1. M. R. KHAN, J.-This appeal, by special leave, is directed against the judgment and order of a learned Single Judge of the High Court of West Pakistan, Karachi Bench, in Criminal Appeal No. 158 of 1966, by which the conviction of the appellant under section 307 of the Pakistan Penal Code and his further conviction under section 13 (d) of the West Pakistan Arms Ordinance, 1965 were maintained and his sentence under the former section was reduced from rigorous imprisonment for 7 years to rigorous imprisonment for 4 years and the sentence of the rigorous impri--sonment for one year under the latter section was confirmed.
2. The prosecution case was that on the night of the 31st Janu--ary 1965, P. Ws. Talib Hussain, Bhoro and Dodo went to a mosque in their village for Isha prayer. After offering prayers, Talib Hussain went to answer a call of nature, but his companions went back to their respective houses. Talib Hussain saw three persons standing in suspicious circumstances. On being challenged, those persons ran away. Thereafter, Talib Hussain took Bhuro, Dodo and others with him and all of them pursued those persons after tracking their foot-prints with torch lights. The foot-prints led them to a place called Golimar at a distance of about 3/4 mile where the appellant Abdul Latif and his two companions Khamiso and Haji were hiding. On seeing them, those three persons came out of the hiding, and they were then recognised by them in the flash of torch light. When those persons started run--ning away, Talib Hussain caught hold of Khamiso and grappled with him. On Khamiso's shout for help, Abdul Latif fired a pistol shot which hit Talib Hussain and caused pellet injuries on various parts of his body which were found on medical examination to be simple in nature. Talib Hussain released Khamiso from his grip and thereafter Abdul Latif and his co-accusedth ran away. An F. I. R. To the above effect was lodged by Talib Hussain at the police station at a distance of 1/2 mile at 11 p.m. The same night.
3. The appellant Abdul Latif and his co-accused Khamiso and Haji were accordingly placed on trial for offences under sec--tion 307/34 of the Pakistan Penal Code and under section 13 (d) of the Arms Ordinance. The learned Sessions Judge, Nawabshah convicted all three accused under section 307/34 for having attempted on the life of Talib Hussain and sentenced them to rigorous imprisonment for 7 years each. Each of them was also fined Rs. 50 under the said section and, in default, to further rigorous imprisonment for 3 months. Abdul Latif was further convicted under section 13 (d) of the Arms Ordinance and sentenced to one year's rigorous imprisonment. The sentence in his case were to run concurrently.
4. On appeal, a learned Single Judge of the High Court acquitted Khamiso and Haji but, as already stated, maintained the convic--tions of the appellant under section 307 of the Code and also under section 13 (d) of the Arms Ordinance. His sentences were also maintained with the modification that the sentence for 7 years' rigorous imprisonment under section 307 of the Code was reduced to 4 years.
5. The defence of the appellant was one of denial and false implication on account of enmity with Wadero Nabi Bakhsh alias Naban Ghanghro, a zamindar of all the prosecution witnesses.
6. The conviction of the appellant rested on the evidence of Talib Hussain (P. W. 1), Bhuro (P. W. 2) and Dodo (P. W. 3) of whom Talib Hussain was found on medical examination to have sustained fire- arm injuries.
7. Mr. A. K. Brohi, learned counsel for the appellant submits that the learned Single Judge of the High Court misread the evidence with regard to identification of the appellant and his co-accused and that the misreading of the evidence resulted in a grave miscarriage of justice. The learned Judge, while dealing with the case against the appellant, observed as follows :-- "The question whether these injuries were caused by Abdul Latif is, however, dependent upon the evidence of Talib Hussain P. W. 1, Bhuro P. W. 2 and Dodo P. W.
3. All these witnesses have with unanimity stated that they knew Abdul Latif before the incident and had identified him on torch light."
8. Mr. Brohi has seriously challenged the correctness of the above observation of the learned Judge and contends that the same is factually incorrect. The learned counsel has taken us through the evidence of the P. Ws. 1, 2 and 3. A careful exami--nation of the evidence of these witnesses reveals that they could not recognize as to who were the alleged culprits whom they had followed and who among them fired a pistol shot at P. W. Talib Hussain. P. W. Talib Hussain stated in cross- examination :- "It was the dark night when the incident took place. For the first time I had seen the accused from the distance of about 15 paces. I had no torch with me."
9. It is quite obvious from the above statement that Talib Abdul Hussain could not recognise any of the three persons said to have Stare en seen by him for the first time when he went to answer the 11 of nature. Again, in cross-examination, Taob Hussain admitted that the accused persons were not known to him from before the incident. Therefore, the question of his recognising the accused persons including the appellant did not arise. In this use, no test identification parade was held.
10. Thus, the alleged identification of the appellant by P. W. Talib Hussain, in view of is own statement in cross-examination, was very doubtful.
11. Although, P. W. Talib Hussain admitted that the accused persons were not known to him from before, be nevertheless mentioned their names and their father's names with precision in the F. I. R.
12. It is contended by Mr. Brohi that Wadero Nabi Bakhsh, the landlord of the prosecution witnesses had been connected by Talib Hussain before the lodgment of the F. I. R. And that the names of the accused persons with their fathers' names were mentioned in the F. I. R. At the instance of the said landlord. Talib Hussain admitted in cross-examination that they had gone to inform Wadero Nabi Bakhsh about the incident. Therefore the contention of Mr. Brohi with regard to the naming of the accused persons with their fathers' names at the instance of Wadero Nabi Bakhsh does not appear to be unfounded.
13. The evidence of P. W. 2 Bhuro also goes to show that they could not identify the accused persons.
14. This witness stated in the committing Court :- "As we flashed the torches the accused ran away and we did not identify them."
15. He was duly confronted with this statement in the committing Court. His evidence at the trial with regard to the alleged identifi--cation was, therefore, of very little value.
16. P. W. 3 Dodo stated in cross-examination that the complainant Talib Hussain told them the names of the culprits at Golimar where they had been found out by them by tracking. It has already been seen that the complainant Talib Hussain himself could not recognise the accused persons. That being so, the giving out the names of the accused persons by Talib Hussain at the hiding place could not be true. Having regard to the above evidence of P. Ws. 1, 2 and 3, it cannot be said that the learned Single Judge was right in proceeding on the footing that those witnesses unanimously stated that they had known the appellant from before the incident and identified him. There was obviously misreading of the evidence by the learned Judge.
17. The identification of the person who had fired a pistol shot at Talib Hussain not having been established, the appellant's convictions and sentences are liable to be set aside on this ground alone. Even otherwise, there is substantial legal ground for which the convictions and the sentences of the appellant cannot be sustained. The complainant party tracked the foot-prints of the three persons said to have been seen by Talib Hussain in suspicious circumstance. Obviously, they were following the said three persons with a view to apprehending them. On the facts of this case, no non-bailable and cognizable offence was committed by those three persons in the view of the P. Ws, 1, 2 and 3 before they were being tracked. Hence, the said witnesses belonging to the complainant party had no right to undertake a pursuit of those persons in order to apprehend them. This is patently clear from the provisions of section 59 of the Code of Criminal Procedure.
18. Even if it is assumed that P. Ws. 1, 2 and 3 knew the accused persons from before and recognised them, P. W. Talib Hussain had no business to catch hold of Khamiso, a co-accused of the appellant and grapple with him. Khamiso did not commit any non-bailable and cognizable offence in the view of Talib Hussain. Talib Hussain was not, therefore, entitled under section 59 of the Code to arrest Khamiso. With the illegal arrest of Khamiso, there accrued a right of private defence of the accused persons. In order to secure the release of Khamiso, the appellant, if he was at all recognised and identified by the witnesses, had the right of using such force as was reasonably necessary to secure the release of his companion Khamiso. In this case, simple injuries were caused to Talib Hussain, although those were fire-arm injuries. It is thus on the ground of self- defence also that the appellant is entitled to an acquittal.
19. It may be added that as regards the conviction under sec--tion 13 (d) of the Arms Ordinance, there was no recovery of any pistol in this case. In the absence of any recovery of a pistol from the possession of the appellant, it can be hardly said that he is guilty of offence under section 13 (d) of the Arms Ordinance.
20. In the result, we allow the appeal and set aside the convic--tions and sentences of the appellant.
21. The bail bond furnished by him is discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.