1. MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court has arisen out of the following facts and circumstances as recorded in the leave grant order: "This petition for leave to appeal has been filed by Shafey Ali complainant-petitioner against Asrar Beg and Islam Beg respondents in the following circumstances: Both Islam Beg and his son Asrar Beg respondents were tried for an offence under section 302/34, P.P.C. For the murder of Taruq Tanvir deceased nephew of the petitioner-complainant, and the trial Court vide judgment, dated 13th February, 1983 convicted only Asrar Beg respondent under section 302, P.P.C. And sentenced him to death plus fine. But acquitted Islam Beg respondent. On appeal by Asrar Beg respondent the Lahore High Court Multan Bench vide its judgment, dated 16th April, 1985 partly accepted the appeal by altering the conviction of Asrar Beg respondent from one under section 302 to that under section 304, Part II, P.P.C. And reducing his sentence from death to ten years' RI plus fine of Rs.10,000. Revision of the present petitioner against the acquittal of Islam Beg respondent was dismissed. The present petition is for enhancement of sentence of Asrar Beg respondent and against acquittal of Islam Beg respondent.
2. "The occurrence took place on 27th November, 1982 in Chak No.67/10-R, Police Station Khanewal.
3. Both the respondents were arreseted on 4th December, 1982. At the instance of Asrar Beg respondent was recovered blood-stained dagger but according to the report of the serologist the origin of the blood could not be determined. According to the medical evidence the deceased received two stab wounds on the right and left buttocks. The injuries had been caused with sharp- edged weapon. The left buttock injury was simple but the right buttock injury had damaged peritoneum and cut the right illiac vessels. This injury was sufficient to cause death in the ordinary course of nature. The motive for the crime was that the deceased had appeared as a witness against Islam Beg respondent, father of Asrar Beg respondent, in a case under section 307, P.P.C. And for this grudge he was assaulted and injured. According to the eye-witnesses account the respondent assaulted the deceased and grappled with him. In the process of grappling Islam Beg respondent exhorted his son Asrar Beg respondent to kill the deceased. Thereupon. Asrar Beg respondent who was armed with a dagger gave two blows on the right and left buttocks of the deceased. The appellate Court altered the conviction and sentence of Asrar Beg respondent for the reason that he had acted under the influence of his father and that he had no intention to kill the deceased as he did not choose vital part of the body of his victim, but caused two blows on his non-vital parts. However, in the course of the blows the illiac artery was cut, that he was not expected to have full knowledge that with such a deep injury his victim would die.
4. "Learned counsel for the petitioner argued that the injury had not only cut the illiac vessel but had also damaged peritoneum which indicated the force with which it was given and that therefore there was no justification for altering the conviction and sentence of Asrar Beg respondent. It was further submitted that Islam Beg respondent was directly connected with the motive and therefore he should have also been convicted and sentenced under section 302/34, P.P.C. For having instigated his son to attack the deceased.
5. "After hearing the learned counsel we grant leave in this case only in respect of Asrar Beg respondent, but the petition in respect of Islam Beg respondent is dismissed:"
6. Learned counsel for the appellant to be fair to the respondent/accused/convict who is unrepresented has himself pointed out that while the view taken by this Court in Munawar Hussain v. The State (1983 SCM R 1165) goes against the appellant the view taken in Mukhtar Ahmad v.
7. Muhammad Ilyas (1986 SCM R 634) is, prima facie, in his favour. Learned counsel for the appellant has tried to distinguish the case of Munawar Hussain by arguing that the injury in that case was though on the thigh but it was so located that the knowledge and intention regarding the femoral artery could not have at all been attributed to the accused and thus the conviction under section 304, Part I, P.P.C. Was possible in that case. As regards the case of Mukhtar Ahmad which was held to be a case under section 302, P.P.C. Learned counsel pointed out that the relevant injuries were on the back of the thigh and so located as fatal the injury in the present case is also located.
8. Therefore, according to him the present case also is one of murder under section 302, P.P.C.
9. As already pointed out in the leave grant order both the injuries on the deceased which were attributed to the respondent/convict are on his buttocks. It is correct that the lower part of the buttock is connected with the upper thigh and the upper part of the buttock is connected with the illiac region and depending upon the circumstances in each case (particularly the exact location of the injury) would have to be considered for determining the knowledge and/or intention of the assailant. In this case we having seen marking of the two injuries on the buttocks of the deceased, by the doctor in his report, are satisfied that the requisite knowledge/intention cannot be attributed to the assailant for bringing the case within the mischief of section 302, P.P.C..On the other hand a possibility cannot be excluded that the assailant intentionally avoided the vital parts of the body and selected such part which are well-known as 'not containing any vital artery. It was perhaps on account of the weapon having gone slightly deeper and in an awkward direction which might not, have at all been known or visualised by the assailant, that the death took place.
10. If this feature of details regarding the injuries would have been present before the Bench granting leave to appeal, it might not have been granted. Accordingly, we consider it a fit case for withdrawal of the leave grant order. This appeal thus, with the above order fails and is disposed of.
11. M.B.A./S-659/S Leave withdrawn.