' M. NAEEM ULLAH KHAN SHERWANI, J.---The way in which this appeal arises is this. Bashir Ahmad and Muhammad Iqbal sons of Haji Ahmad were tried by learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Minawali for committing murder of one Ghulam Rasool. By virtue of his judgment dated 15-3-1999, the learned trial Judge found Bashir Ahmad guilty of the said charge, convicted him under section 302(b), P.P.C. And punished him with death with further direction to pay Rs,1,50,000 to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. Or in default thereof to suffer rigorous imprisonment for five years. The said learned Judge, however, by giving benefit of doubt to Muhammad Iqbal acquitted him of the said charge.
2. By filing Criminal Appeal No, 21 of 1999 through Jail, Bashir Ahmad-convict has approached this Court to call in question conviction and sentence passed against him by the said learned Judge.
Ghulam Sarwar-complainant preferred Criminal Revision No,310 of 1999 seeking enhancement of compensation, which was ordered to be heard alongwith the main appeal. We propose to dispose of both these matters through this judgment.
3. Occurrence of the alleged incident took place on 16-3-1997 at 8-00 p.m. In the area of Mohallah Awanan Wala situate at a distance of 1/2 kilometre from Police Station Piplan, District Mianwali. It was reported by Ghulam Sarwar (P.W.7) to Ghulam Shabbir, S.-I. (P.W.11) at the Police Station, who as per his dictation drew up formal F.I.R. (Exh.P.D.) on the same day at 8-30 p.m. Correctly without any addition or substraction on his part.
4. Prosecution story as revealed through the F.I.R. Can be summarized like this. On 16-3-1997 at about 8-00 p.m., Ghulam Sarwarcomplainant (P.W.7) alongwith his brother Ghulam Rasool were talking with each other. Mst. Sakina Bibi (P.W.8), wife and Mst. Farzana, daughter of Ghulam Rasool were also available in the house. The electric light was on. Bashir Ahmad appellant alongwith, his brother Muhammad Iqbal while carrying .30-bore pistols abruptly entered into the house.
Muhammad Iqbal shouted at Ghulam Rasool, that have the taste of not vacating the shop. Bashir Ahmad appellant made a shot at Ghulam Rasool, which struck on his left lip. He fell prone from the cot. The accused immediately levanted from the spot. Ghulam Rasool succumbed to his injuries within few minutes.
' Motive behind outbreak of this murder incident was that the accused and Ghulam Rasool had a joint goldsmith shop in Main Bazar, Piplan. Both the accused used to coerce Ghulam Rasool to vacate the shop, but Ghulam Rasool did not yield to their demand. They had exchanged hot words on a number of occasions. Both the accused after having counselled with each other killed Ghulam Rasool for this reason. Leaving Mst. Sakina Bibi, Mst. Farzana Bibi and other residents of Muhallah by the side of dead body of Ghulam Rasool, the complainant left for the police station and set the police machinery into motion by getting the abovesaid case registered against the accused.
5. Since it was a heinous crime of murder, so Ghulam Shabbir, S.-I. (P.W. 11) forthwith took over the uphill task of investigation. He forthwith proceeded to the spot, inspected dead body of Ghulam Rasool, prepared his injury statement (Exh.P.F.), inquest report (P.G.) and depatched the dead body to the mortuary for autopsy purposes under the escort of Najeebullah, Constable (P.W.5). He also prepared rough site plan of the venue of occurrence (Exh.P.H.). He then carried out spot inspection, during the course of which he collected blood-stained soil, made the same into a sealed parcel, and prepared recovery memo. Exh.P.E., duly attested by Ghulam Sarwar (P.W.7) and Ghulam Muhammad P.W. (not produced).
' After post-mortem examination, Najeebullah, Constable (P.W.5) produced before the Investigating Officer blood-stained lastworn clothes of the deceased, shirt (P.1) Shalwar (P.2) and vest (P.3) alongwith a sealed phial containing pellets (P.4), which were taken into possession by him through memo. Exh.P.C. Duly attested by the said constable, Umar Hayat (P.W.6) and Muhammad Ramzan P.W. (not produced). He then called upon Muhammad Shafiq, Draftsman (P.W.4) to inspect the spot and prepare the site plan as per pointation of the witnesses. Accordingly, he visited the spot and prepared site plans (Exhs.P.B. & P.B./1). He recorded statements of the relevant witnesses under section 161, Cr.P.C. Bashir Ahmad and Muhammad Iqbal accused could be arrested by him on 3-4- 1997. During the course of investigation, he found the accused to be innocent. Thereafter, he was transferred and investigation was entrusted to Muhammad Yaqoob Bhatti, D.S.P. (P.W.9). He summoned both the sides and heard their respective standpoints. He also inspected the spot and recorded versions of both the sides. He examined the statements of the witnesses recorded by the earlier investigator. Ultimately, he came to the conclusions that Bashir Ahmad and Muhammad Iqbal are guilty of Qatl-e-Amad. After finalization of investigation, challan was prepared against the accused and submitted in Court for their trial in accordance with law.
6. The trial Court on receipt of challan immediately subjected the same to necessary scrutiny, found it fit in all respects and proceeded to initiate the trial. After observing all the legal formalities, charge was framed and put to the accused. They vehemently controverted the accusations brought against them and claimed to be tried, as such.
7. In this eventuality, last resort with the trial Court was to call upon the prosecution to adduce the best possible evidence available within its power :nd domain against the accused. Direction of the trial Court was faithfully complied with. Prosecution ventured to produce as many as eleven witnesses in all to achieve success in the trial.
8. Most prominent of all these witnesses are Dr. Arshad Mahmood (P.W.1), Ghulam Sarwar (P.W.7) and Mst. Sakina Bibi (P.W.8).
' P.W.1 Dr. Arshad Mahmood Khan, M.O. Had conducted autopsy on dead body of Ghulam Rasool and observed a fire-arm injury on his facial region. In his opinion, Ghulam Rasool died due to neurogenic shock and cardiac arrest resulting from said injury, which was declared sufficient to cause death in the ordinary course of nature. He prepared post-mortem report (Exh.P.A.) and pictorial diagram (Exh.P.A./1).
' Ghulam Sarwar (P.W.7), maker of the F.I.R., furnished ocular account and motive behind the occurrence. In addition to this, he also testified to the recoveries of articles collected by the Investigating Officer from the place of occurrence as well as last-worn clothes of the deceased Mst. Sakina Bibi (P.W.8) is eye-witness of the occurrence. She has fully supported the prosecution case in her statement.
9. Evidence of remaining witnesses is of formal nature, so their statements do not require to be brought under discussion.
10. Learned prosecutor gave up remaining witnesses as being unnecessary and after tendering in evidence report of Chemical Examiner (Exh.P.K.) and that the Serologist (Exh.P.L.) declared prosecution case close.
' The accused were then examined under section 342, Cr.P.C. To enable them to offer handsome explanation with regard to their involvement in the case. They proclaimed their absolute innocence in the matter and opted not to make statements on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C., in disproof of the accusations levelled against them. Bashir Ahmad opted to produce defence evidence and got examined Malik Ghulam Jellani Tiwana, Inspector (D.W.1).
Mehrban (D.W.2) And Muhammad Hussain (D.W.3.) He tendered in evidence measurement fee receipt (Exh.D.C.), certified copy of challan in the case F.I.R. No,189 of 1996, Police Station Piplan (Exh.D.D.), attested copy of F.I.R. No,55 of 1967, Police Station Piplan. (Exh.D.E.), attested copy of F.I.R.
No,189 of 1996, Police Station Piplan (Exh.D.F.), Professional Tax Receipt (Exh.D.G.) and closed his defence.
11. The learned trial Judge after hearing both the sides pronounced verdict of guilt against the appellant as aforementioned.
12. Learned counsel appearing on behalf of the appellant canvasses his acquittal on the basis of following points:--
(i) He submits that prosecution has produced only related witnesses in this case. Their presence at the spot is extremely doubtful. They have also effected improvements in their previous statements and are rendered incredible.
(ii) He submits that prosecution has miserably failed to prove motive. Conflicting stands were adopted by. The witnesses while describing this piece of evidence. He adds that Mst. Sakeena Bibi did not even talk about motive in her statement. Even causa causins has not been mentioned by the prosecution witnesses.
(iii) He submits that ocular account is not corroborated by recovery of crime weapon.
(iv) He submits that the appellant and his co-accused, namely, Muhammad Iqbal were found innocent by Ghulam Shabbir, S.-I. (P.W.11) and he was challaned to the Court at the instance of Muhammad Yaqoob Bhatti, D.S.P. (P.W.9) simply. Acquittal of his co-accused has shaken foundation of prosecution version. Prosecution case was full of doubts.
(v) He submits that defence evidence has not been appreciated in its true perspective, which has resulted in grave miscarriage of justice. Benefit of doubt may be extended to the appellant,
(vi) He lastly submits that in the alternative the appellant may be awarded lesser sentehce because he was found innocent during investigation; that there was no recovery; and that it was a case of single shot. Reliance in this context was made on Muhammad Arshad and 2 others . The State (PLD 1996 SC 122).
13. On the other hand, learned counsel for the State submits that presence of the witnesses was natural; that they have supported the prosecution version; that they have also described motive in their statements and that mere relationship inter se of the witnesses is no ground to discard their testimony. He supports judgment of conviction.
14. After hearing both the sides at length and perusing the record, we now set at the most daunting task of scrutiny of evidence led by both the sides to prove their respective stands. The backdrop of the prosecution story is the following. Ghulam Sarwar (P.W.7) is running a coal shop in Habib Bank Street, Mianwali. On the fateful night, he alongwith his brother Ghulam Rasool, Mst. Sakina Bibi (P.W.8), wife, and Mst. Farzana, daughter of Ghulam Rasool deceased were available in the house.
They were carrying on conversation with each other. Electric light was available. The appellant and his brother Muhammad Iqbal appeared at the site all of a sudden. They were having pistols .30 bore in their possession. Muhammad Iqbal by raising Lalkara incited his brother Bashir Ahmad to teach a lesson to Ghulam Rasool for not vacating the shop. Bashir Ahmad then and there made a shot at Ghulam Rasool hitting him on his left upper lip. Ghulam Rasool fell from the cot and succumbed to his injuries within a short span of time. Both the accused decamped from the spot.
Complainant while furnishing reasons behind this occurrence alleged during the trial proceedings that Ghulam Rasool deceased purchased a shop, which both the accused persons intended to purchase and that ultimately transformed into motive for killing the deceased. Prosecution brought forward Ghulam Sarwar (P.W.7), brother of the deceased, and Mst. Sakeena Bibi (P.W.8), widow of the deceased, to substantiate charge of killing against the accused persons. Muhammad Iqbal co- accused was simply attributed role of raising a Lalkara while having pistol in his possession. His participation in the occurrence was found doubtful and as such benefit of doubt was extended to him by the learned, trial Judge and he was acquitted of the charge. Complainant side being satisfied with this meritorious conclusion of the learned trial Judge did not challenge it by filing an appeal against acquittal. Even the State did not do so. Since event' had happened in the house of the deceased, so presence of Mst. Sakeena Bibi could not be doubted by any stretch of imagination. Her presence in the house was by all means natural. As regards Ghulam Sarwar (P.W.7), he being brother of the deceased used to visit his brother's house. His house is situate at a distance of few Karams from the venue of occurrence. He had furnished handsome explanation with regard to his presence at the spot by stating that he wanted to see his brother on his return from his work. Ghulam Sarwar (P.W.7) is issueless and a son of the deceased was living with him.
That speaks of existence of cordial relations in between the two. His availability in the house of the deceased was neither unnatural nor unusual. We are satisfied with regard to presence of both the eye-witnesses in the house of the deceased at the time of occurrence. No doubt their testimony has not been accepted qua the acquitted accused, but there is nothing to disbelieve them as against the appellant. We readily accept their testimony as regards the appellant.
15. In the first information report, the complainant alleged that both the accused and the deceased had a joint shop in Main Bazar, Piplan. They were goldsmiths. The accused compelled the deceased to leave that shop. But he .Did not pay any heed to what they said. Both the sides had exchanged hot words a number of times on this issue, but in his Court statement complainant after narrating the occurrence gave a different motive, which led to the occurrence. According to him, there was a shop, which the accused wanted to purchase and failed to have that shop because the same was purchased by Ghulam Rasool deceased. Conflicting motives have been brought forward by the complainant side, but the fact remains that there was some dispute in between the two sides, which resulted into this episode. Sometimes murder is proved, but motive is not discovered or remains shrouded in mystery. Motive is just a piece of evidence and not an element of crime. It is not essential for the prosecution to prove motive behind killing in every case.
16. In this case the appellant while making statement under section 342, Cr.P.C., in an answer to Question No,7 raised following plea:-- "On the day of occurrence at relevant time, the deceased was all alone in his house. His wife and daughter had gone to the house of their neighbour Rana Saeed to participate in the marriage ceremony of his son. In their absence, the accused was killed by someone.
' Ghulam Sarwar, complainant and his brother Ghulam Muhammad are co-sharers in a house.
Ghulam Muhammad demanded his share in the house, but Ghulam Sarwar, complainant dismissed his demand by saying that the complainant spent. Rs,25, 000 in pursuing a criminal case against' aforesaid Ghulam Muhammad. This dispute was brought before the local police when Iqbal, accused and his father supported the claim of Ghulam Muhammad on special oath by saying that in fact they bore the expenses of his case. This caused annoyance to the complainant.
' Before this occurrence, the complainant and his aforesaid brother Ghulam Muhammad gave beating to Maula Bakhsh, Maula Dad And Sher Dil for which they were booked in two cases separately and were convicted and sentenced. The accused persons got effected a compromise between aforesaid Ghulam Muhammad and the complainant party of those cases. The - complainant of this case also sought the help of the. Accused person for a compromise with the sons of Maula Bakhsh etc., but the accused persons did not cooperate with the complainant to his annoyance.
' Mst. Sakeena Bibi, P.W. Is a loose woman. The deceased used to quarrel with Mst. Sakeena Bibi on account of her bad character. Mst. Sakeena Bibi also unsuccessfully persuaded the deceased for shifting to Kundian. Some lover of Mst. Sakeena Bibi might have killed the deceased with her assistance.
' On 22-10-1996 one Javed Akram was killed in the shop of Ghulam Rasool, deceased. The deceased did not support the complainant party of that case as a result the accused persons of that case could not be prosecuted successfully. The legal heirs of the aforesaid Javed Akram might have killed Ghulam Rasool deceased. The legal heirs of Javed Akram are very influential and desperate.
' On 16-3-1997 myself and my co-accused got constructed a bath room in our house. The mason and the labourers remained with us till the evening. At relevant time, we were viewing television in our house with the other family members. We produced a sufficient number of defence witnesses before the investigator in support of our plea of alibi. Ghulam Shabbir, S.-I., and Ghulam Jellani, Inspector Range Crimes believed our defence plea and exonerated us of the charge."
17. To substantiate this plea he produced three witnesses, namely, Malik Ghulam Jellani Tiwana, Inspector, Mehrban and Muhammad Hussain as D.Ws.1 to 3. The loud voice of the defence was that the appellant was found innocent by Ghulam Shabbir, S.-I. (P.W.11) and Malik Ghulam Jellani Tiwana, Inspector (D.W.1). We find that conclusions arrived at by both the Investigating Officers are not backed by sound material or reasons and were rightly disbelieved by the learned trial Judge. A hopelessly wrong plea of alibi was agitated by the appellant. Such a plea could easily be fabricated. This plea is hollow, meritless and not worthy credence.. Muhammad Hussain (D.W.3) is a nephew of the deceased. He stated that:-- "Ghulam Rasool, deceased was my real uncle. Ghulam Sarwar complainant is also my uncle. About two years back Umar Hayat, P.W., a brother of Mst. Sakeena Bibi, P.W. Came to me at night at about 10/11 p.m. Umar Hayat informed myself that Ghulam Rasool had been killed. On our enquiry, Umar Hayat,' P.W. Disclosed that he was not aware about the killer of Ghulam Rasool. We reached the house of the deceased the same night at about 10-50 p.m. Ghulam Sarwar, Mst. Sakeena Bibi, Mst.
Farzana Bibi and other relatives of the deceased were present and they all were ignorant about the actual killers. These witnesses stated that masked persons killed the deceased."
' He is a close relation of both the sides. Till Qul ceremony, he has been vigorously supporting the prosecution version, but after Qul ceremony was over, he changed his side and started making favourable statements to the accused. This witness is guilty of making mutually contradictory and inconsistent statements. We are fully aware of the golden principle regarding appreciation of evidence, `Allegan contraria, non est audiendus', that he who makes mutually contradictory and inconsistent statements is not to be listened to. His testimony deserves to be outrightly rejected and we do the same. We are fully satisfied with the guilt of the appellant.
18. Now we advert to the quantum of punishment awarded to the appellant. After taking into consideration 'totality of the facts and circumstances, we find that the appellant has succeeded in casting some doubt on the version of the prosecution case; that there was no previous enmity between the two sides and that it was a case of single shot, so respectfully following two illuminating judgments reported as Ansar Ahmad Khan Barki v. The State and another (1993 SCM R 1660) and Muhammad Arshad and 2 others v. The State (PLD 1996 SC 122), we are inclined to effect reduction in his sentence. Accordingly, death sentence awarded to the appellant is converted into imprisonment for life.
10. We find that the appellant was ordered to pay an amount of Rs,1,50,000 to legal heirs of the deceased by way of compensation as required under section 544-A, Cr.P.C. This appeal has been filed by the appellant through jail, which reflects upon his economic distress and a counsel at State expense was provided to represent his cause before this Court. Taking this circumstance in our view, we reduce the amount of compensation to Rs, 50,000 and in default thereof to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Shall, however, be extended to him.
20. With the above modifications, this appeal is dismissed. Death sentence is not confirmed.
Criminal Revision No,310 of 1999 stands dismissed in the above terms.