MUHAMMAD GOPANG Versus State
MUHAMMAD SALEEM JESSAR, J.--- Through instant criminal appeal, the appellant has assailed judgment dated 21st December, 2002 passed by II-Additional Judge, Dadu, in Sessions Case No.352 of 1992, whereby appellant Muhammad was convicted under section 302, P.P.C., and sentenced to R.I for life with fine of Rs.25,000/-, and in default of payment of fine to undergo further R.I for six months. The fine, if realized, was to be paid to the legal heirs of deceased Sohbat. Benefit of section 382(B), Cr.P.C. was allowed to him. However, accused Khan Muhammad, Mehar and Nawaz were acquitted under section 265-H(I), Cr.P.C.
2. Brief facts of the prosecution case, according to FIR No.112 of 1992, lodged by the complainant Thando on 3.10.1992 at PS K.N. Shah, are that 3-4 days prior to the incident exchange of hot words took place between accused/appellant Muhammad and Soomar, the nephew of the complainant. It is further stated by the complainant that on 03.10.1992 he along with his son Ranjhan and nephew Haji Sohbat, were coming to Khairpur Nathan Shah and when they reached near Noor Muhammad Chandio Hotel, accused Muhammad, Sohrab Khan (since dead), Khan Muhammad, Nawaz and Mehar accosted them. Accused Muhammad and Sohrab were allegedly armed with hatchets while rest of the accused were armed with lathies. Accused Muhammad abused Ranjhan and thereafter gave sharp side hatchet blows to Ranjhan on head and arm. Accused Sohrab allegedly gave sharp side hatchet blows to Haji Sohbat. Regarding the same incident another FIR No.111/1992 was also lodged by appellant Muhammad at the same police station.
3. Police after lodging both FIRs i.e. crime Nos. 111/92 and 112/92, investigated the case. During investigation injured Sohbat succumbed to his injuries. Police arrested Muhammad, Sohrab (since dead), Khan Muhammad and Mehar, and after usual investigation, submitted the challan before the court on 27.10.1992 by showing accused Nawaz absconder therein. Thereafter, accused Nawaz appeared voluntarily before the court.
4. Copies of statements of the PWs and other necessary documents were provided to the accused vide receipt Ex.1.
5. Formal charge was framed by the trial Court on 17.10.1996 as Ex.5 and pleas of accused were recorded on the same date as Ex.5 to 9, wherein the accused pleaded not guilty and claimed for trial.
6. At the trial, prosecution examined PW-1 Jhando at Ex.10, who produced the FIR as Ex.11, PW-2 Ranjhan at Ex.12, who produced his statement under section 164, Cr.P.C. at Ex.13, PW-3 Dr. Abdul Sattar at Ex.14, who produced the medical certificate of injured Haji Sohbat and Ranjhan, letter received to him from D.M.S.C.M.C. Larkana, Radiologist report and 8 X-ray films at Ex.15 to 22, PW-4 Ghulam Nabi at Ex.23 who produced statement under section 164, Cr.P.C. at Ex.24, Deputy District Attorney made statement for evidence of Tapedar and Dr. Aurangzeb M.O., CMC,Larkana at Ex.25. Prosecution also examined PW-5 Hussain at Ex.26 who produced mashirnama of arrest, recovery and place of vardat at Ex.27 to 33, PW Muhammad Qasim at Ex.35, PW TapedarAllamuddin at Ex.36 who produced the sketch of place of vardat/incident at Ex.36/A, PW Dr. Aurangzeb at Ex.37, who produced post-mortem of deceased Haji Suhbat at Ex.37 A. DDA for the state gave up PW ASI Sher Muhammad and the side of prosecution was closed vide statement at Ex.38.
7. The statements of accused were recorded at Ex. 39 to 42. The accused denied the allegations levelled against them by the prosecution, in their statements and pleaded innocence.
8. Learned trial Court, after framing points for determination, and hearing learned counsel for the parties, vide impugned judgment dated 21.12.2002, convicted and sentenced the appellant as above, while co-accused Khan Muhammad, Mehar and Nawaz were acquitted under section 265-H(I), Cr.P.C. Appellant Muhammad Gopang has filed instant Jail Appeal challenging his conviction and sentence.
9. On 26.3.2005, when the criminal jail appeal of the appellant Muhammad Gopang was being heard by a learned Single Judge of this Court, the impugned judgment was examined and it was observed that the observations made by the trial Court require consideration and examination as to whether on the basis of reasoning of the trial Court the three accused persons, namely, Khan Muhammad, Mehar and Nawaz, can be acquitted. Therefore, it was considered expedient to send notice to the said acquitted accused to show cause as to why the judgment of acquittal against them should not be set aside, and the case may be remanded to the trial Court for decision in accordance with law. Accordingly, this order was treated as suo motu Criminal Revision Application No. S-10 of 2003 and was heard along with the instant criminal jail application.
10. I have heard both these cases together and intend to dispose of the same by this common judgment.
11. Learned counsel for the appellant submitted that the case of the prosecution is full of discrepancies and there are also major contradictions in the evidence of the witnesses. He submitted that the alleged weapons used in the crime i.e. lathies and the hatchets, were not sealed at the spot nor sent to chemical examiner for his opinion and report. He further submits that neither the last worn clothes of the deceased were sealed and sent for chemical analysis nor the blood stained earth was sent to chemical examiner. He further contended that though the place of wardat is said to be a thickly populated area; however, no independent witness has been examined in this case and all the prosecution witnesses are related inter se. He has also drawn my attention to the evidence on record to show that there is previous enmity between the parties. He also submitted that the medico legal evidence is not supporting the case of the prosecution as it is alleged that appellant Muhammad Gopang caused hatchet blows to the deceased; however, the medico legal report states that the injury to the deceased was caused by hard and blunt weapon not by sharp weapon. On account of above submissions, learned counsel submitted that the case against the appellant is doubtful and prayed that the impugned judgment may be set aside and the appellant may be acquitted. In support of his contentions he relied on the case of Tariq Pervez v. The State (1995 SCMR 1345).
12. On the other hand, learned APG fully supported the impugned judgment and stated that the appellant has been assigned specific role in the murder of deceased Haji Suhbat. He further submitted that since the incident took place in broad day light and the parties know each other very well therefore there is no chance of mistaken identity and false implication. However, in view of the medico legal report, he conceded that the co-accused have been rightly acquitted and therefore, submitted that the revision application may be disposed of and the impugned judgment may be maintained to the extent of acquitted accused/ respondents in Criminal Application No.S-10 of 2005.
13. Learned trial Court has discussed the evidence produced by the prosecution on Points Nos.1, 2 and 3 together in the following terms:
I have gone through the entire evidence. PW-Jhando is the complainant of the case. He has clearly stated in his deposition that accused Muhammad had caused hatchet injuries to deceased Sohbat and PW Ranjhan. He has also deposed that accused Mehar caused lathi injuries to PW Ranjhan. PW Ranjhan has also corroborated the evidence of the complainant. He has specifically deposed before the court that accused Muhammad had caused hatchet injuries to him and to deceased Sohbat. He has further deposed that accused Mehar caused lathi injuries to him on his arm and due to that injury he became unable to work with his hand. He had also deposed that accused Nawaz and Khan Muhammad had also caused lathi injuries to deceased Sohbat. Evidence of Dr. Abdul Sattar only proves that injured Ranjhan has received simple injuries. Evidence of PW Ghulam shows that on the fateful day he was taking tea to one Soomar Chandio when he saw accused armed with lathies. He has also deposed in his deposition that he saw accused Muhammad causing hatchet injuries to deceased Sohbat, while the prosecution has failed to prove their case against accused Khan Muhammad, Mehar and Nawaz. However, there is attribution of simple injuries to all the three accused but [due to] existence of contradiction on this point between the prosecution witnesses no conviction may be passed. From the evidence of Dr. Orangzeb it is very much clear that the cause of death of deceased Sohbat is hatchet injury. Hence accused Khan Muhammad and Nawaz have not assigned any role to push/drag deceased Sohbat to the death.
14. After discussing the evidence of the witnesses in the above terms, the learned trial Court formed an opinion that "From the evidence of Dr. Orangzeb it is very much clear that the cause of death of deceased Sohbat is hatchet injury." However, perusal of the deposition of Dr. Aurangzeb, available at page 135 of the paper book, does not say that deceased Sohbat died due to injuries caused by hatchet. On the contrary, the said Doctor expressed his opinion that the injuries have been caused by hard and blunt weapon. As per the statement of the complainant himself, the injured PWs were given sharp side hatchet blows by the accused. In my opinion, injuries caused by sharp side of hatchet cannot be termed as injuries caused by hard and blunt weapon as sharp side of hatchet blow causes deep cuts which are usually described as injuries caused by sharp edged weapons. Therefore, the finding that "From the evidence of Dr. Orangzeb it is very much clear that the cause of death of deceased Sohbat is hatchet injury" is not correct.
15. There is another, and most important aspect of the case and that is that there is contradiction in the evidence of the complainant and the contents of the FIR as to who caused the alleged hatchet blows which proved fatal and resulted in the death of deceased Haji Suhbat.
16. Deposition of complainant Jhando was recorded on 26.07.1997 while the incident allegedly took place on 3.10.1992. However, the FIR was registered on the same day i.e. 3.10.1992 at about 6-55 a.m. The complainant, during his examination-in-chief stated as under:
"All of a sudden there came accused Mohammad armed with hatchet, Sohrab armed with hatchet, accused Khan and Nawaz were armed with lathies emerged out from the Hospital Building. Accused Mohammad gave hatchet blow to PW Ranjhan which hit him on his head. Accused Mohammad also caused hatchet injuries to PW-Sohbat on his head and on his wrist. Accused Khan and Nawaz caused lathi injuries to Haji Sohbat which hit him on head and other parts of his body. Accused Mehar and Sohrab, out of them accused Sohrab was armed with hatchet and accused Mehar was armed with lathi. They caused hatchet and lathi blows to my son PW-Ranjhan."
17. However, the narration of facts in the FIR is quite different and is more than enough to dislodge the case of the prosecution. In the FIR, available at page 75 of the paper book, the narration of injuries allegedly caused by the accused to the complainant party is as under:
"Today on 3.10.92 early in the morning I, my son Ranjhan and nephew Haji Mohabat (Sohbat) were going together to K.N. Shah city, when at about 0600 hrs we reached near Hotel of Noor Muhammad Chandio, where accused namely Mohammad son of Shahan (2) Sohrab son of Shahan (3) Khan son of Khair Muhammad (4) Nawaz son of Khair Mohammad and (5) Mehar son of Ibrahim, all by caste Gopang resident of Fatehpur Taluka K.N Shah, emerged from new constructed hospital. Out of them Mohammad and Sohrab were armed with hatchet and remaining were armed with lathies, while coming the accused Mohammad abused to my son Ranjhan and said that you have abused us today we shall see you, saying so, accused Mohammad inflicted sharp side hatchet blows at my son Ranjhan on his head and arm. Accused Sohrab inflicted sharp side hatchet blow to my nephew Haji Mohammad on his head and arm, they fell down..." The accused who were armed with lathies also inflicted lathi blows to Haji Sohbat and Ranjhan."
(It is quite clear and obvious that the name of "Haji Mohammad" has been wrongly mentioned here as the name of the nephew of the complainant was "Haji Sohbat", as mentioned in the last sentence quoted above.)
18. Thus, in the FIR, it is clearly mentioned that appellant Mohammad has allegedly inflicted hatchet injuries to son of the complainant, namely, Ranjhan, while Sohrab is alleged to have caused hatchet blows to deceased Haji Suhbat. Accused Sohrab is stated to have died while in custody.
19. This creates a major dent in the case of the prosecution as in the FIR the complainant clearly states that Sohrab caused hatchet blows to deceased Haji Suhbat, however, when the same person came in the witness box to record his evidence, he very conveniently changed the roles and stated that accused Mohammad first caused hatchet blows to his son, namely, Ranjhan, and then he is alleged to have caused hatchet blows to deceased Haji Suhbat while Sohrab is alleged to have caused hatchet blows to his son Ranjhan. The obvious reason for this change of role seems to be the death of accused Sohrab in custody. In this way the complainant wanted to implicate the appellant in the murder of deceased Haji Suhbat.
20. The deposition of complainant further reveals that at the time of alleged incident Noor Mohammad and Allan were sitting in the hotel and also witnessed the incident and challenged the accused. To a question in cross-examination, he stated that it is incorrect to suggest that he has not mentioned in the FIR that Noor Mohammad and Allan were sitting in the hotel and witnessed the incident. However, there is no such mention in the FIR. In case these two independent witnesses were present at the place of wardat on the fateful day, and they, as per statement of the complainant, also challenged the accused, then they should have been examined by the prosecution.
21. The complainant Jhando in his evidence has also stated that he has shown the place of wardat to the police and the police also collected blood stained earth. It has also come on record in the shape of mashirnama of recovery (Exh.31 at page 119) that one hatchet was allegedly recovered from accused Mohammad Gopang while one hatchet was allegedly recovered from accused Sohrab. The mashirnama further discloses that the hatchet recovered from Sohrab was having small drops of blood on it while no such fact is mentioned about the hatchet recovered from appellant Mohammad Gopang. However, very surprisingly, neither these hatchets were sealed on the spot nor they were sent to chemical examiner. The blood stained earth collected from the place of wardat was also not sent to chemical examiner to determine whether the same was human blood and was of the deceased or otherwise.
22. In view of the fact that neither the blood stained earth was sent to the chemical examiner nor the hatchets allegedly recovered from the accused Mohammad and Sohrab, were sent for chemical examination, nor the last worn clothes of the deceased Haji Suhbat were sent to chemical examiner, therefore, the recovery of the alleged weapons is of no help to the prosecution as there is nothing on record to connect the same with the murder of Haji Sohbat. Although the mashirnama of recovery states that the hatchet recovered from accused Sohrab was blood stained; however, without the missing link of a report from the chemical examiner it cannot be said that the hatchet was having blood stains from the blood of deceased Suhbat or that the same hatchet was used in the murder of the said deceased.
23. Although in the FIR it is stated that three/four days prior to the incident, there was exchange of hot words between appellant Mohammad and step son of complainant, namely, Soomar. However, perusal of the record. shows that there is old enmity between the parties as the complainant during his cross-examination himself admitted that they were on inimical terms with the accused party. It may be observed that the Superior Courts have time and again held that enmity is a double-edged weapon which would cut both ways and where, on the one hand, it may be a motive for implicating the accused falsely, on the other hand it could also be termed as strong motive for committing offence by the accused.
24. Thus, there are contradictions and illegalities in the prosecution case. The effect of the said contradictions in the evidence of prosecution witnesses and infirmities/flaws in the prosecution case is that serious dents have been put and doubts have been created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case of Muhammad Akram v. State (2009 SCMR 230), the honourable Supreme Court has held that:-
"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right". Same view has also been taken in the case reported as Muhammad Mansha v. State (2016 SCMR 772), wherein it was also held that "it is better that ten guilty persons be acquitted rather than one innocent person be convicted."
25. Vide short order dated 07.03.2019, instant Criminal Jail Appeal was allowed, the impugned judgment dated 21.12.2001, passed by II-Additional Sessions Judge, Dadu in Sessions Case No.352/1992 (State v. Muhammad Gopang and others) being outcome of Crime No.112/1992 of PS K.N. Shah under sections 14, 149, 302, 336 and 504, P.P.C., was set aside to the extent of conviction and sentence awarded to appellant Muhammad Gopang, while it was maintained to the extent of acquittal of co-accused Khan Muhammad, Mehar and Nawaz. Consequently, appellant Mohammad Gopang was acquitted and his bail bonds were cancelled and surety was discharged. Accordingly, suo motu Criminal Revision No. S-10 of 2005 is hereby dismissed.
26. Above are the reasons for my short order dated 07.03.2019.
JK/M-83/Sindh Appeal allowed.