Supreme Court of Pakistan
Sher Azam v. The State
Published on this website · Updated
Criminal Review Petition No. 173 of 2017 in Criminal Petition No. 157 of 2011; Criminal Miscellaneous Appeal No. 9 of 2017
Citation: Supplementary opinion approved for reporting; reported citation not yet assigned
Case summary
The judgment in brief
The Supreme Court held that dismissing a review in chambers without hearing violated Articles 4 and 10-A, with implications for criminal and civil review cases.
Question of law
The legal question
Whether a death convict's in-person review could lawfully be dismissed in chambers without hearing under an administrative Full Court arrangement, whether the resulting order barred a later review, and whether the conviction and death sentence should be maintained.
Court holding
What the Court decided
The administrative arrangement could not amend the Supreme Court Rules or override Articles 4 and 10-A. The chamber order made without a right of audience was treated as legally non-existent, so the later petition was entertained as the first valid review. The conviction was maintained, but the unproved motive and circumstantial features made death too harsh.
Result
Outcome and directions
The office objection was overruled and the review was partly allowed. The conviction under section 302(b) PPC was maintained, the death sentence was converted to imprisonment for life, compensation and the default sentence were maintained, and section 382-B Cr.P.C. benefit was extended.
Practical effect
What the decision means in practice
The office objection was overruled and the review was partly allowed. The conviction under section 302(b) PPC was maintained, the death sentence was converted to imprisonment for life, compensation and the default sentence were maintained, and section 382-B Cr.P.C. benefit was extended.
This summary states the immediate effect recorded in the decision. The original judgment and the facts of the particular case remain controlling.
Statutory context
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Primary source
Original judgment and official source
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Precedent record
Authority and later treatment
- Publication
- Approved for reporting; reported citation should be checked when assigned
- Primary source
- Official external judgment source linked
- Later treatment
- No later judicial treatment has yet been editorially verified for this record
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Pinpoint research
Exact paragraph and citation links
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Principal order14 paragraphs
Registry objection under challenge
Identifies the appeal against the Registrar's return of the later review petition as not entertainable.
Objection based on a second review
Records the objection that the petition was barred because an earlier review had already been filed.
The 1990 Full Court arrangement
Examines the earlier chamber dismissal and the administrative arrangement for processing in-person reviews.
Condemned unheard
Holds that the chamber dismissal was made without the petitioner or counsel and violated natural justice.
Registrar's account of Order XXVI Rule 8
Records the Registry's position that in-person petitions were treated as suo motu reviews and circulated in chambers.
No rule authorised dismissal without hearing
Finds no Supreme Court Rule authorising final chamber disposal without hearing and notes the rule on State-provided counsel.
Earlier order treated as non-existent
Declares the 2012 chamber order non-existent in law and treats the present petition as the first valid review.
Withdrawal objection rejected
Explains that only compromise petitions were withdrawn and the main review remained pending for re-listing.
Office objection overruled
Allows the miscellaneous appeal and directs the office to entertain and fix the criminal review petition.
Scope of the review
Identifies the 2011 order maintaining the conviction and death sentence as the decision under review.
Hearing and record
Records that arguments were heard and the record was examined.
Trial, conviction, and earlier appeals
Sets out the trial court sentence, the co-accused's acquittal, and the dismissal of the earlier appellate proceedings.
Circumstantial proof and retracted confession
Maintains the finding of guilt on the retracted judicial confession, recovery, and positive forensic report.
Death sentence converted to life
Finds the motive unproved, maintains the conviction, and substitutes imprisonment for life for the death sentence.
Supplementary opinion of Justice Shakeel Ahmad15 paragraphs
Agreement with the principal order
Expresses agreement with the result and introduces supplementary reasons.
Constitutional significance of the dispute
Frames hearing, natural justice, Sharia principles, and capital punishment as matters beyond ordinary procedure.
Procedural fairness as a substantive guarantee
Explains why fairness, transparency, and legality are indispensable where life and liberty are at stake.
Five questions for determination
Lists the issues concerning review, chamber disposal, the right of audience, capital sentencing, and recall.
Purpose and philosophy of review
Treats review as corrective jurisdiction directed to error, procedural unfairness, and miscarriage of justice.
Islamic law and natural justice
Connects caution over retracted confessions with the prevention of oppression and the right to be heard.
Finality cannot preserve manifest illegality
Describes review as the Court's final safeguard against irreversible injustice affecting life or liberty.
Chamber disposal constitutionally infirm
Holds that administrative directions cannot override Articles 4 and 10-A or the right of audience in open court.
Super due process in capital cases
Requires heightened procedural and evidentiary safeguards because death is irreversible.
Open-court hearing was mandatory
Finds the chamber review inconsistent with due process, natural justice, and Articles 4 and 10-A.
Caution over the death penalty
Examines the circumstantial case, retracted confession, and the State's concession against the extreme penalty.
Successive-review bar not absolute
Explains that finality presupposes a lawful process and cannot shield a constitutionally defective earlier proceeding.
Review distinguished from recall
Distinguishes reconsideration of a valid order from setting aside an order affected by a fundamental procedural defect.
Recall jurisdiction directly attracted
Finds denial of audience and the capital evidentiary concerns sufficient to engage the Court's recall jurisdiction.
Justice prevails over defective finality
Concludes that constitutional courts may revisit the matter to preserve due process and prevent irreversible injustice.
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Independent analysis
Read Shahbaz Shah's legal commentary
The Supreme Court held that dismissing a review in chambers without hearing violated Articles 4 and 10-A, with implications for criminal and civil review cases.
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