P L D 1962 (W (PLP)

(5) A bruise, 13" x 9", on the back of chest, on right side including upper part of right buttock. (6) A bruise, 6" x 5", on the right leg, in its lower part, includ ing ankle, in its front. (7) An abrasion, " x ', on the right chin, in its middle. (8) An abrasion. " x ", on the right knee in front. (9) A bruise, 6" x 4", on the left knee, in front. (10) A bruise, 7" x 3", on left leg, in its lower part. (11) A bruise, 6" x 5 ", on the back of left elbow, including the adjacent part of upper and forearms. (12) The right eyelids were bruised, 3" x 2". On internal examination it was found that the soft parts beneath the injuries an both sides were heavily bruised, and blood was present on surface beneath the skin. The pleura was heavily congested on both sides. The larynx and trachea were congest ed. The right and left lungs were heavily congested. The peri cardium and the heart were congested. The soft parts of the abdominal wall were heavily bruised. The peritoneum, mouth, pharynx, Oesophagus, diaphragm, stomach, pancreas, liver, spleen, kidneys and the small and the large intestines were con gested. Death in the opinion of the doctor was due to shock and haemorrhage caused by multiplicity of extensive injuries as mentioned above. Injuries Nos. 1 to 5, which were grievous, were sufficient in the ordinary course of nature to cause death.

4. At the trial, Khan Muhammad, Ghulam Akbar and Baru gave direct evidence concerning the commission of the crime. Khan Muhammad also deposed to the motive.

5. The appellants denied that they killed Ghulam Qasim They also denied the story in regard to the motive. They pleaded enmity with Khan Muhammad and stated that during the election to the Basic Democracies they helped Khadim Husain who opposed Khan Muhammad. They said with regard to Ghulam Akbar that he deposed against them at the instance of Khan Muhammad, being under his influence. The appellants charac terised the evidence of Baru as false. They relied on certified copies Exhs. D. B. and D. C. of entries in the register of births and the extract Exh. D. D. from the marriage register to prove that Mst. Fateh, sister of Khan Muhammad, aged 26 years, had been married in 1956, to Ghulam Qasim, who was aged 30 years, at the time of his death.

6. For the appellants it has been argued with reference to the Injury statement prepared by the investigating officer of Ghulam Qasim deceased that the doctor who conducted the post mortem examination mis‑took post‑mortem staining for marks of injuries. We have scrutinised the injury statement and find that there is no substance in the argument. The investigating officer noted down the discolouration of eyelids and also of the skin on the back of the chest downwards, which was due to infliction of numerous injuries with sticks. The doctor who conducted the autopsy was not put a single question by way of cross‑examination to prove that he mistook post‑mortem staining as marks of injuries. We have looked into the statement of the medical witness and are of the opinion that the injuries described as sheets of bruises were probably the result of unaccountable lathi marks.

7. Next, it is urged that Khan Muhammad was responsible for the death of Ghulam Qasim, because the latter did not take Mst. Fateh to his house after the marriage, which took place as far back as 1956. The argument is wholly devoid of force as there is not a title of evidence on record to prove that the relations between Ghulam Qasim and Khan Muhammad had been strained on that account. The evidence is that Khan Muhammad was unable to make arrangements for the rukhsati of his sister last year and contemplated sending her to the house of her husband after the harvesting season, but the unfortunate man was done to death earlier by the appellants.

8. Thirdly, it is contended that the deceased was done to deans somewhere during the night and was brought home in the morning when a hakeem was called and he administered some spirit to the deceased to revive him. Neither the so‑called hakeem nor Bakha Mochi, who is alleged to have given some spirit to Ghulam Qasim, was called as a witness and we find no evidence whatsoever on the record in support of the argument, which we repel. Had Ghulam Qasim been assaulted by Khan Muhammad and others to kill him, there was no point in his sending for Bakha Mochi or the hakeem to revive Ghulam Qasim when he was on death's door after the fatal assault on him.

9. Lastly, it was urged that the ocular evidence is insufficient to base conviction on inasmuch as it consists of witnesses of whom Khan Muhammad has enmity with the appellants, Ghulam Akbar is a child, who is under the influence of Khan Muhammad, and Baru is unworthy of credit as he is a previous convict. The so‑called enmity with Khan Muhammad is based on the sugges tion that when he was appointed a Lambardar in place of his father, Murid Husain, the son‑in‑law of Falak Sher appellant, and Fateh Sher had also applied for being appointed as a Lambardar in place of Ali Muhammad. The suggestion was repelled by Khan Muhammad, and the appellants did not lead evidence, oral or documentary, to prove this assertion on their part. Similarly, the appellants were unable to prove that they helped Khadim Husain, who is brother to Murid Husain and who is alleged to have opposed Khan Muhammad in the election to the Basic Democracies. Khan Muhammad had denied this suggestion in cross‑examination. He stated that his opponent in the contest was Allah Ditta and not Khadim Husain. In the absence of evidence to disprove what Khan Muhammad stated we are prepared to believe him. He is closely related to the appellants. Falek Sher and Fateh Sher are his second cousins on the paternal side, while Gul Muhammad and Nur Muhammad appellants are the sons of Falak Sher. Similarly, Baru (P. W. 5) is related to the appellants. Falak Sher's sister's daughter, Mst. Malukan, was married to the ‑brother of Baru. Falak Sher's mother's brother's daughter, Mst. Siani, is married to Masti, a brother of Baru. The house of Baru is close to the place of the occurrence, and as such he is a natural witness. Khan Muhammad and Ghulam Qasim own land jointly at Sher Garb. Khan Muhammad was on his way to the house of Ghulam Qasim and wanted to take him along to Sher Garb to see the crops. He heard the alarm when he reached near the house of Malik Muhammad Nawaz and rushed to the spot. The reason given by him regarding his presence on the spot at the time of the occurrence is convincing. Ghulam Akbar (P. W. 4) is the step‑brother of Ghulam Qasim and lived with him in the same house where the deceased was assaulted. He is a natural witness. The account of the occurrence given by the eyewitnesses is consistent, and the learned counsel for the appellants was not able to pick holes in their statements. We, therefore, accept the ocular evidence and have no hesitation in holding that the appel lants and none else was responsible for the death of Ghulam Qasim.

10. The question whether the offence fell under section 302 or under any other section of the Penal Code presents the least difficulty. We are clear in our mind that when along and merci less beating is given by the assailants to a completely unarmed adversary, and particularly when he had fallen down and had been incapacitated from offering any resistance, the offence committed would be murder if the victim succumbs to the injuries on the spot, as in the present case. In this view of the matter the con viction of the appellants under section 302 read with section 34, P. P. C. is correct, and is upheld.

11. Taking up the revision petition for the enhancement of sentence, we feel that there was a slight element of provocation as the deceased, in spite of the protest by Falak Sher, persisted in continuing the love intrigue which he carried on with Mst. Bakhtan, the wife of Falak Sher. In the circumstances we are of the view that it is not a fit case in which the extreme penalty should be Imposed on the appellants. We, therefore, dismiss the appeal as well as the revision petition for the enhancement of the sentence. A. H. Appeal dismissed.