1988 PLP 913 (SCMR)

JAVID IQBAL, J.‑‑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 Faruq Tanvir deceased nephew of t`e 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' R.I. 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. The occurrence took place on 27th November, 1982 in Chak No.67/10‑R, Police Station Khanewal. Both the respondents were arrested 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 td 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. Learned counsel for the petitioner argued that the injury had not only cut the illiac vessel but had also damaged peritoneum which p 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. 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. The appeal arising out of the present petition may be heard at Rawalpindi on any date in the month of April, 1988. M. I. /S‑126/5 Leave granted.