1990 PLP 513 (SCMR)

Nemo for Respondents. Date of hearing: 18th April, 1989. SAAD SAOOD JAN, J.‑‑Zahid Hussain, respondent, was tried by the Additional Sessions Judge, Faisalabad, alongwith three others on a charge under section 302, read with section 34, of the Pakistan Penal Code for causing the death of Muhammad Hayat deceased. The learned Additional Sessions Judge acquitted the co‑accused but convicted the respondent of the said charge and sentenced him to suffer death and pay fine. On appeal and reference the High Court altered his conviction to one under section 304, Part II of the Pakistan Penal Code and reduced the substantive sentence to rigorous imprisonment for a period of 10 years. The petitioner who is the grandson of the deceased seeks leave to appeal from the judgment of the High Court.

2. The occurrence took place on 26‑6‑1983 at 4.30 p.m. in Chak No.102/JB, Mundi Burj, Chak Jhumra. It was alleged by the prosecution that as sequel to an incident which had taken place earlier in the same afternoon, the respondent together with the co‑accused came with guns at the shop of the deceased. The respondent fired at the petitioner. Instead of the petitioner the shot hit the deceased in his chest who died at the spot.

3. While altering the conviction of the respondent from section 302, P.P.C. to Section 304, Part lI, P.P.C., the learned Judges of the High Court observed:‑ "Now we proceed to determine the criminal liability of Zahid Hussain appellant. In the peculiar circumstances of the case, we feel that the act of killing of Muhammad Hayat deceased does not amount to murder but was culpable homicide not amounting to murder. Zahid Hussain had nomotive against Muhammad Hayat deceased; that he came across with Farooq Hussain complainant all of a sudden; that there was exchange of rebukes and dangs blows between Zahid Hussain and Farooq Hussain immediately before the killing of the deceased; that Zahid Hussain did not fire at Muhammad Hayat deceased. He in fact Fired at Farooq Hussain which missed target and hitting Muhammad Hayat resulting in his death and that according to the prosecution case Farooq Hussain had inflicted bamboo stick blow on Zahid which had also hit Mst.Sarwari aunt of the appellant."

4. In support of this petition it is contended that while tiring his gun, the intention of the respondent was clearly to kill the petitioner. The mere fact that instead of hitting the petitioner the fire found its target in the deceased would not make it as culpable homicide not amounting to marder. The learned Judges were therefore not right in taking the view that this was not a case of culpable homicide amounting to murder. This contention needs consideration. Leave to appeal is granted. The respondent may not be released during the pendency of this appeal. M.A.K./F‑135/S Leave granted.