Azad Penal Code 1860

  1. —section 34, APC—common intention—vicarious liability—section 302,341, 337-A to F and 504, APC—requisites to bring case into purview of common intention—Held: we deem it proper to observe here that to bring the case in the purview of section 34, APC, some prerequisites are required to be available in the case as mere presence of an accused at the place of occurrence along with the co-accused, who committed the offence, is not sufficient to prove common intention.  Khalid Mehmood & others v. Nasir Iqbal & others 2020 SCR 272 (A) 2006 SCMR 1886 rel
  2. — section 34 — common intention — constituents of — invocation of — when a criminal act is carried out by several persons and each person holds a common intention to commit that act, every individual held liable for that act as if they had committed it individually — where several individuals collaborate to commit a criminal act they all are equally responsible — to invoke section 34, APC, these must be clear evidence of common intention — there must be a shared plan or understanding among the individuals participating in the criminal act — it is not enough for them to simply be present at the scene but they must have a collective purpose to commit the crime — prosecution bears the responsibility for proving the existence of common intention beyond a reasonable doubt. Afzan Ahmed versus The State & 06 others 2023 SCR 1085 (A) 2023 SCMR 975 ref. & PLD 2007 SC 93
  3. — section 34 — main ingredients — the 1st ingredient is that the act must be a criminal act — the act is done by several persons in furtherance of the common intention of all — for bringing the offence in the ambit of section 34, it is necessary that the act done by several persons is proved in furtherance of common intention of all persons involved — Afzan Ahmed versus The State & 06 others 2023 SCR 1085 (B & C)  PLD 1972 SC 19 rel.
  4.  — section 34 — applicability of — criminal offence — the applicability of section 34, as any other provision, depends upon the facts and circumstances of each case — no hard and fast rule can be laid down for applicability/non-applicability of section 34 — for attraction of section 34, it is not necessary that the acts of several persons charged with the commission of offence jointly must be the same or identically similar — the acts may be different in character but must have been actuated by one and the same common intention — where an offence is found neither preplanned nor premediated, section 34 is not attracted. Afzan Ahmed versus The State & 06 others 2023 SCR 1085 (D)
  5. — section 34 — applicability of — criminal offence — in order to bring home the charge of common intention, the prosecution has to establish by evidence that there was plan or meeting of minds of all accused to commit the offence— the intention to commit the crime can be gathered from the circumstances which may prevail at the spur of moment in reaction to happening of some incident — it is difficult to procure direct evidence to prove intention of a person for committing crime, except in a premediated occurrence, rather the intention has to be inferred from the act and conduct — the common intention can be proved through direct/circumstantial evidence or may also depend upon the nature of an act done or motive pressed and a joint action of more than one person itself, except where premeditation or preplanning is already evident. Afzan Ahmed versus The State & 06 others 2023 SCR 1085 (E)
  6. Ss. 34, 63, 149 – Bail-The case of a Principal offender can not be equated with those who are charged with vicarious liability-The mere fact that the other co-accused who were charged with vicarious liability were admitted to bail does not help the case of the appellant-It is not necessary that all the accused should necessarily fall within the preview of further inquiry. Bail refused. Faiz Muhammad & others v. The State 1993 SCR 68 (A)
  7. Ss. 34, 467, 468/471 — See AJK Supreme Court Rules, 1978, O.XXIII, R.2. Ehtesab Bureau, v. Ghulam Sarwar 2013 SCR  720 (B)
  8. S. 57 — offence u/s 17, EHA — dociaty — life imprisonment — calculation of fractions of terms of punishment — contention that according to constitutional provisions no punishment greater than the one provided by law at the time of commission of offence can be awarded — Held: under the provision of section 57 of the Azad Penal Code, in calculation of fraction of the terms of punishment, imprisonment for life, as was enforced at the time of alleged offence, is to be reckoned as equivalent to 25 years.  In Pakistan in the year 1972 some major amendments were made in the Penal Code but the same were not adapted in Azad Jammu & Kashmir. In Azad Jammu & Kashmir, the fraction of life imprisonment is to be reckoned as 25 years. Ahsaan Azeem & 2 others v. The State & 2 others 2014 SCR 735 (C)
  9. Section 79, APC — argument that anything done in discharge of official duties is not an offence under section 79 of APC — Held: section 79, APC falls in general exceptions and anything done in official capacity is not an offence but the effect of section 79 is to be considered at the time of final adjudication—It is not relevant at the time of registration of a case or during prosecution. Kh. M. Naheem & others v. Justice of Piece & others 2014 SCR 1049 (I) AIR 1933 Madras 268, rel.
  10. Ss. 96 & 103 — Right of private defence — The deceased was un-armed while the accused was carrying a ‘Churri’ — Straight away attacked with Churri and then inflicted another injury — Held: Not entitle to any benefit on the basis of right of private defence. Shabbir Ahmad v. The State and another 1997 SCR 206 (F)
  11. S. 109 — See Criminal Procedure Code, 1898, S. 56-A. State through Advocate–General, AJK Muzaffarabad and 2 others v. Safeer Khan and another 2013 SCR 42
  12. S. 193 — during the course of trial the contradiction in the statement of the prosecution witnesses came on the record — Held: mere contradiction cannot be made basis for the proceedings under section 193, APC.  ‘Intention’, the basic ingredient to proceed under section 193 is missing in the case.  The trial Court and Shariat Court were not justified to pass direction for preparation of complaint under section 193. Javed Iqbal Butt v. Abdul Ula But and  others 2014 SCR 372 (E)    
  13. S. 193 — perjury — punishment for false evidence — who ever intentionally gives false evidence at any stage of a judicial proceeding or fabricates false evidence shall be punished with imprisonment. Javed Iqbal Butt v. Abdul Ula But and others 2014 SCR 372 (B)
  14. S. 193 — perjury — necessary ingredients for punishment in the offence of perjury — a person is said to make a false statement intentionally if the person making that makes it advisedly knowing it to be false and with the intention of deceiving the Court and leading it to suppose that which he states, is true.  Intention may be proved either directly from the existence of certain facts and circumstances, or it may be deduced from the contradictory statements. Held: if intention is not proved then a person who is stated that he made a false statement, cannot be proceeded under section 193, APC Javed Iqbal Butt v. Abdul Ula But 2014 SCR 372 (C) PLD 1957 Peshawar 142 ref.
  15. S. 219 — Clerk passing unauthorised order for further remand of under trial prisoner in absence of Presiding Officer — Case registered under section 219 on the direction of High Court — Held: No case under section 219 could be registered because there was no allegation that order was passed corruptly or maliciously. Ghulam Nabi Saleem Chishti v. State and another 1997 SCR 45 (B)
  16. —225A—punishment of offence—jurisdiction of Court–sentence 3 years, or fine, or both and offence is triable by Magistrate—contention that offence is triable by the Court is Sessions—held: contention based upon misconception. Muhammad Ayub v.State & others  2019 SCR 162 (D)
  17. S. 279 — Punishment — Challan — F.I.R. — Proving of case — If a case is challaned under several offences the Court is competent to convict an accused in an offence providing lesser penalty. Tazweez Hussain v. Zafar Iqbal 1997 SCR 361 (C)
  18. Ss. 279 and 320 — for conviction of a person for commission of alleged offences falling under sections 279 & 320, the first and foremost ingredient to constitute these offences is the act of driving by the alleged accused. Musarrat Begum v. Muhammad Abbas & another 2014 SCR 318 (A)
  19. —Section  295- B—offence  of  defiling  of  Holy  Quran—intent of provision—spiritual and physical respect—the importance and significance of the offence of defiling of Holy Quran is not confined to a limited meaning of to the extent of spiritual aspect bit also the physical show of respect—the Holy Book must be given honour and high place both in body and mind— the physical respect of the Holy Quran and spiritual feeling with its teachings cannot be separated from each other. Muhammad Naseem vs State & another 2018 SCR 417 (C) 1994 MLD 15 & 2001 MLD (Lah) 1203 ref
  20. —Section 295-B—offence of Quran desecration—concept and punishment of—physical and spiritual respect of Holy Quran– -Quran desecration is defined as insulting the Quran which Muslims believe to be the literal words of Allahin its original Arabic form by defiling or defacing copies— Intentionally insult of Quran is regarded by Muslims as blasphemous— Most traditional schools of Islamic law require ‘wudu’ before a Muslim may touch the Quran— Muslims must always treat the printed book with reverence—disposal of worn copies is also of concern— According to Islamic historian Michael Cook the Quran should be wrapped in cloth and buried on holy ground where it is unlikely to be trampled on —- According to Arab News, Muslims are forbidden to recycle, pulp, or shred worn-out copies—therespect of the written text of the Quran is an important element of religious faith in Islam. Intentionally desecrating a copy of the Quran is punishable by imprisonment as u/s 295-B and could lead to death in Afghanistan, Saudi Arabia, Somalia etc. Muhammad Naseem vs State & another 2018 SCR 417 (E)
  21. —Section 295-B—defiling of copy of Holy Quran— convict awarded life imprisonment and declared apostate(murtad) by the Court below— to the extent of findings regarding apostasy by the convict appeared before the Court and recited (KalmaTayaba) while affirming his belief in oneness of Almighty of Allah in the last Prophet hood of Hazarat Muhammad (Peace be upon him) and the sanctity of Holy Quran—the Court held that after considering the declaration of repentance (Touba) made by the convict while appearing before the Court by articulating the ‘Shahada’ justifies to recall the findings—On showing/declaring repentance (Touba) and reciting the ‘KalmaTayyaba’ by the convict, it is evident that he has re-embraced the Islam (Faith), the matter is left now as being the matter between Allah Almightyand the convict —the finding recorded regarding apostasy (irtidad) recalled. Muhammad Naseem vs State & another 2018 SCR 417 (G & I)
  22. —Section 295-B—offence of defiling of Quran— punishment of—the alleged incident and the fact attributed to the convict bears two aspects—the physical respect and honour to the Holy Quran is a legal, religious and moral duty of a Muslim—the offence of defiling and desecration of the Holy Quran is penal offence which amply proved—conviction of life imprisonment maintained. Muhammad Naseem vs State & another 2018 SCR 417 (H)
  23. After amendment and substitution of certain sections of Pakistan Penal Code, sections 299 to 338 have been changed — By amending section 306 it has been provided that Qatl-e-amad shall not be liable to Qisas in certain cases — In section 307 the detail of the cases in which Qisas for Qatl-e-amad shall not be enforced, have been introduced — Sub- section (2) of section 307 has been added by Act No. 9 of 1999 which provides that for the purpose of satisfying itself that wali/heir has waived the right of Qisas under section 309 or compounded the right of Qisas under section 310 voluntarily, the Court shall write down the statement of wali(heir) and such other person, as it may deem necessary, on oath and record an opinion that it is satisfied that the waiver or composition was voluntarily made. Badar Shehzad & another v. The State & another 2007 SCR 218 (A)
  24. Section 300 Exception 2 — For application of this exception the first condition is of good faith, another condition is that there should be intention not causing more harm than necessary. Shabbir Ahmad v. The State and another 1997 SCR 206  (G)
  25. Section 302, APC — death sentence — reduction of — mitigating circumstance — principle of double jeopardy — Broad daylight occurrence outside the mosque — natural and independent witnesses — Court observed that minor discrepancies  pointed out cannot furnish mitigating circumstances — while referring to PLJ 2013 SC 633, wherein the Supreme Court of Pakistan observed that where the appellant is convict of death sentence and his appeal remained pending, he served the life imprisonment, his case is not covered by the principle of double jeopardy but the fact that he has already served the life imprisonment is a mitigating circumstance, which can be considered by the Court — Held: the appellant (convict) was convicted by the trial Court, his appeal remained pending in the Shariat Court and in this Court. The convict remained behind the bars for about seven years. This period cannot be considered a mitigating circumstance, for converting death sentence into lesser sentence. Muhammad Yaqoob v. The State & 2 others 2014 SCR 121 (I & J)  PLS 2013 SC 633 ref.   
  26. Section 302 — consideration of — age factor — for awarding sentence — quantum of punishment — the sole age factor is no ground to award lesser punishment or reduction of the sentence — the age factor can be taken into account along with other factors while deciding the quantum of sentence. Ch.M. Rafique  v. Rehmat Ali & another 2015 SCR 485 (E) PLD 2010 SC 1080 rel.
  27. Section.302. Qatl-Amd — death as Tazir or life imprisonment — normal sentences — in absence of proof u/s 304 APC — any one may be granted — a bare reading of the above reproduced statutory provision clearly speaks that in cases of Qatl-i-Amd, in absence of proof as specified in section 304, APC, the Court is vested with the powers to award punishment of death as “Ta’zir” or imprisonment for life having regard of the facts and circumstances of the case. Thus, it is clear that according to the statutory provisions, in such like cases, the punishment either the punishment of death or life imprisonment as a “Ta’zir”, both are normal punishments depending upon the expressed wisdom of Court having regard to the facts and circumstances of the relevant case. Thus, it can be safely held that in such like cases, it is not mandatory  under the statute that the death sentence as “Ta’zir” has to be necessarily awarded rather it is conditional  with the facts and circumstances of each case. M. Farooq v. Muhammad Arif & others 2015 SCR  872 (A)
  28. Section 302 — Normal Penalty — If a case under section 302, APC is proved against an accused beyond reasonable doubt, the normal penalty of death should be awarded to the accused. Muhammad Riaz v. The State & another 2015 SCR 1114 (E) Ghazanfar Ali v The State  criminal appeal No. 31 of 2011, decided on 13.4.2015 rel.
  29. —Section 302—under clause (b) of section 302, A.P.C. both the punishments i.e., death as ‘tazir’ and imprisonment for life are normal punishments—it cannot be said that only the death sentence is a normal punishment. Rafique-ur-Rehman v.                                                          The State 2022 SCR 199 (H)
  30. —Section 302—Cr.P.C—section 544-A —-compensation—award of— High Court converted death sentence as ‘tazir’ into life imprisonment — Supreme Court maintained the sentence of life imprisonment and ordered that convict shall pay the compensation to the tune of Rs.5,00,000/- u/s 544-A, Cr.P.C., which on recovery shall be paid to the legal heirs of deceased—in case of non-payment of compensation, the convict shall undergo sentence of 6 months, S/I. Rafique-ur-Rehman v.          The State 2022 SCR 199 (I)  1996 PcrLJ 451 rel
  31. —Section 302  —punishment of qisas— award of— evidence —reappraisal of—Nisab (criterion)—two male eye witnesses— if witnesses are found ‘Adil’ and their testimony is confidence inspiring, then the accused is liable to be sentenced to Qisas u/s 302 (a)—related witnesses are produced instead of independent  witnesses—cumulative effect after analysis of all the evidence leads to inference that direct evidence coupled with other circumstances is not of such standard on the basis of which sentence of Qisas can be awarded. Syed Kamran Hussainshahv. State & another 2022 SCR 365 (B)
  32. —Section 302—Qanun-e-Shahdat, 1984—Art. 129—murder–evidence—reappraisal of— punishment of Qisas—award of–prosecution not obliged to produce all witnesses if related witnesses instead of impartial/independent witnesses are produced then the evidence has to be examined with due care—-under Art. 129 of Qanon-Shahdat, the Court can draw an adverse inference—it is the bounden duty of the prosecution to examine a material witness—where material witnesses are not called by the prosecution without giving sufficient reason, the Court may draw an inference adverse to the prosecution—where prosecution withholds a witness under its control which is essential to prove a necessary fact, a presumption that such witness, if produced, would be unfavourable to the prosecution, may be raised— where an eyewitness who has seen the entire incident is not produced, his non-production would obviously, give rise to an adverse presumption against prosecution. Syed Kamran Hussain  v. State & another 2022 SCR 365 (C)
  33. —Section 302 — sentence — award of — evidence –reappraisal of—mitigation—trial Court awarded the sentence of death as Qisas—High Court altered the sentence into 25 years imprisonment—absence of premeditation is regarded as a strong mitigating factor— it indicates that the alleged offence does not fall in the category of ‘worst of the worst’— even if the absence of premeditation is the only mitigating factor that can be found in a case, should be considered strong enough to bar the application of death penalty—prosecution  established the guilt against accused—High Court found, sentence awarded as harsh and awarded sentence of imprisonment of 25 years while extending benefit of the mitigating circumstances in a just and fair manner. Syed Kamran Hussainshahv.           State & another 2022 SCR 365 (Q & R )  2013 SCMR 1582 ref
  34. —Section 302— Qanun-e-Shahdat, 1984—Art. 129—murder— conviction—sentence of life imprisonment already undergone— enhancement of sentence—convict not produced any evidence in defence—conclusion of trial was solely at the mercy of prosecution— convict already served out fully term of life imprisonment—held: that keeping in view the evidence coupled with the other factor of serving out full term of imprisonment by convict, it would be unfair and unjust to award capital punishment. Nani Sultana v. Tanveer Ahmed & others 2022 SCR 615 (G)
  35. — section 302 — murder — punishment — quantum of — when an offence is proved beyond any shadow of doubt, it has to be met with maximum sentence — when prosecution proves its case beyond any shadow of doubt, it is legal duty of Court to impose deterrent punishment on the offenders to make the evil doers an example and warning to like-minded people — in case of section 302(a), no discretion is left with Court while awarding sentence whereas in the event of application of section 302(b), the Court is left with option to award either death sentence or imprisonment for life as ta’zir, keeping in view mitigating or extenuating circumstances. Muhammad Ghazanfar v. M. Matloob & another 2023 SCR 115 (D) 2015 SCR 1042 ref.
  36. — section 302 — murder — punishments — life imprisonment is also a legal and normal punishment by law. Mst. Haleema Bibi versus Muhammad Nadim & others 2023 SCR 751 (C) PLD 2013 SC 793 ref.
  37. — section 302 — mitigating circumstance — benefit of — held: the perusal of statements of PWs and corroboratory evidence, there is no doubt that prosecutions successfully proved its case beyond any shadow of doubt, however certain contradictions on the statements of witnesses and other dents in the prosecution story found, which can be taken as a mitigating circumstance and can benefit the convict in mitigation of sentence — Muhamad Bashir & others versus Muhammad Naveed Abbas & others 2023 SCR 1152  (D)
  38. — section 302 — murder — circumstantial evidence — conviction of — see Muhamad Bashir & others versus Muhammad Naveed Abbas & others 2023 SCR 1152 (B & C) — section 302 — Qanon-e-Shahadat, 1984 — Art. 164 — call detail record (CDR) data — evidentiary value and admissibility of — crucial evidence i.e transcripts of voice recordings is absent — mere presentation of call data in isolation, lacking corresponding transcripts or comprehensive audio recording, fails to carry significant evidentiary value, the Courts are obliged to exercise due diligence in evaluating such evidentiary material — without essential transcripts or end to end audio recordings, the evidentiary value of CDR data remains questionable and unreliable — a thorough and meticulous analysis of available evidence, taking into account the limitation and potential for manipulation, is imperative for a fair and just decision. Muhammad Saeed versus The State & 12 others 2023 SCR 1006 (C) 2021 SCMR 522 rel.
  39.  — Section 302 — conviction — quantum of sentence — motive alleged remained obscure and could not be proved positively — convict is behind the bars for more than 17 years — death sentence awarded in the circumstances of the case not proper — death sentence awarded by the trial Court converted into life imprisonment. Imran & others vs The State & others 2024 SCR 155 (D)
  40. — section 302 — Qatl-i-amd — death sentence & life imprisonment — life imprisonment is also a legal and normal punishment provided by law — it is not necessary, that in all circumstances, even if a case is proved, the convict will be awarded death sentence, rather life imprisonment is also a normal & legal sentence. Imran & others vs The State & others 2024 SCR 155 (E)
  41. — section 302 — the punishment as ‘tazir’ for qatl-i-amd, the sentences of death and life imprisonment are alternative and both are normal sentences. Imran & others vs The State & others 2024 SCR 155 (F) 2014 SCR 770 ref.
  42. –Section 302(b)—murder—punishment of Qatil-i-Amd— life imprisonment is also a legal and normal punishment under law- –for punishment as “Tazir” for qatl-i-amd, the sentences of death and life imprisonment are alternate sentences hence both are normal sentences. Moeen Nasim v. The state & another  2022 SCR 855 (F&G) 2014 SCR 770 & PLD 2013 SC 793 rel.
  43. — section 302(b) — murder — award of sentence — u/s 302 (b), sentences of death or imprisonment for life are provided — – both the sentences are alternatives to one and another — award of one or the other sentence depends upon the facts and circumstances of each case — if a single mitigating circumstance is available in a case, it would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. Tanvir Ahmed Bhatti v. State & others 2023 SCR 514 (I&J) 2014 SCMR 1034, 2014 SCR 770, 2014 SCR 821, 2015 SCR 872, 2018 SCR 661 ref.
  44. S. 302/34 — See Criminal Code, 1898, S.497 (2)(1), Proviso. State through Advocate–General, Circuit Mirpur, AJ&K Versus M. Younas and 3 others  2013 SCR (SC AJ&K) 92 (B)
  45. Ss. 302/34 & 324/506 (as applicable in Azad Jammu and Kashmir — Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42. Appeal against conviction and sentence — Non-production of some witnesses cited in F.I.R. at trial — Effect — Prosecution is not bound to produce all witnesses cited in calendar, however, defence can avail opportunity of producing those witnesses if in its opinion they do not support prosecution version — Mere relationship with deceased cannot be regarded for any prosecution witnesses as interested witness unless such witness was shown inimical towards defence — Evidence of any interested witnesses, however, cannot be thrown away but the same has to be appreciated with care and corroboration of such evidence is to be insisted. Raja Sarfaraz Azam Khan & anothers v. State and others 2005 SCR 166 (B)
  46. Ss. 302/34 & 324/506 — Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42 — Appeal against conviction and sentence recorded against appellants — Trial Court after appreciating evidence in accordance with settled principles of appreciation of evidence arrived at a conclusion that prosecution has successfully proved case against appellants — Such view of trial Court was maintained by Shariat Court in appeal except that sentence awarded to appellants was enhanced — No mis-reading and non-reading of evidence having been pointed out, Supreme Court was not obliged to appraise evidence for any different view. Raja Sarfaraz Azam Khan & anothers v. State and others 2005 SCR 166 (C)
  47. Ss. 302/34 & 324/506 — Appeal against acquitted accused — No evidence was produced against acquitted accused of carrying any arm or inflicting any injury except minor injuries sustained by both parties with fists — Both Courts below on basis of evidence on record had arrived at conclusion that respondents were entitled to acquittal — No interference was warranted with such evidence after appreciation of evidence. Raja Sarfaraz Azam Khan & anothers v. State and others 2005 SCR 166 (D)
  48. Ss. 302/34 & 324/506 — Azad Jammu and Kashmir Interim Constitution Act, (VIII of 1974), S.42 — Appeal against conviction and sentence recorded against appellants and against acquittal of respondents — Shariat Court on basis of evidence on record has correctly convicted appellants except sentence of ‘Qisas’ in view of the fact that the pre-emption was proved, therefore, sentence of ‘Qisas’ was converted into sentence of life imprisonment — Acquittal of respondents having been rightly recorded, appeal against acquittal was dismissed. Raja Sarfaraz Azam Khan & anothers v. State and others 2005 SCR 166 (E)  PLD 1993 SC 35; 1984 PCr.LJ 2263; 1993 SCMR 1624; 1986 SCMR 1027; PLJ 2002 SC 3; 2001 SCR 240; 2000 SCR 123; 1998 SCR 47; 1998 SCR 337; 1997 SCR 206; PLD 1979 SC (AJK) 88; 2001 SCR 231; PLJ 2001 SC (AJK) 166; PLJ 2003 SC 767; 2001 SCR 240 and 1986 SCMR 1027 Rel.
  49. Ss. 302(B)/34/308/337-A — Azad Jammu and Kashmir Penal Laws (Enforcement) Act (IX of 1974), S. 25 — Qatl-e-amd, common intention, punishment not liable to qisas, punishment of Shujjah — Reappraisal of evidence — Sentence, reduction in — No direct ocular evidence connected the accused with the commission of alleged offence — Joint statement of two lady prosecution witnesses, was firstly recorded by the Magistrate under S. 164, Cr.P.C. — Magistrate either intentionally or being ignorant of the provisions of law had failed to record the statement in accordance with the statutory provisions of the Criminal Procedure Code — Said lady witnesses, in their Court statements, had not supported the prosecution story and they were declared hostile — Examination of the alleged statements recorded under S. 164, Cr.P.C. and in the Court, in juxtaposition, revealed that those statements were not of such a nature on the strength of which one could be punished with 14 years’ rigorous imprisonment — Statements of other witnesses were also not of such standard to satisfy the conscience of the Court for awarding 14 years’ rigorous imprisonment — Sufficient mitigating circumstances and compassionate grounds were available to reduce the punishment of imprisonment awarded to accused — Sentence of 14 years’ rigorous imprisonment was reduced to 10 years’ rigorous imprisonment — Accused who was continuously in Jail since his arrest, had served out more than 10 years’ imprisonment — Accused who was very poor, was unable to pay ‘Diyat’ — In view of the serving out of awarded punishment, accused would be released, in circumstances. M. Hanif v. State 2012 SCR 146 (A, C & D) PLD 1369 SC 17; 1973 PCr.LJ 37, PLD 1977 SC (AJ&K) 1; 2004 PCr.LJ 864; 1992 SCR 366; 2001 SCMR 1405; 2006 SCR 166; 2002 SCMR 2031; PLD 2007 SC 111 and PLD 2007 SC (AJ&K) 27 ref.
  50. Ss. 302/34 — See AJ&K Interim Constitution Act, 1974, S.42. Mst. Fazal Begum and 2 others v. Muhammad Yaseen and another 2013 SCR (SC AJ&K) 389
  51. Ss. 302/34 — See AJK Interim Constitution Act, 1974, S. 42. Nadeem Ahmed v. Muhammad Javed and others 2013 SCR (SC AJ&K) 576
  52. Ss. 302/34/109 — See Criminal Procedure Code, 1898, S. 497(5). Shoib Anwar v. Malik Muhammad Iqbal and 5 others 2013 SCR (SC AJ&K) 1195 (C)
  53. Ss. 302/109 — See AJK Interim Constitution Act, 1974, S. 42. Sajid Iqbal v. The State through Additional Advocate-General, Mirpur and another  2013 SCR (SC AJ&K) 1123 (B)
  54. — section 302, 34, 109 & 120-B — murder — abetment and criminal conspiracy — proof of — the Court has to base its conclusion as to involvement of an accused as abettor or conspirator on some solid material collected during the course of investigation, and not on surmises and conjectures — a conspiracy to commit a crime by its very nature is usually secret and cannot be proved by direct evidence — in case of non-availability of direct evidence the police must collect during investigation and the prosecution must lead during trial, such circumstantial evidence from which a Court could draw a legitimate inference of the existence of conspiracy and involvement of accused in that conspiracy — Muhammad Saeed versus The State & 12 others 2023 SCR 1006 (F)
  55. — section 302,34 and 149 — ‘common intention’ and ‘common object’ —distinction of — criminal trial — murder case — conviction of — nothing in the statement of witness to prove pre-meditation or any preplanning — when a person is convicted u/s 34, APC— it must be satisfactorily proven that the person so committed had common intention of doing that particular act along with co-accused — ‘common intention’ should not be misunderstood with ‘common object’ u/s 149, APC — both are not anyway synonymous — u/s 149, a person who is a member of an unlawful assembly is guilty of the offence committed by another member of an unlawful assembly, although he had no intention to do it — the dividing line between two is very thin, yet is very material and substantial — the Courts should always keep in mind the principle criminal jurisprudence and administration of justice when dealing with such cases — the evidence should always be analyzed parallel and side by side in order to join the series of chain which leads to offence being committed by the offender without any reasonable doubt — Afzan Ahmed versus The State & 06 others 2023 SCR 1085 (F)
  56. Ss. 302/201 — See AJ&K Interim Constitution Act, 1974, S. 42. Munawar Hussain and 2 others v. Imran Waseem and another  2013 SCR (SC AJ&K) 374 (C)
  57.  — section 302, 306 and 308 — High Court enhanced sentence of 14 years and awarded sentence of death — quantum of sentence when sentence of Qisas cannot be awarded under section 306, APC — death sentence cannot be awarded in cases which fall in the ambit of section 306 APC. — held: the convictappellant is the legal heir of the victim, so he cannot be awarded sentence under section 302, APC, rather, the provision of section 308, APC shall be attracted. The codal provision dealing with the question is sub-section (2) of section 308, APC which speaks that the Court having regard to facts and circumstances of the case in addition to the punishment of ‘Diyat’ may punish the offender with imprisonment of either description for a term which may extend to 14 years as ‘tazir’. Now It is the sole discretion of the Court to award any punishment below the maximum limit in view of the facts and circumstances of the case but not above the prescribed limit.— as the convict-appellant had four children from the deceased, the penalty of Qisas was inapplicable under section 306(c), APC, of the Penal Code, and the death penalty could not be awarded because Wali (Legal heirs) of the victim were direct descendants of the offender. Supreme Court, set aside the judgment of the High Court and maintained sentence of 14 years as awarded by the Trial Court. Habib Hussain Shah v. State & others 2023 SCR 442 (A) NLR 2012 Criminal 451, 2001 SCMR 1775 & PLD 2015 SC 77 rel.
  58. —302—324—trial Court awarded  sentence of 10 years imprisonment—Shariat Appellate Bench of High Court enhanced the sentence 14 years imprisonment to each convict-accused— the Supreme Court by accepting appeals of the convict-accused, converted the sentences already undergone—sturdy mitigating circumstances—-cannot be  ignored lightly, though direct evidence also cannot be brush aside—-Held: it is not a case of acquittal, however, the evidence collected by the prosecution is also not of such standard on the basis of which the major penalties can be awarded to the convicts. The appeals were partly accepted filed by the convicts and while modifying the impugned judgments convert the sentences awarded to the convict-appellants, into the sentences already undergone.  Muhammad Idress & 2 others v. State through AdvocateGeneral & 11 others  2020 SCR 200 (I)
  59.                 —common intention—vicarious liability— section 302,341, 337-A to F, 504, and 34, APC Held: in view of settled principle of law, strong circumstances showing common intention of the accused with the co-accused must exist for making him vicarious liable for the commission of offence, which are missing in the instant case; thus, we are satisfied that the learned High Court has rightly held that the prosecution failed to prove that the convicts with the common intention to kill the deceased have committed the offence.  Khalid Mehmood & others v. Nasir Iqbal & others 2020 SCR 272 (B)
  60. S. 302(B) — See AJK Islamic Penal Laws (Enforcement) Act, 1974, S. 25. Zabir Maqsood alias Kashif Maqsood v. The State through Advocate-General. Muzaffarabad 2013 SCR 642 (C)
  61. Ss. 302(B) — See Criminal Procedure Code, 1898, S. 426(1-A). Habib–ur–Rehman Chughtai v. Habib ur-Rehman and another 2013 SCR (SC AJ&K) 1212
  62. 302(B) — murder case — ‘Tazir’ — punishment for qatli-e-amd — normal sentences of — Shariat Court opined that only death penalty is normal punishment — under section 302(B) the punishment for Qatli-e-amd is death or life imprisonment — according to the statutory provisions both the punishments, i.e. death and imprisonment for life are normal punishments — Held: the punishments of death or life imprisonments as ‘Tazir’ are alternate sentences, hence both can be treated as normal sentences. Ansar Mahmood & another v. Manazir Hussain & another 2014 SCR 770 (A) PLD 2013 SC 793 rel.
  63. Section 304 — Murder case — Purgation report — Fulfilment of requirement of section 304 — Trial Court awarded the sentence of death as Qisas to the convict — The convict also failed to point out any irregularity or departure from the relevant provisions of section 304, APC. Held: in such like situation, the proper course for the trial Court was to award the punishment of death as Qisas. Muhammad Riaz v. The State & another 2015 SCR 1114 (B)  Ghazanfar Ali v. The State  criminal appeal No.31 of  2011, decided on 13.04.2015 rel.
  64. Sections 304, 302(6) — Article 17 of the Qanoon-e-Shahdat Order, 1984 — Held: that the pre-requisites for punishment of Qisas are the proofs as provided in section 304, itself with reference to either accused makes confession before the Court or as required under article 17 of Qanun-e-Shahadat Order, 1984. Where proof of Qatl-i-Amd liable to Qisas as required under section 304, is not available, the accused is liable to be convicted and sentenced under section 302 (B), APC. Ghazanfar Ali v. The State & another 2015 SCR 1042 (F)
  65. Section 305,309 and 313 APC read with section 345 (2) Cr.P.C. — Right of ‘Qisas’ in cases of murder — Right of waiver or ‘Afw’ of Qisas and compounding — Vests in legal heirs/ ‘wali’ — In absence of legal heirs/ wali right of ‘Qisas’ vests in the Government — Who can be treated as wali — Under section 305, APC, in case of murder the heirs of victim, shall be the ‘wali’ and if there is no wali; then Government shall be the ‘wali’ — Under section 309 APC, right of waiver or ‘Afw’ of Qisas in case of ‘qatal-i-amd’ vests in adult sane ‘wali’ — Under section 313, APC where the right of ‘Qisas’ vests in the wali and where there is no wali, the Government has the right of ‘Qisas’ — Under section 345(2) Cr.P.C., wali can compound the cases of ‘Hudood and Qisas’. Held: A person who is a complainant or a witness does not fall in the definition of ‘wali’ and cannot be termed as aggrieved. Muhammad Malik v. Karam Elahi & another 2011 SCR 431 (P)
  66. S. 307-whether punishment awarded by the Courts below was adequate — Tehsil Criminal Court convicted and sentenced the accused to five years rigorous imprisonment and also imposed fine of Rs. 4,000/-. Accused and complainant, both went up in appeal before the District Criminal Court. Both the appeals were dismissed. The accused and the complainant went up in appeal before the Shariat Court which dismissed both the appeals. Shariat Court expressed the view that the punishment already awarded to the accused-appellant is sufficient to meet the ends of justice.
  67. The complainant was waylaid by the accused; he was twice fired at by the accused with 12 bore gun and was injured. The left hand of the complainant was incapacitated as a result of the injuries complainant was premeditated and was made with the intention to murder him. Appeal filed by the accused against the conviction and sentence dismissed and appeal filed by the  complainant seeking enhancement of the sentence accepted in the terms that the fine imposed upon the accused was enhanced from Rs. 4,000/- to Rs. 45,000/- in default of payment of fine the accused was ordered to undergo rigorous imprisonment for one year. The amount of fine, after realization, ordered to be paid to the complainant as compensation u/s 545 (1)(B) Cr.P.C. M. Yunus v. The State 1995 SCR 344 (B)
  68. S. 307 — The Court is empowered to punish the offender with imprisonment of either description for a term which may extend to 14 years as Tazir — The imprisonment is to be awarded in addition to punishment of Diyyat — The power is  to be exercised keeping in view the facts and circumstances of the case. — The section is attracted only where the offender’s case falls under sub-section (1) of S.308. Badar Shehzad & another v. The State & another 2007 SCR 218 (C)
  69. Section 309, 307 — Eventualities for non-awarding  the death sentence as Qisas are provided in sections 306 and 307 — The wife of the convict was pregnant at the time of occurrence and pre-mature baby was also died during this occurrence — She is not survived by any Wali (legal heir) — No other direct descendent of the deceased is available — Held: After going through the supra provisions of law, no eventuality for non-awarding the sentence of death as Qisas to the convict-appellant is  available in the case in hand as neither any Wali nor any direct descendent of the victim is alive. Further held: the law does not impose any embargo to award the sentence of death as Qisas to the convict. Muhammad Riaz v. The State & another 2015 SCR 1114 (C) PLD 1994 S.C 855, 2006 SCMR 2014 2001SCMR 855 and 1999 SCMR 2203.rel.
  70. S. 308 — Deals with the punishment of Qatl-e-amad not liable to Qisas etc. and provides that in cases falling under section 306 and under clause (C) of S. 307, offender shall be liable to be Diyyat — Sub-section (2) of this section provides “notwithstanding anything contained in sub-section (1) the Court having regard to the facts and circumstances of the case in addition to punishment of Diyyat may punish the offender with imprisonment of either description for a term which may extend to 14 years as ‘Tazir’”. Badar Shehzad  v. The State & another 2007 SCR 218 (B)
  71. S. 308(2) — Qisas — Even if a legal heir waives his right of Qisas and the Court on that ground sentences an accused to Diyat the Court can sentence an accused in addition to the punishment of Diyyat to imprisonment of either description for a term which may extend to 14 years as Tazir — S. 308 is a penal provision but while considering a bail application or an application for suspension of sentence the provisions of section 331 read with sections 497 and 426 Cr.P.C. have to be attended. Abdul Ghafoor v. Muhammad Ajaib Khan and another 2007 SCR 460 (A)
  72. S. 309 — Deals with waiver by wali without any compensation — Under sub-section (2) it is provided that where a victim has more than one wali, any one of them may waive his right of Qisas — The wali who does not waive the right of Qisas shall be entitled to his share of Diyyat. Badar Shehzad & another v. The State & another 2007 SCR 218 (D)
  73. Ss. 309, 310 & 311 — Provide that the accused can be convicted not withstanding any compromise entered into between a legal heir of the deceased and the accused — The provisions of S. 311 shall apply only in cases where all the legal heirs do not compromise or compound. Badar Shehzad & another v. The State & another 2007 SCR 218 (I)
  74. S. 310 — Deals with compounding of Qisas in Qitl-e-amad and provides that an adult sane wali may, at any time on accepting badal-e-sulah, compound his right of Qisas. Badar Shehzad & another v. The State & another 2007 SCR 218 (E)
  75. S. 311 — Makes it abundantly clear that where a case falls under Ss. 309 or 310, the provisions of S. 311 will still apply and in spite of fact that one of the legal heirs of deceased has waived his/her right of Qisas after taking compensation, the Court can still convict or sentence the accused, if facts of the case so require. Badar Shehzad & another v. The State & another 2007 SCR 218 (G)
  76. S. 313 A.P.C. — The deceased had the pregnancy of two months when she was murdered — The convict-appellant beside her murder was also made answerable for the offence under section 313 A.P.C. — The sentence awarded to him for this offence is also maintained. Muhammad Ilyas v. Kabir Hussain and another 2002 SCR 510 (D)
  77. S. 317 — The requirement of this section is that there must be an intention on the part of the accused to expose or leave such child in any place wholly abandoning such child which makes the offence punishable but no such allegation has been levelled in complaint. Noorullah v. Mst. Phullan & another 1995 SCR 396 (C)
  78. —Section 318—qatl-i-khata— the provision can be enforced only when the death is caused either by mistake of act or by mistake of fact. Both the elements require to be proved before awarding the punishment provided by the said section. Asif Hussain v. Muhammad Rafique & another 2019 SCR 632 (D)
  79. S. 319 — Whether the diseased was intentionally murdered or he was killed by chance without any intention — F.I.R. was lodged by the father of  the deceased — It was stated by him that his son(deceased) along  with his wife and mother went to Samahni for attending the marriage ceremony — During the night of 4th and 5th September, 2004  some participants of the marriage ceremony started firing in the air — By chance one bullet hit yasir (deceased), due to which he died on the spot — It was stated in the F.I.R. by the complaint that his son died by chance — It was also not stated in the F.I.R. that he had enmity with any person — The entire case of the prosecution was that Yasir (deceased) died by chance due to aerial firing — The dead body was buried without any post-mortem — Therefore a case under section 319 A.P.C. was registered. Arshad Mahmood v. Raja Muhammad Asghar and another 2008 SCR 345 (A)
  80. Section 320 — for conviction of a person under section 320, APC, it is the duty of the prosecution to prove that the accused was driving the vehicle. Musarrat Begum v. Muhammad Abbas & another  2014 SCR 318 (B) Alia Shaheen vs. Shabir Ahmed and another(Cri. Appeal No.54/2011 dated 7.6.2013) rel.
  81. S. 324 — The case is covered under the provisions of S. 324, A.P.C. which falls under the prohibitory clause of S.497, Cr.P.C. — No question of further inquiry — Revision petition for cancellation of bail was filed in Shariat Court on 6.9.2005 — Same was decided on 24 .4.2008 — Which is sorry state of affairs — Held: Bail matters shall have to be decided expeditiously — Revision petition dismissed — Trial Court directed to conclude the case within two months. Muhammad Sudheer v. State & another 2008 SCR 523 (C)
  82. Ss. 324/341/506/452/337/147/148/149 — See AJ&K Islamic Penal Laws Enforcement Act, 1974, S.25. Muhammad Anwar v. Naveed and 3 others 2013 SCR (SC AJ&K) 270 (C)
  83. S. 331 — ‘Diyat’ — Payment of —‘Diyat’ may be paid in lump sum or in instalments in three years from the date of final judgment — Where a convict fails to pay ‘Diyat’ or any part thereof within the period specified the convict may be kept in jail and will be dealt with same manner as if sentenced to simple imprisonment until the ‘Diyat’ is paid fully or may be released on bail if he furnishes security equivalent to the amount of ‘Diyat’ under section 330(2). Muhammad Owais v. The State 2007 SCR 302 (A) PLJ 2003 Cr.C.(Lah.) 338 rel.
  84. S. 331 — Period of payment of Diyyat — It is basically the power of the trial Court to be exercised when final judgment is recorded and in case the trial Court fails to record any such date the appellate Court or this Court can fix the period when final judgment is recorded. Abdul Ghafoor v. Muhammad Ajaib Khan and another 2007 SCR 460 (C)
  85. S. 331 — The Court has direction to order for keeping the convict in jail until Diyyat is paid in full or he can be released on bail if he furnishes a security equal to the amount of Diyyat — The section empowers the Court to release a convict on bail with only one embargo that convict has to furnish security in equal amount of Diyyat. Abdul Ghafoor v. M. Ajaib Khan  2007 SCR 460 (D)
  86. —Section 331—application —bail offences u/s 320, 337-G, 337 F (1) APC. —an accused after being convicted has lost the initial presumption of innocence—- but considering the overall circumstances of the case and the provisions contained in section 331, APC— confinement of the convict in jail during pendency of his appeal before the Shariat Appellate Bench of the High Court, will serve no purpose. Rukhsar Hussain Alias Roosi vs The State & another 2018 SCR 1253 (A)
  87. —Section 331—sentenced of Diyat as well as 10 years’ simple imprisonment—bail application during pendency of appeal—Held: This Court has already taken the view that where the accused has been sentenced to the payment of Diyat as well as 10 years’ simple imprisonment, he can be released on bail while considering the facts of the case. Rukhsar Hussain Alias Roosi vs The State & another 2018 SCR 1253 (B)  2007 SCR 460, 2006 PcrLJ 80 and 2003 YLR 1302 rel
  88. S. 331(1)(2) — Deals with payment of Diyat and provides that the same may be made payable in lump sum or in instalments spreading a period of three years — If convicts fail to pay Diyat or any part thereof within the period specified — The convict can be kept in jail until Diyat is paid in full or he may be released on bail if he furnishes security equal in amount of Diyat to the satisfaction of Court. Abdul Ghafoor v. Muhammad Ajaib Khan and another 2007 SCR 460 (B)
  89. S. 337 — Amendment — Date of determining the forum for trial — Held: Date when offence was committed and not the date when the challan was presented before Magistrate — Held further: When the offence was committed S. 337 was not on the statute book — Offence was triable under the amended provision of P.P.C. by the Magistrate and not by the District Criminal Court. Sadiq Hussain Shah v. Azad Govt. and another 1998 SCR 27 (C)
  90. — sections 337-A, 337-F & 337-N — Punishment as tazir – — requirement of — offence causing hurt — u/s 337-N, the punishment as tazir, can only be awarded when the accused is found previous convict, habitual or hardened, desperate or dangerous criminal or the offence committed in the name of or on the pretext of honour — prosecution failed to prove any evidence that the accused is previous convict etc, thus in such scenario, the only punishment which can be awarded is ‘Daman’ 2024 SCR 127 (A&B) 2012 PcrLj 104, 2019 SCMR 516, 2021 YLR 2132 & 2020 MLD 896 ref — sections 337-A, 337-F & 337-Y — offence of hurt — value of Daman — determination of — value of ‘Daman’ may be determined keeping in view (a) the expenses incurred on treatment of victim (b) loss/disability caused in functioning or power of any organ; and compensation for the anguish suffered by the victim — no evidence to bring the case within purview of legal provision from which it can be ascertained that how much amount incurred on treatment of injuries or whether the victim was permanently disabled due to injury or not — sentence of Daman as Rs.10,000/- awarded by Court below maintained. Motiyan Bibi & 6 others vs Muhammad Rafique & another 2024 SCR127 (C,D&E)
  91. S. 337-A (1) — See Criminal Procedure Code, 1898, S. 426. Yasar Arfaat and another v. The State through Adv.Gen., Government of AJK, Muzaffarabad and 7 others 2013 SCR 9
  92. S. 337-A (1) — See Criminal Procedure Code, 1898, S. 426. Yasar Arfat and another v. The State through Advocate–General, Government, Muzaffarabad and 7 others  2013 SCR 429
  93. — section 337-D — punishment for Jaifa — arsh — award of — trial Court while sentencing the convict ordered to pay Rs.10000 as arsh to the injured — Court held that sentence awarded is not in accordance with law and made the convict liable to pay Rs.255,250/- as arsh the 1/3rd of the total amount of diyat prevailing at the time of occurrence. Imran & others vs The State & others 2024 SCR 155 (G)
  94. Ss. 337-F(iii), 337-F(Vi) — See Criminal Procedure Code, 1898, S. 561-A. Muhammad Maqsood v. Zohaib Asghar and 8 others 2013 SCR (SC AJ&K) 1139
  95. Section 337-O and 338-E, APC — Right of ‘Qisas’, waiving or compounding, in cases of hurt — In cases of hurt, the victim is ‘wali’ and if the victim is minor or insane the right of ‘Qisas’ vests in the father or paternal grandfather — If victim dies before execution the right of ‘Qisas’ vests in the legal heirs and in absence of legal heirs, then the Government. Muhammad Malik v. Karam Elahi & another 2011 SCR 431 (R)
  96. S. 338-G — See Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.3. Muhammad Hanif v. State 2012 SCR 146 (B)
  97. Ss. 341 & 392 — See Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.17 (4).  Muhammad Mushtaq v. Abdul Rehman 2012 SCR 279 (A)
  98. Ss. 364, 329, 147 and 149 — Bail — Cancellation of — There is no mention in bail granting order of the Shariat Court about the other offences — The other aspects of the case have not been considered despite the fact that they were apparent on the record — Medical report was not before the Court — Held: Shariat Court has not applied its mind to the important aspects of the case — Case remanded to the Shariat Court for its re-hearing — However accused is granted interim bail till the matter is decided afresh by the Shariat Court. Yusuf Kamal v. M. Sagheer 1997 SCR 202 (A)
  99. Section 377, APC read with section 53, APC — Punishment for the offence — Punishment of transportation of life in AJ&K is not enforced due amendment in section 53, APC — Maximum punishment/sentence under section 377 APC is 10 year’s imprisonment — Both the subordinate Courts have fell in error of law while awarding the punishment of imprisonment more than prescribed by law. Held: According to enforced law of time, the maximum punishment of imprisonment for the offence under section 377, A.P.C. is 10 years. Habibullah v. Ghulam Rasool 2011 SCR 501 (C)
  100. Section 377, A.P.C. — Quantum of sentence/punishment — Trial Court awarded 25 year’s imprisonment — Shariat Court reduced  the sentence to 15 year’s imprisonment — Against convict, prosecution has not alleged any previous conviction or brought on record any material that he is a habitual offender, while he is a young boy — In such like cases the superior Courts deemed punishment of almost round about five year’s sufficient to meet the ends of justice. Held: The punishment of imprisonment of five year’s is adequate to serve the purpose. Habibullah v. Ghulam Rasool 2011 SCR 501 (D & E) 1998 MLD, 1810, PLJ 1989 FSC 90, 1986 SCMR 533, 1977 SCMR 234, NLR 1988 SD 56 and 1984 C.Cr.L.J. 2762 rel.
  101. S. 377 — Offence of Zina  (Enforcement of Hudood) Ordinance (VII of 1979), S. 12 — Sodomy —Reappraisal of evidence — Sentence, reduction in — Doctor, after receiving the report from the Chemical Examiner, issued final medico-legal report, wherein it was reported that sexual intercourse had been committed with the victim — Unexplained delay of four and half hours in filing F.I.R. — Where family prestige or respect was involved and child of someone was defamed, people were reluctant in filing report to the Police and it was a natural course that the father of victim must have consulted his relatives, whether to file report or not; and after consultation he had filed the report — Delay in filing F.I.R., in circumstances, was natural and same was not material to the case — Where a child of 11 years could be defamed for whole life, no father would involve an innocent person in the false case — Witnesses in the case were reliable — Accused was convicted on the basis of statement of the victim and medico-legal report — Trial Court also considered the corroboratory evidence — Shariat Court had fully appreciated the evidence and concurred with the judgment of the Trial Court — Statements of prosecution witnesses were confidence inspiring which rang true — Relative witness was as much a competent witness as any other, provided he was not inimical towards accused and had a motive to implicate accused in the false case — Solitary statement of victim was sufficient to convict accused in case of sodomy or Zina, if it was confidence inspiring — Case against accused was proved from the statement of victim, medico-legal report and statement of the Doctor — Trial Court, in circumstances, had correctly reached the conclusion that the case of sodomy was proved  against accused — Maximum punishment which could be awarded under S.377, P.P.C., was ten years’ imprisonment, but accused who was a young boy of tender age, had no previous record of crime — Sentence of ten years awarded to accused, was reduced to 5 years, in circumstances. Kamran alias Kami v. The State through Additional Advocate–General, Mirpur and another 2012 SCR 125  Masood Anwar alias Bhattu v. The State 1987 PCr.LJ 289(2) and Muhammad Ikram v. The State 1987 PCr. LJ 827 ref.  Saleem Khan and others v. The State and others 2001 PCr.LJ 503; Masood Anwar alias Bhattu v. The State 1987 PCr.LJ 289(2) and Muhammad Ikram v. The State 1987 PCr. LJ 827 rel.
  102. — section 377 — offence of sodomy — FIR — delay in lodging of — observed in our society, the people often hesitate to report such incidents where family reputation is involved or defamation of a child is at stake — even from other perspective, it is hard to believe that a father would falsely implicate somebody in such a case where his 4 ½ old son would suffer for life time — the delay in reporting is a natural consequence in these circumstances and should not be considered significant. Aftab Ali versus The State & another 2023 SCR 1069 (B) 2012 SCR 125 rel.
  103. — section 377 — offence of sodomy — false implication — in cases of sodomy, the false implication is not possible no one would like to level such an allegation to falsely implicate any other at the cost of his own harm and damage. Aftab Ali versus The State & another 2023 SCR 1069 (E) 1985 PCr.LJ 683 ref.
  104. — section 377 — offence of sodomy — proof and deterrent punishment of — held: where the sodomy with the minor child is proved, the convict does not deserve for any leniency rather a harsh treatment must be ensured — sodomy, particularly, when perpetrated against innocent and vulnerable victims, is one of the worst forms — the physical, psychological and emotional scars inflicted upon such victims are indescribable and can have lifelong repercussions — the gravity of their offences demand a firm response from the judicial system — by employing an iron handed approach Court sends a powerful message that such reprehensible will not be over looked or treated lightly — the severity of punishment serves as a deterrent to potential offenders — the impact of child sodomy extends far beyond the immediate physical violation —  the emotional trauma experienced by the victim can lead to long lasting psychological scars effecting self-esteem, interpersonal relationship and overall well-being. Aftab Ali versus The State & another 2023 SCR 1069 (G & H)
  105. — section 377 — offence of sodomy — encouragement for reporting the offence —proposals, measures and directives to Govt. for enactment of laws for child protection — where people fear of losing family honor or respect due to social fears & pressure, there is often a reluctance to report such incidents — the protection of well-being of a child should always take precedence over social pressures & norms — by reporting and supporting victims we can, break the cycle of silence — suggested that the Govt. should initiate legislation for introducing suitable amendments in the relevant laws to make reporting of such like offences mandatory — Adequate trainings and awareness programs shall be conducted to enable teachers, parents and others closely working with minors to recognize sings of abuse and report them promptly — revealing the name of victim, his/her parents, family and any other identification should not be allowed through any forum until and unless the victim or his/her family allows to do so — collaboration and coordination between various agencies, involved in child welfare, including law enforcement agencies, social welfare and health care departments and education departments is the need of the hour — all Courts of AJ&K directed to hide the identity of victims of such like heinous offences until the victim and his/her family permitted to do so — no law journal shall mention name, identity of victim and his family while reporting any judgment of Supreme Court/High Court — till the reporting of the offence is made mandatory, the people should come forward in aid of law and report the matters so that this shameful act may be eradicated — desired that Criminal Law Amendment Act, 2016, promulgated in Pakistan may be introduced in AJ&K.Aftab Ali versus The State & another 2023 SCR 1069 (I & J)
  106. — section 377 — offence of sodomy — child protection — prime consideration — Supreme Court acknowledged the pain and trauma met to the families in this offence and strive to ensure that justice is served — the protection of children should be an unequivocal priority and perpetrators of child sodomy must be held accountable for their actions — it can only be achieved through a collective commitment to safeguard the innocence and well-being of children and create a society free from such atrocities. Aftab Ali versus The State & another 2023 SCR 1069 (K) 2023 SCR 229 rel.
  107. — section 377 — offence of sodomy —- standard of evidence — witness statement — appreciation of — victim stated that he was forced to leave to place of occurrence by the convict and during cross-examination deposed that convict himself handed over him to the police — held: when the ocular account is found doubtful, no definite view can be formed for attraction or non-attraction of section 377, APC, as the same appears to be immaterial whether the penetration is proved or not, especially when the ocular account is not proved — Muhammad Asif  versus State & another 2023 SCR 1172 (G)
  108. — section 377 — Offence of Zina (Enforcement of Hudood) Act, 1985 — section 12 — offence of sodomy — medico legal report — appreciation of — medical examination of victim conducted a day after alleged incident occurred — in such a scenario, it would not be possible to detect any substance on victims’ leg or establish its presence — medical report talks about a possible kind of sexual activity between the victim’s thighs — doctor did not find any sign or bruise  around the victim’s bottom — some stains on victim’s trouser were also found, but it is not known what caused them owing to the elapse of sometime, which is indicative of fact that doctor was not sure that the act of sodomy was committed with the victim — Muhammad Asif  versus State & another 2023 SCR 1172 (A & B)
  109. — section 377 — Offence of Zina (Enforcement of Hudood) Act, 1985 — section 12 — conviction of — FSL report — admissibility of — appreciation of — seminal material, typically associated with male reproductive fluid identified — opined by FSL, that without reference samples from both the potential suspect(s) and the victim, a definite conclusion regarding the involvement or exclusion of suspect(s) cannot be drawn — the FSL report indeed sheds light on the presence of seminal stains alone does not constitute a decisive factor, especially in absence of DNA testing — DNA testing is a crucial and highly precise method for identifying the source of biological material, including semen etc. — in absence of DNA test, it becomes challenging to establish, whose semen was found on victim’s pants — The absence of irrefutable DNA evidence introduces an element of doubt — Muhammad Asif  versus State & another 2023 SCR 1172 (C)
  110. — section 377 — Offence of Zina (Enforcement of Hudood) Act, 1985 — offence of sodomy — conviction of — victim statement —- appreciation of — victim claimed that he was suffered abuse twice within a noticeable time gap of 2/3 hours — this aspect raises several intriguing questions — victim, being 17 years old and at this stage of adolescence, individual typically possess the physical and emotional capacity to resist — it is unusual that victim did not make any attempt to resist, cry out for help or escape from the scene — the absence of any discernible marks of abuse on the victim’s body adds another layer of complexity — Muhammad Asif  versus State & another 2023 SCR 1172 (D)
  111. — section 377 — offence of sodomy — constituent of — standard of evidence for conviction — section 377 consists of three main elements that the carnal intercourse must be committed against the order of nature; the intercourse is with a man, woman or animal the accused did so voluntarily — for application of section 77, APC, there exists a divergence of opinion among the Courts — one perspective asserts that howsoever minimal, must be strictly proven — where no penetration is established the mere presence of semen on the victim’s anus and on the clothing of both the accused and victim is insufficient to secure a conviction u/s 377, APC – the second perspective maintained by Courts is that the penetration in anus is not a strict requirement for constituting an offence u/s 377, APC, instead, entry of male genital organ of accused into the artificial cavity between thigs of the victim is considered as penetration — held: to convict an accused under section 377, APC, the Court must consider the overall facts of the case including the eye witnesses account that corroborates the medical evidence — Muhammad Asif  versus State & another 2023 SCR 1172  (E) 1995 MLD 588, PLD 1951 Bal. 22 & PLD2000 Pesh. 5 ref.
  112. — section 377, APC — offence of sodomy — delay in sending victims clothes for forensic — effect of — objections that victim’s clothes sent for chemical examination after a delay of 27 days — held: be that as it may, but the same cannot be made basis for innocence of convict, particularly in the circumstances where the time, place and manner of occurrence is proved from cogent & reliable evidence produced by the prosecution. Aftab Ali versus The State & another 2023 SCR 1069  (C)
  113. — section 377, APC — sodomy — conviction of — solitary statement of victim — it is not number of witnesses but the quality and credibility of evidence which is to be considered — in case of zina/sodomy, there is hardly any witness other than the victim as it is very rare that such offence takes place among people or at a public place — the Courts have attached great sanctity to the statement of victim — the sole testimony of victim would be sufficient to base conviction thereon, if it inspires confidence. Aftab Ali versus The State & another 2023 SCR 1069 (D) PLJ 2013 SC (AJ&K) 106, PLJ 2001 FSC 46 & NLR 2005 SD 827 rel.
  114. Section 395 — punishment for the offence of decoity — arguments that maximum punishment provided for offence u/s 395, APC. is 2 to 10 years — Held: argument appears to be result of misconception. The basic punishment provided for the offence is life imprisonment. Ahsaan Azeem & 2 others v. The State & 2 others 2014 SCR 735 (B)
  115. Ss. 406, 408, 409, 420, 468, 469, 471 — See Criminal Procedure Code, 1898, S. 497. Malik Mudassar Hayat v. The State through Adv. Gen., AJK 2013 SCR (SC AJ&K) 854 (A)
  116. S. 452 — See AJK Interim Constitution Act, 1974, S.42. State through Advocate General, AJK, Muzaffarabad v. Talib Hussain and 2 others 2013 SCR (SC AJ&K) 192 (C)
  117. —Section, 489 – F— Dishonestly issuing the cheque — essentials for constitution of offence–in order to constitute an offence under the above-reproduced statutory provision, three eventualities are provided; that the cheque has been issued dishonestly, the purpose of issuing the same was repayment of a loan or fulfilment of an obligation, like as a guarantor etc. and the same has been dishonoured on presentation. Muhammad Shafique v. Justice of Peace & others  2022 SCR 1266 (A)
  118. — Section, 489 -F— the registration of case u/s 489-F APC, is not an automatic result of dishonouring of a cheque. The other factors including the genuineness of the signatures on the cheque and any stop payment instruction from the drawer of a cheque to bank has also to be considered. Muhammad Shafique v. Justice of Peace & others  2022 SCR 1266 (B&D)
  119. — Section, 489-F— The purpose and of sections 489-F, APC, is to curb the fraudulent and dishonest issuance of cheques to cause dishonest gain or to cause dishonest loss or to defraud anybody.  Muhammad Shafique v. Justice of Peace & others  2022 SCR 1266 (C)
  120. Plea of self-defence — If upon examination of entire evidence the plea of self-defence is not substantiated, the mere fact that the injuries on the person of an accused were not explained would not bring the case within the ambit of self-defence. M. Khalil v. The State 1992 SCR 249 (A)
  121. Plea of self- defence — Even if not raised or pleaded the benefit of self-defence can be given to the accused if the circumstances appearing in the case support such a plea — Whether the injuries sustained by an accused person would establish a plea of self-defence or not, depends upon the circumstances of each case. Muhammad Khalil v. The State 1992 SCR 249 (D)
  122. The factum of no-explanation of the injury on the person of the accused is not sufficient to hold that the accused acted in self-defence. Muhammad Khalil v. The State 1992 SCR 249 (E)
  123. Self defence — Plea of — Even if the plea of self defence is not raised or pleaded the benefit of self defence can be given to the accused if the circumstances appearing in the case support such a plea. Hassan Muhammad v. The State 1996 SCR 95 (A)
  124. After amendment and alteration of some of sections of A.P.C.
    • and Cr.P.C. in the cases of Hadd and Qisas, the sentence of Diyyat can be awarded to the convict and the offence of Qatl-e-amad is compoundable;
    • Where there are more than one legal heirs of deceased, if all of them do not waive their right of Qisas or do not compound with the accused/convict, the Court can still impose sentence notwithstanding that the offence has been compromised or compounded by one or more legal heirs but not by all;
  125. While  dealing with such cases, keeping in view the principle of fasad-fil-arz, the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded, with imprisonment of either description for a term which may extend to fourteen years as Tazir.
    • Badar Shehzad & another v. The State & another  2007 SCR 218 (K)
  126. Held: in the punishment as ‘Tazir’ for qatli-e-amd, the sentences of death and life imprisonment are alternative and both are normal sentences.  Ansar Mahmood & another v. Manazir Hussain & another  2014 SCR 770 (B) 

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