RUSTAM S. SIDHWA, J.----On 31st January, 1979, Muhammad Saleem was convicted under section 302, P. P. C. By the learned Sessions Judge, Gujrat, for the murder of Muhammad Afzal dec6hs6cj and sentenced to death, subject to confirmation by the High Court, and to pay a fine of Rupees two thousand (Rs. 2,000) or in default of payment of fine to suffer rigorous imprisonment for one year. It was further ordered that in case the death sentence was not confirmed, the sentence imposed upon him in default of payment of fine would run concurrently with the other substan--tive sentence imposed upon the accused and that the fine, if recovered, would be paid to the heirs of the deceased as compensation. The appeal of the convict and the reference (Murder Reference No. 134 of 1979) are before us for disposal.
2. The brief facts of the case are that on 28th April, 1978 at 9-00 p. m., Muhammad Ramzan P. W. 8 and Muhammad Afzal deceased were proceeding towards Adda Trucks Grain Market (Galls Mandi) and when they reached Chowk Fiqa at about 9-00 p. m., Muhammad Saleem accused appeared and raised lalkara challenging the deceased that he would not escape. The accused took out a knife, from the folds of his shalwar and attacked the deceased and injured him. The deceased fell down on the ground. In the meantime, Muhammad Akhtar P. W. 9 and Muhammad Babar P. W. 10 also came to the spot. The accused ran away towards the bazar in the eastern direction. Muhammad Ramzan P. W. 8 took Muhammad Afzal in an injured condition to Civil Hospital, Mandi Baha-ud-Din, where he was admitted. The motive mentioned in the First Information Report was that the accused used to make indecent gestures while passing in front of the house of the deceased and the latter had asked him many times to desist from the same as he had young sisters. Earlier too, on the same day, there was altercation between the accused and the deceased on the same account and the deceased had abused the accused and given fist and kick blows to him. At that time Muhammad Ramzan P. W. 8 alongwith Bashir Ahmad P. W. 11 had intervened and separated them. It was stated that on account of the same grudge, the accused had attacked the deceased to take revenge for the insult.
3. At 9-45 p. m. The same day Dr. Nazir Ahmad Anwar P. W 1 medically examined Muhammad Afzal and found a penetrating incised wound --" x --" x going into the chest 2" below and lateral to left nipple. Muscles, pleura and left lung were injured underneath. Air was leaking from the wound. The injured was in shock and his condition was dangerous. He was not in a fit condition to make a statement. The injury was declared grievous and dangerous to life and as having been caused by a sharp-pointed weapon within the dura--tion of an hour.
4. Muhammad Ramzan P. W. 8 then proceeded to Police Station Mandi Baha-ud-Din and lodged the First Information Report Exh. P. K. There at 2-00 p. m., which was recorded by Muhammad Azim, A. S. I. P. W.
12. Noor Khan, A. S. I. P. W. 13, who was entrusted with the investigation, reached the spot, recorded the statements of the witnesses and took into possession the blood-stained earth from the place of occur--occurrence, vide memo. Exh. P. F.
5. On 29April, 1978, at 2-00 a. m., Muhammad Afzal deceased died in the hospital. At 9-00 a. m., Dr. Rashid Ahmad P. W. 2 conducted post-mortem examination on the dead body of the deceased and found a stitched wound 2' below and lateral to left nipple, which wound when opened, was found penetrating, deep into the chest/and cutting the pleura and the left lung. In the opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. Time between the injury and death was held to be a few hours and between death and post-mortem examination was about 6 to 9 hours.
6. On 30th April, 1978, Muhammad Saleem accused was arrested by Raja Saleem Akhtar, S. I., P. W.
14, who had in the meantime taken over investigation.
7. On 5May, 1978, Muhammad Saleem accused led to the recovery of a blood-stained knife P. 3 from the house of his maternal grandfather Abdul Karim, which recovery was witnessed by Abdul Majid P. W. 7, Raja Saleem Akhtar, S. L, P. W. 14 and Wakeel Ahmad (given up P. W.).
8. After completing the investigation, the challan against the accused was put up under section 302, P. P. C.
9. At the trial, the prosecution produced Muhammad Ramzan P. W. 8 and Bashir Ahmad P. W. 11 to prove the motive, Muhammad Ramzan P. W. 8, Muhammad Akhtar P. W. 9 and Muhammad Babar P. W. 10 in proof of the ocular account, Abdul Majid P. W. 7 and Raja Muhammad Akhtar S. I., P. W. 14 in support of the recovery and Dr. Nazir Ahmad Anwar P. W. 1 and Dr. Rashid Ahmad P. W. 2 to corroborate the medical testimony. The accused, at the trial, denied the accusations levelled against him and submitted the under-noted reply in explanation as to why the case bad been initiated against him:- "Due to enmity with P. Ws. I lived in Rawalpindi with parents and in the month of March, 1978 I came to see my uncle Sheikh Rashid at Mandi Bahauddin and stayed with him for 10/15 days. During these days I had been helping him for his business as a fruit commission agent. He used to bring the fruit by trucks of other companies to which Aslam, father of the deceased, objected and resisted the entry of those trucks into the fruit market on the plea that only his trucks could go to the fruit market. Sheikh Rashid and Aslam had the quarrel 3/4 times over this issue. Muhammad Afzal deceased son of said Muhammad Aslam was murdered in darkness by some unknown person and nobody had witnessed the occurrence. The police joined Muhammad Ishaq resident of Mandi Bahauddin who had earlier abducted sister of Muhammad Afzal deceased and both the sides were at daggers drawn. Muhammad Ishaq paid the police and he was released and due to enmity with uncle Sheikh Rashid, I was roped into this false case."th th
10. The learned trial Judge relying upon the motive, the ocular account and the medical testimony convicted and sentenced the accused as stated in para. 1 above.
11. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The learned counsel for the appellant has not challenged the conviction at all and has not addressed any arguments on the merits of the case. He has only prayed for a lesser penalty on the ground that the appellant was a young by of about 16 years of age at the time of the commission of the offence, that there had been a quarrel between him and Muhammad Afzal deceased in the morning on the day of occurrence in which the deceased had given fist and kick blows to him and that due to this earlier incident he got provoked when he saw the deceased the same night at Chowk Fiqa and in a fit of passion he inflicted one injury on the deceased, which proved fatal.
12. Since the learned counsel for the appellant has not addressed any arguments on the merits of the case, we need not go into the evidence at all, suffice it so say that the ocular account furnished by Muhammad Ramzan P. W. 8, Muhammad Akhtar P. W. 9 and Muhammad Babar P. W. 10 is sufficient to bring home the conviction to the appellant. Muhammad Ramzan P. W. 8 is a paternal- uncle of the deceased, whereas Muhammad Akhtar P. W. 9 and Muhammad Babar P. W. 10 are not related to the deceased, but are independent witnesses having their residences a few paces away from the place of occurrence. The ocular account supported by the motive and the medical testimony, has been relied upon by the learned trial Judge to convict the appellant under section 302, P. P. C., which findings being unassailable. We have no alternative but to approve.
13. As regards the submissions made by the learned counsel for the appellant with regard to the imposition of the lesser penalty, it cannot be denied that the appellant, at time of the commission of the offence, was a young lad of about 16 years of age and that he only inflicted one knife blow on the deceased when he came across him by chance at Chowk Fiqa at 9-00 p. m. In the night. The evidence of Muhammad Ramzan P. W. 8 and Bashir Ahmad P. W. 11 is consistent to the effect that earlier in the morning on the day of occurrence, there was an altercation between the appellant and the deceased in which the deceased had given fist and kick blows to the appellant and that they had intervened and separated them. It is also in the evidence of Muhammad Ramzan P. W. 8 that the quarrel between the deceased and the appellant in the morning was on the issue that the appellant should desist from making indecent gestures in front of the house of the deceased, as the deceased had sisters who were residing there. It is true that there is no evidence to show that any of the witnesses saw the appellant making indecent gestures in front of the house of Muhammad Afzal deceased, but it cannot be doubted that some altercation did take place in the morning on the day of occurrence in which the deceased inflicted fist and kick blows to the appellant, which must have infuriated the appellant so that he lost his self-control when he saw the deceased by chance at Chowk Fiqa the same night. Taking these factors into consideration, we consider that the appellant is entitled to the lesser sentence in the special circumstances of this case. We would, therefore, reduce his sentence to life imprisonment.
14. For the foregoing reasons, the conviction of the appellant under section 302, P. P. C. Is maintained, but his sentence is reduced to imprisonment for life. The death sentence is not confirmed. The appellant shall pay a fine of rupees two thousand (Rs. 2,000) as awarded by the learned trial Judge, or in default of payment of fine, suffer further rigorous imprisonment for one year. The fine, if recovered, shall be paid to the heirs of Muhammad Afzal deceased as compensation under section 544-A Cr. P. C. The appeal, therefore, stands partly accepted in terms of the reduction of sentence as stated above.
Death sentence not confirmed.