MUHAMMAD TARIQ NADEEM, J.:- Through this single judgment, we intend to decide Criminal Appeal No.77330 of 2021, filed by Muhammad Irfan alias Pomi appellant against his conviction and sentence along with Petition for Special Leave to Appeal No.81562 of 2021, filed by Muhammad Qaiser complainant against the acquittal of Tahir Usman, Afzaal, Hamza and Kaleem co-accused/ respondents No.1 to 4 and Murder Reference No.221 of 2021, transmitted by learned trial court for confirmation or otherwise of death sentence of Muhammad Irfan alias Pomi appellant being originated from the same judgment dated 02-12-2021 passed by the court of learned Additional Sessions Judge, Bhalwal, in a private complaint under sections 302, 148, 149 PPC, emanated from case FIR No.328 dated 08-11-2018, under Sections 302,148,149 PPC, registered at Police Station Miani, District Sargodha, whereby the learned trial court while acquitting co-accused namely Tahir Usman, Afzaal, Hamza and Kaleem, convicted and sentenced the appellant as under:- Under Section 302(b), PPC, to death for committing qatl-i-amd of Abdul Nasir with the direction to pay compensation of Rs.5,00,000/- to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C. which shall be recoverable as arrears of land revenue or in default thereof to undergo six months S.I.
2. The facts of the case as spelt out from the private complaint (Ex.PH) lodged by Muhammad Qaiser complainant are that on 08-11-2018 at about 02:20 p.m. his brother Abdul Nasir was on the way back to his house after offering "Zohar" prayer in Masjid Aqsa, whereas he (complainant) along with Waqar Ali and Sharafat Ali were also going behind him after offering prayer. When Abdul Nasir reached near his house, in the meantime, Muhammad Irfan alias Pomi (appellant) along with his co-accused namely Tahir Usman, Afzaal, Hamza, Kaleem and Rukhsar, while armed with pistols 30 bore, came in front of him. Afzaal, accused raised lalkara that they have come to teach a lesson for quarrelling with them and Muhammad Irfan alias Pomi (appellant) made straight fire shot at Abdul Nasir, which hit at left side of his abdomen. He (appellant) made second fire shot which hit at left deltoid of Abdul Nasir. After receiving severe injuries, Abdul Nasir fell down. The complainant and PWs Sharafat Ali as well as Waqar Ali witnessed the occurrence. Accused persons fled away from the spot while making aerial firing. Abdul Nasir was shifted to RHC Miani, from where he was referred to DHQ, Hospital, Sargodha, and after reaching there, he succumbed to the injuries.
The motive behind the occurrence was a quarrel between Abdul Nasir and Muhammad Irfan etc. which took place at noon time and due to that grudge, the accused persons committed murder of Abdul Nasir in furtherance of their common object.
3. After recording cursory statements of the complainant and PWs, the accused were summoned to face the trial. Learned trial court, after observing pre-trial codal formalities, framed charge under sections 302, 148,149 PPC against the appellant and his acquitted co-accused, to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as five witnesses as PWs and five as CWs, detail of which has been mentioned in the judgment passed by the learned trial court, therefore, the same is not being reproduced here to avoid unnecessary repetition. The prosecution gave up Nasir Khan 1191/C, PW being unnecessary and after tendering the reports (Exh.PL and Exh.PM) of the Punjab Forensic Science Agency, Lahore, closed its evidence. Thereafter, the appellant and his acquitted co-accused were examined under section 342 Cr.P.C. whereby they refuted the allegations leveled against them and professed their innocence. They did not opt to make statements on oath as provided under section 340(2) Cr.P.C, however, produced attested copy of MLC No. 271 of 2018 as Exh.DB in their defence evidence.
4. The learned trial court vide judgment dated 02-12-2021 found Muhammad Irfan alias Pomi appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co- accused namely Tahir Usman, Afzaal, Hamza and Kaleem of the charge through the same judgment by giving them the benefit of doubt, hence, the appeal against conviction and sentence, petition for special leave to appeal and connected murder reference before us.
5. We have heard the arguments of learned counsel for the appellant as well as learned Assistant District Public Prosecutor assisted by learned counsel for the complainant at length and also scanned the record with their able assistance. We have reappraised the whole evidence and taken everything into our consideration in the light of arguments advanced by both the sides.
6. The ocular account of the incident hinges upon the testimonies of Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5), who happened to be the real brother and paternal cousin of Abdul Nasir (deceased). Although both the PWs are closely related to the deceased, but their presence at the place of occurrence is quite natural and they had no animus towards the appellant. The complainant while appearing before the learned trial court reiterated the same facts as narrated in the FIR (Exh.CW-E) as well as private complaint (Exh.PH) and his statement has been fully corroborated by Waqar Ali (PW.5). Both these eye-witnesses were residents of the same vicinity i.e Kashmirian Wala, Miani, Tehsil Bhera, District Sargodha. It was daylight occurrence, took place in Mohallah Kashmirian Wala Miani, and the appellant was quite familiar to the eye witnesses prior to the occurrence, therefore, there was no chance of misidentification of the appellant at the time when he was causing firearm injuries to the deceased. We have noted that Muhammad Qaiser complainant (PW.4) stated during his examination-in-chief that on the fateful day, he along with Waqar Ali (PW.5) and Sharafat Ali (given up PW) were going behind Abdul Nasir (deceased) after offering Zohar prayer in "Masjid Aqsa", when Abdul Nasir (deceased) reached near his house, the said unfortunate occurrence took place.
Similarly, Waqar Ali (PW.5) during his testimony has completely endorsed the evidence of Muhammad Qaiser complainant (PW.4).
It is noteworthy that the learned defence counsel has seriously criticized the presence of Waqar Ali (PW.5) at the place of occurrence with the assertion that he (PW.5) was on his duty in bus stand at the relevant time of occurrence and his presence at the venue of occurrence is not plausible.
Although, he (PW.5) has disclosed that during the days of occurrence, he was working as booking clerk at bus stand Miani but at the same time, he stated that bus stand was at a distance of just half kilometer from the place of occurrence. We have already observed that this PW was resident of the same vicinity where unfortunate incident took place. Moreover, his place of job was not much away from the place of occurrence. It is trite in our society that people working near their residence normally like to offer prayer in the mosque of their own street/Mohalla so that they may also take their lunch at home. Even otherwise, the defence has not put any question to above-mentioned PW about his duty hours.
In this way the presence of both the above-mentioned eye witnesses at the time and place of occurrence is quite natural and probable. The above mentioned witnesses were cross-examined at length but nothing favourable to the appellant could be brought on the record.
Much emphasis has been laid by learned defence counsel that Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5) are closely related to the deceased and for the said reason, their evidence is not reliable. In this regard, it is settled proposition of law that mere relationship of eye witnesses with the deceased by itself is no ground to disbelieve their evidence. Even otherwise, their evidence is trustworthy and confidence inspiring which cannot be discarded merely on the basis of their relationship with the deceased especially when they have no animosity with the appellant.
Reliance in this respect may be placed upon the judgments reported as "Muhammad Abbas and another vs. The State" (2023 SCMR 487), "Amanullah vs. The State and another" (2023 SCMR 527), "Ali Asghar alias Aksar vs. The State" (2023 SCMR 596), "Aman Ullah and another vs. The State and others" (2023 SCMR 723), "Imran Mehmood vs. The State and another" (2023 SCMR 795) and "Khalid v. the State through P.G. Sindh" (2024 SCMR 1474).
Similarly, we are of the view that due to close and blood relation of eye witnesses with Abdul Nasir (deceased), they were in fact not likely to let off the actual perpetrator of the offence by falsely implicating the appellant, against whom they admittedly had no previous malice, ill-will, animosity or grudge. It is by now well settled law that substitution of real culprits especially in cases where the eye witnesses lost their kith and kin before their own eyes is a rare phenomenon. Reliance is placed on the cases of "Aqil vs. The State" (2023 SCMR 831) and "Muhammad Ijaz vs. The State" (2023 SCMR 1375).
7. During arguments, learned counsel for the appellant has contended that there are material discrepancies and contradictions in the statements of eye witnesses, particularly Muhammad Qaiser complainant (PW.4) has admitted in his cross-examination that, "none from us is eye witness in this case", (Bold for emphasis). After scrutinizing the entire statements of Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5), we have observed that mentioning of word "us" in the above quoted line from the cross-examination of the complainant is a typographical error due to casual and careless attitude of the Presiding Officer while dictating the evidence. We have noted that while appearing in the witness box, Muhammad Qaiser complainant (PW.4) has categorically stated in his examination-inchief that Muhammad Irfan alias Pomi appellant made straight fire shots which hit Abdul Nasir on left side of his abdomen and left shoulder and due to the firearm injuries, Abdul Nasir fell down. He (PW.4) along with Waqar Ali (PW.5) and Sharafat Ali (jettisoned PW) came forward and witnessed the occurrence. It is also noteworthy that during cross-examination, learned defence counsel put some questions to Muhammad Qaiser complainant (PW.4) regarding the place of occurrence and its location, whereupon he (PW.4) replied that place of occurrence was surrounded by inhabited houses and in that sequence, a question was put to him upon which he replied that "none from us is eye witness in this case"
(Bold for emphasis). It clearly manifests that in a sequel of cross-examination a question was put about the availability of inhabitants of locality and not about the presence of the complainant as well as eye witnesses mentioned in the crime report and due to the carelessness of the Presiding Officer instead of word "them" word "us" has been typed. For clarity, we would like to reproduce the relevant lines of cross examination upon Muhammad Qaiser complainant (PW.4), which are mentioned below:- "...Abdul Nasir deceased was jobless during the days of occurrence. The place of occurrence is a thoroughfare. The street in which the occurrence took place also leads to the houses of accused persons. The place of occurrence is surrounded by inhabitant houses. None from us is eye witness in this case..."
Similarly, such type of question was also put to Waqar Ali (PW.5) wherein correct word "them" has been used and not "us". Relevant portion of his cross-examination is as infra:- "....On hearing the hue and cry, many persons of the adjacent houses came out. They might have seen this occurrence. None of them is PW in this case..."
Moreover, during cross-examination on Muhammad Qaiser complainant (PW.4), a specific suggestion was put to him that he and other eye-witnesses were not present at the place of occurrence. The above-mentioned PW categorically denied this fact and clarified that they were present at the time and place of occurrence. The reply of Muhammad Qaiser complainant (PW.4) in this respect during his cross-examination is reproduced as under:- "...It is incorrect to suggest that I myself, Sharafat Ali and Waqar Ali PWs were not present at the place of occurrence at the time of occurrence..."
We have also gone through the Urdu transcript of charge sheet, prosecution evidence and the statements under Section 342 Cr.P.C. of the accused and it is quite apparent that translation in Urdu has been made by the Reader of the court after recording the whole evidence because the writing of Urdu translation of charge sheet, all the PWs and the statements of accused under Section 342 Cr.P.C. is of same pen and handwriting. It is noteworthy that Chapter XXV of Criminal Procedure Code, 1898, deals with the recording of evidence. Section 353 Cr.P.C. says that evidence should be recorded in the presence of accused, or, when his personal attendance is dispensed, in the presence of his pleader. Section 356 Cr.P.C. is also very much relevant to the matter in hand, which is reproduced as infra:- "356. Record in other cases. [(1) In trials before Courts of Session and in inquiries under Chapter XII] the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge.
(2) Evidence given in English. When the evidence of such witness is given in English the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record.
(2-A) When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, an authenticated translation of such evidence in the language of the Court or in English shall form part of the record.
(3) Memorandum when evidence not taken down by Magistrate or Judge himself. In cases in which the evidence is not taken in down in writing by the Magistrate or Sessions Judge he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record.
(4) If the Magistrate or Sessions Judge is prevented from making memorandum as above required he shall record the reason of his inability to make it.
Similarly, Sections 357 and 360 Cr.P.C. are also quite significant to know the language of record of evidence and procedure in this regard when the evidence is completed, for the reason, the wordings of the same should be gone through, which are described below:- "357. Language of record of evidence. (1) The Provincial Government may direct that in any district or part of a district, or in proceedings before any Court of Session or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in section 356, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother-tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing form his dictation in open Court.
(2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate and form part of the record.
Provided, that the Provincial Government may direct the Sessions Judge or Magistrate to take down the evidence in the English language or in the language of the Court, although such language is not his mother-tongue.
360. Procedure in regard to such evidence when completed.(1) As the evidence of each witness taken under section 356 or section 357 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary.
(3) If the evidence is taken in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so taken down shall be interpreted to him in the language in which it was given, or in a language which he understands."
As per Chapter 1, Part N, Volume I of High Court Rules and Orders, Urdu has been declared to be the language of all courts subordinate to the High Court. Similarly, according to Chapter A, Part-1 (Part- A) Volume V of High Court Rules and Orders, it has been mandated as under:- "...I--Court Language
1. *[(a)Urdu being the National Language as per article 251 of the Constitution of the Islamic Republic of Pakistan, 1973, shall be the language of the High Court, provided that English may be continued as the Language of the Court as well till further orders. (See also paragraph 1-A(a) of Part A of Chapter 1 and paragraph 1 of Part A of Chapter 4 of Volume V of High Court Rules and Orders]
(b) Urdu has been declared to be the language of all Courts subordinate to the High Court.
When we advert to the question about the language of Courts, we find a specific provision of law in the shape of Section 558 Cr.P.C, in this respect, which is being mentioned below:- "558. Power to decide language of Courts.
The Provincial Government may determine what for the purposes of this Code, shall be deemed to be the language of each Court within the territories administered by such Government, other than the High Courts..."
Moreover, Article 251 of the Constitution of the Islamic Republic of Pakistan, 1973, also speaks about the language of the country, the same is reproduced infra:- "National Language 251. (1) The National language of Pakistan is Urdu, and arrangements shall be made for its being used for official and other purpose within fifteen years from the commencing day.
(2) Subject to clause (1), the English language may be used for official purpose until arrangements are made for its replacement by Urdu.
(3) Without prejudice to the status of the National language, a Provincial Assembly may be law prescriber measures for the teaching, promotion and use of a provincial language in addition to the national language...."
In case titled as "Muhammad Kokab Iqbal and another vs. Government of Pakistan through Secretary Cabinet Division, Islamabad and others" (PLD 2015 Supreme Court 1210) decided by the Supreme Court of Pakistan on 08-09-2015 qua the implementation of Article 251 of the Constitution of the Islamic Republic of Pakistan, 1973, it was held as under:- "16. We may also emphasize here that implementing Article 251 is not just a matter of obeying the Constitution: it has real practical implications for the Pakistani public. In this regard, we may refer to a highly relevant historical fact. In 1972, the provincial government in Balochistan led by the Chief Minister and the provincial government in North West Frontier Province (now KPK) led by the Chief Minister Maulana Mufti Mahmud took some concrete steps towards introducing Urdu as the official language in their respective Provinces. A note by a former Chief Secretary of NWFP (now KPK) highlights the fact that as a result, available human and financial resources of both provincial governments were optimized. Again in 2004, the government in KPK introduced the National language for official and other purposes. In addition, the use of Urdu as the official language augmented the self-esteem of civil servants employed by the two Governments. At that time, it was immediately noticed that this measure remarkably improved the efficiency of the concerned provincial governments: even an Assistant in BS-11 was able to initiate notings in Urdu which was a language he was educated and familiar with. The very same activity and perhaps with a lesser quality, is now being undertaken by a Section Officer in BS-17 (since official noting is required to be in the English language).
17. In the governance of the Federation and the Provinces there is hardly any necessity for the use of the colonial language which cannot be understood by the public at large. Even for many civil servants and public officials, who may have received education in English, this language would in most cases, not be the language most used by them. Many officials are therefore forced to spend time on attempting to initiate and take decisions in a language which they are not entirely comfortable with. The time thus spent is quite wasteful because a lot of energy is dedicated to deciphering the language of the noting (which could have been easily drafted in the Urdu language) itself rather than understanding its content or substance. This wasteful exercise at times results in absurd and farcical outcomes which would be wholly avoided by use of the National language.
18. It is not at all the object of this judgment to denigrate the importance of English as a language used in international commerce and other activities which require the use of that language. The point before us as noted above is very different. Article 5(2) of the Constitution commands that [o]bedience to the Constitution and law is the inviolable obligation of every citizen We are tasked to both obey the Constitution and to enforce it, and we cannot shy away from our obligation to the same while the nation suffers even if some may (from habit or training) find it more convenient to continue using the colonial language.
19. Therefore, bearing in mind the constitutional commands in Articles 5 and 251 reproduced above and noting the inaction and failure of successive governments to implement this important provision, we have no option but to order as under:-
(i) the provisions of Article 251 shall be implemented with full force and without unnecessary delay by the Federal and Provincial Governments;
(ii) the time-lines (given in letter dated 6-7-2015 reproduced above) which are given by the Government itself must be considered for implementation by the Government in line with Article 251 for implementation;
(iii) the Federal Government as well as Provincial Governments should coordinate with each other for uniformity in the rasmulkhat for the National language;
(iv) Federal as well as provincial laws should be translated in the National languages within three months;
(v) statutory, regulatory and oversight bodies shall take steps to implement Article 251 without unnecessary delay and also ensure compliance by regulatees;
(vi) in the competitive examinations at Federal level the recommendations of government bodies noted above, should be considered by the Government for implementation without unnecessary delay;
(vii) Judgments in cases relating to public interest litigation and judgments enunciating a principle of law in terms of Article 189 must be translated in Urdu and should be published in line with Article 251 of the Constitution;
(viii) in Court cases government departments should make all reasonable efforts to submit their replies in Urdu to enable citizens to effectively enforce their legal rights;
(ix) if, subsequent to this judgment, any public bodies or public officials continue to violate the constitutional command contained in Article 251, citizens who suffer a tangible loss directly and foreseeably resulting from such violation shall be entitled to enforce any civil rights which may accrue to them on this account.
20. Copies of this Judgment shall be sent to all the Federal as well as Provincial Secretaries, who are to take immediate steps for enforcement of Article 251 in line with Article 5 of the Constitution.
The concerned Federal and Provincial Secretaries shall submit reports showing compliance with the above orders. The first report of progress should be fixed in Court within three months...."
With regard to the importance of Urdu record of the proceedings in Sessions trials, we found a Notification No.4840.Genl. dated 26-05-1973 issued by the then Registrar, Lahore High Court, Lahore, to all the District and Sessions Judges as well as Additional District and Sessions Judges in the Punjab, which is reproduced as under:- From bare reading of the above reproduced provisions of law, it manifests that the intention of the law (code) is that Urdu has been declared as the language of subordinate courts, but in the Province of Punjab, the same has not been implemented up till now, and in Sessions Courts, evidence is being recorded in English. It is noteworthy that law is very much clear on the point that the evidence should be taken down in the language of witnesses by the Magistrate or Judge himself or be recorded in his presence, hearing and superintendence. Similarly an authenticated translation of such evidence in the language of the court or in English is also a legal requirement.
Normally in the Province of Punjab, witnesses give their evidence in Urdu language whereas in Sessions trials, evidence is mostly recorded in English language and it has become a trite that evidence is translated in Urdu by the Reader of the Court subsequently in the absence of witnesses, accused and the Presiding Officer of the court. While dealing with an identical proposition in late fifties, a Division Bench of this Court in the case titled as "Rehmat Khan and another v. "Crown", (PLD 1951 Lahore 228) observed as under:- "...In the present case the evidence was not taken down by the Sessions judge himself, but by his Reader in Urdu which is the Court language. So far, therefore, as the Urdu record is concerned, it seems to be quite in order because the evidence must be deemed to have been taken in the language of the Court in the presence and hearing of the judge and under his personal direction and superintendence. The learned Judge also prepared a complete record of the evidence in English but he did not write it himself and only dictated it to a typist. Below the deposition of each witness he affixed a rubber stamp containing the following note:- "The evidence of the witness has been taken down and typed in my presence and hearing and under my personal direction and superintendence and at my dictation. I was prevented from making a memorandum in my own hand as it is not physically possible for me to write for a long tune and in order to save public time and money -aa the statement of the witness was lengthy and also because unattested copies had to be supplied to the parties".
"This note amounts to a, complete misunderstanding of the provisions of section 356 of the Code of Criminal Procedure. The English record prepared by him cannot be said to be a compliance with subsection (1) of section 356 of the Code of Criminal Procedure because the language of the Court is-Urdu and the typed record is not in that language. Secondly, the learned judge seems to think that no memorandum was prepared in this case. He is wrong in this assumption because where the language of the Court is Urdu the English record of evidence is intended to serve as a memorandum within the meaning of subsection (3) of section 356. Such memorandum need not be in the language of the Court but it must be written and signed by the Judge with his own hand.
According to the Darned Judge s reading of section 356 there should leave been three record:
1. the Urdu record which is the original record.
2. the record of evidence in English; and
3. the memorandum in the handwriting of the Judge. ...................................................................... .......................................................
If the evidence could be recorded by his Reader in Urdu, the Judge could do the same in English.
Physical impossibility cannot only mean physical incapacity and not merely physical inconvenience.
We are also not inclined to accept the explanation that public time is saved by a judge in not writing the memorandum himself but dictating it to a typist while the full record of evidence is being taken down in Urdu. ..................................................................... .....................................................................
As compared with a handwritten memorandum a typed record is cleaner and more easily legible and the original record in Urdu is a sufficient check against any possible mistake,, in the typed record in English...."
In the light of above reproduced portions from the statements of witnesses of ocular account, it appears that typographical error has occurred while dictating cross-examination of Muhammad Qaiser complainant (PW.4).If the Urdu translation of the evidence had been prepared during the same sitting as well as in the presence and hearing of the learned Presiding Officer and all parties involved, then the correct answer could have emerged clearly on the record. We are of the view that the evidence of any witness is to be taken into consideration as a whole, not in bits and pieces.
The above said witness during examination-in-chief as well as in the cross-examination, has fully supported the case of prosecution. We may also observe here that law does not permit the Court to pick and choose a sentence from the entire evidence and base its decision while reading only that sentence in favour of the appellant, in isolation to the remaining evidence available on record.
8. So far as the contention raised by learned counsel for the appellant that medical evidence is not in consonance with the ocular account is concerned, we have noted that the eye witnesses i.e. Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5) have specifically described the injuries sustained by Abdul Nasir (deceased) at the hands of Muhammad Irfan alias Pomi appellant. It is observed that medical evidence is in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case as the ante-mortem injuries on the person of Abdul Nasir (deceased) are reflected in the post-mortem report (Exh.PB), which ultimately became the cause of his unnatural death as opined by Doctor Ibtesaam Haider (PW.1), who conducted postmortem examination on the dead body of Abdul Nasir (deceased) and these injuries are specifically attributed by the eye witnesses to the appellant. Furthermore, the ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injuries as narrated by the eye witnesses has also fully tallied with medical evidence. It may be observed here that this witness (PW.1) was also subjected to cross-examination but nothing beneficial to the appellant could be extracted from him.
9. Apart from the above, the appellant in his statement under Section 342 Cr.P.C. has seriously criticized that he has been falsely implicated in this case. According to him (appellant), the complainant and other eye witness being close relatives of Abdul Nasir (deceased), have made false statements and this false case has been registered against him by twisting the real facts. In this regard, we may observe here that the eye witnesses i.e. Muhammad Qaiser, complainant (PW.4) and Waqar Ali (PW.5) remained consistent throughout that the appellant was the actual and principal perpetrator who committed the murder of Abdul Nasir (deceased) by causing firearm injuries to him and the defence miserably failed to shatter the evidence of above-said witnesses. The above version adopted by the appellant appears to be an afterthought story fabricated by him in order to save his skin. We may also observe here that when an accused takes particular stance, onus to prove such stance shifts upon him but in this case, the defence did not produce any evidence in support of the plea of appellant. Hence, we are of the view that defence has failed to substantiate its version.
10. Adverting to the contention raised by learned counsel for the appellant that co-accused Tahir Usman, Afzaal, Hamza and Kaleem stood acquitted by learned trial court in the same trial while disbelieving the same evidence which rendered the credibility of prosecution evidence seriously doubtful even against the appellant, we have noted that no overt act was attributed to the acquitted co-accused of the appellant. So in our view, the acquittal of co-accused, in the circumstances of this case, is not sufficient to discredit the overwhelming prosecution evidence available against the appellant.
11. With regard to the recovery of pistol 30 bore (P.5), vide seizure memo (Exh.CW-A) from the possession of Muhammad Irfan alias Pomi appellant and positive report (Exh.PM) of the Punjab Forensic Science Agency, Lahore , we may observe here that the same are not helpful to the prosecution because while effecting the said recovery from the appellant, the investigation officer has flagrantly violated the mandatory provisions of Section 103 Cr.P.C. as no independent person was associated during the said recovery proceedings. Guidance has been sought from the case laws titled as "Muhammad Nasir Butt and 2 others v. The State and others" (2025 SCMR 662) and "Muhammad Ramzan v. The State" (2025 SCMR 762).
12. Now the only piece of evidence which still remains in the box of prosecution is the motive set up by Muhammad Qaiser complainant (PW.4) in private complaint (Exh.PH) that a quarrel took place between Abdul Nasir (deceased) and Muhammad Irfan etc. at noon time on the day of occurrence and due to that grudge, the accused persons with their common object committed murder of Abdul Nasir. We have noted that the prosecution has not led any substantial evidence in this regard, therefore, mere oral assertion of eye witnesses in this regard cannot be considered enough to prove the motive part of prosecution's case. The prosecution evidence is completely silent as to where and in whose presence the alleged altercation took place at noon time before the occurrence, hence, we are of the view that the prosecution has miserably failed to prove the motive and actual circumstances due to which the appellant had taken such an extreme step against the deceased remained shrouded in mystery.
13. After thorough discussion about prosecution's case against appellant, we have come to a definite conclusion that if we exclude the recovery and motive from consideration, even then the prosecution keeps in its fold sufficient incriminating evidence in the shape of statements of two eye witnesses namely Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5) duly supported by the medical evidence, which successfully brought home the guilt of Muhammad Irfan alias Pomi appellant with regard to the charge of committing murder of Abdul Nasir (deceased), therefore, we have not found any reason to differ with the findings of learned trial court to the extent of conviction of Muhammad Irfan alias Pomi appellant on the said murder charge and we are of the considered view that his conviction is neither unfounded nor the same suffers from any legal infirmity.
14. Now coming to the quantum of sentence awarded by learned trial court to the appellant on the charge of committing murder of Abdul Nasir (deceased), we have noted some mitigating circumstances in his favour which call for reduction in the quantum of his sentence. In Paragraph No.11 and 12 of this judgment, we have held that the prosecution has failed to prove the recovery and motive part of its case against Muhammad Irfan alias Pomi appellant, therefore, we are of the view that alternate sentence of imprisonment for life to Muhammad Irfan alias Pomi appellant for the murder of Abdul Nasir (deceased), which is also a legal sentence, shall meet the ends of justice. Reliance is placed upon the case-law titled as Qaddan and others vs. The State (2017 SCMR 148) "Abdul Wasay and others vs. The State and others" (2021 SCMR 1059), "Muhammad Shaban vs. The State" (2022 SCMR 1608), "Muhammad Bashir and another vs. The State and others" (2023 SCMR 190), "Sohail Akhtar and another vs. The State and another" (2024 SCMR 67) and "Muhammad Yasin and another vs. The State and others" (2024 SCMR 128).
15. In the light of above discussion, the conviction under Section 302(b) PPC awarded to Muhammad Irfan alias Pomi appellant by the learned trial court is maintained, however, his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon the appellant, its mode of recovery and imprisonment in default thereof are also maintained.
Benefit provided under section 382-B, Cr.P.C. shall also be extended to him.
16. With the above modification in the quantum of sentence of appellant, Criminal Appeal No.77330 of 2021 is hereby dismissed.
17. Murder Reference No. 221 of 2021 is answered in negative and sentence of death of Muhammad Irfan alias Pomi (convict) is not confirmed.
18. In so far as PSLA No.81562 of 2021 seeking reversal of acquittal recorded by learned trial court in favour of respondents No.1 to 4 namely Tahir Usman, Afzaal, Hamza and Kaleem, is concerned, we have gone through the reasoning recorded by the learned trial court in support thereof and found it in consonance with the evidence brought on the record and as such reflected a possible view. It is discernible from the record that neither any firearm injury upon the body of Abdul Nasir (deceased) is attributed to the respondents/accused nor the complainant has produced any evidence to establish the element of sharing common object with Muhammad Irfan alias Pomi (convict) for the commission of murder of Abdul Nasir (deceased), thus, the learned trial court has rightly acquitted respondents No.1 to 4 and impugned judgment of acquittal to the extent of said respondents is borne out from the record. It is well settled law that every accused, after his acquittal, had earned a double presumption of innocence, for rebuttal of which heavy onus lays on the prosecution but it had failed to discharge the same. Reliance is placed upon the case laws titled as "Muhammad Riaz vs. Khurram Shehzad and another" (2024 SCMR 51) and "Sardaran Bibi vs. The State and others" (2024 SCMR 1116). Even otherwise, the judgment of learned trial court about acquittal of accused/respondents cannot be said to be perverse and the reasons thereof are also not fanciful, speculative or artificial, as such, it cannot be interfered with. It is golden principle in the arena of criminal jurisprudence that benefit of doubt always goes to the accused.
Reference can be advantageously made to the cases of "Muhammad Imtiaz Baig and another vs. The State through Prosecutor General Punjab, Lahore and another" (2024 SCMR 1191), "Muhammad Hassan and another vs. The State and others" (2024 SCMR 1427), "Khial Muhammad vs. The State" (2024 SCMR 1490).
19. For what has been discussed above, P.S.L.A. No.81562 of 2021 having no merit is dismissed and leave is refused.
20. Before parting with this judgment, we would once again refer to Article 251 of the Constitution of the Islamic Republic of Pakistan, 1973, as well as the directions given by the Supreme Court of Pakistan in the case reported as "Muhammad Kokab Iqbal and another vs. Government of Pakistan through Secretary Cabinet Division, Islamabad and others" (PLD 2015 Supreme Court 1210) wherein it has been explicitly emphasized that Urdu being the language of the country shall be implemented by the Federal and Provincial Governments with full force and without unnecessary delay. This pronouncement was made by the Supreme Court of Pakistan on 08-09- 2015 but unfortunately no significant steps have been taken up-till-now to meet with the Constitutional obligation and comply with the directions of the Supreme Court of Pakistan. We are sanguine that the Federal and Provincial Governments are conscious of their duty to take necessary steps for implementation of Article 251 of the Constitution of the Islamic Republic of Pakistan, 1973, in the light of directions already given by the Supreme Court of Pakistan in the above mentioned case.
As regards the language for the purpose of recording evidence and its translation is concerned, we would like to note here that normally the witnesses of cases relating to Sessions Trial depose in Urdu and the Presiding Officer, while transcribing the same in English, dictate it to his subordinate Computer Operator or Stenographer, however, Urdu transcript of such deposition is not being prepared simultaneously rather translation of the whole record is noticeably being done at a much later stage when the trial is almost at the verge of culmination. This practice diminishes the very purpose of preparing and keeping Urdu translation of evidence recorded by the Presiding Officer in English, because, in case any ambiguity in evidence of a witness recorded in English is pointed out, Urdu translation of such evidence, if not done simultaneously rather at some subsequent point of time, would become a purposeless exercise.
We also feel that the provisions contained in Section 360 Cr.P.C. are not being adhered to in letter and spirit. It is worthwhile noticeable here that most of the witnesses in the Province of Punjab give their evidence in Urdu, which the accused can also easily understand, for the reason, if the evidence of a witness dictated by the Presiding Officer in English is simultaneously translated in Urdu, it shall become convenient for the Presiding Officer to comply with the provisions of Section 360 Cr.P.C. as well. This practice, in our view, shall definitely reduce the chance of any violation of the right of fair trial given to the parties in terms of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973.
Henceforth, we would like to direct all the learned Sessions Judges, Additional Sessions Judges as well as Judges of Special Courts in the Province of Punjab to ensure that whenever the evidence of a witness is recorded in English, its translation in Urdu shall be reduced into writing simultaneously at the same sitting as well as in the presence of witness(es), accused and the Presiding Officer and then the provisions contained in Section 360, Cr.P.C. (as highlighted in Paragraph No.7 above) shall also be adhered to in letter and spirit so that if any ambiguity in the evidence recorded in English comes on the surface of record, the same can be then and there removed in the light of translation of evidence in Urdu.
We also direct the Registrar of this Court to send copies of this judgment to all the learned Sessions Judges and Judges of Special Courts in the Province of Punjab as well as the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad, and the Secretary, Ministry of Law and Parliamentary Affairs, Government of Punjab, Lahore, for compliance of the directions of this Court.