P L D 1984 Peshawar 51 (PLP)

Muhammad Azam Kim for Petitioner. Amirzada Khan, A. A: G. for the State. Date of hearing : 5th October, 1983. The accused petitioner herein was charged for an offence under section 304/338/279, P.P.C. for having killed a * man with his vehicle while he was driving the same and as he had confessed to the guilt before the learned Magistrate, he was convicted and sentenced as under by the learned Mag istrate, vide his order, dated 23‑2‑1983 which is reproduced below :‑‑ "Accused present. Formally charged to which pleaded guilty. Taking his plea of guilt into consideration, I convict and sentence him to six months rigorous imprisonment and one thousand rupees fine under section 304‑A, P.P.C. and also six months' R. I. and one thousand rupees fine under section 338, P.P.C. Both the sentences to sui. concurrently. In default of fine, the accused to undergo, further imprisonment (rigorous) for one month, under section 338, P.P.C. and one month under section 304‑A, P.P.C. Out of the fine, if recovered, five hundred to be paid to the injured, Suja Gul and one thousand to the heirs of deceased. Driving licence stands cancelled, and con cerned authority informed accordingly. Case property be returned. Case file to R/R. A copy of this order be given to accused free of costs." As by this order the accused‑petitioner was aggrieved, he moved to the Court of Session in appeal and the learned Sessions Judge while dismissing the appeal amended the order of the learned Magistrate to the extent that the fine imposed upon the accused‑petitioner will be recover able from his person as well as from his property or in default of pay ment, he will undergo R. I. instead of simple imprisonment, vide his order, dated 9‑3‑1983. The accused‑petitioner still feels aggrieved, therefore, he has filed the present criminal revision. I have heard the learned counsel for the parties and perused the record. It is contended by the learned counsel for the accused‑petitioner that legally the charge‑sheet served upon the petitioner is defective. He pointed out that instead of mentioning in the charge‑sheet that the accused petitioner had committed offence under section 304‑A, P.P.C, it was merely mentioned 304, P.P.C. therefore, according to the learned counsel, the im pugned orders of the two Courts below cannot be sustained in law. This contention is formal and technical rather than real and substantial in the circumstances of the case. The accused‑petitioner is charged for hav ing killed a man with his vehicle, therefore, the offence was obviously under section 304‑A, P. P. C. and if the letter 'A' Has not added to 304 so that the section should read 304‑A, P.P.C. it should not damage the prosecution case, if otherwise the procedure was properly followed by the Court. The contention. of the learned counsel, therefore, does not assume significance and if instead' of 304‑A, P.P.C. only 304, P.P.C. was mentioned in the charge‑sheet served upon the accused‑petitioner by the Court, it was a mistake apparent on record which can be cured under section 537,' Cr. P. C. without any further proceed ings to be taken in the case. The learned counsel for the accused‑petitioner next contended that as the, vehicle was not examined, the accident in which the deceased was allegedly killed was not proved: I am astonished at this contention of the learned counsel. The accused petitioner had himself confessed to the guilt before le the trial Court. As the accused‑petitioner bad confessed to the guilt, there was no need for the learned counsel to have raised the question before this court that the accident was not proved. The learned counsel for the accused lastly contended that nobody has come forward as a witness to claim that be had identified the dead body, of the deceased and also that in any case the cause of death of the deceased was not ascertained. I have not been able to appreciate this contention. If the learned counsel means to say that as the prosecution did not produce any witness to depose that he had identified the dead body of the deceased and for that matter, it was not the deceased in the present case who was killed but some other person, he is terribly mistaken in this behalf. The learned counsel does not seem to appre ciate, muchless to realise, as to what significance he has attached to his contention. I went to bring to his knowledge that as a matter of fact, the deceased was killed in the accident and his death as a result of accident was confirmed by the medical report which also answers his contention that the deceased did not suffer his death on bed due to some illness but in the accident as alleged by the prosecution. Even otherwise, I am at a loss to understand as to what ‑has impelled the learned counsel to doubt the cause of death of the deceased in the accident when the accused petitioner had himself confessed to the guilt that due to his negligence, while he was driving the vehicle the deceased was hit with the vehicle and as a result he suffered his death.. Having failed to disprove the prosecution case on merit, the learned counsel turned round to say that the heirs of the deceased have forgiven the accused‑petitioner and a compromise in this behalf has been reached be tween the parties which is attested by the Political Agent of Malakand Agency. Thus, according to him, the accused‑petitioner is not liable to remain in jail for undergoing his imprisonment. He was asked as to whether the heirs of the deceased are present in Court so that it might be confirmed from them that they have forgiven the accused‑petitioner as a matter of grace and in this behalf no undue influence or pressure was brought to bear upon them. None of the heirs of the deceased was present in Court and as a matter of fact, the learned counsel for the accused peti tioner did not make a commitment to the effect that any of the heirs of the deceased would appear before this Court to affirm that they have for given the accused‑petitioner in terms indicated above. It should thus be clear that even if a compromise has been reached between the parties, the presump tion would be that deceased party was made to agree to the compromise out of compulsion. Be that as it may the compromise between the parties in the present case is not permissible in law at this stage when the accused‑petitioner has already been convicted by the trial Court and his appeal against hiss conviction has also been dismissed by the appellate Court. All I observe is that if the parties have genuinely compromised, a reference in this behalf can bet made to the Government for accepting the same and if accepted the accused petitioner can be released. As a result, I uphold the convictions of the accused‑petitioner under sections 304‑A, P.P.C. and 338, P.P.C. However, the sentences awarded to him under the said sections seem to me somewhat excessive which require modi fication as under :‑ The sentence of 6 months awarded to the accused‑petitioner under section 304‑A, P.P.C. is reduced to 3 months' R. I. and the fine of Rs. 1,000 is re duced to Rs. 500 or in default 15 days R.‑ I. and so his sentence of 6 months under section 338, P.P.C. is reduced to 3 months and the fine of Rs. 1,003 is reduced to Rs. 500 or in default 15 days' R.

1. The sentences shall run concurrently. The record shows that while: the accused‑petitioner was under‑trial he remained in judicial lock‑up for one month and 16 days, which period shall be counted towards his substantive period of imprisonment. He is present in Court. He shall be taken in custody and sent to jail for under going his imprisonment.. This criminal revision with the above ‑ modification is accordingly dismissed. M. A. K. Order modified.