MUHAMMAD RAFIQ TARAR, J.-Saukat (20) and his mother Mst. Sardaran (50), residents of Pasrur Road, Sialkot, were tried by the learned Additional Sessions Judge, Sialkot, under sections 302 and 324 read with section 34, P.P.C., on the allegations that on 7th April 1976, at 6 P.M. They, in furtherance of their common intention, commuted the murder of Muhammad Sharif alias Kala and caused simple injuries to his father Shah Muhammad P.W., in the area of Mohallah Babay De Beri, Sialkot. By judgment dated 14th April 1978, Mst. Sardaran was acquitted while Shaukat was convicted under sections 302 and 324, P.P.C. He was awarded sentence of death on the charge of murder and two years' R. I. Under section 324, P.P.C. He has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him. Both these matters shall be disposed of by this judgment.
2. Shaukat appellant is son of acquitted accused Mst. Sardaran from her former husband. He used to live separately from her. Eight or nine months prior to the occurrence, Habib Ullah P. W. (brother of the were of Shah Muhammad P.W.) married Mst. Sardaran. On 7th April 1976, at about 5 p.m. a quarrel ensued between them. Shah Muhammad complai--nant asked them not to quarrel upon which Habib Ullah went out of the house and Mst. Sardaran started taking away the household effects from the house of Habib Ullah to the nearby house of Shaukat appellant. The complainant asked her not to do so, whereupon she started abusing him. On hearing the noise, Rahmat Khan P.W., Ghulam Hussain, Mst. Rajin, and Muhammad Sharif deceased also came there and asked her to desist from abusing, upon which she left the house. After a short while she returned in the company of Shaukat appellant who proclaimed that he was going to take away the buffalo and other articles from the house of Habib Ullah and anyone who had any objection should come forward. Muhammad Sharif deceased asked him to wait for the arrival of Habib Ullah upon which he took out a chhuri from the dub of his loin cloth and ran towards the deceased. The deceased started running towards the playground of the school followed by the appellant with chhuri in his hand. On the Lalkara of Mst. Sardaran that Muhammad Sharif should not be spared, the appellant felled him down and gave him several chhuri blows. Shah Muhammad P.W. Tried to snatch the chhuri from the appellant, but without any success. In the process he sustained injuries on his right hand. The appellant fled away from the spot taking the chhuri with him. The complainant and the other eye-witnesses took Muhammad Sharif injured to the hospital but on reaching there they found that he had already expired. Shah Muhammad complainant then reported the occurrence to Mukhtar Ahmad, ASI, in the hospital at 8 p.m. Vide his statement Exh. PA on the basis of which formal F.I.R. Exh. PA/1 was recorded at Police Station, Sialkot City at 8-30 p.m.
3. Bashir Hussain Sub-inspector took over the investigation from Mukhtar Ahmad A.S.1. He prepared the inquest-report of the dead body of Muhammad Sharif deceased and despatched it to the mortuary for post-mortem examination. On the next day i.e. 8th April 1976 he secured some blood- stained earth from the spot and made it into a sealed, parcel vide memo Exh. P.B. He arrested Mst.
Sardaran on 12th April; 1976 and Shaukat on 18th April, 1976. On 1st April 1976 the appellant led to the recovery of chhuri P1 and dhoti P2, both blood-stained, which were taken into possession vide memo Exh. PC. The chhuri and the dhoti were made into separate sealed parcels. After the investigation the appellant was challaned.
4. [Medical evidence].
5. In support of its ease the prosecution examined two eye-witnesses, namely, Shah Muhammad and Rehmat Khan. It also relied on the recovery of blood-stained chhuri and blood-stained dhoti at the instance of the appellant.
6. The appellant pleaded not guilty to the charge and gave a counter version of the occurrence as under:- "On the day of occurrence at about 5 p.m. Mst. Amina were of Habib Ullah and Mst. Rajin Bibi his sister were quarrelling and grappling with my mother Sardaran. I came out of the house to intervene. Sharif deceased and other P.Ws. Attacked me and Shah Muhammad complainant tried to pass on the churri to his son Muhammad Sharif and I snatched the chhuri and ran towards the playground. In this process Shah Mohammad got injured. 1 ran towards the playground. The deceased and other P. Ws. Followed me and when Sharif had overpowered me and the remaining P.Ws. Were right on my head I apprehended that they would snatch the Chhuri from me and kill me.
I therefore acting in self-defence injured Muhammad Sharif and ran away leaving the chhuri at the place. As Muhammad Sharif died I was accused of the murder."
No evidence was led in defence.
7. The learned trial Judge rejected the defence version and relying on the prosecution evidence against the appellant convicted and sentenced him as mentioned above. He, however, acquitted Mst. Sardaran by giving her the benefit of doubt.
8. The learned counsel for the appellant contended that the circum--stances were consistent with the assumption that the complainant party had initiated the trouble and the appellant had acted in exercise of the right of private defence. He further submitted that the appellant took out the chhuri only when he was prevented from untying the buffalo which showed that something on the part of the deceased had provoked him, therefore; Exception I of section 300, P.P.C. Was also attracted. Lastly, he sub--mitted that at the time of occurrence the appellant was 18 years of age and it is the case of the prosecution that he caused injuries to the deceased on the exhortation of his mother, therefore, capital punishment was not called for.
9. Shah Mohammad P.W. I and Rehmat Khan P.W. 2 supported the prosecution version of the occurrence as detailed in para. 2 above. The presence of Shah Muhammad P. W. At the spot is admitted by the appellant. The presence of Rehmat Khan P. W. Was also not denied by hire. He rather stated that Muhammad Sharif deceased "and other P.Ws." had attacked him. Rehmat Khan P W. And the mother of the deceased are cousins inter se and in this way Rehmat Khan P. W, is distantly related to the deceased. However. The relationship of the eye-witnesses with the deceased is not at all a ground to discard their evidence. Both the eyewitnesses were cross- examined at length but nothing useful for the defence could be elicited from their statements which are consistent on the main features of the case.
10. The appellant admits having caused injuries to the deceased as a result of which he died. He, however, came up with the version that Muhammad Sharif "and other P. Ws." attacked him and Shah Muhammad complainant tried to pass on the chhuri to the deceased but he snatched it and ran towards the playground. In this process Shah Muhammad P. W. Sustained injuries. The deceased and other P. Ws. Followed him and when Muhammad Sharif deceased overpowered him and the aforesaid P.Ws. Were right on his head he apprehended that they would snatch the chhuri from him and kill him and it was then he injured the deceased in self-defence. We have endeavoured to reconstruct the scene narrated by the appellant but it is difficult to believe it as the facts and circumstances run counter to the plea. The appellant claims that he was attacked by the deceased and other P.Ws. And had snatched the Chhuri from Shah Mohammad complainant but he did not suffer even a scratch. If he had snatched the chhuri from the complainant there was hardly any reason for him to run away and if he had run away, there was no cause for the complainant and others to run after him empty-handed. More--over, if Muhammad Sharif deceased, Shah Muhammad complainant "and other P.Ws." had chased the appellant as alleged by him, the complainant "and other P.Ws." would not have permitted him to cause as many as six injuries to the deceased. On the other hand, the prosecution version that, Shah Muhammad complainant snatched the chhuri from the appellant finds substantial support from the medical evidence according to which Shah Muhammad had as many as five incised wounds on the fingers of his right) hand.
11. The learned counsel for the appellant contended that the appellant took out the chhuri only when he was prevented from untying the buffalo and did not use it prior to that, therefore, it should be presumed that something on the part of the deceased had provoked him and he should be given the benefit of Exception 1 of section, 300, P.P.C. We do not find any substance in this contention. The evidence clearly shows that when the appellant declared that he was going to take away the buffalo the deceased just asked him to wait for the arrival of Habib Ullah and upon this the appellant took out a chhuri from his Dab and started chasing the deceased in the playground of the school. Having gone through the record and juxtaposed both the versions we are satisfied that the prosecution evidence was rightly accepted by the learned trial Judge. We, therefore maintain the conviction of the appellant under section 302, P.P.C. However, the conviction under section 324, P.P.C. Is not sustain--able as there is no evidence that the appellant voluntarily caused injuries to Shah Muhammad complainant. According to both the eye-witnesses, the complainant sustained injuries while trying to snatch the chhuri from the hand of the appellant. There is thus nothing on the record to show that the injuries sustained by the complainant were the result of the blows given to him by the appellant. Accordingly, his conviction and sentence under section 324, P.P.C. Is set aside.
12. The question of sentence on the charge of murder, however, requires consideration. At the time of occurrence the appellant was about 18 years of age. It is the prosecution's own case that his mother Mst. Sardaran brought him to the spot and he caused injuries to the deceased on her lalkara. He, thus, appears to have acted under her influence. In the circumstances, we alter his sentence from death to imprisonment for life and a fine of Rs. 2,000 in default of payment of which he shall undergo further R. I. For one year. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. The appeal stands disposed of accordingly.