Ayaz Adil Versus State

Muhammad Amjad Rafiq, J .--- Trial of Ayaz Adil along with his father Sami Ullah, sister Maria Sami and mother Bushra Bibi by the learned Additional Sessions Judge, Faisalabad in case FIR No.34 dated 12.01.2024 under sections 302, 311, 201, 34 P.P.C Police Station Sahianwala District Faisalabad on the charge of qatl-i-amd of his sister Amna Sami was concluded through judgment dated 18.12.2024, whereby while acquitting the co-accused, he was convicted under section 302 (b) Pakistan Penal Code 1860 ( the P.P.C ) and sentenced to imprisonment for life along with payment of Rs.10,00,000/- as compensation under section 544A the Code of Criminal Procedure 1898 ( the Code ) to the legal heirs of Amna Sami, the deceased; in default to further undergo six months simple imprisonment. Benefit of section 382B of the Code was extended. Being aggrieved by his above conviction and sentence, the appellant has filed instant criminal appeal.

2.Upon receiving information about the alleged intentional murder (qatl-i-amd) of Amna Sami by her brother, Ayaz Adil, with the involvement of other family members, the complainant, SI Muhammad Maqsood Shahid, along with other police officials, reached the scene on 12.01.2024 at 12:30 p.m. They observed that the crime scene had been freshly washed, and the body of Mst. Amna Sami was lying on a cot. Local residents were openly stating that Ayaz Adil had killed his sister on the pretext of honour, while the father was lamenting that his daughter had committed suicide. It was also reported that the mother and sister had attempted to destroy evidence by cleaning the place of occurrence.

3.On completion of all legal formalities, report under section 173 of the Code was sent to the Court, accused were charge sheeted, to which they pleaded not guilty and claimed to be tried.

4.Prosecution examined complainant, Muhammad Maqsood Shahid SI/I.O. (PW.3), Khadim Hussain 524/C (PW.4) for res gestae evidence, whereas, Dr. Salma Mumtaz (PW.5) conducted postmortem examination of dead body of the deceased, and rest of the witnesses were formal in nature. Prosecution has given up Ahsan Javed 4542/C, Bilal Hassan, Naveed Babar 4039/C and Zain computer operator being unnecessary and after tendering report of PFSA (Exh.PN) closed its evidence. Statements of accused persons under Section 342 of the Code were recorded wherein they denied the prosecution case, neither opted to record their statement under Section 340(2) of the Code nor to produce defence evidence. Ultimately, three accused were acquitted and accused/appellant was convicted and sentenced as forecited.

5.Learned counsel (s) for the appellant claimed that there is not a single evidence available on record against the accused/appellant that could justify his conviction but learned trial court swayed in emotion passed the judgment on surmises and conjectures; while learned Prosecutors supported the judgment being perfect in the circumstance to curb the menace of honour killing. The heated stances adopted by the parties, both to counter the menace of honour killings and to address concerns of false implication in such cases, prompted the Court to frame the following question through its order dated 16.10.2025:

2. Further in such cases, what sort of relevant evidence could be collected by the police and be transformed into admissible format by the prosecution. Learned counsel (s) for the appellant and learned Deputy Prosecutor General are directed to come prepared on these points.

3. The above questions involve explanation of different provisions of law and a deep study for a way forward, therefore, Mr. Sohail Shafiq Chaudhry and Rai Usman Bashir, Advocates, Ms. Nuzhat Bashir, DPG and Mr. Kamran Adil, DIG, are appointed as amici curiae to assist the Court on above legal queries. Any other person who would like to assist the Court is also welcomed.

4. Adjourned to 24.10.2025.

On 24 October 2025, the amici curiae Ms. Nuzhat Bashir (Deputy Prosecutor General), Mr. Sohail Shafiq Chaudhry and Rai Usman Bashir (Advocates), and Mr. Kamran Adil (Deputy Inspector General of Police) along with Ms. Noshe Malik (Deputy Prosecutor General) and Ms. Asmat Parveen (Deputy District Public Prosecutor), presented their submissions in response to the assistance sought through the Court s order dated 16 October 2025. To address the queries raised by the Court, particularly those mentioned in paragraph 2 of the order dated 16 October 2025, a reference was also sent to the Prosecutor General Punjab. His response has since been received.

6.The central issue before the Court was whether any established rule of evidence exists for dealing with cases of honour killing committed secretly within the confines of a home, and what form of proof should be required in such circumstances. The Court also considered whether ancillary principles such as the burden of proof and the standard of proof should be re-examined or redefined in order to improve the likelihood of securing convictions in such cases.

7.Ms. Nuzhat Bashir (DPG) addresses that there is a recurring tension in honour-killing cases: families often stay silent, evidence is thin, and courts wonder whether an accused person s silence or weak explanation can help fill the gaps and whether such silence or admission could constitute evidence or circumstance under Article 17 of the Qanun-e-Shahadat Order, 1984 ( the QSO 1984 ). She articulated that as per Article 117 of the QSO 1984., the burden of proof lies on the person who asserts a fact and in criminal cases, it is the prosecution; whereas as per sections 342 and 340(2) of the Code, the accused has the right, not the obligation, to testify. His failure to testify cannot by itself create guilt but can support an inference when other circumstances exist. While reading some excerpts from paragraphs Nos. 22 to 37 of a case reported as Afzaal Hussain Shah v. The State (1991 PCr.LJ 113 (DB)), she pointed out that the non-availability of direct evidence does not absolve the Court of its onerous obligation of determining the fact as to whether the death of the deceased was the result of a felonious act and of its further duty to fix the guilt of the person responsible for the same. The law has always considered the circumstantial evidence as a lawful guide in the administration of criminal justice, and circumstances established beyond reasonable doubt could furnish a basis for decision, better than any other kind of evidence. She stated that the bare denial of the petitioner about knowledge of occurrence and not offering any explanation would be a strong corroborative circumstance if the ocular account is available, but denial alone cannot be a form of proof. In this respect, she has placed reliance on a case reported as Muhmmad Akram v. The State (2003 SCMR 855). While referring case reported as Saeed Ahmad v. The State (2015 SCMR 710), she emphasized on the concept of alternate theory and stated that in above judgment Supreme Court of Pakistan pursuant to Article 122 of the QSO 1984 held that special knowledge of circumstances by the accused requires him to at least give explanation as to why he has not informed the police about his wife's murder, not taking her to the hospital, not participating in her last rites and disappearing for a long period of two months. She had also touched the Indian jurisdiction and referred that in the case of State of Andhra Pradesh v. Gangula Satya Murthy (AIR 1997 SC 1588) the Indian Supreme Court had deemed a failure to offer an explanation as adverse to the accused. She said that similar principles more or less were also discussed in following judgments from Indian and Pakistani jurisdictions;

State of Karnataka v. Khaja Hussain (1982 (3) SCC 456); Ram Gulam Chaudhary v. State of Bihar (2001 (8) SCC 311); State of Rajasthan v. Kashi Ram (AIR 2007 SC 144); State of Rajasthan v. Jaggu Ram (AIR 2008 SC 982); Arshad Mehmood v. State (2005 SCMR 1524); Roheeda v. Khan Bahadur (1992 SCMR 1036); Muhammad Ijaz alias Jajj v. The State (2025 SCMR 1591); Nasrullah v. State (2017 SCMR 724) and Asad Khan v. State (PLD 2017 SC 681).

Finally, she suggested that evidence in the form of proof under Article 17 of QSO 1984 when juxtaposed with adverse inference, it becomes imperative for the accused to appear as a witness under section 340(2) of the Code to give explanation in order to avert such adverse inferences.

8.The learned amicus curiae, Mr. Kamran Adil Deputy Inspector General of Police commended the government s efforts for introducing the amendments in year 2004 and 2016 to the P.P.C aimed at curbing the menace of honour killings. He noted, however, that despite these legislative reforms, communities remained hesitant to report such offences to the police. Consequently, the Police Practical Work (PPW) initiative required the police to assume the role of complainant in honour-killing cases. Since the implementation of this measure, the incidence of such crimes has shown a marked decline, as reflected in the crime statistics of the province.

He while supporting the views of Ms. Nuzhat Bashir DPG stated that a clear legislation is required in such cases for an evidentiary requirement, which the India has taken care of in new legislation titled the Bharatiya Sakshya Adhiniyam, 2023 through section 117 (Presumption as to abetment of suicide by a married woman) and section 118 (Presumption as to dowry death). He while referring cases reported as Saeed Ahmad v. The State 2015 SCMR 710 Raja Khurram Ali Khan v. Tayyaba Bibi (PLD 2020 SC 146); Muhammad Abass v. The State (PLD 2020 SC 620) submitted that court must adhere to concept of evidential and legal burden on the accused in such cases. However, where prosecution case is wholly unreliable, there appears no question of shifting the evidential burden on the accused, because inferences can only strengthen already proved case but cannot substitute proof. The Supreme Court of Pakistan has held in a case reported as Wajhat v. Gul Draz (2019 SCMR 1451) that mere presence and silence of accused is not enough for conviction. According to his view the chapter relating to General Exceptions in the P.P.C cannot be made applicable on the legislation introduced through Qisas and Diyat Ordinance, 1990 which is based on Islamic principles, and could only be synchronized if chapter XVI of the P.P.C is interpreted in the light of Islamic Injunctions as laid down in the Holy Quran and Sunnah per mandate of section 338F of the P.P.C or through Presidential Order under Article 267 of the Constitution of the Islamic Republic of Pakistan 1973. In cases of honor killing, usually there is no evidence at all, therefore, Islamic Injunctions on such situation are very clear and also were part of recommendations of Islamic Ideology Council at the time when Qisas and Diyat Ordinance was being legislated. He referred Report of the Standing Committee of the Religious Affairs on Draft Law (Enforcement of Qisas and Diyat) Ordinance, 1981; according to which where offender committing qatl is unknown and wali of victim suspects involvement of any person, he is required to take oath (qasamat) before a court competent to try the offence or any judicial officer authorized by such court, and refusal to take oath procures detention of suspect until he makes confession or tell the name of real offender. In order to explain the types of evidence to be collected by the police during investigation in honour killing cases, he suggested (i) medical evidence (signs and nature of injury) (ii) Forensic and physical evidence (recovery of weapon, DNA profiling, mobile phone data, CDR and location) (iii) circumstantial evidence (conduct of accused and last seen) (iv) Motive and social context evidence (family hostility and prior disputes) (v) witness testimonies and statement (statements of neighbours and friends) (vi) documentary or digital trail (electronic data like chats, call logs, text messages and CCTV footages).

9.Mr. Sohail Shafiq Chaudhary Advocate, the learned amicus curiae, has emphasized on the Article 122 read with Article 129 of the QSO 1984 for a shift of burden on inmates of the house to explain the circumstances culminated into death of victim, and on failure court may draw inference from the evidence produced by the prosecution in order to convict them on the basis of probability formulae introduced through Article 2(4) of the QSO 1984. In this respect he also placed reliance on cases reported by Pakistani Courts as Muhmmad Akram v. The State (2003 SCMR 855); Saeed Ahmad v. The State (2015 SCMR 710): Nasarullah v. The State (2017 SCMR 724): Asad khan v. The State (PLD 2017 SC 681): Muhammad Ijaz alias Jujj v. The State (2025 SCMR 1591), and by the Indian Courts as State of Karnataka v. Khaja Hassan [1982 (3) SCC 456]: Ram Ghulam Chaudhary v. The State of Bihar [2001 (8) SCC 311]: State of Rajasthan v. Kashi Ram (AIR 2007 SC 144): State of Rajasthan v. Jaggu Ram [AIR 2008 SC 982]. While explaining the requirement of evidence which must be collected in honour killing cases, he emphasized on the spot recoveries including biological stains, digital, chemical, documentary and impression evidence (finger prints, footwear, tyre impression, bite marks etc.) and while referring judgment of Supreme Court of Pakistan in Noor Muqadam Case, he appreciated the silent witness theory based on the evidences in the form of CCTV footages whose admissibility is regulated under Electronic Transaction Ordinance 2002 and Article 164 of the QSO 1984.

10.Rai Usman Bashir Advocate, the learned amicus curiae while dilating upon Articles 117 to 120 claims that the initial legal burden is on prosecution to prove the murder against the accused, and it never shifts in any situation. He was of the view that provisions of the QSO 1984 relating to relevancy of facts are good enough to prove the case against the accused even on the basis of circumstantial evidence which is hall mark of Article 17 of the QSO 1984, and Article 2(4) of the QSO 1984 merely aids the court to evaluate the circumstantial evidence and it does not lower the standard of proof from beyond reasonable doubt . According to him, probability may supplement the evidence but can never substitute it. Sections 342 and 340(2) of the Code do not compel the accused to testify or explain the circumstances against him and his silence may at the best be treated as a relevant circumstance but it cannot be deemed as a confession or independent proof of guilt. The principle nemo tenetur se ipsum accusare (no one is bound to incriminate himself) protects the accused s right to silence. In this respect he placed his reliance on cases reported as Niaz v. The State (PLD 1960 Supreme Court 387): Rehmat alias Rhaman alias Waryam alias Badshah v. The State (PLD 1977 SC 515); Wajahat v. Gul Daraz and another (2019 SCMR 1451); Shukat Hussain v. The State (2022 SCMR 1358); Woolmington v. DPP (1935 AC 462). While referring Article 17 of the QSO for guidance from the Islamic injunctions with respect to number and quality of evidence, he stated that the Holy Quran declares; O you who believe! Stand out firmly for justice as witness to Allah, even though it be against yourself or your kindred (Surah An-Nisa 4:135). The Prophet (SAW) stated; al-bayyinah ala man iddaa wal-yamin ala man Ankara (the burden of proof is upon claimant, and the oath is upon denier), and another Hadith commands Idra ul-.udud bi-l-Shubuhat (avoid the punishments for hudood crimes in cases of doubt). He submitted that these sources affirm that in Islam, no punishment may be inflicted on mere suspicion (Zann) or probability. Certainty (yaqeen) and clear proof (bayyinah Saheehah) are indispensable to uphold justice. Dr. Tanzeel-ur-Rehman in Principles of Islamic Jurisprudence explains that in Islamic criminal law, yakin (certainty) cannot be displaced by shakk (doubt) hence the maxim al-yaqin la yazulu bi al-shakk is in place. Similarly, A. K. Brohi in Fundamentals of Islamic Jurisprudence states that presumptions in Sharia are secondary evidentiary tools and never autonomous grounds for conviction. Further, Justice (R) Dr. Fida Hussain s Commentary on the Qanun-e-Shahadat Order underscores that Article 122 dealing with facts especially within knowledge must be applied narrowly to avoid undermining the constitutional protection of presumption of innocence. The commentary refers to Muhammad Nawaz v. State (PLD 1982 SC 139) and Abdul Majeed v. State (PLD 1991 SC 949) as key precedents maintaining that the evidential shift arises only after the prosecution s proof of essential facts. While showing comparative analysis, learned amicus curiae said that the UK case of Woolmington v. DPP [1935] AC 462 remains the cornerstone of common law, reaffirmed in R v. Lambert [2001] 3 WLR 206 , that the burden to prove guilt is immutable. In Canada, R. v. Lifchus (1997) 3 SCR 320 clarified the reasonable doubt standard; and in Australia, R v. Hillier (2007) HCA 13 confirmed that circumstantial proof must exclude all rational hypotheses consistent with innocence. The Iranian Penal Code (Book 5, Article 160) and Qarar-e-Dalili principles similarly emphasize that conviction in hudood and Qisas offences must rest on yakin (certainty), not ghalabat al-zann (preponderance of probability). Jurists like Imam al-Ghazali (Al-Mustasfa fi Usul al-Fiqh) and Ibn Qayyim al-Jawziyya (I lam al-Muwaqqi in) wrote extensively that suspicion (zann) is inadmissible as a substitute for proof (yakin), and conviction based on incomplete evidence is a violation of divine justice. The learned amicus curiae, however conceded that if prosecution establishes a reasonable presumption of guilt by credible corroborative evidence, particularly in honour killing or qatl on karo-kari cases where ocular account is rare, the accused is expected to discharge a limited evidential burden by offering a plausible explanation. However, this does not shift the legal burden, nor does it dilute the constitutional and Islamic requirement that guilt must be proved beyond reasonable doubt (al-yaqin la yazulu bi al-shakk certainty is not overruled by doubt). This harmonized approach, supported by statutory law, case law, and Islamic scholarship, ensures that justice is dispensed in accordance with both the Constitution and Sharia, balancing the rights of the accused with the demands of truth and public order. His recommendations were as follows;

1. Statutory Codification: Parliament may consider introducing a specific provision in the Qanun-e-Shahadat Order, 1984 or Criminal Procedure Code, 1898, defining a presumption of knowledge and explanatory burden applicable in domestic or honour-related deaths.

2. Judicial Test (Proposed Three-Step Formula):

Step 2: Evidential burden shifts to the accused under Article 122 QSO to explain facts peculiarly within his knowledge.

Step 3: If no explanation is given, the court may apply the probability formula (Article 2(4) QSO) to evaluate the silence as a corroborative factor, not as substantive proof, ensuring the beyond reasonable doubt threshold is preserved.

3. Judicial Safeguards: Courts must ensure that any inference from silence is applied cautiously, only after prosecution establishes guilt presumptively. This balance preserves due process, ensures Islamic standards of proof, and promotes accountability without violating the accused s fundamental rights.

11.Ms. Asmat Parveen, the learned prosecutor while focusing on the concept of circumstantial evidence derived from the phrase such other evidence as the circumstances of the case may warrant mentioned in Article 17 of the QSO 1984 has referred an evidential test known as Panchsheel test , practiced in Indian jurisdiction, enunciated through case reported as Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) to give a go to the circumstantial evidence to help record conviction against the accused. According to her, above phrase indicates that a specific action or ruling should be determined by the unique facts and conditions of that particular situation. It gives the court or other authority the flexibility to take steps that are appropriate or necessary for that specific case. It prevents standardized decisions in scenarios where facts might require a different response and it gives flexibility and discretion to the court. She explained the situations which cater to the requirement of as the circumstance of the case may warrant , that include (i) admissibility of secondary evidence (ii) relevancy of other irrelevant facts (iii) admissibility of confessional statement. While explaining Panchsheel test, she outlined the quality of circumstantial evidence as under;

1. Fully Established: The circumstances must be proven beyond doubt.

2. Consistent with Guilt: Facts must align only with the hypothesis of guilt.

3. Conclusive Nature: Circumstances must be decisive, not just suggestive.

4. Exclusion of Other Hypotheses: All innocent explanations must be eliminated.

5. Complete Chain: Evidence must form an unbroken chain, leaving no reasonable doubt of innocence.

12.Ms. Noshe Malik, learned DPG was of the view that while applying probability formulae under Article 2(4) of the QSO 1984, the ratio/score must be 1:0 and not less than that. Meaning thereby prosecution must have some case, may be one strong presumption on the basis of probabilities in its favour but then corresponding inference in favour of accused s innocence must be zero. No standard less than that would procure conviction. She while referring judgment of this court titled Fayyaz Ahmad v. The State (2025 LHC 5942), submits that once prosecution establishes a presumption of guilt against the accused beyond reasonable doubt, on the basis of his presence at crime scene, control of situation, motive, and chain of events, then accused s silence or failure to offer a plausible explanation may be considered a corroborative circumstance, helpful in recording conviction against him. She has also relied upon a case reported as Mazhar Ali v. The State (2005 SCMR 523). While relying on judgment reported as State of Madhya Pradesh v. Balveer Singh (2025 SCC online SC 390) stated that Indian Supreme Court has held that if there is no direct evidence, resolve is in Article 106 of the Evidence Act (122 of the QSO 1984). She regarded the honour killing a calculated offence involving a complete conspiracy that is for sure leaves traces or clue at crime scene, and offender cannot escape if the investigator and forensic team observe the crime scene keenly by associating the people from surroundings. She claimed that rumours in like offences usually have wings to fly which could be a best catch for a line of inquiry in such cases. To achieve that end she suggested that statement under section 161 of the Code must be video recorded, or these statements may be given a legal cover so as to use it as legal evidence. She also suggested that there must be some legislation that if honour killing is not proved then in alternative, unnatural death in a house must be a distinct offence to catch the inmates of the house.

13.The learned Prosecutor General represented through Dr. Muhammad Usman, learned DPG responded to the query of the court while splitting the subject into probability section , special knowledge and discharge of burden by accused through statement under section 340(2) of the Code. For probability formulae, he described three standards of proof; (i) preponderance of probability (in civil cases), (ii) proof beyond reasonable doubt (criminal cases) (iii) clear and convincing proof (in civil cases involving allegation of criminal nature). According to him such three standards are in fact three different degrees of probability which cannot be expressed in mathematical terms and are to be evaluated under the circumstances of the particular case as provided in clause (4) of Article 2 of the QSO 1984. In this respect reliance was placed on cases reported as Salamt Ali and others v. Muhammad Din and others (PLD 2022 SC 353) and Said Wali v. Yaqoob Khan and another (PLD 1983 SC 440) . For facts especially in the knowledge of accused or if the case of accused attracts general exceptions, the arguments were advanced touching the Articles 121, 122 and 129 of the QSO 1984 and reliance was placed on cases reported as Raja Khurram Ali Khan v. Tayyaba Bibi (PLD 2020 SC 146); Raja Muhammad Afzal Khan v. Ch. Manzoor Elahi and 6 others (PLD 1975 Lahore 1276); Muhammad Ijaz aias Jajj v. The State (2025 SCMR 1591); Arshad Mahmood v. The State (2005 SCMR 1524); Saeed Ahmad v. The State (2015 SCMR 710); Muhammad Akram v. The State (2003 SCMR 855). For discharge of burden by the accused through statement under sections 342 and 340(2) of the Code, he referred the cases reported as Muhammad Saeed alias Pulla v. The State (PLD 1987 Peshawar 31); State and others v. Ghulam Abass and others (PLD 1991 FSC 135); Muhammad Usman and 2 others v. The State (PLD 1991 FSC 39); Fayyaz Ahmad v. The State (2025 LHC 5942). Tariq Mehmood and others v. The State and others (2002 SCMR 1602); Ehsan Ullah v. The State (2006 SCMR 304). Whereas while responding to question that what sort of evidence could be collected in such like cases, he responded that Prosecutor General has issued general guidelines to the prosecutors from time to time with respect to spot recoveries at crime scene and its safe transmission to PFSA, postmortem examination, collection of relevant documentary evidence. However, later written submissions were sent to this Court articulated a must visit of crime scene unit, scene photo/videography, collection of biological stains, trace evidence, finger prints, blood pattern and DNA reports; seizure of clothing, bedding, cot/mattress and other objects. Collection of mobile phone data, CDRs, SMS/WhatsApp chats, location history, and other digital communication was also suggested. It was argued that prosecution must establish the chain of events, motive, relationship dynamics, and conduct of accused before, during, and after the occurrence. Resort to collection of information in this respect from an information system was suggested too because it is a relevant fact as per Article 46A of the QSO 1984. It was further suggested to record the statements of inmates of the house, neighbours, first responder, relatives aware of motive/dispute, securing of statements through section 164 of the Code and most of all, the assurance of witness protection.

14.Proponents and opponents views and submissions cluster around the question of the Court, are good enough to dilate, discuss and formulate the possibilities for application of probability formulae in honour killing cases.

15.It was the consensus of all the amici curiae and learned prosecutors that in cases of karo kari or honour killing, prosecution must bring some evidence against the accused to earn a prima facie case or realistic prospect of conviction a formulation bit lesser than the standard of proof beyond reasonable doubt, then failure by accused to explain the circumstances especially in his knowledge would be considered a strong corroborative evidence in the form of presumption, forming a rule of evidence, to add on to already established case so as to paint the criminality beyond reasonable doubt. In order to earn presumption against the accused, such evidence at least prove the presence of accused at the crime scene, control of situation, motive and chain of events including conspiracy that led to the commission of qatl on karo kari, or honour killing; otherwise without any evidence, mere on the basis of hunch or Shak (doubt) or on whims conviction cannot be recorded. In this respect Ms. Nuzhat Bashir DPG, learned amicus curiae referred a case reported Afzaal Hussain Shah v. The State (1991 PCr.LJ 113 (DB); and a common judgment, relied upon by rest of the amici curiae and learned prosecutors, reported as Saeed Ahmad v. The State (2015 SCMR 710). This judgment refers different cases from Indian jurisdiction reported as Smith v. Emperor (AIR 1918 Madras 111); Re. Naina Mohamed (AIR 1960 Madras 218); Deonandan Mishra v. The State of Bihar (AIR 1955 SC 801); State of Andhra Predesh v. Gangula Satya Murthy (AIR 1997 SC 1588); State of Karnataka v. Khaja Hussain (1982 (3) SCC 456); Ram Ghulam Chaudhary v. State of Bihar (2001 (8) SCC 311); State of Rajasthan v. Kashi Raam (AIR 2007 SC 144) and finally State of Rajasthan v. Jaggu Ram (AIR 2008 SC 982). All of above judgments support the demand of certain amount of evidence from prosecution and then clarification from accused. It is appropriate to quote an excerpt from the case of State of Rajasthan v. Jaggu Ram supra as under;

(Emphasis supplied)

The above formulation of rule of evidence sounds appealable and, in honour killing cases the nature and amount of evidence cannot be of the same degree as is required in other cases of circumstantial evidence. A specific action or ruling should be determined by the unique facts and conditions of that particular situation. Inmates of the house are also in grey area if not report the crime or explain the situation in which crime was committed because the ultimate responsibility to report the crime is not only on the inmates of the house but also on everyone who comes across any information in this respect. This demand has also been capitalized through sections 44 and 45 of the Code which impose duty on general public and others to report the crime. Deviation from above command of law is culpable under sections 176 and 202 of the P.P.C. Section 176 of the P.P.C deals with offence of omission to give notice or information to public servant by person legally bound to give it , and its 2nd para says as under;

or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to [three thousand rupees], or with both;

(Emphasis supplied)

Whereas section 202 of the P.P.C deals with intentional omission to give information of offence by person bound to inform. Prompt reporting help collect the evidence and to track the offenders. Not reporting the crime amounts to destroying the evidence which is also an offence under section 201 of the P.P.C. Holy Quran says, "conceal not evidence: for whoever conceal it, his heart is tainted with sin," (2:283). Therefore, where inmates of the house do not report the crime or not furnish the information, the police and prosecution must bring them before the court for prosecution under all enabling provisions of law including under sections 176, 201 and 202 of the P.P.C. This would ultimately help to create a deterrent effect to reduce the crime of honour killing.

16.For dealing with cases of honour killing committed secretly within the confines of a home, an institution known as Qasamah , derived from qasam is breathing in Islamic law, which literary means to take oath, and in terms it means to repeat an oath 50 times by 50 persons or less of the crime place or the relatives of the victim in a case of murder wherein the offender is not known. It is the opinion of the majority of the jurists. According to Imam Abu Hanifah, Qasamah is proceeded to assert the innocence of an individual suspected to have killed a person. It shall only be practiced in a case when a murdered person found in a place which is either in the private ownership of any person or is considered to be in the exclusive use of certain residents of such locality and the offender is not known. Learned amicus curiae, Mr. Kamran Adil Deputy Inspector General of Police, has also referred the recommendations of Islamic Ideology Council of year 1981, when work was being done on the Enforcement of Qisas and Diyat Ordinance, about evidentiary requirement in a case when there is no eye-witness of the occurrence/qatl. For reference some relevant excerpts of draft are reproduced;

GOVERNMENT OF PAKISTAN COUNCIL OF ISLAMIC IDEOLOGY AN ORDINANCE to bring in conformity with the injunctions of Islamic the law relating to offences affecting the human body;

Whereas on the recommendations of the Council of Islamic Ideology made in consultation with the Law Division, it is necessary to modify the existing law relating to certain offences affecting the human body so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur an and Sunnah;

--------------

---------------

ILLUSTRATIONS

Thus, where offender committing qatl is not known or is not traceable after adequate enquiry, the suspect shall be required to take oath ( qasamat ) before a Court competent to try the offence or any judicial officer authorized by such Court in this behalf and on refusal shall be kept detained until he takes oath. Mode of payment of Diyat to legal heirs was also in place that despite suspect is absolved of his liability to Qisas, he is held responsible for payment of Diyat, or responsibility lies on the State to make payment. These recommendations are not part of law, therefore cannot be used as a form of proof to convict the accused under section 302 of the P.P.C, because mere refusal to take oath may bring adverse inference against the accused but it cannot substitute the proof. As per Hadith of the Prophet (SAW); al-bayyinah ala man iddaa wal-yamin ala man Ankara (the burden of proof is upon claimant, and the oath is upon denier) (Sunan al-Tirmidhi, Hadith 1341) and the same principle was inserted in section 340(2) of the Code through Law Reforms Ordinance 1972, which says that accused shall give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial, but Supreme Court of Pakistan in a case reported as Mst. Ameer Khatun v. Faiz Ahmed and others (PLD 1991 SC 787) held that seeking clarification or evidence from accused on oath under section 340(2) of the Code, amounts to self-incrimination which is violative to Article 13 of the Constitution of the Islamic Republic of Pakistan 1973. Similar is the command of Article 163 of the QSO 1984 which says as under;

163. Acceptance or denial of claim on oath. (1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.

(Emphasis supplied)

Above Article has no application on Hudood and other criminal cases, until amended by the legislature. It would be a good use of above Article if it is amended for criminal cases in terms that if any claimant, has no evidence on any fact in issue or relevant fact or could not procure it without any amount of delay or such evidence is not in his possession, he offers to take oath about existence of such fact, the court shall call upon other party to deny such fact on oath. This could be a form of proof and probably Qasamah is also based on this principle, yet it somewhat stands on different pedestal because not only from suspect, Qasamah requires oath of 50 persons or oath by 50 times. Thus, the application of Qasamah could only be made through clear legislation.

17.Interpretation of forms of proof, mentioned in section 304 of the P.P.C read with Article 17 of the QSO 1984 in the light of Islamic Injunctions for honour killing cases, was solicited by Mr. Kamran Adil and Rai Usman Bashir, learned amici curiae. Same is the requirement of section 338F, falling in chapter XVI (sections 299 to 338G) of the P.P.C. It is as under;

338F. Interpretation. In the interpretation and application of the provisions of this Chapter, and in respect of matter ancillary or akin thereto, the court shall be guided by the Injunctions of Islam as laid down in the Holy Quran and Sunnah.

In honour killing cases when there is no direct evidence, it is to be seen that what amount of circumstances would appear as sufficient presumptive evidence against the accused for drawing inferences on the basis of probability formulae in order to ultimately catch his criminal liability. Before that it is essential to see what are the presumptions and the related standard of proof.

18.There are certain rules of evidence known as presumptions, which have an effect on the normal incidence of the burden of proof. A presumption is a rule of law which provides that if a party proves a certain fact (known as the primary fact) then another fact (the presumed fact) will also be taken to be proved, unless evidence is adduced by opponent to rebut the presumption or in other words contradict the presumed fact. If the statute does not lay legal burden on accused to rebut such presumed fact, then at least it creates an evidential burden on him; therefore, presumed fact will be taken as proved unless the accused adduces some evidence to rebut the presumption, though he needs not go so far as to disprove it ; which means he must explain the circumstances how he sees the existence of primary fact, and if he does so, the presumption disappears and normal burden of proof applies as if the presumption had never exist. This sudden disappearance has led to theory being known also as the bursting bubble theory as explained in a case reported as Muhammad Riaz v. The State (2022 PCr.LJ 1005). Accused is not required to sit as silent spectator in the process of trial to put the prosecution on heels to prove the case against him beyond reasonable doubt, rather his variant vocality is the essence of his defence to throw explanation of every fact appears against him in the evidence, otherwise, a bundle of presumed facts would neck him down to be a culprit.

19.The standard of proof in a criminal case, beyond reasonable doubt identified in our law of evidence requires that court would either certain about the act of accused (sure of guilt) or considers existence of such act so probable through ordinary prudence (not intellectual), depending upon the circumstances of the case, to act on the supposition that it exists. By understanding of law through jurisprudential interventions, it could be said that Certainty usually flows when direct or primary evidence is available in terms of witnesses and documents but when the case hinges only upon circumstantial evidence then usually probability comes into play. These two methods for standard of proof are essential to push the State s determination that no offence should go unchecked and no offender should go unpunished. Probability formulae are applied only if the primary facts exist and proved by the prosecution, and it followed by the presumed facts which are collected from the indirect statement of witnesses, linked documents and circumstances leading from the scene of crime up to the arrest of accused, recovery on his lead and his defence perspective. As noted above when there is no direct evidence in a case then what number of presumed facts would be sufficient to convict an offender is also a crucial question; though Ms. Noshe Malik, learned DPG claims that one strong presumption is sufficient to hold the accused guilty if corresponding hypothesis of accused s innocence is zero.

20.Now I advert to the question for interpretation of forms of proof for qatl-i-amd in accordance with Injunctions of Islam as laid down in the Holy Quran and Sunnah per mandate of section 338F of the P.P.C. It is to be seen that proof of qatl-i-amd liable to Qisas as per section 304 of the P.P.C shall be in any of the following forms;

1. accused makes before a court competent to try the offence a voluntary and true confession of the commission of the offence; or

2. by the evidence as provided in Article 17 of the Qanun-e-Shahadat Order, 1984.

Article 17 (1) of the QSO 1984 says that the competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah. In a case reported as Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad and 4 others (PLD 2017 FSC 63), it was held that Sunnah is in fact the interpretation, explanation, elaboration, implementation and specific demonstration of Quranic Injunctions by Holy Prophet himself, its binding authenticity cannot be questioned on any ground . Islamic jurisprudence evolved with the passage of time requires that there must be at least two adult male witnesses testified through Tazkia-al-Shahood to prove the offence of qatl-i-amd liable to Qisas and same was also suggested by Justice Taqi Usmani in his sperate note in a case reported as Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan (PLD 1989 SC 633), wherein direction was passed to the government to amend the penal law in accordance with the Injunction of Islam.

21.There exist a thematic discussion that the Islamic Injunctions do not provide any specific standard or number of witnesses as a proof for the crimes punishable with Qisas. In Islam, the testimony of the truth is the liability of each person of the Ummah (Muslim Community). The following verses clearly reflect that anyone who knows the truth of any kind, affecting the lives or interests of the other fellow beings, must firmly bear witness to the deed under all circumstances. According to the Holy Quran:

O, ye who believe! stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from Justice. Be just: that is next to piety: and fear Allah. For Allah is well acquainted with all that ye do. (Al Quran, 5:8).

Much importance is given to evidence for Allah only, even if that goes against one s own parents or relatives. Accordingly, Islam does not discriminate between men and women in this context. There is only one verse in the Quran that says two female witnesses are equal to one male witness. This verse is Surah Al-Baqarah, chapter 2 verse 282. This is the longest verse in the Quran and deals with financial transactions. The seeming inequality of male and female witnesses in financial transactions in this verse is not due to any inequality of the sexes in Islam. It is only due to the different natures and roles of men and women in society as envisaged by Islam. Accordingly, some scholars are of the opinion that the feminine attitude can also have an effect on the witness in a murder case. Due to her emotional condition, she can get confused. Therefore, according to some jurists, even in cases of murder, two female witnesses are equivalent to one male witness. But in the Quran no discrimination has been made between female witness and male witness. The Quran says,

Conceal not evidence; for whoever conceals it His heart is tainted with sin. And Allah knoweth all that ye do (Al Quran, 2:283).

And cover not truth with falsehood, nor conceal The Truth when ye know (what it is) (Al Quran, 2:42)

By the word whoever the Quran does not discriminate between men and women in giving evidence. Regarding women s evidence of willful murder, it has been referred here that the Islamic history witnessed the admissibility of the evidence of Hazrat Bibi Naila (RA), Hazrat Usman s (RA) wife, who was the only eye-witness of her husband s murder. According to Islamic injunctions, the only person whose evidence is not admissible is the one who launches a charge of adultery against chaste women and fails to produce four witnesses in support of his allegation, as ordained in Holy Quran. (24:4).

22.Likewise requirement of two adult male witnesses testified through Tazkia-al-Shahood in offence of qatl-i-amd liable to Qisas is also not mentioned in Article 17 of the QSO 1984. It is said that offence of qatl-i-amd liable to Qisas neither falls in Hudood laws nor operates under special law but an offence of the P.P.C, a general law which does not require any specific number of witnesses. It is also a view that section 302 (b) of the P.P.C is a redundant provision which provides punishment of death and imprisonment for life as ta zir having regards to the facts and circumstances of the case if proof in either of forms specified in section 304 of the P.P.C is not available. Section 304 of the P.P.C talks about confession and evidence as provided in Article 17 of the QSO 1984, which covers every type of evidence like testimony of witnesses, documentary and forensic and circumstantial evidence. Except above evidence, there is no other form of evidence in prevailing laws of Pakistan. However, the present regime of law about requirement of two adult male witnesses testified through Tazkia-al-Shahood to prove qatl-i-amd liable to Qisas has been established by the Supreme Court of Pakistan and the Federal Shariat Court initially through cases reported as Ghulam Ali v. The State (PLD 1986 SC 741); followed by Sanaullah v. The State (PLD 1991 FSC 186); Manzoor v. The State (1992 SCMR 2037) and Abdul Salam v. the State (2000 SCMR 338). Though under the prevalent laws Tazkia-al-Shahood is applicable in Hudood laws only, as find mentioned in Article 9 of the Prohibition (Enforcement of Hadd) Order 1979; Section-7 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979; Section 8 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979; Section-6 of the Offence of Qazf (Enforcement of Hadd) Ordinance 1979. Article 17 of the QSO 1984 has also provided exception for such laws. Case reported as Ghulam Ali v. The State (PLD 1986 SC 741) supra being a case of first impression and subsequent case reported as Sanaullah v. The State (PLD 1991 FSC 186) were not dealing with offence of qatl-i-amd but with an offence under a Hudood law titled Offence Against Property (Enforcement of Hudood) Ordinance 1979 . Whereas in Manzoor v. The State (1992 SCMR 2037) the Supreme Court of Pakistan simply referred the following observation of Federal Shariat Court of Sanaullah case;

Tazkia-tul-Shahood is obligatory in cases punishable with Hadd and Qisas, even if the competency of a witness is not challenged by Mashhood alaih.

But in above case, the Supreme Court of Pakistan in essence has not examined the application of Tazkia-al-Shahood on witnesses to prove qatl-i-amd liable to Qisas nor dealt it as a real issue. Later, on the similar principle another Judgment was passed reported as Abdul Salam v. The State (2000 SCMR 338) and since then it is obiter of Supreme Court of Pakistan, binding on all other courts in Pakistan.

23.The Federal Shariat Court in Sanaullah case supra does not refer any Qur anic verses or Sunnah of Holy Prophet (SAW) for purgation of witnesses through Tazkia-al-Shahood to prove the offences liable to Qisas, but is based on scholarly references of Imam Abu Hanifa, his disciples and other Islamic jurists. The law is evolving and opinions of jurists vary in changed circumstances; therefore, with the assistance of Islamic Ideology Council application of Tazkia-al-Shahood can be reviewed, particularly when in this digital age offence can easily be proved through forensic or digital evidence even without the intervention of living witnesses. This type of evidence was regarded by the Supreme Court of Pakistan as silent witness theory in Zahir Zakir Jaffar v. The State and another (2025 SCP 220) , commonly known as Noor Muqadam Case as highlighted by Mr. Sohail Shafiq Chaudhary, learned amicus curiae. Tazkia-al-Shahood is though required in Hudood cases only, which too is not mentioned in Holy Quran and Sunnah of Holy prophet but later prescribed through opinions of Fuqaha and legislature has taken care of its citation in the respective Hudood Ordinances to make it part of law for its mandatory observance. However, legislature though Islamized the provisions of the P.P.C through Qisas and Diyat Ordinance 1990 but did not opt to cite Tazkia-al-Shahood in Chapter XVI of the P.P.C. Whereas the Iranian Penal Code does encompass its application (Book 5, Article 160), as pointed out by Rai Usman Bashir Advocate, the learned amicus curiae. Whereas Qisas and Diyat Ordinance 1990 also did not amend the QSO 1984 for insertion of Tazkia-al-Shahood in its Articles 3 and 17.

24.Similar feel is available in the Articles written by Justice S.A. Rabbani (Former Judge, Sindh High Court and Federal Shariat Court of Pakistan) in year 2009 and by Mr. Talaat Mahmood Kakezai, Advocate High Court Bahawalpur, in year 2006 published by Pakistan Legal Digest (PLD), wherein they commented upon section 302(b) of the P.P.C and regarded it an absurd provision in law. According to Article titled Section 302, Pakistan Penal Code , Justice Rabbani expounds that the proof of qatl-i-amd liable to Qisas mentioned in section 304 of the P.P.C is either the confession of accused or evidence as provided under Article 17 of the QSO 1984. The number of witnesses to prove qatl-i-amd liable to Qisas has neither been prescribed in the Holy Quran, nor by Sunnah of Holy Prophet (SAW). There is no case in history, during the life time of Holy Prophet (SAW), in which any specific number of witnesses was demanded for proof of qatl-i-amd for the purpose of Qisas. The condition of Tazkia-al-Shahood although does not have its origin in the Holy Quran and Sunnah, has been provided in the cases of Hudood mentioned in Hudood Ordinances but it has nowhere been provided in the P.P.C for its applicability in the cases of proof of qatl-i-amd liable to Qisas. He was of the view that by applying such condition, legal heirs are deprived from their right to claim Qisas or Diyat. Similarly the Article titled Law of Qisas A study in its genesis with different phases of its evolutionary march by Talaat Mahmood Kakezai Advocate throws light on the fact that qatl-i-amd is not covered by Hudood, because it is compoundable, not part of any special law rather an offence of the P.P.C which does not provide any mode of inquiry for determining the competence of witnesses, and even the term Tazkia-al-Shahood is not defined in the P.P.C; therefore, if the ocular testimony of one witness, male or female, or the circumstantial evidence is available, the accused must be punished with Qisas, and section 302 (b) of the P.P.C appears to be ridiculous because it gives power to the court to punish the offender even if no evidence is available at all.

25.It is also in Islamic literature that qatl-i-amd liable to Qisas can also be proved through circumstantial evidence if conclusive in nature, which is also a form of proof and there is no specific prohibition in section 304 of the P.P.C or Article 17 of the QSO 1984. The first reference in this respect is the opinion of Justice Muhammad Taqi Usmani in Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan (PLD 1989 SC 633) supra, who said, according to Islamic jurists if there is no direct evidence, then case must be structured on the basis of strong circumstantial evidence leaving no hypothesis of innocence of accused. He quoted following situation in this respect;

If a person is seen coming out from an unoccupied house in fear and anxiety with a knife covered with blood in his hand and in the house a dead body is found with its throat cut, these facts will be regarded as a proof that the person who was seen coming out murdered him. This instance seems to be conclusive. But it may or may not be regarded as conclusive proof as to the commission of death of the victim by the person who is seen coming out from an unoccupied house. It will be decided by the court.

Circumstantial evidence (Qarinah in Arabic) is permissible under Islamic law which found its origin in Surah Yusuf of Holy Quran wherein the verses 25, 26 and 27 explain the might of circumstantial evidence even in case of alleged allegation of evil intention to outrage the modesty. Verse 25 describes Prophet Yusuf and the wife of Al-'Aziz racing to the door, where she tears his shirt from the back. They encounter her husband at the door, and she immediately accuses Yusuf of having evil intentions towards her. Verse 26 recounts Prophet Yusuf's defense, stating she was the one who attempted to seduce him. A witness from her family is mentioned, suggesting that if Yusuf's shirt is torn from the front, she is truthful, and he is lying. Verse 27 continues the witness's testimony, stating that if the shirt is torn from the back, then she has lied, and Yusuf is truthful. Examining the fact that shirt was torn from back or front was a kind of circumstantial evidence which had power to convict or exonerate the offender, and in all jurisdictions of the world the circumstantial evidence is considered as best evidence because under the principle of Res Ipsa Loquitur, a witness may tell a lie but circumstances do not . The procedure of Qasamah, (joint oath) again in the context of Qisas, is a good example of circumstantial evidence being considered a justification for the swearing of oaths and inflicting Qisas or exacting Diyat.

26.In the Majalla-tul-Ahkaam Adlia (the Ottoman Civil Code), Section 1741 deals with the admissibility and weight of circumstantial evidence (Qarinah), a decisive presumption. The core concept is that while circumstantial evidence is recognized and admissible in many cases, it generally must lead to a conclusion of guilt that is so strong that no other reasonable hypothesis can be inferred. The Majalla, drawing on traditional Hanafi jurisprudence, allows for the use of circumstantial evidence, especially in areas where direct proof (such as explicit eye-witness testimony of a specific number of male witnesses) is unavailable. Circumstantial evidence, denoting presumption, conjunction, linkage, and indication, is indirect evidence of relevant facts from which the existence of a fact in issue might be logically deduced. Section 1741 of the Majalla, in essence, stipulates the following principles regarding circumstantial evidence:

Need for certainty: For circumstantial evidence to be admissible and reliable, it must lead to a conclusion that is certain (yaqin) or near-certain, leaving no room for reasonable doubt or alternative explanations of innocence.

Supporting evidence: Circumstantial evidence can be used to corroborate or support direct evidence, but on its own, its probative value is generally limited if an alternative hypothesis exists.

But of course, for using circumstantial evidence as a conclusive proof to prove qatl-i-amd liable to Qisas, either the legislature permits through clear legislation or the Supreme Court of Pakistan enunciates an obiter dictum in any such case, otherwise this form of evidence is considered only to prove qatl-i-amd liable to Ta zir under section 302(b) of the P.P.C.

27.In Pakistan, the ratio to prove qatl-i-amd liable to Qisas is almost zero due to non-availability of witnesses testified through Tazkia-al-Shahood which questions the credibility of its subjects. Let s see, is there any situation which could waive the requirement of Tazkia-al-Shahood. There is no concept of administering oath to the witnesses in Islamic Justice system for recording of their testimony because Quran expects everybody to state the truth as explained through Judgment reported as Nazeer alias Wazeer v. The State (PLD 2007 SC 202), therefore, in the prevailing circumstances, application of the Oath Act, 1873 is a deviation to Islamic Principles, and logic for such deviation has been expressed in Sanaullah v. The State (PLD 1991 FSC 186) supra, which is as under;

It is stated in Altahzeeb with reference to Qalansi that "during our time, Tazkiyah-tul-Shuhood has become very difficult due to predominantly prevalence of wickedness. Therefore, the Judges have started to administer oath to the witnesses like Abi Lyla. What is stated in the reliable books of Fiqah like Khulasa, Bazaziah, against administering oath would not affect this decision, because that is applicable, when the probity of the witness is known; here the question of oath arises when the probity of the witness is unknown, especially during the time, when the whereabouts and credibility of the witnesses and Muzakkis are generally unknown. So, the person whose credibility and whereabouts are unknown, he would not be competent to enquire into the probity of the unknown person.

Thus, it becomes evident that Qazi could consider taking of oath necessary when the integrity of the witness and Muzakkis is doubtful specially when the Judge is non-local and knows nothing about the credibility of the witnesses and Muzakkis.

28.We are also living in an era where socially and constitutionally, judges are required to serve in the areas out of their home town and as such they don t have information about Muzakkis or the truthful witnesses; therefore, exception referred in Sanaullah Case Supra can also be applied in the present time. Administering oath to witness certainly amounts to his purgation because by doing that he acknowledges to depose truthfully, and in such situation the condition of Tazkia-al-Shahood can validly be deemed satisfied. Despite taking oath by the witness, his testimony is not accepted straight away but he is required to face the cross-examination by opposite party, which further helps to ascertain his integrity and truthfulness to accept or reject his testimony. Reliance in this respect is placed on a case reported as Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad and 4 others (PLD 2017 FSC 63). Islam also recognizes the right of cross-examination under the doctrines such as istifsar (judicial questioning), jarh-al-Shuhud (impeachment of witness), tabayyan (verification), and istintaq (interrogation). Thus, if the legislature permits that by taking oath, the requirement of Tazkia-al-Shahood is deemed satisfied or the Supreme Court of Pakistan holds as such in any case, then offences liable to Qisas would efficiently be proved.

29.It is often claimed that if qatl-i-amd liable to Qisas cannot be proved, it does not offend the rights of aggrieved party rather offender can still be punished under section 302 (b) of the P.P.C with death or imprisonment for life as Ta zir, but while thinking as such they forget the Injunction of Islam laid down in Holy Quran as under;

There is .security of. life for you in .the law of. retaliation, O people of reason, so that you may become mindful of Allah . (2:179)

The above verse strongly recommends liability of Qisas in cases of qatl-i-amd because there is security of life in it. Impact of Qisas punishment is matchless with any other form of punishment which produces a deterrent effect in the society, and also saves life of some of the accused against whom the Qisas is not liable or not enforceable. Sections 306 and 307 of the P.P.C introduced through Qisas and Diyat Ordinance 1990 count some benefits in this respect. According to section 306 of the P.P.C qatl-i-amd shall not liable to Qisas if (a) an offender is a minor or insane: (b) when an offender causes death of his child or grandchild, how low-soever; and (c) when any wali of the victim is a direct descendant, how low-so-ever, of the offender. Similarly, section 307 of the P.P.C says that Qisas for qatl-i-amd shall not be enforced (a) when the offender dies before the enforcement of Qisas; (b) when any wali voluntarily and without duress, to the satisfaction of the court, waives the right of Qisas under section 309 or compounds under section 310; and (c) when the right of Qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of Qisas against the offender. In situations mentioned in sections 306 and 307 (1)(c) of the P.P.C, the offender shall be liable to Diyat only and further optional imprisonment which may extend to twenty-five years as mentioned in section 308 of the P.P.C. Comparing a situation that if a minor commits qatl-i-amd, and prosecution through credible evidence in the form of two adult male witnesses testified by Tazkia-al-Shahood, establishes his guilt under section 302(a) of the P.P.C, then minor shall not be liable to Qisas as per section 306 of the P.P.C rather he would pay Diyat instead under section 308 of the P.P.C, and as per Diyat, Arsh and Daman Fund Rules 2007, if the offender cannot afford to pay Diyat amount, it shall be paid through a combination of grant by the government and soft loan to the convict. Whereas if the strong proof in above form is not available then minor shall be liable even to more severe punishment in the form of imprisonment for life under section 302(b) of the P.P.C. Thus, depriving the offenders from the benefits of sections 306 and 307 of the P.P.C amounts to violation of constitutional guarantee enshrined in Article-4 of the Constitution of the Islamic Republic of Pakistan, 1973.

30.Before I should conclude on question framed by this court, it is necessary to make some recommendations to counter the menace of honour killing. First recommendation is the collection of proper evidence through different modes and manners in the light of submissions of learned Prosecutor General, and Mr. Kamran Adil, Deputy Inspector General of Police, Mr. Sohail Shafiq Chaudhry and Rai Usman Bashir, Advocates (learned amici curiae). It is directed to the police and prosecution that while using such modes or techniques, evidence of following relevant facts must be in the focus in order to cluster or group the evidence before the court to make good use of such evidence. Here are the references to concerned Articles of the QSO 1984 about relevant facts and particular illustration attached to such Articles;

Article 19 (Relevancy of facts forming part of same transaction). Illustration (a) containing spontaneous exclamation, contemporaneous physical condition, present intention and statement accompanying an act as highlighted in a case reported as Rizwan Akhtar alias Razi Bajwa v. The State (2021 YLR 2253), supported by a case reported as Shabbir Hussain alias Sukku v. The State (PLD 2003 SC 368). Article 20 (Facts which are occasion, cause or effect of facts in issue). Illustration (b) and (c), like resistance marks on the grounds, symptoms of poison. Article 21 (Motive, preparation and previous or subsequent conduct). Illustration (a), (c), (e), (h) and (i), like extorting money by someone from accused after knowing the act of murder, procuring of poison, affairs management by accused before or after the occurrence like volunteering for evidence or concealing it or preventing the witnesses or bribing for false evidence; abscondence. Article 22 (Facts necessary to explain or introduce relevant facts). Illustration (c), like justification for abscondence. Article 24 (When facts not relevant become relevant). Illustration (a) and (b), like plea of alibi, or evidence that out of four accused, offence has not committed by A, B and C. Article 27 (facts showing existence of state of mind, or of body, or bodily feeling). Illustration (i), (o) and (p), like previous attempt or attack for same offence, said something showing intention. Article 28 (facts bearing on questions whether act was accidental or intentional)

31.Second recommendation is for legislation about the admissibility of confessional statement made before the police at least in honour killing cases as suggested by Ms. Asmat Parveen, the learned Prosecutor. Police interviews are not recognized in our law as a form of evidence though the developed countries have been in it showing a trust on the investigators. Whereas in Pakistan there is a trust deficit among the different components of criminal justice system who are operating in silo mentalities, which needs to be reformed. Though section 21H of Anti-terrorism Act 1997 is the only legal provision which legalizes police interview, or confession of accused yet it also had no safety volve and is expected to be misused. In all other jurisdictions of the world where police interview has been legalized, a provision of voir dire is also in place which ensures that if accused wants to challenge such confession it may be tried as a preliminary issue creating a situation of a trial within trial, result whereof would have bearing in the trial of the accused.

Police interview of the accused must be through video recording and then may it be a statement with plea or his confession, can be used as evidence. Though at present if the accused does not confess his guilt, police can also extract the evidence from the accused in the presence of magistrate by applying deception upon him. In case the information extracted from him through such method is found correct and true then it can validly be termed as legal evidence per Article 42 of the QSO 1984, which is reproduced for reference;

42. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc. If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him:

This method of extracting confession is prohibited only in Hudood cases, whereas offence of qatl-i-amd does not fall in Hudood laws. Further, in the present regime of law, if the accused during investigation makes a voluntary statement or takes a specific plea, like commission of offence by accident, or in grave and sudden provocation or with different intention, then repetition of such stance by him at trial would be admissible evidence. Cases reported as Raza and another v. The State and 2 others (PLD 2020 SC 523) ; Mst. Matloob Hussain v. The State (2008 PCr.LJ 366) are referred in this respect.

32.Ms. Noshe Malik, DPG has suggested that statements under section 161 of the Code must be video recorded at least in honour killing cases or these statements must be given a legal cover so as to use it as legal evidence. Though Supreme Court of Pakistan in principle has already dilated upon this issue in a case reported as Application By Hussain Nawaz Sharif (PLD 2019 SC 196) yet its admissibility is always subject to the operation of section 162 of the Code, which the legislature can suitably amend. However, statement made under section 164 of the Code if video recorded is now in a legal cover for its admissibility into the evidence pursuant to recent amendment in Article 164 of the QSO 1984 which is under;

164. Production of evidence that has become available because of modern devices or information system etc. Depending on the nature of case and circumstances, the Court may, if deem appropriate, allow to be produced any evidence or witnesses recorded by the Court through the modern devices or techniques including video call, viber, skype, imo, whatsapp, facebook messenger, line caller and video conference, etc.

33.The failure of prosecution to establish the charge of honour killing against the accused has a vide ramification in the society. Women feel insecure and the accused earns a blunt edge to push others to repeat the offence. Therefore, another remedy through civil action is also available to catch him down, and this remedy must be used by the aggrieved party. As a principle, even after a criminal trial, a civil action on the same cause of action is not barred; neither principle of res judicata is applied nor question of autrefois acquit, autrefois convict ( previously acquitted and previously convicted ), arises. To understand this concept, one can read the famous case of renowned American footballer, commonly known as O. J. Simpson murder case, wherein after acquittal from the charge of murder of her wife and another, he was burdened with damages through civil action. Such remedy is also available in Pakistan under Fatal Accidents Act 1855 which provides compensation to families for loss occasioned by the death of a person caused by actionable wrong. This court has already explained the above remedy in a case reported as Tariq Irshad v. Special Judge and others (2022 PCr.LJ 1015). However, such remedy would probably be barred if the offender stands punished with Qisas, Diyat, Arsh or Daman as reflected from the recommendations of Islamic Ideology Council highlighted above and reproduced again hereunder;

34.It has emerged from the discussion of all aspects of the case and particularly from the valuable assistance of Rai Usman Bashir, Advocate and Mr. Kamran Adil, Deputy Inspector of Police, serving as amici curiae that there is a pressing need for the legislature to consider introducing a specific statutory provision in the QSO 1984 or the Code. Such a provision should define a presumption of knowledge and explanatory burden in matters involving domestic or honour-related deaths. Given the recurring pattern of honour killings and the vulnerability of women in our socio-cultural structure where a woman typically spends her life under the authority of parents, in-laws, or offspring it is imperative that the law evolve to provide enhanced evidentiary protections. In line with the Injunctions of Islam, as discussed earlier, the legislature may consider adopting a special form of proof in the P.P.C or the QSO 1984, similar to the approach taken in India under the Bharatiya Sakshya Adhiniyam, 2023. Notably, Section 117, which creates a presumption regarding the abetment of suicide by a married woman, and Section 118, which establishes a presumption concerning dowry death, offer useful comparative models. Section 117 allows the court to presume abetment where a married woman commits suicide within seven years of marriage and has been subjected to cruelty, while Section 118 mandates a presumption of dowry death where cruelty or harassment related to dowry is shown to have occurred soon before the woman s death. These provisions illustrate how statutory presumptions can shift the evidentiary burden in cases where direct proof is inherently difficult.

35.In the light of above discussion, the question framed by this court about the form of proof, standard of proof and burden of proof in honour killing cases, it is concluded that forms of proof in the light of section 304 of the P.P.C and Article-17 of the QSO 1984 could consist of testimony of direct or in direct witnesses, documentary and forensic evidence collected through the modes suggested by the learned amici curiae and learned Prosecutor General, and the circumstantial evidence particularly of relevant facts highlighted in paragraph-30 of this judgment. Whereas the standard of proof on basis of probability is inherent in our judicial system introduced through Article 2(4) of the QSO 1984 which says that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists . In legal proceedings, no specific number of facts are required to introduce the concept of probability. Instead, probability inherently underpins the legal standards of proof itself, which is applied to all the admitted evidence at the end of a trial to determine a fact. The go to probability is when there are sufficient relevant and admissible facts for a judge to reasonably weigh the likelihood of a proposition being true. Article 2(4) of the QSO 1984 merely aids the court to evaluate the circumstantial evidence and it does not lower the standard of proof from beyond reasonable doubt because probability may supplement the evidence but can never substitute it. However, the Panchsheel test gives the court or other authority the flexibility to take steps that are appropriate or necessary for that specific case. It prevents standardized decisions in scenarios where facts might require a different response and it gives flexibility and discretion to the court.

Though primary burden of proof is on prosecution, however, in cases of honour killing, committed secretly, when the prosecution proves accused's established presence at the crime scene, exclusive control of the situation, a motive, and a complete chain of events that points only to his guilt, it could though establish a prima facie case or realistic prospect of conviction against the accused for qatl-i-amd, yet his response shall corroborate the prosecution case or restore normal standard of proof beyond reasonable doubt . Thus, in such situation evidential burden shifts to the accused to explain his position. If accused does not clarify the impending allegations ^[1] or concedes his liability in his statement under section 342 of the Code that he has committed the offence, ^[2] it would certainly be considered, a circumstantial evidence in the light of Article 17 of the QSO 1984, and would fortify the consequential presumed facts which shall supplement to facts already established by the prosecution, providing justification to record conviction against him while relying on probability formulae introduced through Article 2(4) of the QSO 1984.

36.Coming to the case in hand, the complainant Muhammad Maqsood Shahid, SI (PW-3), upon receiving spy information, reached the place of occurrence at about 12:30 p.m. and observed the dead body lying on a cot placed in a freshly washed courtyard. However, during spot recoveries, neither was the said cot taken into possession nor was any blood secured from any part of the house. Although a PFSA team was summoned to detect blood traces through scientific means, they collected only a few samples from the body of the deceased and did not recover any blood from the surroundings. The weapon of offence was also not found at the spot. Surprisingly, despite the courtyard having been washed, a spent shell was allegedly recovered from near the dead body. While the dead body was indeed found at the site, the prosecution failed to establish that the murder actually took place at that location. This constitutes first major dent in the prosecution s case.

37.There was delay of around 5 hours in lodging the crime report; police arrived at 12.30.p.m. on 12.01.2024 but FIR was registered at 5.25 p.m. without any plausible justification, which raises suspicion about legal activity of police at the site. Police have also not associated the persons from locality nor recorded their statements, who though were vocal enough to openly suspect the murder by the present appellant, information whereof was picked up by a stool pigeon for transmission to the police. Complainant was also the investigating officer of the case, therefore was steering the facts partially and conceded during cross-examination as under;

I did not join any private person. During the course of investigation, five persons of the locality namely Tayab Maqsood, Nawazish Ali, Bilal Hassan, Ghazanfar Ali and Fraz Ahmad joined the investigation proceedings. I did not record statements under section 161 Cr.P.C. of the above said people of locality .

The above facts show inefficiency of police which has created another missing link in the case.

38.It was alleged that the deceased s body was found inside the house, and rumours circulated that although the appellant had committed an honour killing, his father was attempting to portray the death as a suicide. The body was discovered lying on a cot in a freshly washed courtyard, indicating that someone from the family must have handled the body after death in order to place it there. In such a situation, the family members would naturally have touched or adjusted the body. However, the inquest report records that the deceased s eyes and mouth were still open an indication that no one from the household had attended to the body or been present at the time of death. This condition of the body directly undermines the prosecution s claim that the appellant committed qatl-i-amd .

39.Despite the PFSA team handed over certain samples to the complainant (PW-3), who acknowledged its receiving and deposit in PFSA on 16.01.2024 but the prosecution failed to produce any corresponding forensic report. Furthermore, Zeshan, the Junior Forensic Scientist who examined the crime scene and the dead body, was not produced as a witness to explain the nature of the samples collected. The complainant also claimed to have obtained the CDR of the accused, yet that too was never brought on record. He did not see the accused/appellant at the crime scene when he visited there, nor did the prosecution establish that the accused resided at the relevant location with his parents. Consequently, the prosecution could not prove either the presence of the accused at the crime scene or his control over it. The alleged motive, an undesirable relationship of the deceased with another person, also remained unsubstantiated. Though complainant PW-3 claimed during cross-examination as under;

CDR, regarding the contact of deceased with someone is also available on the record

But neither the call log of deceased was tendered into evidence nor police investigated about the person with whom deceased was in touch through cell phone, as conceded by the complainant PW-3 during his cross-examination.

40.Moreover, at the site there were four accused persons who were carrying equal animus or grudge for committing honour killing yet prosecution has not produced evidence to single out the accused/appellant, and rest of the accused had already stood acquitted on the similar evidence. It was otherwise, requirement of Article 24 of the QSO 1984 which is as under;

(Article 24 (2)(b) of the QSO 1984)

The circumstances are such that the crime must have been committed either by A, B, C, or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.

41.As noted above, although the courtyard had been freshly washed, the complainant (PW-3) nevertheless claimed to have recovered a spent shell from the exact spot where the dead body was lying. Furthermore, the alleged recovery of the pistol was shown after a delay of ten days, purportedly on the lead of the accused/appellant, from the haveli of Saif Ullah adjacent to the place of occurrence. However, Saif Ullah himself was never produced by the prosecution to support or corroborate this recovery. In addition, PW-3 stated during his examination-in-chief that he arrested the accused/appellant on 16.01.2024 and, on the very same day, deposited the spent shell at the PFSA office. This sequence of events creates a reasonable possibility that the recovery evidence could have been fabricated or manipulated. Consequently, the positive PFSA report loses its probative value and cannot safely be relied upon by the prosecution.

42.The complainant (PW-3) claimed during cross-examination that a confession by the accused and his mother existed on record for the purposes of Section 311 of the P.P.C. However, no such confession was ever produced in evidence. On the contrary, in his statement under Section 342 of the Code, the accused explicitly stated that Amna Sami had committed suicide but the prosecution did not produce any evidence to counter the accused s claim of suicide, nor did they ask the medical officer any questions that could establish a contrary medical opinion. Given this evidentiary gap, the prosecution failed to establish a case against the accused/appellant with a realistic prospect of conviction; therefore, he cannot be forced to discharge limited evidential burden.

3. For what has been discussed above, this Court has no doubt whatsoever to hold that prosecution has failed miserably to bring on record any iota of evidence which could in any manner connect the accused/appellant with the commission of offence, whereas, it was incumbent upon the prosecution to have proved its case against the accused beyond any reasonable doubt. Therefore, while relying on the cases reported as Qurban Ali v. The State (2025 SCMR 1344); Muhammad Iftikhar v. The State (2022 SCMR 973 ); Wajahat v. Gul Daraz and another (2019 SCMR 1451); Muhammad Pervaiz v. The State and other (PLD 2019 SC 592); Sajjan Solangi v. The State (2019 SCMR 872); State through Advocate-General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others (2019 SCMR 1154); Asad Khan v. The State (PLD 2017 SC 681) and Abdul Majeed v. The State (2011 SCMR 941), this appeal is allowed ; conviction and sentence recorded by the learned trial Court against the appellant are set-aside. Appellant is acquitted of the charge. He be released forthwith from jail if not required to be detained in any other case. The case property, if any, be disposed of in accordance with law and the record of the learned trial Court be sent back immediately.

44.Before parting with this judgment, I extend my gratitude to all the amici curiae, learned prosecutors and counsel (s) for the parties for their ability to navigate complex legal hurdles and provide actionable advice, instrumental in highlighting some important legal issues in our criminal justice system.

MH/A-15/L Appeal allowed.

^[1] (See Article 129(h) of the QSO 1984: Fayyaz Ahmad v. The State (2025 LHC 5942)

^[2] Ali Ahmad v. The State (PLD 2020 SC 201)