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Criminal Suo Motu Revision No. 29 of 1981,decided on 16^th December, 1981.

- S. 304-A read with Criminal Procedure Code (V of 1898), S.439 'Sentence enhancement of-Enhancement of sentence not justified unless same grossly inadequate or perverse-Accused sentenced to imprisonment till rising of Court and fine of Rs. 4,000 which was paid-High Court issuing notice suo motu on accused for enhance ment of sentence-Maximum punishment provided under S. 304-A at relevant time being two years or fine sentence awarded, held, proper in circumstances-No ground for enhancement of sentence made out. ---[Sentence].

P L D 1954 Sind 240 ; P L D 1956 Sind 77 and P L D 1956 Lah. 521 fol.

-- S. 304-A-Evidence - Contention that proof of death due to injuries resulting from accident by production of doctor-Duty of prosecution and plea of guilt of accused not sufficient-Taking into consideration compromise arrived at between father of deceased and accused, suo motu notice enhancement of sentence with-drawn.-[Sentence].

A. A. Dareshani for the State.

Siraj Ahmed for Respondent.

Date of hearing : 16th December, 1981

The above Revision Application arises out of suo motu notice issued by this Court, vide its order, dated 5th January, 1981 whereby the respondent was called upon to show cause, why sentence awarded to him by judgment the learned Civil Judge and F. C. M., Sanghar, dated 21st September, 1980 not to be enhanced, as prima facie it seems to inadequate.

2. The respondent in view of the show-cause notice issued to him has appeared through his Advocate Mr. Siraj Ahmed, learned counsel for the respondent submitted, that on the day of the accident in question maximum punishment provided under section 304-A, P. P. C. was two years or fine or both and as such the sentence of imprisonment till rising of the Court and a fine of Rs. 4.600 imposed on respondent was adequate punishment, under the circumstances of the said case, as earlier to the impugned judgment, the respondent had also paid Rs. 4,500 under compromise, dated 14th April, 1979 to the father of the deceased. In support of this, learned counsel has produced original affidavit of the deceased father confirming such compromise, which is kept on record.

3. Learned counsellor the respondent further submitted, that unless the sentence awarded to the respondent is manifestly and grossly in adequate or lead to miscarriage of justice of sentence is perverse, it cannot be enhanced under section 439, Cr. P. C. and in support of this contention, learned counsel has relied upon cases reported in P L D 1954 Sind 240, P L D 1956 Sind 77 and P L D 1956 Lah. 521.

4. Learned counsel for the respondent further submitted, that under no stretch of imagination the sentence awarded to the appellant could be considered as manifestly or grossly in adequate, specially as, beside the fine imposed by the impugned judgment, the respondent has paid further Rs. 4,500 as per affidavit, dated 14th April, 1979 to the father of the deceased.

5. Learned counsel appearing for the State, however, submitted, that the affidavit of the deceased's father has not been proved and as such the amount mentioned therein cannot be taken into consideration and consequently the sentence awarded to the respondent is not adequate and as such the same may be enhanced.

6. I have carefully considered the submissions made by the learned counsels for the parties and I have also gone through the alleged affidavit, dated 14th April, 1979 of the father of the deceased, which has been produced today by the learned counsel for the respondent and kept on record. The punishment provided under section 304-A, on the date of the incident, admittedly was two years or fine, but in the present case, the learned trial Court awarded imprisonment till rising of the Court as well as imposed a fine of Rs. 4,600 and in default of payment of fine, imprisonment for a period of six months was also awarded. The respon dent paid the fine, from which a sum of Rs. 4,000 was to be paid to the legal heirs of the deceased as compensation. Beside this, prima facie on the basis of the affidavit of the father of the deceased, he had received a further sum of Rs.4,500 by way of compensation on account of the terms of compromise arrived at with the respondent, in connection with the death of his son.

7. Keeping in mind the above position, I do not find the sentence awarded to the respondent as completely inadequate, keeping in view the punishment, which was provided under section 304-A, Cr. P. C., at the time of the incident, which could have been only fine. In the present case, the learne8 trial Court beside imposing fine has also sentenced the respon dent to imprisonment till rising of the Court. The cases cited by the learned counsel for the respondent fully support the contentions of the learned counsel, that no grounds for enhancement of the sentence in the circumstances and the facts of the present case are available on record of the learned trial Court, which is available before me and the learned counsel for the respondent has taken me through the same. I also find, that it was the duty of the prosecution to have at least examined the doctor to establish, that the deceased died due to the injuries received by him the accident in question, in spite of plea of guilt made by the respondent, as in the absence of such evidence, the plea of the guilt of the respondent would not by itself establish, that the deceased died on account of the injuries received by him, in accident in question.

8. Therefore, keeping in view all the above facts, which are on record of the learned trial Court and taking into consideration the alleged compromise arrived at between the father of the deceased and the respon dent No. 2, which is mentioned in the affidavit dated 14th April, 1979 of the father of the deceased and the said affidavit has been attested by the Notary Public, I withdraw the suo motu notice for enhancement of the sentence issued to the respondent and consequently dismiss the above suo motu revision, as in my opinion sentence given to the respondent is not grossly inadequate or perverse.

M. Y. H. Order accordingly.

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