Muhammad Haroon appellant was convicted under section 304, Part II, P.P.C. By Additional Sessions Judge, Gujrat vide judgment dated 6-1-1990 and sentenced to 7 years' R.I. And a fine of Rs.10,000 or in default thereof one year's R.I. His co-accused Latif was acquitted. Half of the fine, if realised, was ordered to be paid to the heirs of Sarwar deceased as compensation. He has appealed.
2. The occurrence took place at 1-30 p.m. On 20-12-1987 just in the District Court premises Gujrat where the appellant was the Naib-Court to the Court of a Magistrate. Ghulam Rasool complainant (P.W.1) was present in the hospital where the deceased as well as Ghulam Hussain (P.W.3) and their companion Ali Asghar (given up) in injured condition had been taken and made a statement (Exh.
PA.) at 2-40 p.m. And was recorded by Muhammad Ashraf S.I. (P.W.10). On its basis formal F.I.R.
(Exh.PA./1) was registered by Pervaiz Akhtar, A.S.I. (P.W.4). The story given in the F.I.R. Was that the complainant party was having criminal litigation with the appellant. The appellant being a Naib- Court in the Court of a Magistrate at Gujrat used to put them to trouble inasmuch. As he had filed a complaint in the Court of Iftikhar Ahmad Handal, M.I.C., Gujrat against 16 persons of the complainant party and had also filed a civil suit in the Court of Senior Civil Judge. The complainant had come to move an application against the appellant for his transfer to some other place. The move in this behalf infuriated the appellant. The version proceeds on that when at the fateful time the complainant alongwith his brother Ghulam Sarwar (the deceased), Ghulam Hussain (P.W.3) and Abdul Karim passed in front of the Court of Mr. Iftikhar Ahmad Handal, M.I.C. The appellant and his companion Latif raised a Lalkara to them that they would be taught a lesson for moving the application and assaulted. The appellant and his co-accused started brickbating hitting the deceased in the head and he started bleeding from the nose. The complainant was also injured.
3. Dr. Muhammad Jamil Ahsan (P.W.6) performed the post-mortem examination on the dead body of Sarwar deceased on the very day of occurrence at 4-00 p.m. It was having a contused swelling 8 x 6 c.m. On the right temporal region of the scalp going towards the right side of the forehead with bleeding through both the nostrils. Dr. Muhammad Munir (P.W.8) had medically examined Ghulam Rasool complainant, Ghulam Hussain (P.Ws. 1 and 3) and Ali Asghar (given up) on the very day of occurrence at about 4/4-30 p.m. Ghulam Rasool was only having a scratch on the left leg near the ankle, Ghulam Hussain an abrasion on the lower lip while Ali Asghar was not having any ostensible injury though there was slight tenderness on his right arm and back of chest in the lumber region. They were got medically examined by the police.
4. The prosecution case rests upon the medical evidence provided by the two doctors and the eye- witness account was given by Ghulam Rasool complainant, Ghulam Hussain (P.Ws. 1 and 3) and.
Malik Muhammad Ashraf, S.I. (P.W.10), the investigator. Ghulam Rasool and Ghulam Hussain P.Ws.
Have supported the version given in the F.I.R. That while passing near the Court they were brickbatted by the appellant and Latif co-accused and the brickbat of the appellant had hit the deceased in the temporal region who fell down., Though they ascribed an injury to Latif in the back of the deceased but no such injury appears as per the medical evidence. 'The previous enmity between these two P.W s. And the appellant is also an admitted fact. However, the occurrence took place just in the Court premises and injured witnesses and the deceased seem to have been taken to the hospital by the D.S.P. In a jeep provided by the Superintendent of Police. It is not understandable why the D.S.P. Who escorted them to the hospital in the Government vehicle did not record the statement from the complainant side himself of if he was an eye-witness why he did not make a statement himself. In any case, the statement (Exh. PA.) was promptly recorded by the Sub---Inspector. The complainant admitted in cross-examination that the D.S.P. Had reached the place of occurrence when the scuffle was going on and he intervened to separate them. He clearly stated and so did Ghulam Hussain P.W, that the appellant was arrested at the spot and they had heard that Latif co-accused who had run away from the spot, had also been arrested on the very day of occurrence. The police, however, showed their arrest after some days of the occurrence. W e cannot lose sight of the fact that the appellant was a Naib-Court (a police employee) and so the police perhaps were trying to help him out. The occurrence being of broad daylight and of Court premises whereafter the injured were taken to the hospital by the police themselves and there the statement of the complainant promptly record, which all go to lend a corroborative element to the eye-witness account. However, the learned trial Judge seems to have correctly concluded that while passing from near the Court where the appellant was posted, due to the application having been moved for his transfer on the very day of occurrence, the occurrence erupted all of a sudden in which the brickbats were hurled. It was the appellant's brick, which hit the deceased and resulted in his death. Hence the conviction was correctly recorded.
5. Learned counsel for the appellant, however, submitted that the sentence was excessive. Learned counsel for the State and the complainant, on the other hand, maintained that it was appropriate.
As concluded above, the occurrence developed all of a sudden and only one brickbat as per the medical evidence seems to have hit the deceased and resulted in his death. The appellant was arrested on the very day of occurrence i.e. 20-12-1987 and he is behind the bars uptil now i.e. For a period of more than three years. Hence the sentence already undergone and a fine of Rs.20,000 or in default thereof two years' R.I. Would meet the ends of justice. Order accordingly. On the fine being deposited the appellant would be set at liberty forthwith, if not required to be detained in any other case. Whole of the fine, if realised, shall be paid to the heirs of the deceased, as compensation. Consequently, the revision petition is dismissed in limine.