' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment dispose of Criminal Appeals Nos.187, 188 and 190 of 1997 filed `.v Habib-ur-Rehman and Mst. Rukkiya Bibi respectively against tit,: judgment dated 7- 6-1997 passed by Judge, Suppression of Terrorist Activities Court, Multan whereby he convicted the appellants under section 302/34, P.P.C. And sentenced them to undergo death and to pay fine of Rs,1,00,000 or in default to undergo 2 years' R.I. Each on three counts.
2. Brief facts of the case as narrated by the complainant in the F.I.R. Are that Dr. Maqsood Hussain complainant returned to his house on 16-2-1996 after completing Chilla alongwith Tableeghi Jamaat and found his house locked from outside. He enquired about his mother and brothers but nobody furnished any information about them. In the meantime Habib-ur-Rehman accused met him from whom he enquired about his mother and two brothers, who showed his ignorance. He began to wait for the return of his mother and brothers but till ;tight they did not return. It was the month of Ramzan so he went to hospital for Aftari then he again returned to his house which was still locked. The following day i,e, 17-2-1996 his accused brother got opened the outer door of his house through a lock mechanic and he was informed in the hospital that his mother and two brothers have been murdered in the house and he found them dead. Matter was reported to the police.
3. The motive behind this occurrence. Was that both the accused/appellants had illicit relations with each other and the deceased and complainant used to forbid them of carrying such relations.
4. After getting information about the occurrence the local police completed all the necessary formalities and then Muhammad Ilyas, S.-1. Alongwith other police officials proceeded to the spot where he inspected the dead bodies of all the deceased persons. He prepared injury statement of Khalid Hussain Exh.P.J./2 and inquest report Exh.P.B. He also prepared injury statement of Muhammad Ghaus Exh.P.Y./2 and inquest report Exh.P.Y./3. He also inspected the dead body. Of Mst. Khudija Bibi and prepared her injury statement Exh.P.A./2 and inquest report Exh.P.Z./3. Last- worn clothes of the deceased were also received by him vide memos. Exh.P.L., Exh.P.C. And Exh.P.N.
Respectively. He also took into possession blood-stained cloth, bullet of coustion of Mst. Khudija Bibi vide memo. Exh.P.C. He also took into possession dead body of Khalid Hussain Exh.P.D. And one empty of bullets P.1 lying near the dead body of Muhammad Ghaus vide memo. Exh.P.E. He also took into possession another empty P.2 lying near the dead body of Khalid Hussain and also empty P.3 from near the dead body of Mst. Khudija Bibi vide recovery memo. Exh.P.E., Exh.P.G. A bullet was also taken into possession from near the dead body of Ghaus vide memo. Exh.P.B. Investigation of the case was partly conducted by Abdul Latif Range Crimes, Multan, who arrested both the accused appellants on 24-2-1996. On 2-3-1996 Habib-ur-Rehman got recovered pistol .30 bore with magazine which was made into sealed parcel and a rough site plan in this regard was prepared vide memo. Exh.P.U./1. He after completing the investigation, challaned the accused and sent them to judicial lock-up.
5. In order to prove its case the prosecution produced as many as 14 witnesses including doctor, Investigating Officers and other relevant witnesses. After tendering in evidence report of Chemical Examiner Exh.P.CC., the report of Serologist Exh.P.DD and that of Forensic Science Laboratory Exh.P.EE. And giving up Muhammad Aslam and Akhtar Mehmood, Constables being necessary, learned D.D.A. Closed the prosecution evidence. Thereafter, statements of the accused/appellants were recorded under section 342, Cr.P.C. In which they pleaded not guilty and claimed to be tried.
6. Learned counsel for the appellant Mst. Rukkiya in support of this appeal submits that the two witnesses of extra-judicial confession namely Dr. Maqsood Hussain and Syed Gulab Hussain examined as P.W.2 and P.W.3, did not support the prosecution case and they were declared hostile.
Learned counsel submits that as far as P.W. Muhammad Zafar husband of Mst. Rukkiya is concerned, his statement was recorded after an inordinate delay though he came to know about the occurrence on the same very day. He submits that as far as confession of co-accused namely Habib-ur-Rehman is concerned, on the confession of said Habib-urRehman accused the conviction cannot be maintained because 1999 SCM R 2203 titled as Faqir Ahmad v. Khalil-uz- Zaman and others specifically Headnote "D" is very much clear on this point. He submits that case of Mst. Rukkiya is of clean acquittal.
7. On the other hand learned counsel for Habib-ur-Rehman appellant submits that present appellant was the real brother of the two deceased namely Muhammad Ghaus and Khalid Hussain while Mst. Khudija Bibi the third deceased person was his mother, that the appellant is direct Wali of three deceased persons. He submits that the complainant in this case Dr. Maqsood Hussain is also real brother of the deceased Muhammad Ghaus and Khalid Hussain. He has placed applications under section 561-A read with sections 306 and 308, Cr.P.C. Before this Court stating therein that all the property which was held by the three deceased persons has been taken over by said Dr. Maqsood Ahmad the complainant and he has also placed the mutations etc. He submits that the case of the present appellant is fully covered by sub-clause (c) of sections 306 and 307, P.P.C. And the appellant if convicted and sentenced shall be liable to be punished only under section 308, P.P.C.
8. Learned State Counsel on the other hand concedes the preposition submitted before us by the learned counsel for the appellant Habib-ur-Rehman and submits that case of Habib-ur-Rehman is covered by sections 306(c) and 307, P.P.C. And he shall be liable to be punished under section 308, P.P.C. While as far as case of Mst. Rukkiya is concerned, learned counsel submits that she has been made as one of the accused by her husband namely Muhammad Zafar examined as P.W.4 and her death sentence should be maintained.
9. We have heard the learned counsel for the parties. In the instant case as far as Mst. Rukkiya Bibi appellant is concerned, she never made any judicial confession before any Magistrate before whom she pleaded her guilt. The two witnesses of extra-judicial confession namely Kausar Hussain and Gulab Hussain were declared hostile and they did not support the prosecution case. As far as Muhammad Zafar her husband is concerned, though he had stated in examination-in-chief that on the same night he came to know about the murder of three deceased but he did not report the matter to any police official and he admitted during the cross-examination that he did not know whether his statement under section 161, Cr.P.C. Was recorded 10 or 15 days after the occurrence.
Muhammad Zafar's conduct is most unnatural. He never either reported this matter to police or to Dr. Maqsood Hussain complainant nor he reported the matter to any respectable of the area. He kept mum for so many days. His silence also casts doubt on the veracity of his statement. As far as judicial confession is concerned, that was made by Habib-urRehman appellant and not by Mst.
Rukkiya Bibi. On the confession of Habib-ur-Rehman the conviction and sentence of Mst. Rukkiya Bibi cannot be maintained and in this regard we get guidance from 1999 SCM R 2203 as mentioned above by us, so as far as Mst. Rukkiya is concerned, in our view her participation in the occurrence is of doubtful nature while granting her benefit of doubt we accept the appeal tiled by Mst. Rukkiya Bibi and set aside the conviction and sentence awarded to her by the learned trial Court. She shall be released forthwith if she is not required in any other case.
10. As far as case of Habib-ur-Rehman appellant is concerned, he is Wali of the three deceased. An application in this regard has also been filed by the learned counsel for the appellant under section 561-A read with sections 306 and 307, Cr.P.C. Appellant is also Wali of the three deceased persons. His case is covered by sub-clause (c) of section 307, P.P.C. And even otherwise learned State Counsel has also conceded in this regard so the death sentence awarded to him on three counts is set aside. He is convicted under section 308, P.P.C. And sentenced to 14 years' R.I. On three counts. All the three sentences shall run consecutively with benefit of section 382-B, Cr.P.C. He shall also pay Diyat amount on three counts to the legal heirs of the deceased who are still alive. With these observations all the appeals are disposed of.