

1. an in-person review was disposed of in chambers under the same or a materially similar administrative practice;
2. neither the petitioner nor counsel was afforded a lawful opportunity of hearing;
3. no valid rule authorised that mode of final disposal; and
4. the resulting order affected life, liberty, or another protected right,

then there is a serious basis to seek recall of the defective order. The argument would be that the earlier order never acquired lawful finality because the process by which it was made violated Articles 4 and 10-A.

That is not the same as saying every unsuccessful review can now be filed again. The applicant must identify a fundamental procedural defect, not simply disagreement with the merits. The remedy must also be sought before the competent court through the procedure available in the particular case.

The absence of a Registry-led identification process is a weakness in the institutional remedy. Prisoners whose petitions were dismissed years ago may not know how their reviews were processed, may lack counsel, or may not possess the relevant chamber order. A constitutional principle of this importance should not depend entirely on the affected person's ability to discover an internal administrative history.

A prudent next step would be for the Supreme Court Registry to identify cases disposed of under the impugned arrangement, preserve and disclose the relevant records, and place an appropriate administrative or judicial mechanism before the Court. That would convert an individual correction into consistent institutional compliance.

The principle also matters in civil review cases

The constitutional text is decisive. Article 10-A applies not only to criminal charges but also to the determination of civil rights and obligations. Its protection therefore cannot be confined to death-penalty litigation.

Where a civil review petition has been finally dismissed in chambers without the petitioner or counsel receiving any lawful opportunity to be heard, Sher Azam supplies strong constitutional reasoning for recall. Property, inheritance, family status, contractual rights, execution, and other civil obligations may all be finally affected by review proceedings. An administrative practice cannot remove the hearing required by the Constitution and the governing procedural law.

The correct submission in such a case would ordinarily be that the earlier order is vulnerable because the process was fundamentally void, not that the court should conduct an unrestricted second review on the merits. The applicant should identify the governing rule, show that no authorised mode of written or oral hearing was provided, and demonstrate how the denial affected the determination.

The civil application nevertheless requires care. Sher Azam arose from a death sentence, where Articles 9 and 10-A demanded the strictest procedural protection. The judgment does not mean that:

• every civil review must necessarily involve the petitioner's physical presence;
• an oral hearing is indispensable where the governing law validly provides a fair written process;
• dismissal without first hearing the opposite party is equivalent to denying the reviewing petitioner a hearing; or
• every brief or summary dismissal is automatically void.

The constitutional question is whether the person whose civil rights or obligations were being determined received a real, lawful, and meaningful opportunity to present the case. If no such opportunity existed, the civil nature of the dispute does not weaken Article 10-A; the express words of Article 10-A bring it within the guarantee.

Binding holding and supplementary reasoning

Care is also needed when identifying the precedent.

The binding core of the three-member order is that the 1990 administrative arrangement could not amend or override the Supreme Court Rules, the chamber dismissal without a hearing was invalid, the earlier order was treated as non-existent, and the present petition was entertained as the first lawful review.

Justice Shakeel Ahmad agreed with the result and supplied broader constitutional reasons. His approved-for-reporting supplementary opinion elaborated the doctrines of super due process, recall, the constitutional status of the right of audience, and heightened caution in capital sentencing.

Those reasons are highly important and were written in support of the unanimous result. A careful lawyer should nevertheless distinguish propositions expressly forming the common order from the additional doctrinal development contained in the supplementary concurrence.

Critical assessment

The judgment is well reasoned because it refuses to allow administrative convenience to displace constitutional adjudication. It recognises that finality is valuable only when the process leading to finality was lawful.

Its treatment of recall is particularly useful. Without that distinction, an invalid first proceeding could generate its own immunity: the court could deny a hearing and then rely on the bar against a second review to prevent correction. The judgment avoids that circular injustice.

Its broader importance lies in the express connection between institutional court procedure and Article 10-A. Superior courts are guardians of due process, but they are also bound by it. An internal administrative decision cannot occupy a legal space denied to Parliament, statutory rules, or the Constitution.

The unresolved difficulty is remedial reach. Declaring one earlier order non-existent corrects the injustice before the bench, but it does not answer how the justice system should address all other litigants subjected to the same practice. The Court's reasoning points towards recall in comparable cases, yet the absence of a general mechanism places a heavy burden on persons least able to discover and litigate the defect.

The better institutional response would combine individual applications with a transparent Registry review. This would protect finality from speculative challenges while ensuring that orders made without hearing are not left unexamined merely because the affected litigant remains unaware.

Practical implications for lawyers

Counsel examining an old criminal or civil review should obtain the petition, cause list, chamber order, bench composition, notice record, representation history, and the rule or administrative direction under which the matter was disposed of.

The proposed application should separate procedural invalidity from disagreement on merits. It should explain:

• what right or obligation was being determined;
• whether the petitioner or counsel was given notice and an opportunity to be heard;
• whether the governing rules authorised the mode of disposal;
• why the defect goes to jurisdiction or constitutional validity; and
• what limited restorative order is sought.

In criminal cases involving death or liberty, Articles 9 and 10-A and the heightened need for due process should be pleaded. In civil cases, the express civil-rights-and-obligations limb of Article 10-A should be placed at the centre of the argument.

The requested remedy should ordinarily be proportionate: recall the defective order and restore the review for lawful hearing. Sher Azam should not be presented as an automatic merits victory. Its immediate procedural promise is the right to a valid adjudication.

What the judgment does not decide

The decision does not abolish the principle of finality or the bar against successive reviews. It holds that those principles presuppose a valid first proceeding.

It does not automatically invalidate every chamber order. The legality of any other order depends on the applicable rules, the hearing actually afforded, and the nature of the determination.

It does not require the physical production of every prisoner or civil litigant in every review. A right of audience may be exercised through counsel, and a legally sufficient written process may be possible where the applicable law permits it and fairness is genuinely preserved.

It does not set aside a judicial Full Court precedent. It denies controlling legal effect to an inconsistent administrative arrangement.

Finally, it does not acquit Sher Azam. The conviction remains; only the death sentence was converted to imprisonment for life.

Conclusion

Sher Azam v. The State is a significant constitutional judgment on the validity of review proceedings. Its central lesson is simple: a court order affecting life, liberty, civil rights, or obligations cannot claim lawful finality when the person affected was denied the hearing required by the Constitution and governing rules.

For death-penalty cases, the judgment demands the highest degree of procedural fairness. For other criminal cases, it confirms that administrative convenience cannot replace due process. For civil cases, Article 10-A's express language provides a principled basis to challenge a review order made without any meaningful opportunity of hearing.

The judgment is therefore both corrective and incomplete. It corrects the injustice in the case before the Court and supplies a route of recall for comparable cases. The next constitutional task is to ensure that people already affected by the same unlawful practice can identify the defect and obtain a hearing without depending on accident, access, or institutional memory.

This commentary is independent legal analysis for research and general information. The certified judgment, current constitutional and statutory text, applicable court rules, limitation questions, and the complete record of the particular case should be verified before reliance in proceedings.