MUHAMMAD NAWAZ alias NAZI Versus State
SOHAIL NASIR, J.--- This Criminal Appeal filed by Muhammad Nawaz alias Nazi (appellant) is directed against judgment dated 28.11.2018 passed by the learned Additional Sessions Judge Tehsil Chichawatni district Sahiwal on the basis of which appellant was convicted under section 302(c), P.P.C. and sentenced to undergo 10 years Rigorous Imprisonment. He was directed to pay Rs.200000/- (two lacs) as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also extended to him.
2. The conviction is outcome of a private complaint filed by Muhammad Ramzan (PW-1) against appellant, one Umar Daraz (since acquitted) and two unknown persons.
3. It is important to mention here that about this occurrence earlier First Information Report (FIR) No.130 on 08.04.2017 under sections 302/34, P.P.C. was also recorded at Police Station Kassowal Tehsil Chichawatni district Sahiwal on the complaint of same Muhammad Ramzan.
4. By filing the complaint on 12.07.2017 against appellant, Umar Daraz and two unknown persons, version of Muhammad Ramzan was that on 31.03.2017 at about 10:00/11:00 p.m. he was in the company of his son Aqib Shan (deceased) aged about 16 years who was returning from tuition; when they arrived near their house, the electric bulb was on, where they saw Muhammad Nawaz alias Nazi armed with an iron rod, Umar Daraz in possession of hatchet and two unknown persons having rifles with them; they/complainant etc, were waylaid by them; Aqib Shan while running entered in the house who was followed by appellant and Umar Daraz and they brought him out in Bazaar, Muhammad Nawaz gave two blows with iron rod on the right side of head and left arm of Aqib Shan where after Umar Daraz also inflicted two injuries with hatchet on the left and back side of the head of Aqib Shan who being injured fell down on the ground; complainant further alleged that on his hue and cry his son Tahir Iqbal (PW-2) and Mazhar Iqbal reached there and assailants escaped from there. According to complainant, Aqib Shan because of injuries had died on 17.04.2017 and the motive he alleged was that Muhammad Nawaz appellant used to play music with high volume and he was forbidden by the deceased. Finally it was asserted by complainant that Investigating Officer had made connivance with appellant and other accused, therefore, he was compelled to file the private complaint.
5. Both appellant and Umar Daraz were already in custody in state case. After recording of preliminary evidence the processes were issued against them. On 19.12.2017 when it was found that Umar Daraz was juvenile, his case was separated and he was independently tried under the provisions of Juvenile Justice System Ordinance, 2000 (since repealed).
6. A charge under sections 452/302/34, P.P.C. was framed against appellant which he pleaded not guilty and demanded his trial.
7. Muhammad Ramzan himself appeared as PW-1 and he produced his son Tahir Iqbal as PW-2. The learned trial court also examined Dr. Asad Imtiaz (CW-1), Dr. Ali Hussain Syed (CW-2), Amjad Ali Constable (CW-3), Muhammad Saeed Akhtar/draftsman (CW-4), Shahid Hussain HC/Moharrar (Cw-5), Muhammad Usman ASI (CW-6), Abid Sagheer Inspector (CW-7), Muhammad Ejaz Constable (CW-8), Bashir Ahmad ASI (CW-9) and Khalid Mehmood ASI (CW-10).
8. Appellant in his examination made under section 342, Cr.P.C, to the question that why this case was against him, made following reply:-
"I have been falsely involved in this case with mala fide intention. On the day and time of occurrence, I was sleeping in the cattle shed of my co-accused Umar Daraz, which is adjacent to the house of the deceased. At the time of occurrence, two persons entered into said Ihata while scaling over the wall. I woke up and due to darkness of night thought that thieves entered into my Ihata in order to steel cattles. A scuffled took place between me and the unknown persons and one of them decamped from the place of occurrence and the other fell down on the ground after receiving injuries in the scuffle, later on it came into my knowledge that Nazar and Aqib Shan entered in my Ihata for committing offence. Due to misunderstanding the occurrence took place. Complainant has falsely shown the place of occurrence in the street, in front of his house which was found falsely during investigation. On the day of occurrence at about 6/7:00 p.m. a quarrel took place between me and Aqib Shan as he used to flirt within my fianc e and I forbad him from doing so outside the baithak of Muhammad Waheed son of Muhammad All resident of our village and my version was found correct during investigation."
9. Appellant opted not to produce defence evidence or to appear in terms of section 340(2), Cr.P.C.
10. HEARD.
11. The learned trial court did not believe the motive of the case and also found that prosecution made incorrect version to the extent of place of occurrence. The learned trial court although not with clarity but it appears that did not accept the version of prosecution and proceeded to convict the appellant in view of his plea made in his examination under section 340, Cr.P.C. and held that he had exceeded his right of private defence and caused the death of Aqib Shan.
12. It is also important to mention here that the learned trial court did not believe the involvement of Umar Daraz who vas acquitted on the same day from the case.
13. At the very outset I find serious challenge for the prosecution in this case that is the acquittal of Umar Daraz who was also assigned two successive blows with hatchet on right and back side of head of Aqib Shan. Although he was found innocent during investigation but fact remains that witnesses has specifically alleged his involvement with specific role. His acquittal from the case till today is unchallenged. When similarly placed accused having the similar allegations has been acquitted by disbelieving the witnesses, then how prosecution can defend the conviction of appellant? By now it is a settled principle of law that the rule 'sifting the grain from the chaff' is no more applicable and the rule "falsus in uno, falsus in omnibus" shall be the integral part of our jurisprudence (PLD 2019 SC 527). It means that if a witness has been disbelieved on one fact, he shall be considered to false in all respect.
14. Even otherwise prosecution cannot ask the court to sustain the conviction of appellant on various other reasons.
15. Occurrence had taken place on 31.03.2017. On the same day there was a report made by Muhammad Ramzan (PW-1) to the police. It was recorded in 'Roznamcha' vide No.1 on 01.04.2017 at about 02:00 am (midnight) and its copy was brought on record by the appellant as ExDE. Before what has been recorded in this complaint, it is important to add here that Muhammad Ramzan admitted that immediately after the occurrence he had gone to police station where he made his statement. Although he was of the view that he gave a complete story but the report of Roznamcha tells otherwise. It simply says that one Rab Nawaz son of Muhammad Ali (may be appellant) having an iron fist (????urdu???) had injured Aqib Shan. There is no mention whatsoever the name of any other accused, the manners of occurrence and the fact that Muhammad Ramzan (PW-1) and his son Tahir Iqbal (PW-2) were the eyewitnesses of the crime.
16. There is another document (DC) produced by appellant showing that Tahir Iqbal (PW-2) had submitted an application to the learned duty Magistrate Kassowal Tehsil Chichawatni with a request for issuance of copy of medico legal report. In this application the version he gave was different from the story recorded in 'Roznamcha'. This time Tahir Iqbal maintained that when his father and Aqib Shan arrived near to their house Muhammad Nawaz alias Nazi along with three unknown persons were sitting there who made attack; Muhammad Nawaz alias Nazi gave a blow with iron rod which hit on the left arm of Aqib Shan resulted into fracture; Muhammad Nawaz then gave a second blow on the left side of head of Aqib Shan who being injured fell down and then unknown assailants gave him injuries with kicks blows. In this document Tahir Iqbal never claimed to be an eye-witness. He also did not name Umar Daraz as one of the culprits. Even in this application except two specific injuries assigned to Muhammad Nawaz no injury was shown specifically to have been caused by hatchet or any other weapon by unknown persons on left and back side of head of Aqib Shan. It is important to mention here that Tahir Iqbal (PW-2) in cross-examination categorically admitted moving of said application.
17. The third version then emerged pursuant to FIR (CW.5/A) where first time on 08.04.2017 after nine days of the occurrence, Umar Daraz was also nominated. Not only was this but Muhammad Nawaz appellant instead of iron fist (??? urdu ????) shown in possession of an iron rod and Umar Daraz with a hatchet. Similarly two unknown persons first time were shown having the riffles.
18. Three independent versions which are in conflict with each other have made the prosecution's story doubtful. It is net understandable that after making statement to police on 31.03.2017, why Muhammad Ramzan or Tahir Iqbal did not proceed further that their FIR was not recorded by the police?
19. It must be remembered that Umar Daraz was not an alien or stranger for alleged eye-witnesses as appellant was his brother-in-law. Therefore, none of eye-witnesses can claim that Umar Daraz was not identifiable and they came to know about him at a subsequent stage.
20. It does not permit me for more discussion about prosecution's story which has already been disbelieved by the learned trial court.
21. The appellant has been convicted only on the basis of his version which he made during the trial. The learned trial court completely ignored the settled principles of law that once prosecution evidence is disbelieved, the version of accused has to be accepted or rejected completely and there is no authority with the court to make any pick and choose. In these circumstances when prosecution's evidence was not believed there was no need for the learned trial court even to revert to the defence story but to acquit the appellant without any further discussion.
22. Concluding the deliberations made above, this criminal appeal is allowed. Impugned judgment is set aside and Muhammad Nawaz alias Nazi (appellant) is acquitted from the case. He is in custody and he shall be released forthwith, if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial court.
JK/M-249/L Appeal allowed.