1. SALAHUDDIN AHMED, J.-This appeal by special leave is from the Judgment and order of a Division Bench of the Lahore High Court, Bahawalpur Circuit, maintaining the conviction of appel--lant Niaz under sections 302/307/366/376 of the Pakistan Penal Code, and confirming the sentence of death passed on him under section 302 of the Code, and maintaining the sentences of 7 years, 5 years and 4 years rigorous imprisonment respectively under sections 307, 366 and 376 of the code.
2. The occurrence took place in an open field in Mauza Sohail Singh situated at a distance of 12 miles from Police Station Minch. In the District of Bahawalnagar on the :,rd of December 1967, at Peshiwela (about 2/3 p. m.). A first information report was promptly lodged with the said police station by P.
3. W. 14 Noor Ahmad, brother of Wah Muhammad deceased, on the same day at 6-15 p. m.
4. The prosecution story is that Wali Mohammad had two daughters, P. Ws. Mst. Said Begum, who was married, and Mst. Arshan, t 8/ 19 years old who was unmarried at the time. The appellant was a married person, having married the daughter of a maternal uncle of the daughters of the deceased. Nevertheless, he wanted to marry P.W. Mst. Arshan, but the deceased refused to accede to his request. About one year and nine months before the occurrence as a result of the appellant's application under section 100 of the Code of Criminal Procedure Mst. Arshan bad been produced before a Magistrate but she refused to go with the appellant. About eight days before the occurrence the appellant along with co-accused Ahmed Din, who has since been acquit--ted, approached the deceased again and asked for the hand of Mst. Arshan, but was again refused.
5. The appellant threatened that he would gain his object by force, and left.
6. On the day of occurrence P.Ws. Mst. Said Begum and Mst. Arghan were picking chillies in their field, while their father the deceased and uncle P. W. Noor Ahmad were digging Shakar Kandi in a nearby field. The appellant who was armed with a .12 bore gun along with his other companions, namely, Faiar Ahmad, Din, Madad Ali, Amin, Nur Hassan, Bagh Ali and Rafiq, who were armed with guns, pistols and hatchets suddenly appeared on the scene and caught hold of Alst. Arshan with a view to carry her away forcibly. Both the girls raised an alarm and put up a struggle. The appellant pushed aside P. W. Mst. Said Begum and succeeded in forcibly taking away Mst. Arshan and making her sit on one of the three mares upon which they had come to the scene. The alarm attracted P. W. Nur Ahmad and Wali Muhammad (the deceased) and P. W. Sadiq and D.W. 1 Allah Yar to the spot. These people wanted to rescue Mst. Arshan but the accused threatened them with dire consequences. The accused then left the place of occurrence carrying Mst. Arshan with them.
7. Wali Muhammad and P. W. Nur Ahmad and D. W.1 Allah Yar, however, pursued them for about 7/8 killas when co-accused Ahmad Din shouted to the appellant to fire at Wali Muhammad. The appellant then fired at Wali Muhammad and hit him on the forehead as a result of which he died on the spot. The appellant fired once again and hit D. W. Allah Yar on his right arm. The accused then managed to make good their escape.
8. All the accused took away Mst. Arshan to the dera of Saif Ullah, wherefrom she was driven to Lahore. From Lahore she was taken to Phalia with the help of one S. I. Police, who was sent by the Superintendent of Police Gujrat, who happens to be the brother of the said Saif Ullah. She was kept for five months at Phalia and was thereafter taken to village Bara Musa. After; about ten months of her abduction the police went to Bara Musa and recovered her from there in the absence of Niaz appellant. Mst. Arshan made a statement and was also medically examined by the lady doctor, who reported that Mst. Arshan was subjected to sexual intercourse recently.
9. The prosecution case is supported mainly by tithe ocular evi--dence of P. W. Nur Ahmad brother of the deceased and P. Ws.. Said Begum and Mst. Arshan the two daughters of Wali Muhammad deceased, and P. W. Muhammad Sadiq. The prosecu--tion. Also relied upon the recovery of gun (Exh. P. 4) from one Nur 13assan (not an accused) and the recovery of two empties from the spot (Exhs. F. 1 and P. 2) which were subsequently found by the Arms Expert to match the gun Each. P.4.
10. The medical evidence as well as the abscondence of the accused were also relied on in --support of the ocular evidence.
11. The appellant surrendered at the police station on the 8th of September 1968. Earlier on the 4th of May 1968, one Nur Hassan; (not examined) produced the gun Exh. P. 4 which was without a licence and which was seized under recovery memorandum Exh. P.C. The two aforesaid empties were recovered from the spot on the morning of the 4th of December 1967, under recovery memo. Exh. P.
12. D. And they were received in the Malkhana on the same day and despatched from the Malkhana to the Forensic Science Laboratory on the 26th of December 1967, and were received at the laboratory on the 30th of December 1967. The appellant led the police party to a sugarcane field and produced from there the gun Exh. P. 4 on the 13th of September 1968, in presence of the recovery witnesses.
13. P. W. Mst Arshan was recovered on the 27th of August 1968, from village Bara Musa in the District of Gujrat by P.W. 18 Abdul Razzaq who was accompanied by P.W. 1 Allah Nawaz. She was medically examined on the 2nd September 1968.
14. The medical evidence disclosed one gunshot wound measuring 1/2" x 1/4" x bone deep on the right side of the forehead of Wali Muhammad deceased about 1" above the right eye-brew. According to the opinion of the doctor this alone was sufficient -to cause death. D.W. Allah Yar had one gunshot wound measuring --" x -----x 1----- on the back of right wrist-joint. Upon the X-Ray report the injury was declared as grievous in nature.
15. P. W. Muhammad Sadiq is distantly related to P. W: Nur Ahmad and the deceased. He admitted litigation wish the two accused persons Nur Hassan and Rafiq and he was accordingly not relied on by the trial Court.
16. P. W. Nur Ahmad is brother of the deceased. He admitted' that accused Nur Hassan instituted a criminal case against P. W. Sadiq and Muhammad Ali for setting on fire the house of the accused.
17. He further stated that lour Hassan accused and P. W. Sadiq, had litigation over some lands and both were bound down in cross cases.
18. P. W. Mst. Said Begum is the elder daughter of the deceased. There is a slight inconsequential discrepancy in her evidence as to how P. W. Mst. Arshan was made to sit on the mare, and who made her do so.
19. P. W. Mst. Arshan is the younger daughter of the deceased. She was abducted by the appellant with the help of his companions and was recovered by P. W. 18 Abdul Razzaq from a dera in village Bara Musa in the District of Gujrat.
20. Both the daughters are natural witnesses and P.W. Mst. Arshan has suffered at the hands of appellant Niaz. They had no previous enmity with the appellant and their presence at the occurrence has been amply proved by reliable evidence. D. W. Allah Yar also proved their presence.
21. The presence of P.W. Nus Ahmad is natural and probable having regard to the fact that it was a winter season and he was expected to be engaged in his field. The abduction of Mst. Arshan and her subsequent recovery lend full support to the evidence of P. Ws. Nur Ahmad, Mst. Said Begum and Mst. Arshan.
22. The ocular evidence is further corroborated by the fact that the appellant did have a motive to forcibly take away P.W Mst. Arshan and, in fact, he did so. The medical evidence also,, fully supported the, prosecution case in regard to the manner of the injuries inflicted upon the deceased and D.W. Allah Yar. The evidence establishes the fact that the victims were injured when they were pursuing the culprits while the latter were escaping on the back of mares and it is likely that the shots were fired from a distance with the result that only one pellet in each case struck the victims and caused the death of one of them, namely, Wali Muhammad.
23. The defence case that the accused were falsely implicated due to the enmity has not been accepted by the two Courts and in our opinion rightly so. The defence case put in the mouth of D.W.
24. Allah Yar lends support to the major part of the prosecu--tion case. The defence witness, however, for the first time said before the Court of Sessions that the assailants had muted their faces. No such suggestion was given to any one of the prosecution witnesses and none of the accused said so in his examination under section 342 of the Code of Criminal Procedure. It is of interest to note that he could not give any reason why he did not lodge report about his injury. The obvious reason for not doing so was that he accompanied the informant to the police station. He, of course, denied that he had effected a compromise with the accused. His evidence shows clearly that he was siding with the accused.
25. It is true that the evidence of the eye-witnesses have not been relied upon so far as the other seven accused are concerned. But it appears from the evidence that their cases were distinguishable and there were certain matters on record on the basis of which benefit of doubt could reasonably be given to them. The learned Judges of the High Court have dealt in details with the distinguishing features of their case, and we do not think it necessary to repeat them. The circumstances of the case lend support to the prosecution case that several persons joined appellant Niaz in the commission of the various crimes. If for one reason or another it was not felt safe to rely on the evidence of identity of the persons involved in the adventure other than Niaz the prosecution case is riot thereby affected or falsified. We need only add that the corroboration available in the case of appellant Niaz were not available in the case of the other accused persons. These corroborations are, as stated already, the motive, the medical evidence, and the abscondence of Niaz As regards the semi---digested food in the stomach of the deceased it is consistent with the evidence of P. W.
26. Mst. Said Begum, the elder daughter that the deceased took his meals at about noon of the day of occur--rence. P. W. Mst. Arshan, the younger daughter, however, said that her father took his meals in the morning. This does not falsify P. W. Mst. Said Begum for the deceased might have taken meals in the morning as well as at noon.
27. Speaking for ourselves we might have relied on the recoveries of the empties and the gun Exh. P. 4 and the matching of the empties with the said gun. Since, however, they have not been relied on by the two Courts, we have excluded them from our consideration in arriving at our conclusion.
28. We see no reason to interfere with the conviction and sentences of the appellant. The appeal is accordingly dismissed.