ACKNOWLEDGEMENT

We sincerely grateful to Allah S.W.T for his power and guidance, we can complete this assignment in time and in a proper manner. We would like to thank our beloved lecturer, Ustaz Hamid bin Jusoh on his teaching about Evidence and Procedure of Shariat Court 1 and give us the opportunity to examine the application of the procedure in shariat court in other country. We also would like to apologize if we tend to make any mistake in completing this assignment. What is best is come from Allah but what is worst is from our own mistake. Sincerely done by, 1) Muhammad Hairuliqram bin Hairuddin 2) Muhammad Farid bin Ariffin 3) Mohd Hafidz bin Mohd Nasir

STATE V KH. ABDUL RASHEED GRISTA SHARIAT DECISIONS (2012 SD) P.1 (FEDERAL SHARIAT COURT PAKISTAN)

This is an appeal case where the respondent has challenged the judgment passed by learned Judge in the trial court whereby they are convicted and sentenced to death as Tazir under Section 302, APC alongwith the compensation of Rs. 5,00,000 each of them under Section 544-A, Cr. P. C. The other accused people were acquitted based on the judgement of the trial court. However, in the appeal court, the respondents which are The State make two counterappeals to enhance the sentences against the accused under Section 364, 201, and 34 of APC and also awarding the sentence to the acquitted accused for abetting and facilitating to the commission of the crime.

MATERIAL FACTS Based on this case, the accused, Abdul Rashid Grista and Naser Ali has been convicted for the commission of murder where the commission of the crime occurred on 24th July 2008. The victim of the murder is Al- Haj Ashraf Qureshi. The murder of the deceased took place at the house own by Abdul Rashid Grista situated at Jalalabad Garden. Basically, the murder happened because of the dispute on the ejection of the rented plot situated at the upper Addah own by Abdul Rasheed Grista, Taufeeq Grista and Hamid Grista where they are running business of firewood and cement stock for the last 17 years but the plot could not be vacated because of the non availability of an alternative place. The motive of the murder is for them to get the alternative place and for the purpose of ejection of the plot. The deceased was attacked and killed by using a hammer and after that they wrapped the dead body of the victim in a blanket, put the body in a box and threw it in the river Jhelum at Kohala. The report was made by the deceaseds brother on 25th July 2008 after the deceased did not come home and could not be reached by phone after went out of the house on 24th July 2008. Later on, the box contain the dead body of the deceased was found at river Jhelum near to Dhangalli at the Mirpur district.

PRINCIPLE OF THE EVIDENCE 1) Burden of Proof Basically, the first principles of evidence that can be related in regards to this case are the principle of burden of proof. In the procedure of the shariat court, the burden of proof is lie on the prosecution side to adduce and give sufficient evidence to satisfy the court as to the fact contended by him. Based on this principle, the condition that must be satisfied is that it must be proved beyond any shadow of reasonable doubt in hudood and qisas case. However, if there is any of doubt exists, the accused need to be acquitted or sentence to tazir punishment if there is not enough evidence. In order to prosecute the accused, it is necessary for the prosecution to proof the fact which contended by them in the court. The duty to proof the accusation is lying on them. Based on this case, it can be seen that the prosecution side which is The State had produced 49 witnesses to the court where all the witnesses except PW number 2, 3, 33, 34, 35 and 36 are independent witnesses who basically did not have any interest with the prosecution. In the procedure of the shariah court, the evidence and statement made by the witnesses is important to decide the case by the judge to charge the accused and it is actually the burden where the prosecution need to produce it in the court. If we look into this case clearly, the prosecution which is The State believe in their evidence and statement by the witnesses and succeed to prove the charges against the accused who is the murderer of the deceased. The burden of proof already been proved beyond any reasonable shadow of doubt. Because of that, the appeal by The State is allowed and the sentence awarded to the accused is death sentence. The sentences is maintained and confirmed by the court. Therefore, all the three appeals by the accused dismissed. 2) Standard of proof Basically, if we look at this case, it involves the crime of Qisas where the crime is murder. The standard of proof in the Qisas case must be beyond any shadow of reasonable doubt. What is meant by standard of proof is that the aggregate of evidence which is needed to prove in an

offence. If it proved, it means that it reached the standard of proof as being required by the shariat court. In the present case, it is clearly shown that the act of the accused by using a hammer to attack the victim at the head is the act of murder. The court already knows that the act is the act of murder and the punishment for the murder is Qisas where the accused will be punished to the death sentence. In order to decide on the death sentence of the accused, the standard of proof must be beyond any reasonable shadow of doubt and it must reached the level of yaqin. Yaqin can be defined as certainty. The level of yaqin basically applies in the case of Hudood and Qisas in Islamic Law. When there is a doubt even it is very small, the hadd and qisas punishment cannot be done. Yaqin is the highest degree in the process of presenting or proving a case and it is required to make a decision in the court. In applying this principle to the present case, it can be said that the standard of proof reached the level of yaqin and it is certain and there is no doubt at all. All the chain of circumstances in this case is so cogent, solid, and coherent and strong which give the court no option but to accept the evidence brought by the prosecution. The evidence made by the witnesses also relevant. In addition, the confessions made by the accused also strengthen the evidence that it reached the level of yaqin and beyond any shadow of reasonable doubt. Therefore, the death sentence is maintained.

3) Argument by the Accused The accused argued that a false case has been registered against the accused to take away the property of the accused, Abdul Rasheed Grista. The accused later contended that in the instant of the case there was no eye-witness and it is only based on the circumstantial evidence only. Moreover, the accused agitated that all the recovery witnesses are closely related to the deceased and supportive evidence does not find any corroboration from any independence source. The accused also stated that the evidence of last seen, the evidence of taking into possession the vehicle used during the occurrence and the recovery of the weapon used, the
5

recovery of blood-stained insect killer bed, mattress and Elmira could not be proved beyond any shadow of reasonable doubt. Another objection raised by the appellant regarding to the factum of recovery of box from river Jhelum and the evidence of the divers and marginal witnesses cannot be relied upon because it was already known to them and the police that the box and other articles along with it have to be recovered from the river and they were already present at the spot.

4) Form of evidence Based on the case above, there are several forms of evidence that have been produced by the prosecution before the court which involving witnesses (syahadah) confession (iqrar) and documentary evidence (kitabah). In order to make the appellants liable for the offence that has been committed against the deceased all contentions and claims that have been made against them must be corroborated with these evidences In this case, there are circumstantial evidence which strengthened with the extra-judicial retracted confession made by the accused (iqrar). The accused, Abdul Rasheed confessed at Police Station in presence of Mukhtar Qureshi that he together with other two person murdered Ashraf Qureshi and he stated that he can point out the place, the weapons of the offence, the recovery of box and other articles from the river. Besides, the prosecution in this case also has brought 49 of witnesses to give statements regarding the case. All statements from the prosecution witnesses have been amply proved and corroborated. Regarding to the documentary evidence (Kitabah), there are several documents that had been brought before the court which are a letter sent by Mobilink Phone Company, post-mortem of the dead body and medical examination report of Naser Ali which testified by Dr. Naseer Amad Shaikh. In this case, the evidences that have been brought before the court were strong enough and have corroborating with each other where the court held that these were highly confidence that it had been proven beyond any shadow of doubt to convict the appellants.
6

5) Conclusion From the above analysis, the forms of evidence that have been produced by complainant are confession of the accused (iqrar), statement of witnesses (syahadah) letter and medical reports (kitabah). The prosecution who bears the burden of proof must prove the cause using these evidences to the degree of Yaqin to convict the appellant. The circumstantial evidence couple with extra-judicial retracted confession of the accused exclude all reasonable hypothesis of their innocence. It also has been proved without any shadow of reasonable doubt that the accused had hired murderers, Naser Ali and Sikandar with the promise to pay them huge amount in order to take away the life of Al-Haj Ashraf Qureshi. Regarding the witnesses, all witnesses in this case do not nurse any grudge or rancour against the accused person. The prosecution witnesses were also found Adil during purgation. Besides, every link of the chain of situation and statement given by the witnesses were corroborated with the documentary evidence. Thus, it leaves no option for Court except to believe the prosecution version of story.

QAISAR MEHMOOD V STATE SHARIAT DECISIONS (2012 SD) P.1 (FEDERAL SHARIAT COURT PAKISTAN) This is an appeal case where the appellants have challenged the judgment passed by learned Judge in the trial court whereby they are convicted under section 364-A of the Pakistan Penal Code, 302 (b) of the Pakistan Penal Code and section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 which involving the murder and rape and sentenced to death. Both the accused were ordered Rs. 1,50,000 each as Diyyat to legal heir of the deceased.

MATERIAL FACTS This case is criminal appeal case under section 364-A of the Pakistan Penal Code, 302 (b) of the Pakistan Penal Code and section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 which involving the murder and rape of Rimsha, 3 years old girl. Qaisar Mahmood and Muhammad Shaaban were convicted of doing the said act. Trial court sentenced both of the accused with death and it was confirmed by Federal Shariat Court.

PRINCIPLE OF THE EVIDENCE 1) Burden of Proof Basically, the first principles of evidence that can be related in regards to this case are the principle of burden of proof. In the procedure of the shariat court, the burden of proof is lie on the prosecution side to adduce and give sufficient evidence to satisfy the court as to the fact contended by him. Based on this principle, the condition that must be satisfied is that it must be proved beyond any shadow of reasonable doubt in qisas case. However, if there is any of doubt exists, the accused need to be acquitted or sentence to tazir punishment if there is not enough evidence. In order to prosecute the accused, it is necessary for the prosecution

to proof the fact which contended by them in the court. The duty to proof the accusation is lying on them. Based on this case, it can be seen that the prosecution side which is The State had produced 13 witnesses to the court. The evidence and statement made by the witnesses are important to decide the case by the judge to charge the accused and it is actually the burden where the prosecution need to produce it in the court. The prosecution in this case believed that their evidence and statement by the witnesses had successfully prove beyond any reasonable shadow of doubt the charges against the accused who is the rapist and murderer of the deceased. Thus, the appeal by the appellants are dismissed and conviction and sentences awarded by the Trial Court are maintained.

2) Standard of proof Basically, if we look at this case, it involves the crime of hudood and qisas where the crimes are zina and murder. The standard of proof in hudood and Qisas cases must be beyond any shadow of reasonable doubt. In order to decide on the death sentence of the accused, the standard of proof must be beyond any reasonable shadow of doubt and it must reached the level of yaqin. Yaqin can be defined as certainty.. The level of yaqin basically applies in the case of Hudood and Qisas in Islamic Law. When there is a doubt even it is very small, the hudood and qisas punishment cannot be done. Yaqin is the highest degree in the process of presenting or proving a case and it is required to make a decision in the court. In applying this principle to the present case, it can be said that the standard of proof reached the level of yaqin and it is certain and there is no doubt at all. In the present case, the evidence and statement made by the witnesses shown that the crime is really committed by the accused and the evident is too strong for the court not to award the punishment to the accused. The evidence made by the witnesses also relevant. In addition, the confessions made
10

by the accused also strengthen the evidence that it reached the level of yaqin and beyond any shadow of reasonable doubt. Therefore, the death sentence is maintained.

3) Argument by the Appellant/Accused In this case, the appellant contended that the complainant had nominated the present accused by subsisting the real culprit. It was also argued by the appellant that it is unseen occurrence where in semen grouping is necessary to ascertain the culprit however in this case the same thing had not been done. The appellant further argued that there are lapses and missing of chains in the prosecution evidence. Besides, the main elements of commission of crime which are Mens Rea and Actus Reus on the part of the appellants are not proved by the prosecution. The appellant also doubted the status of the witness which said by appellant was not such a respectable or notable person.

4) Form of evidence Based on the case above, there are several forms of evidence that have been produced by the prosecution before the court which involving circumstantial evidence (qarinah) together with witnesses (syahadah), confession (iqrar) and documentary evidence (kitabah). In order to make the appellants liable for the offence that has been committed against the deceased all contentions and claims that have been made against them must be corroborated with these evidences Last seen evidence is a circumstantial evidence (qarinah) where in the fact; Rimsha (the victim) was seen with both of the accused before she was found dead. Besides, the accused also were seen by the complainant as well as Muhammad Asif and Muhammad Tufail while throwing the dead body of Rimsha. Recoveries of evidences upon the disclosure by the accused (iqrar) where azarband which was used in the murder of Rimsha, Chadar and Shoe were found stained with human blood.
11

The documentary evidence in this case is the medical evidence is post mortem examination on the dead body of Rimsha. The examination was conducted by Dr Farida Sheraz stated that five injuries on the dead body were found and she was in opinion the injuries collectively sufficient to cause death. Other documentary evidence is the potency test of accused to commit rape which done by Dr Khalid. The result shows that both of the accused are fit to perform sexual intercourse. All of the evidences above can be relied on and can stand on their own except extrajudicial confession. It is a weak type of evidence but it could be considered as a corroborative piece of evidence in the presence of other material evidence available on the record.

5) Conclusion From the above analysis, it can be concluded that all of the evidences above can be relied on and can stand on their own except extra-judicial confession. It is a week type of evidence but it could be considered as a corroborative piece of evidence in the presence of other material evidence available on the record. In addition, all evidences tendered in this case were not challenged by the appellant. However the learned counsel on behalf of the appellant took up the plea of substitution of accused in this case that Anser (cousin of the proprietor of the factory) had committed this offence but the failed to bring on record any material evidence to show their wrong involvement in this case, or produce any evidence to support their contention. Furthermore, the counsel also contended that Investigating Officer had not fulfilled requirements of section 103 Cr. P.C and no independent witnesses were associated. The contentions pointed out by learned counsel are generally trivial and technical and has no momentum to brush aside the prosecution evidence. In addition, Shabans plea that he had collar bone injury is totally a false and fabricated defence attempt as it was not supported by medical report.

12