' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Murder Reference No.569 of 2006 titled as "The State v. Muhammad Amir Raza" sent by the learned trial court under section 374, Code of Criminal Procedure. Muhammad Amir Raza was tried by the learned Additional Sessions Judge, Lahore in case F.I.R. No.617 dated 4-11-2003 registered under sections 302 and 34 P.P.C. At Police Station Islampura District Lahore. After conclusion of the trial, the learned Addl: Sessions Judge, Lahore vide his judgment dated 25-8-2006 convicted Muhammad Amir Raza under section 302(b) of the Pakistan Penal Code and sentenced him as under:-- "8: ...I proceed to convict him under section 302(b), P.P.C. And sentence him to death. He shall be hanged by neck till he be dead."
' However, the learned trial court acquitted the convict under section 324 of the Pakistan Penal Code.
2.' It is pertinent to mention here that Muhammad Amir Raza convict has not preferred any appeal against his conviction.
3. Brief facts, of the case are that on the statement (Exit-PA) of Muhammad Saeed Zaidi complainant (P.W.3), F.I.R. (Exh-PA/1) was registered at Police Station Islampura, Lahore wherein the complainant has stated that they are four brothers and three sisters, out of whom, two sisters are married whereas, one sister is unmarried and all the brothers are unmarried. One brother namely, Amir Raza Zaidi works as Salesman at Cloth shop. Today i.e. 4-11-2003, his brother Amir Raza has not gone to work and rest of them went to their respective jobs. His sister Mst. Gulshan Bibi, mother Shamin Begum and Amir Raza were in the home. The complainant came inside the house from outside. Amir Raza asked him to inform at his shop through telephone from PCO that he will come late. He came back at 3.15 p.m. And saw that his sister Gulshan Bibi was lying on the ground in an injured condition. His mother was also present in injured condition whereas, Amir Raza Zaidi was not present. Iqbal son of Muhammad Farooq Hashmi and Shahzad son of Abdul Razzaq caste Sheikh informed him that on hearing the noise, they came there and Amir Raza was going out of the house. They tried to apprehend Jilin but he also injured .Them with his weapon. Mst.
Mashkooran. Begum also came there on hearing the noise and Amir Raza also caused injuries to him and fled away along with Toka. They took Mst. Gulshan Bibi, mother Shamim Shahzad son of Abdur Razzaq and Muhammad Iqbal to Mayo Hospital in injured condition but Mst. Gulshan Bibi; in the way, succumbed to the injuries. The occurrence was witnessed by the complainant, Shamim Bibi his mother, Shahzad Ahmad, Muhammad Iqbal and Mashkooran Begum.
4. Muhammad Aslam Inspector who appeared in the witness box as P.W.12 has stated that on 4-11- 2003, on receiving information, 'he reached Mayo Hospital where dead body of deceased Gulshan Bibi was lying in Emergency Ward. He inspected the same, prepared inquest report (Exh.PF/3) and send the dead body for postmortem examination through Muhammad Arshad and Khalid (P.W.5) constables. Then he went to the place of occurrence and prepared rough site plan Exh-PB/2. He secured blood through a cloth, made it into a sealed parcel and took the same into possession vide recovery memo Exh.PE. On 5-11-2003, after the postmortem examination, Khalid Mahmood (P.W.5) and Muhammad Arshad constables produced before him last worn clothes of the deceased i.e. Shalwar (P-1), Qameez (P-2) and brassier (P-3) which he took into possession vide recovery memo Exh-PC. On 6-11-2003, he called Younas Bukhari draftsman (P.W.4) who inspected the place of occurrence and on 8-11-2003, handed over to him two copies of scaled site plan (Exh- PB/l). On 11-11-2003, he arrested the convict in this case. On 12-11-2003, he obtained physical remand of the convict and on 13-11-2003, the convict after disclosure got recovered Toka (P-4) from the bricks. Present in the northern side of ground Atwaar (Sunday) Bazaar. Islampura which he took into possession vide recovery memo Exh.PD. After investigation, he found the convict guilty and submitted challan in the Court.
5. The convict was summoned by the learned Addl: Sessions Judge, Lahore to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to him and formal charge was framed against him on 22-12-2005 to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as twelve witnesses. Dr. Farhat Sultana (P.W.10) conducted the postmortem examination on the dead body of Mst. Gulshan Bibi deceased. Muhammad Iqbal (P.W.1), Shahzad (P.W.2), Muhammad Saeed Zaidi complainant (P.W.3), Mst. Shamim Bibi (P.W.6) and Mst, Mashkooran Bibi (P.W.8) furnished the ocular account of the occurrence. Khalid Mahmood 692/C (P.W.5) is the witness of recovery of Toka (P-4).
Muhammad Aslam Inspector (P.W.12) described the different steps taken during the investigation Whereas, the remaining witnesses are, formal in nature. Thereafter, the learned Deputy District Attorney vide his statement dated 29-6-2006 closed the prosecution :evidence except the reports of Chemical Examiner and that of Serologist: He tendered in evidence the reports of Chemical Examiner (Exh.PG and Exh.PG/1) and that of Serologist (Exh.PH and Exh.PH/I) vide his statement dated 10-7-2006. After that, on 13-7-2006, the statement of the convict was recorded under section 342, Code of Criminal Procedure. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Muhammad Amir Raza convict replied as under:- - "It has been brought in evidence of P.W.3 that -my family members were always in strained relations with me because I always asked Guishen Bibi, my deceased sister to mend her habits as she was of doubtful character and remained absent from home for a considerable time. My mother and brothers were not happy with me because of I had been forbidding Guishen Bibi. My mother also took side of Gulshen Bibi and admonished me on my act of forbidding Gulshen Bibi: It is why they have implicated me in an unseen occurrence. I have not murdered my sister or injured any one of the P.Ws. All the P.Ws. Are out of my family or close friends of my brothers. My family deposed against me due to above said grudge and other P.Ws. Depose against me to oblige my brothers."
' The convict neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 34D(2), Code of Criminal Procedure nor produced any evidence in his defence.
6. The learned trial court after the conclusion of the trial convicted Muhammad Amir Raza (convict) as stated above.
7. Learned counsel, who was appointed on behalf of the convict to assist this Court at State expenses contends that this is an unwitnessed occurrence as it is the case of Muhammad Iqbal (P.W.1.), Shahzad (P.W.2), Mst. Shamim Bibi (P.W.6) and Mst. Mashkooran Bibi (P.W.8) that they were also injured in this occurrence and received Toka blows but none of them was medically examined; that the complainant is not an eye-witness of the occurrence; that even otherwise, the statements of Muhammad Iqbal (P.W.1), Shahzad (P.W.2) and Mst. Mashkooran Bibi (P.W.8) are to the effect that they saw the convict while coming out of the house having a Toka in his hand and they are not the eye-witnesses of the occurrence and in these circumstances, their evidence is not reliable that the recovery of Toka (P-4) has not been proved in accordance .With law; that no motive on the part of the convict was alleged by the prosecution; that the prosecution has failed to prove its case against the convict beyond any shadow of doubt. Learned counsel further contends that even if the prosecution case is proved, this case is covered under section 302 (c) of the Pakistan Penal Code as the question of "Ghairat" is involved in this case.
8. On the other hand, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant vehemently contends that the convict acted in a brutal and callous manner as he has caused fourteen Toka blows on the person of Mst. Gulshan Bibi deceased; that Mst. Shamim Bibi (P.W.6) eye-witness of this occurrence is real mother of the convict who was also living in the same house and her presence at the place of occurrence at the relevant time has not been denied or disputed by the convict; that non-examining of injured witnesses by the doctor is immaterial in this case as it was a lapse on the part of the police. Learned DPG further contends that the convict was seen coming out of the house by Muhammad Iqbal (P. W-.1 ), Shahzad (P.W.2) and Mst.
Mashkooran Bibi (P.W.8) who have absolutely no enmity with the convict for his false implication; that recovery of Toka (P-4), at the instance of the convict, has been proved by the prosecution through the statement of Muhammad Nadeem (P.W.7). As far as the contention of learned counsel for the convict, that this case is covered under section 302(c), P.P.C. Because the question of "Ghairat" is involved in this case, learned D.P.-G. And learned counsel for the complainant contends that the convict has simply denied the allegation in his statement recorded under section 342 of the Code of Criminal Procedure; that even otherwise, there are no circumstances, wherefrom it could be inferred that any question of "Ghairat" is involved in this case; that it is a day-light occurrence which took place in the house of the deceased and convict: that the ocular account to the extent of injuries to Mst. Gulshan Bibi deceased is fully supported by the medical evidence; that the prosecution has fully proved its case against the convict and there is absolutely no mitigation in favour of the convict.
9. We have heard the arguments of learned counsel for the convict, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant and gone through the record with their able assistance.
10. The occurrence, as per prosecution took place on 4-11-2003 at 3-00 p.m. In the house of the deceased and convict situated at a distance of 11-1/2 kilometer from Police Station Islampura, Lahore. The matter was reported to the police at 4-30 p.m. By Muhammad Saeed Zaidi complainant (P.W.3). The complainant, in this case, is admittedly real brother of the convict. He is not the eye-witness of the occurrence and while appearing before the learned trial court, he has stated that the whole incident was narrated to him by his mother i,e. Mst. Shamim Bibi (P.W.6), In this case, the star witness of the occurrence is Mst. Shamim Bibi, mother of the deceased and the convict. Her examinationin-chief is being reproduced which is as under:-- "On 4-11-2003 at about 3 p.m.Was present in my house and sitting . On a bed while my daughter Gulshen Bibi was sitting on floor near bath-room. My son Amir Raza accused present in the court appeared at once with a Toka in his hands and started giving Toka blows on my daughter Gulshen Bibi (deceased) which hit on her head and different parts of her body. When I stepped in to rescue my daughter, Amir accused also inflicted Toka blows on my legs and I stepped behind for the fear of my life. Amir again started giving Toka blows to my daughter Gulshen. Thereafter, the accused Amir Raza ran away with the Toka in his hands."
' Admittedly, there is no enmity of Mst. Shamim Bibi (P.W.6) with the convict. Moreover, she is his real mother. She is inmate of the house where this occurrence took place. Apart from this statement, the convict was seen while coming out cf the house, where this occurrence took place, having Toka in his hand by Muhammad lgbal (P.W.1), Shahzad (P.W.2) and Mst. Mashkooran Bibi (P.W.8). They too have no enmity with the convict for his false implication. One of these witnesses i.e. Mst.
Mashkooran Bibi (P.W.8) is real paternal aunt of the convict and the deceased whereas, Muhammad Iqbal (P.W.1) and Shahzad (P.W.2) are the Mohalladars of the convict and they have stated that they have seen the convict while coming out of the house having Toka in his hand and when they tried to apprehend him, he also inflicted injuries to them. Non-examination of these witnesses by the doctor is not material because there ,is no enmity of the prosecution witnesses with the convict and substitution in such like cases is a rare phenomenon. The ocular account is fully supported by the medical evidence to the extent of injuries caused to Mst.Gulshan Bibi deceased. As per postmortem examination report (Exh-PF), Dr. Farhat Sultana .(P.W.10) who conducted the postmortem examination on the dead body of Mst. Gulshan Bibi noted the following injuries on her person:--
(1) Incised wound 13 x 11 cm in size on the palm of left hand just below the wrist joint. Cutting muscles metatarsal bones, index finger was totally separated from other fingers.
(2) Incised wound 8 x 4.5 cm at postro medial aspect of left fore-arm 4 cm above wrist 14 cm below elbow. Soft tissues were cut and underlying bones were visible.
(3) Incised wound 5 x 1 cm on medial side of left firearm 2 cm below elbow. Skin and fascia were cut.
(4) Incised gaping wound 6 x 5 cm at top of head across midline. Portion of scalp and bone piece was absent. 4 x 4 cm size bone was missing in irregular shape. Injury was 15 cm above the bridge of nose, 18 cm from left ear and 15 cm from right ear.
(5) Incised wound 13 x 3 cm at right temporal region, 2 cm above right ear. Underlying bone was cut. Brain matter was visible.
(6) Incised wound 8 x 1 cm at right side of the face just above right ear.
(7) Incised wound 5 x 1 cm on the back of right side of head, underlying bone was visible and cut.
Wound was 7 cm above and behind the right ear, 1.5 cm right to the midline.
(8) Incised wound 8 x 1.5 cm on the right side of head, 7 cm above right ear, 11 cm right to the midline.
(9) Incised wound 13 x 3.5 cm on postro lateral side of elbow and underlying muscles were cut.
(10) Incised wound 3 x 1 cm on base of right thumb. Muscles were cut.
(11) Incised wound .8 x 4 cm on medial aspect of lower part of the right thigh. 8 cm above knee.
(12) Incised wound 3.5 x 1 cm on medial side of left leg at lower part. 4 cm above medial malleolus.
(13) Incised wound 9 x 2 cm at dorsum and medial side of left foot, 10 cm from big toe.
(14) Incised wound 9 x 1 cm at right side of the head, 5.5 cm to the right midline, 10 cm from right ear. Cut was present on underlying bone.
' The ocular account is further corroborated by the recovery of Toka (P-4) at the instance of the convict and positive reports of the Chemical Examiner (Exh-PG/1) and that of the Serologists (Exh- PH). Non-mentioning of any motive for this incident is not material. As far as the contention of learned counsel for the convict that the question of Ghairat is involved in this case and the case is covered under section 302(c), P.P.C. Is concerned, suffice to observe that the convict has not taken any such plea in his statement recorded by the learned trial court under section,342 of the Code of Criminal Procedure and he has simply denied the allegations levelled against him.. Even otherwise, nobody can he given a license to kill an innocent person on the ground of so-called "Ghairat". In these circumstances, we are of the view that B the case of the convict is 'not covered under section 302(c) of the Code of Criminal Procedure as argued by the learned counsel for the convict. The prosecution has fully proved its case against the convict beyond any shadow of doubt. We have not been able to find out any mitigating circumstance in this case because the convict has acted in a brutal and callous manner. He has committed murder of his real sister by causing fourteen inju -ies with Toka on her body. Therefore, he does not deserve any leniency.
11. For the forgoing reasons, the Murder Reference No.569 of 2006 is answered in the AFFIRMATIVE and the sentence of death awarded to Muhammad Amir Raza (convict) is CONFIRMED.