Kouro Magsi (Appellant) VS The State (Respondent)

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CERTIFICATE OF THE COURI IN REGARD TO REPORTING

CRIMINAL APPEAL NO. D-365 OF 2011

CONFIRMATION CASE NO. 23 OF 201-1.

PEERAL MAGSI V/S THE STATE

CRIIVINAL APPEAL NO. D-376 OF 2011

KOURO MAGSIV/S THE STATE

SINDH HIGH COURI CIRCUIT COURT HYDERABAD

Composition of Bench

HON'BLE MR. JUSTICE MOHAMMAD KARIM KHAN AGHA

HON'BLE MR. JUSTICE RASHEED AHMED (D.B) SOOMRO

Dote of losi heoring (heord/reserved): 16-06-2020 & 17-06-2020 Decided on: 24-06-2020

(o)Judgment opproved for reporting YES t-- t

CERIIFICATE

Certificote thot the Judgment/Order is bosed upon or enunciotes o principle of low/decide o question of low which is of firsi impression/distinguishes over-rules/exploins o previous decision.

Strike-oui whichever is not opplicoble.

NOTE (i) This slip is only io be used when some oction is to be loken. lii) lf lhe slip is used, ihe Reoder musl otloch it to lhe iop of ihe first poge of lhe .Judgment.

(iii)Court Associote must osk the Judge wrillen lhe judgmenl whether the judgment is opproved for reporling. {iv) Those direclions which ore nol lo be used should be deleted.

SGP, Kor-L (iii) 7/3-2000-4-2003-rrl

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IN TTIE HIGH COURT OF SINDH, HYDERABAD CTRCUIT'

HYDERABAD.

Cr. Appeal No: - D- \1s- of 2011.

',"u l 0t/- PEERAL S/o. Fateh Mohammad Magsi, adult, Muslim, R/o. Village Peeral Magsi, I Deh 92 Taluka & District Mirpurkhas' At present confined in, Central Prison Hyderabad....... . ..Appellant

VEIISUS

THE STATE.,.. Respondent.

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q9 >/t 'iESERTED ON /y',ta, 4,/t It1 )\" I Itlaaat

INTIIE HIGH COURT OF SINDH, HYDE

AD CIR

HYDERABAD.

Cr. Appeat No: -3 " 27{ of i t, r KOURO S/o. Wassand Magsi, ldyllYSlif , R./o. Village peeral Magsi, Deh 92 Taluka & Disrrict Mirpurkjras. At present confined in.

Central Prison Hyderabad Appellant.

VER SUS

THE STATE

Respondent.

ORDER SHEET r Y_3

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD

Cr. Appeal No.D-365 of 201 I IConfirmation Case No.23 of20lll Cr. Appeal No.D-376 of 2011

DATE OITDER WITH SIGNATURE OF JUDGE

Mr. Irfan Almed eureshi, advocate for appellant in Cr. Appeals No.D-365 of 2011 Mr. Muhammad Hashim Leghari, advocate for complainant Mr. Noor-ul-Haq eureshi, advocate for appellant Kouro, who is present on bail in Cr. Appeal No.D-376 of201l Ms. Safa Hisbani, Assistant prosecutor General Sindh Pursuant to order au,.a t o.oo.zUo, reamed counser for appelrant peerar Magsi and leamed counsel for appellant Kouro Magsi have made their submissions, leamed APG and leamed counser for complainant have also made their submissions.

Reserved for judgement.

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(L-rdffiV' Sai,ad Alilc$ar

S^. F^rVb (",.. )r-?*Jl-\ -t1q

IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD

Before:

Mr. Justice Mohamrnad Karim Khan Agha Mr. Justice Rasheed Ahmed Soomro

)- 1 Cr. Appeal No.D- 365 of 201'1.

(Confirmation Case No. 23 of 2011)

Peeral

Versus

The State

2.Cr. Appeal No.D- 376 of 2077

Kouro Magsi

Versus

The State

Appellant : Peeral in Cr. Through Mr. Irfan Ahmed Qureshi Appeal No.D-365 of 2011. Advocate (alongwith Confirmation Case No.23 of 2011)

Appellant : Kouro in Cr. Through Mr. Noorul Huq Qureshi Appeal No.D- 376 of 2011 Advocate (appointed on State exPenses (present on bail) vide order dated 16.06.2020) Respondent : The State Throu[h Ndiss Safa Hisbani, A.P.G. Sindh { Complainant : Muhammad Through Mr. Muhammad Hashim Ismai-1 Laghari Advocate

Date of hearing 16.06.2020 ard 17 .06.2020 Date of judgment 24.06 2020

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I UDCMENT

MOH AMMAD KARIM KHAN AGHA, T.- B y this single judgment r,r,e intend to dispose of both aforementioned Criminal Appeals and confirmation reference together as the same relate to one and the same incident as well as F.I.R. and have been filed against the same judgment passed by the trial court.

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2.By means of aforementioned Appeals, appellants Peeral and Kouro Magsi have assailed the Judgment dated 30.'11'.201'1,, passed by learned Sessions Judge, Mirpurkhas, in Sessions Case No'111 of 2000 (Re: State V Peeral and others), emanating from Crime No.20 of 2000, registered at Police Stalion Khan, under sections 302, 324, 337-A(i),337-A(ii), 337-F(i),337-F(v), 504, 1,47, 148, 1,49 PPC; whereby they have been convicted and sentenced, as mentioned in Point No.3 of the impugned judgment, in the following terms:- Point No.3.

31."The case against accused Kouro S/o Wasand Magsi is proved u/s 324 PPC for attempt to commit murder / Qatl-e-Amd, therefore, I hereby convict and sentence him for 10 years R.I with fine of Rs.50,000/- to be paid to the L.Rs of deceased and in case of default in payment of fine, he shall suffer S.l for three months more. The benefit of section 382(b) Cr.P.C is extended to the accused Kouro.

32.The prosecution has also established their case against accused Piral (Peeral) s/o Fateh Muhammad of murdering deceased Ahmed Lakho ancl hereby convict accused Piral s,/o Fateh Muhammad Magsi and sentence him for capital punishment i.e. death u/s 302(a) PPC as Qisas and to pay Rs.2,00,000/- as compensation to the L.Rs. of deceasecl Ahmed Lakho and in case of default in payment of compensation he shall suffer S.I for six months more. The prosecution has also established their case regarding gathering of both accused namely Koru s/o Wasand Magsi and Piral s/o Fateh Muhammad at the place of incident armed with deadly weaPons and they are convicted fl s 747, r. 1,48,1,49 PPC and sentenced for one year R.i on each count. The benefit of section 382(b) Cr.P.C. is extended to the accused Piral

3.Tfuough said judgment, the trial court has acquitted co-accused Yar Muhammad, Fida Hussain and Gulab under section 265-H(i) Cr.P.C; whereas co-accused Ghulam Rasool has been declared as a proclaimed offender.

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4.lhe prosecution case in brief is that complainant Muhammad Ismail appear:d at Police Station on 09.06.2000 and lodged F.I.R. stating that Ahmec, Bachal Lakho and their father and brothers are his cousins and they used toreside adjacent to his land. Peeral Magsi and others have dispute with Ahmed Lakho Wara on the tube well of LBOD. o11 09.06.2000 at 07:30 a m he was available in the house where Ghulam Mustafa and Rab Dino informed him thattoday at0715 hours accused Peeral, Fida Hussain, Ghulam Rasool, Yar Muhammad, Kouro, Gulab duly armed with guns, pistol, hatchets and lathi respectively, were standing on the western side's Rasti near the house of Ahmed Lakho; on u'hich Muhammad Bux and Bachal Lakho told them why they are standing near their house as they have no compromise with them; whereupon Yar Muhammad Magsi caused hatchet to Muhammad Bux and Bachal on their heads and other parts of their bodies with intention to kill them. They raised cries, which attracted Ahmed and Ghuiam Hussain who came their running. Then Peeral Magsi made straight fire upon Ahmed Lakho from his gun with intention to kiil him, Yar Muhammad Magsi also caused hatchet injuries to Ghulam Hussain Lakho, whereas Ghulam Rasool Magsi made fire from his pistol and Kouro caused hatchet injuries to him. After receir.ing injuries Ahmed Lakho fell down on the ground. In the meanwhile, they also reached there and made hakals that not to kill Ahmed Lakho but accused persons within their sight continued causing iniuries to Ahmed Lai.'ho. After some time Ahmed expired at the spot within their sight. After receiving such information from Ghulam Mustafa and Rab Dino, complainant also reached at the place of wardat and saw that Ahmed was expired' They saw the injuries sustained by deceased Ahmed Lakho, Muhammad Bux _akho and Ghulam Hussain Lakho also received lathi and hatched injuries and blood was oozing. They brought dead body of deceased Ahmed Lakho and injured persons at civil hospital'

^ After usual investigation, Police submitted challan before the concerned court and after completing necessary formalities, learned trial court framed the charge against all accused, to which they pleaded not guilty and claimed trial.

6.The prosecution in order to Prove its case examined 10 PWs and exhibited numerous documents and other items. The statements of the

accused were recorded under section 342 Cr.P.C whereby they claimed that in fact they had been attacked by the complainant's party and had registered a counter FIR to this effect. The appellants examined themselves on oath and called one witness in support of their defense case and exhibited numerous documents.

I 7 . Leamed trial court after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellants as stated earlier in this judgment.

8.The facts of the case as weli as evidence produced before the trial court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unrtecessary repetition.

g. Learned counsel for the appellants in both appeals have argued the matter aimost on the same lines and have contended that the charge rvas defective, that there was an explained delay of 11 hours in lodging the FIR which enabled to complainant with the connivance of the police to cook up a Y false case against the appellants, that the eye wikless PW's are all closely related, had enmity with the appellants and had a motive to falsely implicate him in this case and as such their evidence cannot be believed or safely relied upon, that the appellants had filed a counter case at the same time which ultimately lead to the conviction of the complainant and some PW's in this case, that the pistol and hatchet were foisted on the appellants, that there was no blood found on the hatchet, that there was no FSL report, that other co- accused were acquitted on the same evidence and as such the appellants are entitled to equal treatment, that questions used to convict the appellants were not put to them in their 5.342 Cr.PC statements and thus for any of the above reasons the appellants should be acquitted by extending them the benefit of the doubt. In support of their contentions, learned counsel for the appellants placed reiiance on the cases of Muhammad Nadeem alias Banka V The State (2011 SCMR 1517), Shahbaz V The State (2016 SCMR 1763), Muhammad lf,zalY The State (2017 SCMR 1.645),lmhaz alias Tai V The State and others (2018 SCMR 344), Muhammad Asif V The State (2017 SCMR 486), Hashim Qasim and another V The State and ]ehangir Elahi V Shoaib Ahmed and others (20L7

.,| SCMR 986).

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10.on the other hand learned APG appearing on behalf of the state as weli as the learned counsel for the complainant fully supported the impugned judgment and in particular contended that there was no delay in lodging the FIR which ruled out any chance of cooking up a false story against the appellants, that the eye witnesses were reliable, trust worthy and confidence inspiring and their evidence should be believed by us and it is not relevant that they are related, that the medicai evidence supported the eye witness evidence, that the recoveries supported the prosecution case, that the injuries to the appellants were self inflicted in order to save their skins and as such the appeals against conviction should be dismissed and that the impugned judgment should be upheld and the confirmation reference in respect of appellant Peeral Magsi be answered in the affirmative' In suPPort of their contentions learned APG and complainant placed reliance on the cases of Majeed and another V The State (1999 SCMR 2317), Mst. Salma Shahida V The State (2008 SCMR 787), M. Younus Habib V The State (PLD 2005 Supreme Court 153), Sikandar V The State and another (2005 SCMR 1786), Nasir Shah V The State (2006 SCMR 1796), Lal Khan V The State (2005 f- SCMR 1846), Nawab V The State (2006 SCMR 456), Muhammad Tashfeen and others V The State and others (2006 SCMR 577) Maqsood Ahmed V The State (2006 SCMR 672), Haq Nawaz and others V Haji Ghulam Farid and others (2011 SCMR 782), Tanveer alias Rabail and another V The State (2012 YLR 2026), Muhammad Iqbal Shah and another V The State (2005 MLD B5), Yasir and 2 others V The State (2018 MLD 1014), Qadir Bakhsh and other V The State through Shaukat and others (2013 YLR 1418), Elahi Bakhsh and others V The State and others (2005 SCMR 810) and Mubarak V The State (1982 SCMR s31).

11.We have heard the arguments of the ieamed counsel for the parties, gone through the entire evidence which has been read out by learned counsel for the appellants and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.

12.In our view after our reassessment of the evidence based on the evidence of the PW eye witnesses, PW MLO's, PW police witnesses, IO and the 5.342 Cr,PC statements and evidence under oath of the appellants and

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the acquitted co-accused we are salisfied that the prosecution has proved beyond a reasonable doubt that on09.06.2020 at7.15arn near the house of Ahmed Lakho situate in Deh 92 Taluka Mirpurkhas Ahmed Lakho (the deceased) was fired upon which caused him injuries who later died from these injuries and was thus murdered.

13.The only issue therefore, in our view, left before us is whether it was the appellants or some other third party who attempted to murder and did murder the deceased by firearm and hatchet.

14.The evidence on record shows that it is not disputed by either the defense or the prosecution that all eye witness PW's were Present at the time of the incident and that both the appellants and their acquitted co-accused were also present at the time of the incident. The question of identificafion does not arise as it was a day time incident, all the appellants and PW's knerv each other being either being related by blood or caste and lived close by and saw each other regularly being agriculturalists who were attending their nearby land.

15.lArhat is in dispute is what actually happened at the scene of the incident as in effect the appeilants have put up a counter case. Namely, that it was the complainants side which attacked them and not the other wav around as alleged by the complainant in his FIR and that Ghulam Hussain from the complainants side during the altercation mistakenly shot and killed the deceased whilst shooting at appellant Peeral.

76.On the day of the incident at 11.30am the appellant Peeral registered an FIR 2y2000 at PS Khan U/s 324,747,1.48,149,504,337-A(ii), 337-F(i) PPC against the complainant party which notes that it was lodged without delay in the following terms

"Sir it is complained that I reside at the above address along with my family and am Zamindar. Adjacent to our house Bachal Lakho reside and we have old dispute with them over Tube well of LBOD and such case is pending before Civil Court, therefore we remain in quarrel with them. Today i.e on 09-6-2000 in the moming at about 0715 hrs, Yar Muhammad son of Sajawal Magsi, Koro son of Wasand Magsi, Fida Hussain son of Peeral, Gulab son of Nabi Bux Magsi with their conunon intention were going towards hedge of Ali Muhammad Mari

in the way Bachal son of Wali Muhammad Lakho, Ghulam Hussain S/o Wali Muhammad Lakho, Muhammad Bux S/o Wali Muhammad Lakho were available adjacent to their house armed with hatchet. Bachal Lakho abused upon which Yar Muhammad Magsi and Koro Magsi asked why you came here as they have not agreed uPon tube well. Saying so they gave straight hatchet blow upon Yar Muhammad and Koro Magsi and they raised cries upon which Ghulam Mustafa son of Sajawal Magsi, went there running. Muhammad Ismail son of Darya Y Khan Lakho armed with hatchet, Sher Muhammad son of Ismail armed with hatchet, Ghulam Mustafa son of Allah Bux Lakho armed with lathi, Jumoon son of Sawan Lakho armed with lathi, and Muhammad Ismail Lakho gave hatchet blow upon me with intent to kill and I received injury upon my head. Ghulam Mustafa Magsi, Sher Muhammad son of Ismail gave straight hatchet blow while others gave straight hatchet blow and beat with fists and kicks. Thereafter rve raised cries on which Nabi Bux Magsi, my brother and Ghulam Serwar son of Sajawal Magsi came there running and they requested accused and saved ourselves. The accused run away towards their houses' Now I have appeared and complained that Bachal S/o Wali Muhammad, Muhammad Bux S/o Wali Muhammad, Ghulam Hussain S/o Wali Muhammad, Muhammad Ismail S/o Darya Khan, Sher Muhammad S/o Muhammad Ismail, Rustam son of Muhammad Ismail, Jumoon S/o Sawan and Ghulam Mustafa S/o Allah Bux all by caste Lakha R/o deh 92 taluka Mirpurkhas armed with hatchet and iathies in furtherance of their common intention made rioting and gave straight hatchet blow with intent to kill and caused us injuries. It is complained. Investigation be made and letter for lreatment be issued"' Note:- Complaint of the complainant recorded verbatim and read over to him who after accepting the same to be true has signed on it' sd/- sd/-

Peeral S/o Fateh Muhammad Magsi SHO PS KHAN

R/o Village own deh 92 Taluka Mirpurkhas.

17.Thereafter appellant Peeral lodged a complaint under the same sections mentioned in the above mentioned FIR against the same Persons who he mentioned in the FIR had attacked him and his party. Namely the complainanfs party before II Additional sessions judge Mirpurkhas in SC 53/2002 in more detail than the original FIR which he claimed had deliberately omitted some parts of his narration.

18.This complaint (i.e the counter case) lodged by appellant Peeral culminated in a full dressed trial against the complainant and the others,

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?ol named in the complaint by appellant Peeral before the court of sessions Judge Mirpurkhas which lead to the following findings convictions and sentences being handed down by the learned trial court at para 29 against the complainant, PW Bachal and Sher Muhammed on the same date as the impugned judgment:

Y "29. ltt uieu of dictum laid dotun in aboae discussecl case laro as u'ell ns euidence cot1rc one record, tlrc prosecution has establishtd that accused Bachal has caused injuies to Kuro on his luad and caused injuries to Yar Mulummad in tlrc result his ann zuas fractured, therefore, I hereby sentence anil conoict accused Bachal u/s 337'A(i) PPC anil sentence him to suffer tzuo years R,I. I also conztict accused Bachal ils 337-AGi) PPC and sefltence him to sulfer R.l for fiae years R.I and to pay fine of Rs.25000/- and in case of default in payment of fine he shall suffer S.I for tfuee months more. I also conoict accused Bachal for causing iniuries to Kuto and Yar Muhammad ils 337-F(i) PPC aail sentence him to su/fer 01 year as Tazir, all cow,iction uould be run concurrently. The prosecution has also established their case against accused lsmail s/o Darya Khan antl Slwr Muhammad s/o Muhammnd Isnuil for causing injuries to Piral on diffetent parts of his body, as sttch I hereby conaict accused lsmail s/o Darya Klnn and Sher Muhammad s/o Muhammad lsmail tt/s 337'A@ anil sentence them to suffer R.l /or ofle year and also conttict lsmail s/o Darya Khan and Sher Muhammad do Muhammad lsmail ty's 337-A(ii) PPC and sentence to suffer R,I for fioe years, Accused Muhammad lsmail, Slvr Muhammad and Bachal are present on bail; their bail bonds are cancelled atd surety stands discharged and they are taken into custody and remanded to inil to setae out the sentence auarded to them. The benefit of section 382-8 Cr.P.C auarded to all three accused persons."

19.In the case before us the eye wihresses in their evidence have maintained throughout that they were unarmed and that they were the victims of the attack made by the appellants however the above findings convictions and sentences which remain in the field clearly show that the complainant and his side were armed at the time of the incident and may well have been the instigators and as such they do not aPPear to be telling the truth in their evidence. Furthermore, if they were unarmed how was it possible for the appellants to receive the iniuries which they did about which the appellants gave evidence and was corroborated by DW 1 Dr. Abid Aii who states in his evidence about the nature of the appellants injuries and that such injuries were not self inflicted which again indicates that the eye witness PW's have not been truthful in their evidence since if they were unarmed how could the appellants have sustained such non self inflicted injuries. In particular according to the evidence of DW 1 Abid Ali that Peeral had

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received an incised wound 4 cm x 1cm (bone exposed) on the left parietal region which deep and serious wound was not likely to have been self inflicted and lead to Peeral remaining in hospital for 4 days and fits in with the appellants and acquitted co-accused's version of the incident. Peeral's FIR was also lodged with promptitude so he would not have had sufficient time to cook up a false case and he went to the hospital via a police letter after he

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had reported the incident to the poiice. That the PW's state in their evidence that no katcha path runs close to the deceased house however it has come in evidence of both the appellants, PW 9 IO Zuifiqar Ali Khan and PW 8 Boorji who was the tapedar and his sketch that such a path does exist and this is where the altercation between the two sides occurred so once again it aPPears that the PW's have not been truthful in their evidence. Appellant Peeral was sent to the hospital by the police after registration of his FIR where he was medically examined and was even seen by eye witness PW 3 Bachal in hospital from where he was arrested. The IO PW 9 Zulfiqar Ali Khan in his evidence states that appellant Peeral was arrested from hospital which again fits in with appellant Peeral and Kouro's defense case. Allegedly the pistol was recovered on the pointation of appellant Peeral which he denies but in any event the recovery of the pistol is inconsequential in the absence of an FSL report. Furthermore, if the appellant Peeral was almed it does not appeal to logic, reason or corunonsense that he could have been so badly injured by hatchet which implies close proxirnity to him by the person who attacked him when he had a firearm as he would have shot that person before they could strike him as he allegedly did to the deceased if the prosecution story is to be believed. As already discussed based on the medial evidence we do not find his wounds to be self inflicted.

20.The above finding in para 29 is corroborated by the appellants in their ,t. 5.342 Cr.PC statements and evidence given under oath' Furthermore, the eye witnesses are all closely related to each other, had an enmity with Peeral over him winning the court case which enabled him to use the tube well over which admittedly the parties were in dispute and as such the complainant and eye witnesses had every reason to fix the appellants in a false case so that they could take over the disputed tube well which they have now done and as such their evidence must be treated with great caution as they are

interested witnesses and their evidence requires independent corroboration which appears to be lacking in this case. In this respect reliance is placed on Ijaz Ahmad V The State (2009 SCMR 99).

21,. After considering the above discussion we do not find the eye witnesses to be reliable, con{idence inspiring or truthful and we disbelieve r their evidence. In this respect reliance is placed on the case of Notice to Police Constable Khizer (PLD 2019 SC 527) where it was held that the principle oI falsus in uno, falsus in omnibus is applicable to criminal cases in Pakistan meaning in essence that if a witness is untruthful about one aspect of his evidence then his whole evidence is to be disregarded as under in the following terms at P.626Para21.;

"Para 2-1., We may obseroe in the end that a judicial system Trrhich pernits deliberate falsehood is doomed to fail and a society uhich tolerates it is destined to self-destruct. Truth is tht foundation of justice and justice is the core and bedrock of a ciailized society and, thus, any compromise on truth amounts to n compromise on a society's future as a just, fair and cittilized society. Our judicial system has suffered a lot as a consequence of the aboae mentioned permissible deuiation from tle truth and it is about fime tlat such a colossal rorong may be recfified in all earnestness. Therefore, in light of the disatssiott made abope, u,e declare that the rule falsus in uno, falsus in omnibus slmll lunceforth be an integral part of our jurisprudence in ciminal cases nrtd tlre same shall be gitten effect to, followed and applied by all the courts in tlrc country in its letter and spiit. lt is also directed that a uitness fowrd by n court to haoe resorted to a deliberate falsehood on a mateial aspect shall, toithout any latitude, inttaiably be proceeded against for committing perjury".

22.Through out their defense case through cross examination of each PW, in their 5.342 Cr.PC statements, in their evidence under oath and in their defense witness the appellants and acquitted co-accused have raised a consistent and believable defense of a counter case whereby the complainants side were the aggressors and the deceased was killed by someone from the complainants side which cannot be excluded out of hand and creates doubt in the prosecution case as was held in the case of Sabir Ali V State (SCMR 201 629) atP.637 para 11 in the foilowing terms;

"It may be obseraed that section 342, CI.P,C. empoTlers the Court to prtt Ercstions to the accused, enabling him to explain the circumstances coming up against him in the eaidence. The anstuers giaen by the accused can be taken into consideration by the Court. This uay the accused is gioen an opportunity to explain his posifion. Such a statutory opportunity proaided to him conforms

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the requirement of golden rules of natural justice i.e. Audi Alterm Partem. Once an accused chooses to render any explanation, it becomes tht duty of tlw CotLrt to consider tlu same objectioely. It is in this uay thnt the proaisions of the lazu are gioen full meaning: An outright reiection of his explanation, tttithout gioing due consideration, toill render these prooisions rerlundant anrl nugatory defeating the object and purpose of the lau. The court is obliged to haae regard for such purposiue proztisions of lazu. Thus consistent uitlt tlrc legrslatiae intendment, tht nnsuers giuen by the accused in tlrc cou'se of qiLestions put to him under section 342, Cr.P.C. toheretter, uarranted by the Y due consideration and effect.

facts and circumstances of case, should be giaen The explanation of the appellant in this case when cofisidereil in juxtaposition tuith the entire eoidence and backgrounil casts setious iloubts about the cotrectness of the prosecution oercion,"

23.The recovery of the hatchet from aPPellant Kouro we find inconsequential as there was no blood on it and probably in a farming community there are many hatchets lying around and there is no evidence that this particular hatchet either belonged to appellant Kouro or was the hatchet which was used to hit the deceased with. Furthermore, it does not appeal to reason, logic or commonsense that the aPPellant Kouro would only have nicked the ear of the deceased if we wanted to kill him instead he would have made at least one or two purposeful blows on the deceased causing him some serious injuries. Even otherwise its recovery is doubtful as allegedly the hatchet was recovered from Kouro at 11.15am on 09.05.2000 yet on the same day Kouro was admitted to hospital at 10.40 am which is before the hatchet was allegedly recovered from him.

24.With regard to the 5.342 Cr.PC statement of appeliant Peeral we note that no specific question was Put to him about him personally firing on the deceased. Like wise with regard to the 5.342 Cr.PC statement of appellant Kouro no specific question was Put to him that he attacked the deceased with a hatchet and thereby injured his ear. It is settled by now that since such questions were not put to the aPPeliants such pieces of evidence cannot be used to convict either of them. With regard to appellant Kouro we also note that two other co-accused having a similar roie of allegedly giving hatchet blows to other members of the complainants party have been acquitted and thus in our view appellant Kouro is entitled to the same treatment. In this respect reliance is placed onZafarV State (2018 SCMR 326). { 25. In our view what transpires from the evidence of both the defense and

Boi prosecution when read as a whole is that most probably at the date, time and place mentioned in the charge an altercation took place between both sides both of whom were armed and injuries resulted to each side and in the fight the deceased was shot and murdered but it cannot in our view based on the evidence be proven beyond a reasonable doubt that it was appellant Peeral who actually shot and murdered the deceased or that it was actually t appellant Kouro would cut the deceased's ear with his hatchet or even that the appellants side were the aggressors.

26.The above discussion leads us to the conclusion that there are doubts in the prosecution case. It is a golden principle of criminal jurisprudence that the prosecution must prove its case beyond a reasonable doubt and that any doubt must go to the benefit of the accused and in this case as mentioned above we find doubts in the prosecution case and as such the benefit must go to the appellants. In this resPect reliance is placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wherein the Supreme Court has held as under:-

"lt is settled law that it is not necessary that there shouid be manv circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."(bold added)

27.Thus, based on the above discussion we by extending the benefit of the doubt to the appellants acquit the appellants of the charge and allow the appeals. The impugned judgment is set aside and the confirmation reference is answered in the negative. Appellant Peera1 shall be released from custody unless wanted in any other custody case whereas the bail bonds of appellant Kouro stand discharged.

28.The appeals and confirmation reference are disposed of in the above terms.

Zy( .6 1u IUDGE sL/ o6 dt)-6