SARDAR MUHAMMAD DOGAR, J.- FIR Ex.PA/1 was registered at Police Station Zafarwal, district Sialkot, by Abdul Rashid ASI (PW.1) at 1.10 a.m. On 21.9.1987 on receipt of statement Ex.PA of Abdul Ghafoor (PW.6) recorded by Mumtaz Ahmad Alvi SHO (PW.9) at 1.00 a.m. At the spot on the same day.
According to. The FIR, Qaisar Mahmood (deceased) after taking meals had gone to the shop to take milk at 8.00 p.m. Anjam Sohail came there. He rubbed his shoulder with the shoulder of Qaisar Mahmood. On protest by Qaisar Mahmood he (Anjam Sohail) caught Qaisar Mahmood from the collar and struck him against the wall. Qaisar Mahmood fell down in the drain. Anjam Sohail gave .
Him some kicks and fist blows. Qaisar Mahmood lost conscious. The accused ran away. Qaisar Mahmood died while being taken to the hospital. The occurrence was witnessed by Muhammad Arif (PW.7) and given up PW Gulzar Hussain.
Mother of Anjum Sohail had asked for the hand of Mst. Najma, sister of the deceased, for his son.
Grandfather of the deceased had refused which had annoyed Anjum Sohail.
2. Mumtaz. Ahmad Alvi, SHO, after recording statement Ex.PA, despatched the dead body for post- mortem examination after completing necessary papers. He collected blood-stained earth from the spot vide memo Ex.PD. The accused was arrested by. Him on 26.9.1987. Challan was submitted to the court after completion of necessary investigation The case was entrusted for trial to the court of Addl. Sessions Judge, Narowal.
3. Learned ASJ, Narowal, vide judgment dated 29.6.1988, convicted Qaiser Mahmood under section 304, Part II, PPC and sentenced him to undergo R.I. For ten years plus to pay a fine of R.s.3000/- in default whereof to undergo R.I. For two years. The fine, on recovery, was directed to be paid as compensation to the legal heirs of the deceased.
The convict has filed appeal.
4. Statements of 10 PWs were recorded at the trial.
Dr. Muhammad Sarwar Chaudhry who had performed autopsy on 21.9.1987 appeared as PW.10 He had noted a lacerated wound measuring 2-1/2 cm 1-1/2 cm bone deep on the back of the head at occipital region in the midline. On dissection, the injury was found extending to skull bone. The suture line was widened and the black coloured blood was oozing out. The posterior part of the cranial cavity was full of black coloured blood and the brain was correspondingly bruised. Death was opined to have occurred due to head injury.
5. Ocular account was deposed to by Abdul Ghafoor (PW-6), father of the deceased, Muhammad Arif Shopkeeper, (PW.7), and Mst. Najma Raheela, sister of the deceased (PW.8). Mumtaz Ahmad Alvi, SHO, who had registered the case, submitted the challan to the court after arrest of the appellant and completion of necessary investigation, appeared as PW.9. Positive report about stains of human blood on the earth collected from spot was also tendered in evidence. The remaining witnesses are more or less of formal nature.
6. The appellant during statement u/s 342 Cr.P.C, denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to a question,"Why this case is made against you and why the witnesses have deposed against you?"
"It was just an accident without any previous ill-will and motive on my part against the deceased.
The complainant party, after the accidental death of the deceased made it a point of their prestige and concocted this story for the whole night. The witnesses have deposed to a false version concocted by the complainant."
He also examined in defence Muhammad Alam. DW.1, who claimed that he had remained with the dead body during night and that during that period Abdul Ghafoor, father of the deceased, Mst.
Najma, the sister, and mother of the deceased had told him that the deceased and the accused while passing in the street had accidentally rubbed shoulders whereafter they had fell out and that the deceased on receiving a push, suffered injury which resulted into death. During cross- examination, he admitted that he was not an eye-witness of the occurrence.
7. Learned counsel for the appellant did hot challenge the conviction of the appellant under section 304 Part II PPC. He, however, vehemently argued that the sentence of ten years R.I., in the circumstances of the case, was extremely excessive and was not proportionate to the act of the appellant. He prayed for Substantial reduction in the sentence saying that if it is considered necessary for the just administration of justice, the fine awarded to the appellant be enhanced reasonably which may be directed to be paid as compensation to the heirs of the decessed.
8. Notwithstanding the fact that the learned counsel for the appellant has not challenged the conviction of the appellant u/s 304, Part II, PPC, I have gone through the evidence and I am convinced that no interference is called for in the judgment of the trial Court insofar as it pertains to the conviction of the appellant under section 304, Part II, P.P.C.--The same is, therefore, maintained.
9. It is not the prosecution case that the appellant was armed with anything. The stance of the prosecution that he had given kicks and fist blows to the deceased after he had fallen down stood negated from the medical evidence. The prosecution has not been able to conclusively prove the motive set up for the occurrence. At least, it was never the case of the prosecution that the mother of the appellant had asked the hand of the sister of the deceased for him. In fact, the PWs did not give out as to for which son the mother of the appellant wanted the hand of the sister of the deceased. The occurrence, obviously, was not a pre-planned one. It was by chance that the deceased and the appellant had come across each other near the milk shop. In the circumstances, I am of the view that the sentence of R.I. For three years plus a fine of Rs.10,000/- to be paid, as compensation , on recovery, to the father of the deceased will meet the ends of justice.
Order accordingly.
In case the appellant fails to pay the fine, he shall undergo R.I. For three years. He shall be given the benefit of the provisions of section 382-B Cr.P.C, as well.
The appellant is on bail. He shall be caused to be arrested through non bailable warrants to undergo the remaining sentence.