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Petitioner: AMIR HUSSAIN VS Respondent: STATEHonorable Justice Aslam Riaz Hussain
1988 S C M R 1075
1988 S C M R 1075
Present: AsIam Riaz Hussain, Javid Iqbal and Saad Saood Jan, JJ
AMIR HUSSAIN‑‑Petitioner
versus
THE STATE‑‑Respondent
Petition for Leave to Appeal No.295 of 1987, decided on 30th March, 1988.
(On appeal from the judgment and order of the Lahore High Court, Lahore dated 20th July, 1987 in Criminal Appeal No.142 of 1983/Murder Reference No.54 of 1983).
Penal Code (XLV of 1860)‑
‑‑S.302‑‑Sentence‑‑Leave to appeal granted to consider question whether, when two persons fired at and killed another and deceased was only hit by one shot, can the murderers claim the benefit of lesser sentence under S.302, P.P.C. merely on the ground that one of them was a bad shot and missed the person at whom he is proved to have fired with intention to kill.
1985 .S C M R 181; P L D 1977 S C 446; 1984 S C M R 276 . And.1984 S C M R 169 ref.
M.B. Zaman, Senior Advocate Supreme Court, instructed by Ijaz Ali, Advocate‑ on‑Record for Petitioner.
Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for the Complainant/ Caveator.
Nemo for the State.
Date of hearing: 30th March,1988.
ORDER
ASLAM RIAZ HUSSAIN, J.‑‑Amir Hussain petitioner seeks leave to appeal against the judgment of the Lahore High Court, Lahore dated 20th July, 1987 dismissing his appeal in a case under section 302;1 P.P.C. The facts briefly are that Amir Hussain and Chan Pir are stated to have fired and killed Sakhawat Hussain Shah (deceased) at 7.30 a. m. on 8th of March, 1982. The trial Court convicted Amir Hussain petitioner under section 302, P.P.C. and sentenced him to death, but acquitted Chan Pir co‑accused.
2. Before us the learned counsel for the petitioner, relying on 1985 S C M R 181, P L D 1977 S C 446, 1984 S C M R 276 and 1984 S C M R 169, argued that since according to the prosecution both Amir Hussain and Chan Pir are stated to have fired at Sakhawat Hussain deceased and it cannot be said as to whose shot was fatal, therefore, Amir Hussain petitioner is entitled to the lesser sentence under section 302, P.P.C. The aforementioned authorities indeed A support his contention but what would also need consideration as to whether when two persons fired at and killed another, and the deceased is only hit by one shot, can the murderers claim the benefit of lesser sentence under section 302, P.P.C. merely on the ground that one of them was a bad shot and missed the person at whom he is proved to have fired with the intention to kill.
3. Leave is, therefore, granted to consider the questions mentioned in paragraph No.2, above.
S.Q./A‑208/S Leave granted.