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Official Citation: 2025 LHC 3801
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: The State and others vs Muhammad Irfan alias Pomi and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2025 LHC 3801. In this matter between The State and others and Muhammad Irfan alias Pomi and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025LHC3801
Court Name: Lahore High Court Judge(s): Muhammad Tariq Nadeem, Raja Ghazanfar Ali Khan Title: The State and others vs Muhammad Irfan alias Pomi and others Case No.:Murder Reference No. 221 of 2021, Criminal Appeal No. 77330 of 2021, Petition
JUDGMENT
Reported As: 2025 LHC 3801 Result: Order Accordingly Judgment
JUDGMENT 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
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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.
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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)
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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
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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..."
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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
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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…
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