MIAN BURHANUDDIN KHAN, J.--The accused /respondents Ghulam Haider and Muhammad Siddiq were tried alongwith acquitted-accused Muhammad Sarwar and A.I Muhammad under section 302/34, P.P.C. By the learned Additional Sessions Judge Sialkot for committing the murder of Muhammad Akbar. The two accused/ respondents named above were sentenced to death while the co-accused Muhammad Sarwar and A.I Muhammad were acquitted, vide judgment, dated 17- 4-1978. Appeal filed by the two accused /respondents in the Lahore High Court was accepted; death sentence was not confirmed and both the accused /respondents were acquitted of the aforesaid charges vide the impugned judgment, dated 10-2-1980 altering it to 201/34, P.P.C.
2. Muhammad Sadiq brother of the deceased filed petition for leave to appeal against the impugned judgment and leave was granted by this Court, per order, dated 2-11-1980 to consider the evidence of having lost seen the deceased with the accused Muhammad Siddiq furnished by Mst. Seems P.W. 3 and Muhammad Khan P.W. 7; recovery of blood-stained clothes of the accused/ respondents and the deceased from the spot alongwith other articles; medical evidence and the statement of the complainant.
3. Facts briefly stated are that Muhammad Akbar deceased disappeared on the night between the 30th/31st July, 1975. Report in this regard was lodged by Ghulam Haider accused/ respondent No. 1 at the Police Station Satrah, District Sialkot. Complainant Muhammad Sadiq, when came to know that a false report has been lodged with respect to his brother's murder, approached the S.H.O. Of the Police Station concerned who declined to register a case on his report. Ultimately, the complainant approached the High Court which directed the police to register a case at the instance of the complainant. In consequence of the order of the learned High Court F.I.R. Exh. P.C.
Was lodged wherein the complainant alleged that Siddiq respondent had taken away Muhammad Akbar deceased alongwith him from the house of Mst. Seems P.W. 3 on the pretext that Ghulam Haider accused /respondent and Sarwar the acquitted /accused had called him for an urgent piece of work. While leaving the house of Mst. Seems Akbar deceased took Rs.1,500 from her which he had kept with her, saying that he would return the next evening. The complainant further stated in the report that the two accused /respondents and the two acquitted /accused had taken Akbar deceased to the syphon at Sanghar and killed him there; and also stated that Siddiq Masih and Munawwar had seen the occurrence.
4. During the investigation Ghulam Murtaza P.W. 13, then S.H.O. Police Station Satrah went to the spot, collected blood-stained clothes belonging to each of the accused/ respondents as well as blood-stained clothes of the deceased and blood-stained earth. He also recovered and took into possession a pair of Moccasion of Muhammad Siddiq accused/ respondent, a postcard and an envelope written by Siddiq accused/ respondent to Sarwar acquitted/ accused; pair of shoes belonging to the deceased and a missed cartridge.
5. At the conclusion of trial the accused/ respondents were examined by the learned trial Court under section 342, Cr.P.C. To a question Muhammad Siddiq accused/ respondent answered: "Ghulam Haider, Siddiq were coming back to our village when Muhammad Nawaz and one Billu came there and Muhammad Nawaz fired at the deceased as a result of which the deceased died. I was really an eye-witness."
"I had actually accompanied the deceased Akbar alongwith Siddiq accused to Daska in a Tonga and at noon time we had passed Budha Goraya. We wanted to engage a counsel with the deceased Akbar at Daska. On our way back to home at about 10 p.m. We were passing the Sangarwali Syphon when all of a sudden Muhammad Nawaz, accompanied by one Billu came there and opened fire at the deceased. The motive for the crime was that Muhammad Akbar deceased was an eye-witness against Muhammad Nawaz in a murder case. Muhammad Nawaz had also opened two fires on us but we escaped. I made the report Exh. P. H . Citing Muhammad Siddiq as an eye-witness of the occurrence."
6.The report Exh. P.H. Was lodged in the Police Station Satrah, on 31-7-1975 at about 8-15 a. m. By Ghulam Haider giving almost the same story as contained in his statement, recorded under section 342, Cr.P. C. , and he has owned this report. It is stated therein that, on 30-7-1975 at about 10 a.m. Muhammad Siddiq accused /respondent and Akbar deceased came to him and asked him to accompany them to the place of Akbar A.I Sial i.e. Kotli Chhamb to get his help in a case under section 307, P.P.C., which was pending in a Court. On return from Kotli Chhamb they got down from the bus near Satoki Canal and started walking on the railway line alongwith the Satoki Canal, towards Gunj. As they reached near the syphon, from the western side Muhammad Nawaz came, armed with a .12 bore shot gun, challenged them saying that they will pay for furnishing evidence against him in a criminal case, and fired which hit Akbar deceased on his face who fell down. He also fired at him and Muhammad Siddiq accused /respondent but they hid themselves in a drain.
While running away from the spot, his parna, shirt of white Poplin, Kurta of white Voil; Parna of Dusty colour of Muhammad Siddiq; and silken shirt of Malta colour and Chaddar white (torn) of the deceased, remained on the spot.
7. Mst. Seeman P.W. 3 when examined at the trial, stated that Akbar deceased was her first cousin, and her sister was married to him. At the relevant time he, accompanied by Siddiq accused/ respondent, had come to her village Raja Ghuman on Monday evening and left her house on Wednesday. Akbar wanted to stay for some time but Siddiq accused /respondent requested her to allow Akbar to accompany him as Sarwar and Ghulam Haider accused wanted him. Akbar deceased took Rs.1,500 from her which he had kept with her to purchase a buffalo. She further stated that when the deceased left her house, he was wearing a shirt of Malta colour, white Dhoti and red shoes (Desi) while Siddiq was wearing at that time, blue shirt, white Dhoti and black Gurgabi shoes Exhs. P. 1 and P. 2 shown to her, she stated, belonged to the deceased, while shoes Exhs. P.3 and P. 4 of Muhammad Siddic were also identified by her. She was cross-examined by the defence which cross-examination, in fact, supports the prosecution case because in answer to a question she stated:-- " It is true that Siddiq accused and Akbar deceased were fast friends. They used to visit even previously."
She has not been questioned regarding the identification of the clothes and shoes of the deceased and the accused /respondents in order to show that these pieces of incriminating evidence were planted by the police or any other person interested in the prosecution case. She has also not been shown to have made the statement due to any previous grudge or enmity with the accused/ respondents. Thus, the evidence of last seen has been established beyond any reasonable doubt.
8. Next witness examined was Muhammad Khan P. W . 7 who stated that he saw, at about Shamvela Akbar deceased, Siddiq and Haider together near the school of his village. He asked them to stay with him for a meal but they told him that they had already taken meal with Buda Goraya; and next morning he heard that Akbar had been murdered. His cross-examination has not brought out anything to discredit him or shatter his credibility.
9. Ghulam Murtaza S.I. P.W. 13 had recorded the F.I.R. Exh. P.H. Lodged by Ghulam Haider and thereafter he accompanied him to the spot where he recovered in addition to other articles, Stick P.
10, Sandhewa P. 11, a pair of brown shoes P. 1 and P. 2 and a pair of Gurgabi Exhs. P.3 and P.4. From near the culvert he recovered a bundle containing clothes i.e. Kurta of Malta colour of the deceased P. 13, Dhoti P. 14 and blood-stained clothes Parna P. 15, Vest P. 16 and Kurta P.17 of Siddiq accused; and Parna P. 18 and Kurta P. 19 of Ghulam Haider accused which were all blood stained.
He took them into possession and sealed them into two parcels. He prepared the site plan showing the spot of recoveries and the place where the dead body was lying. The incriminating articles were sent to the Chemical Examiner. Report of the Serologist Exh. P.S. Shows that these articles e.g. Clothes etc. Were stained with human blood.
10. Dr. Muhammad Nawaz Chowdhry P.W. 1 performed the post-mortem examination on the dead body of Muhammad Akbar deceased and found 15 injuries of various dimensions on different parts of the body. He recovered a pellet from right side and back of chest and two from the left side of neck from injuries Nos. 3 and 14 respectively. He also extracted ten pellets from the brain matter. In the opinion of the doctor, death of the deceased was due to shock and haemorrhage. All the injuries were ante-mortem. Injuries Nos. 10 and 11 were caused by blunt weapon, and rest of the injuries were caused by fire-arm. Time between death and post-mortem was 40 to 48 hours.
11. At the conclusion of trial the learned trial Judge, in paragraph 6 of judgment, dated 17-4-1978 held: "It would be clear from the above, that the prosecution have the following evidence against the accused to prove its case. Firstly, last seen evidence as furnished by Mst. Seeman P.W. 3 and Muhammad Khan P.W.
7. Secondly, recovery of clothes of the two accused namely Muhammad Sadiq and Ghulam Haider from the spot. Recovery of a Gurgabi of Muhammad Sadiq accused, thirdly recovery of letter Exh. P.E. With its envelope Exh. P.E./l addressed to Muhammad Sadiq accused by Muhammad Sarwar P.W. 8, fourthly, medical evidence and lastly, recording of the F.I.R.
Exh. P.H/1 by Ghulam Haider accused reporting murder of Muhammad Akbar deceased at the hands of Muhammad Nawaz and Billu ."
Thereafter, the learned Additional Sessions Judge took each of the items of evidence and made a very elaborate assessm ent of these.
12. Learned High Court Judges, while considering the prosecution evidence, observed as follows:-- "Contents of the report lodged by accused Ghulam Haider Exh. P.H. May not be used against the appellants, and are to be excluded from consideration as has been laid down by this Court in Muhammad Bakhsh v. The State PLD 1956 SC (Pak)420---------." yet the fact of lodging the said F.I.R. By Ghulam Haider is there on the record. The learned Judges further observed: "No gun has been recovered from the accused/ appellants which was allegedly used in the commission of the offence, and, therefore, it would not be safe to hold the accused /appellants responsible for the murder of Akbar deceased."
It may be said here that this is not the prosecution case that any weapon of offence was recovered or the two accused /respondents were in possession of any fire-arm. The learned Judges referred to Wali Muhammad v . State 1969 SCMR 612.
There is no cavil with the principle laid down in this case but the Supreme Court has to see whether the evidence has been properly appraised by the lower Courts and the reasoning of the two Courts below are also to be examined both in cases of acquittal and conviction as well.
No doubt in criminal cases the leading principle is that evidence of all matters which are irrelevant to the issue will be excluded. But to this there is an exception, that evidence will be admitted of any facts which tend to explain or throw light on the transaction in issue as for instance to establish a systematic course of conduct or to show criminal intention or guilty knowledge in the mind of the accused. This rule is applicable where the only question is whether an untruthful statement is accidental or intentional or with particular knowledge or intention.
Similarly, the appellate Court will interfere where the findings recorded by the trial Court in respect of prosecution evidence are speculative and of artificial nature or are based on no evidence or mis-interpretation of evidence and not where the trial Court has appreciated the evidence in line with sound judicial principles and the grounds on which it has based its judgment.
13. The learned High Court Judges have altered the conviction of the accused /respondents in the instant case, from sections 302, P.P.C. To 201/34, P.P.C. It is evident that the accused/ respondents were neither charged nor tried by the learned trial Court under the later sections, therefore, it would be prejudicial to the accused if the appellate Court alters the conviction from section 302, P.P.C, to any other offence which is not cognate offence. Anyhow, as there is no appeal against the conviction and sentence under section 302, P.P.C., therefore, we would not go into the question in detail.
14. Regarding the first observation of the learned High Court Judges, reproduced in paragraph 12 above, the cited case Muhammad Bakh9h v. The State PLD 1956 SC (Pak) 420 is distinguishable from the facts of the present case for the two-fold reasons, firstly, that the accused has owned the F.I.R. In his statement at the trial and has also reproduced the contents thereof in the same, secondly, the contents of the F.I.R. Do not amount to confessional statement, and, therefore, its expulsion does not infringe any legal principle laid down. In PLD 1965 ? 366 it was held: "Where a person, after committing an offence, proceeds to the police station and reports the matter to the officers concerned, who take down such statements as the first information under this section, by reason of the provision contained in section 25 of the Evidence Act, such a statement is inadmissible in evidence against the accused if it is in the nature of a confession----- ----------."
Keeping in view the evidence on record and assessment made by the learned trial Court, we are of the view that the accused /respondents were rightly held guilty of the offence of murder of Muhammad Akbar deceased.
As regards the motive for the crime, there is no evidence on the record nor the prosecution witnesses have given any precise motive for the commission of the crime.
15. The accused/ respondents have already remained in the lock-up during the trial and till the final decision of their appeal by the learned High Court Judges. We would not pass the death sentence on them. It would meet the ends of justice if we award imprisonment for life to both the accused/ respondents and impose fine of rupees five thousand each, in default, two years' R.I. Each. Half of the amount of fine, if realized, shall be paid to the legal heirs of the deceased as compensation.
Benefit of section 382-B, Cr. P.C. Is allowed to both the accused/ respondents. Order accordingly.
This appeal is thus allowed.