Noor Mukadam Case: Zahir Jaffar Review Dismissed by Supreme Court

Independently written and published by Shahbaz Shah Legal Journal.

The decision in brief

In Zahir Zakir Jaffar v. The State and another, the Supreme Court of Pakistan dismissed Criminal Review Petition No. 89 of 2025 and refused leave. The Court found no error apparent on the face of the record and no other ground for intervention within its exceptionally narrow review jurisdiction.

The result left intact the Court's earlier judgment of 20 May 2025. The petitioner's conviction and death sentence under section 302(b) of the Pakistan Penal Code, 1860 for the murder of Noor Mukadam remained in force. His conviction under section 376(1) remained, with the sentence previously converted from death to imprisonment for life. His conviction and sentence under section 364 had already been set aside, while the conviction and sentence under section 342 had been maintained.

At the review hearing, counsel for the petitioner expressly confined the case to sentence and did not press the merits of conviction. The review therefore concerned whether the asserted grounds disclosed a legally sufficient basis to replace the murder death sentence with imprisonment for life.

What was under review

The petitioner had been tried for the rape and murder of Noor Mukadam. The trial court convicted him under sections 302(b), 364, 342 and 376(1) PPC, and the Islamabad High Court maintained the convictions and sentences.

In Criminal Petition No. 467 of 2023, the Supreme Court converted the petition into an appeal and disposed of it by judgment dated 20 May 2025. That earlier decision maintained the conviction and death sentence under section 302(b), maintained the section 376(1) conviction but converted its death sentence to life imprisonment, set aside the section 364 conviction and sentence, and maintained the section 342 conviction and sentence.

The subsequent proceeding was not another ordinary appeal. It was a review petition under Article 188 of the Constitution read with Part IV, Order XXVIII of the Supreme Court Rules, 2025.

The review arguments

The petitioner's counsel advanced three principal grounds in support of a lesser sentence.

First, he relied on alleged mental illness and diminished mental capacity. The argument referred to an application under section 465 Cr.P.C., a plea said to have been raised in the earlier Supreme Court proceedings, and a letter dated 14 January 2022 from a London consultant psychiatrist. The letter recorded that the petitioner had been examined in April 2015 and had experienced a drug-induced psychotic episode.

Second, counsel argued that the petitioner had not been represented by counsel of his own choice at trial and that appointment of counsel at State expense had occurred without sufficient inquiry or informed consent. This was presented as a violation of fair trial and due process under Articles 4, 9 and 10-A of the Constitution.

Third, counsel challenged the admissibility of DNA and video forensic reports because the forensic scientists who prepared them had not appeared as witnesses.

The prosecution and counsel for the complainant opposed the review and sought its dismissal.

Review is not an appeal in disguise

The Court began with the controlling jurisdictional rule. Article 188 and the Supreme Court Rules confer a power of review, but that power is neither appellate nor available as a routine rehearing.

A review cannot be used to reargue questions already decided, reassess evidence, reevaluate testimony or reopen concluded findings of fact. In a criminal case, the applicant must identify a patent, manifest and self-evident error on the face of the record, or establish that intervention is required in the interest of justice or to prevent abuse of the Court's process.

An alleged error that can be demonstrated only through elaborate argument, detailed evidentiary scrutiny or appellate-style reasoning is outside that boundary. The Court supported this approach by citing Ghulam Sarwar v. The State (1979 SCMR 43), Yaqoob Khan v. The State (PLD 1996 SC 97), Ayyaz Baig alias Bau Chuhanwala v. The State (2002 SCMR 380), Naseer Ahmed v. The State (2006 SCMR 942), Khan v. The State (2008 SCMR 880), and Sikandar Hayat v. The State (PLD 2020 SC 559).

This threshold shaped the entire judgment. Each asserted ground had to identify a reviewable error in the earlier Supreme Court decision, not merely support a different view of sentence or evidence.

Why the mental-health ground failed

The Court found that the mental-health material did not establish legal incapacity at the relevant time or a mitigating circumstance sufficient to disturb sentence.

The psychiatric letter concerned an examination in April 2015, more than six years before the occurrence on 20 July 2021. It recorded a drug-induced psychotic episode, but also stated that the petitioner underwent approximately six months of therapy and made a full recovery.

No contemporaneous, continuous or independent medical material was produced to show that the petitioner suffered from a disabling mental disorder at or around the occurrence or during trial. The author of the letter was not called to prove it, and the record did not show continuing psychiatric treatment or an inability to understand proceedings, instruct counsel or conduct a defence.

The Court also examined the petitioner's statement under section 342 Cr.P.C. It found that his answers were coherent and detailed, reflected an understanding of the allegations and prosecution evidence, and did not indicate inability to participate in the case. His conduct before the trial court likewise did not alert the court to an incapacity requiring the statutory mental-capacity procedure.

The judgment therefore distinguishes a historical diagnosis from legal incapacity. A past episode, without reliable evidence connecting it to the time of the offence or trial, did not establish unsoundness of mind, diminished responsibility or sentence mitigation.

State-appointed counsel did not establish an unfair trial

The fair-trial ground also failed on the record. The petitioner had legal representation throughout the trial and later proceedings. State-funded counsel was appointed after he did not engage private counsel despite being given the opportunity to do so.

The Court did not treat State appointment itself as proof of unfairness. It examined the quality and practical effect of representation. The appointed counsel remained present, participated actively, and thoroughly cross-examined the prosecution witnesses. Another senior counsel also joined the defence during trial.

No specific omitted question, lost defence, conflict, incompetence or other prejudice was identified. Nor did the record show that the petitioner was unable to understand the proceedings or communicate with counsel. In those circumstances, the Court held that the use of State-appointed counsel did not violate the right to fair trial and due process.

The important distinction is between the source of counsel's appointment and the effectiveness of representation. A constitutional complaint requires demonstrated unfairness or prejudice; it does not arise merely because counsel was provided at public expense.

Section 510 Cr.P.C. and forensic reports

The most substantial procedural issue concerned reports prepared by forensic scientists.

At the time of trial, section 510 Cr.P.C. did not expressly name a forensic scientist among the government experts whose reports could be used in evidence without calling the maker. During the pendency of the petitioner's appeal, the Code of Criminal Procedure was amended in 2022. The amended section expressly includes a forensic scientist, along with other listed experts, within that evidentiary procedure.

The Court held that the amendment concerns the mode of proof, the taking of evidence and the reception of expert reports. It creates no offence, increases no punishment, changes no ingredient of an offence, imposes no new prosecution burden and removes no substantive defence. It is therefore procedural rather than substantive.

Section 510 also preserves a safeguard. Its proviso allows the court, where necessary in the interest of justice, to summon and examine the person who prepared the report. The Court noted that no application to summon a forensic scientist was made before the trial court or appellate court, and neither court independently considered examination necessary.

Why the 2022 amendment applied to the pending appeal

Procedural provisions ordinarily apply to pending proceedings unless the legislature provides otherwise or their operation would impair an accrued or vested right. The Court relied on Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and Muhammad Afzal v. Karachi Electric Supply Corporation (1999 SCMR 92) for the rule that changes to a remedy, mode of trial or manner of taking evidence are procedural and ordinarily retrospective.

It also referred to State v. Muhammad Akram (1987 PCr.LJ 1728), in which the Supreme Court of Azad Jammu and Kashmir treated an amendment concerning forensic and other expert reports as procedural and applicable to a pending criminal appeal.

Because an appeal continues the trial for this purpose, the appellate court was entitled to apply the procedural law in force when it adjudicated the appeal. The petitioner's appeal remained pending when the 2022 amendment came into force, and the Court found no legislative intention excluding pending cases and no substantive right impaired by its application.

The Court accordingly rejected the claim that the reports became inadmissible solely because the forensic scientists were not called as witnesses.

The objection could not be raised for the first time in review

There was an independent procedural obstacle. The petitioner had not objected when the forensic reports were tendered or exhibited at trial, during final arguments, before the appellate court, or when the earlier criminal petition was heard by the Supreme Court.

Raising the objection for the first time in review would have reopened an issue never previously contested or decided. That is incompatible with the limited function of review. The Court held that a party could not use review to cure an omission at the proper procedural stages and invoked the principle that the law assists those who are vigilant about their rights.

For practitioners, this part of the decision is as important as the retrospective-operation analysis. An evidentiary challenge should identify the report, the statutory basis of objection, any request to summon the expert, and the prejudice asserted at the earliest appropriate stage. Silence through trial and appeal may prevent the point from becoming a review ground later.

Why the death sentence remained

After rejecting the three principal grounds, the Court found no mitigation capable of reducing the murder sentence. It referred to the nature and circumstances of the offence, the manner in which it was committed, the petitioner's conduct and the concurrent assessment of the record by the courts below and the Supreme Court in the earlier proceeding.

The Court concluded that the aggravating features overwhelmingly outweighed the circumstances asserted in mitigation. Because no recognised exception or reviewable error had been established, it refused to interfere with the sentence under section 302(b) PPC.

This conclusion must be stated precisely. The review judgment did not impose a new sentence and did not restore the separate death sentence under section 376(1). It dismissed the challenge to the murder death sentence while leaving the different dispositions made in the judgment of 20 May 2025 unchanged.

The Court's observations on femicide

Before concluding, the Court addressed femicide as a grave and growing concern. It described the killing of a woman in this context as potentially the lethal culmination of a gender-motivated continuum of violence rather than an isolated spontaneous event.

Referring to a statistical framework developed by the United Nations Office on Drugs and Crime and UN Women, the Court recorded that approximately 50,000 women and girls were killed in 2024 by an intimate partner or immediate family member. It also referred to coercive control, stalking and psychological terror as identifiable risk behaviours that may precede lethal escalation.

The Court connected protection of women's life, honour and rights with both constitutional duty and the Injunctions of Islam. These observations form an institutional statement about prevention and social responsibility. They do not create a separate offence, a new evidentiary presumption or an independent sentencing rule in this review proceeding.

Practical implications for criminal practitioners

The judgment yields several practical lessons.

1. A criminal review petition should identify a patent error in the judgment under review. Repackaging evidentiary or sentencing arguments as a fresh appeal will not meet Article 188.
2. A mental-incapacity or mitigation claim requires evidence tied to the legally relevant period. Diagnosis, continuity of treatment, functional effect, expert proof and the accused person's ability to understand proceedings should be addressed directly.
3. A fair-trial challenge based on representation should identify concrete prejudice, such as a material defence not advanced, an unexamined witness, a conflict or demonstrated inability to instruct counsel.
4. An objection to an expert report should be raised when the report is tendered. Where cross-examination is necessary, an application under the proviso to section 510 should explain why the expert's attendance is required in the interest of justice.
5. The date and character of a statutory amendment matter. A rule affecting evidence-taking or mode of proof may apply to a pending appeal even where the trial preceded the amendment.
6. Admissibility under section 510 is not the same as conclusive weight. Courts must still evaluate the report in the complete evidentiary record, while retaining power to summon its maker where justice requires.

What the judgment does not decide

The judgment does not reconsider the merits of conviction. Counsel expressly confined the review submissions to sentence.

It does not hold that every past psychiatric diagnosis is irrelevant. It holds that the material in this record did not establish incapacity at the time relevant to the offence or proceedings and did not supply a mitigating ground for review.

It does not hold that representation by State-appointed counsel can never produce an unfair trial. It finds no denial or specific prejudice on this record, where counsel actively participated and cross-examined the witnesses.

It does not make every expert report immune from challenge. Section 510 retains judicial power to summon the maker, and questions of authenticity, relevance, reliability and evidentiary weight remain distinct from the statutory mode of proof.

It does not announce a general rule that all amendments operate retrospectively. Its reasoning is tied to the classification of this amendment as procedural and to the absence of an impaired substantive or vested right.

Critical legal analysis

The judgment's central doctrinal contribution is its treatment of the 2022 amendment to section 510 Cr.P.C. By asking what the amendment actually changes, the Court separates procedure from substance. Expressly adding forensic scientists to a rule for receiving government expert reports changes how evidence is proved; it does not redefine criminal conduct or punishment.

The reasoning also preserves a meaningful safeguard through section 510's proviso. A report may be received without automatically requiring the scientist's attendance, but the court may still call the expert where a genuine issue requires examination. Efficient proof and fair challenge therefore remain capable of operating together.

The judgment is equally firm about procedural timing. Review is not a mechanism for introducing an objection that was available but omitted throughout trial, appeal and the earlier Supreme Court hearing. That approach protects finality, although courts applying it should continue to distinguish tactical omission from a demonstrated fundamental failure producing actual injustice.

On mental capacity, the Court correctly focuses on functional ability and evidence from the relevant period rather than the mere existence of an earlier diagnosis. The analytical caution is that psychiatric condition, fitness for trial, criminal responsibility and sentence mitigation are related but distinct questions. A future case supported by contemporaneous expert evidence may require each question to be examined separately.

The femicide discussion broadens the judgment's public significance, but its legal status should not be overstated. The operative result rests on the narrow law of review, the evidentiary procedure in section 510, the record concerning representation and mental capacity, and the absence of sentence mitigation.

Final outcome

The Supreme Court dismissed Criminal Review Petition No. 89 of 2025 and refused leave. No error apparent on the face of the record, abuse of process or other lawful basis for review was established.

The murder conviction and death sentence under section 302(b) PPC remain in force. The dispositions already made on 20 May 2025 under sections 376(1), 364 and 342 PPC remain unchanged.

Judgment record

The complete court-issued judgment is available on this page for public viewing and PDF download. The case title, proceeding number, bench, counsel, hearing and decision date, statutory provisions, earlier dispositions, reasons, final order and reporting status were checked against that primary document.