1. MUHAMMAD GUL, J.-The three appellants herein alongwith one Muhammad Nazir were convicted under section 304/34, P. P. C. By a Sec--petition 30 Magistrate, Rawalpindi, and sentenced to four years' R. I. Each, which on their appeal was reduced by the learned Additional Sessions Judge, Rawalpindi, to three years' R. I. Each. On a revision to the High Court, a learned Single Judge by judgment dated 15-12-1969, acquitted Muhammad Nazir, but upheld the convictions and reduced sentences of the appellants.
2. Leave was granted to the appellants for the re-examination by this Court of the evidence in the case for the safe dispensation of justice.
3. According to the prosecution the incident took place at digerwela, on the 16th November, 1967, in the area of Dhcke Galla, Dakhli Banhal, Police Station Kallar Sayeddan, District Rawalpindi. On that date, an infant grand--son of Abdul Karim (P. W. 1) who is also the first informant, was taken ill.
4. Abdul Karim took with him Khalil Ahmad (P. W. 2) and Mehrban (P. W. 7) to Dhoke Galla to bring Pir Manzur Husain for incantation to speed up the recovery of the infant. On reaching Dhoke Gallah Abdul Karim enquired from Ghulam Rasul (P. W. 3) a resident of the Ghoke about Pir Manzur Husain and he was told that the Pir had gone to village Salhar. On his return journey, the complainant and his two companions saw the three appellants and Muhammad Nazir coming from the opposite direction at a distance of about 50 yards. Of them, Khaliq and Ghulam Rabbani had a gun each and the other two had a stick each. Khaliq appellant No. 2 shouted a lalkara that Abdul Karim shall not be spared and fired the first shot which hit Abdul Karim on his left calf. Ghulam Rabbani fired the second shot which injured Mehrban in his chest. Khaliq appellant fired another shot which injured both Mehrban and Khalil P. Ws. Bagh A.I also exhorted his companions to finish Abdul Karim.
5. Nazir, the acquitted accused hurled a stone which hit Mehrban on his head. On the cries of the victims, Ghulam Rasul (P. W. 3) and Sawar Khan (P. W. 4) were attracted to the spot and are alleged to have seen the occurrence. At this stage the three appellants and Nazir disappeared from the scene.
6. The F. I. R. Was lodged by Abdul Karim at 4-30 p. m. On the following day, namely, 17-11-1957, at P. S. Kallar Syeddan, at a distance of 18 miles. The S. I. Reached the spot on 18-1-1967 and recovered three crime empties and took into possession two sticks produced by Bagh A.I appellant and Nazir.
7. The motive for the assault is stated to be the marriage of one Zarida Begum, a divorcee with Maqbul Husain, a nephew of Abdul Karim (P. W. 1). The woman's hand was also being sought by Bagh A.I appellant for marriage with one of his relatives. Bagh A.I was piqued by the marriage of Zarida Begum with Maqbul Husain and, therefore, attacked Abdul Karim and his companions.
8. The three appellants and their companion Muhammad Nazir pleaded not guilty and attributed their implication in the case to party factions in the village.
9. Besides the medical evidence the prosecution in proof of its case, examined Abdul Karim (P. W. 1), Khalil Ahmad (P. W. 2), Ghulam Rasul (P. W. 3), Sawar Khan (P. W. 4), Mehrban (P. W. 7) and Muhammad Sharif (P. W. 8). Ghulam Rasul and Sawar Khan, however, did not support the evidence regard--ing the identity of the assailants. These two witnesses stated that when they reached the spot after hearing gun reports and cries of the injured witnesses, it had become dark which helped tire assailants to escape from the scene. They were declared hostile and in their cross-examination they stated categori--cally that they could not identify the assailants. However, the learned trial Magistrate as also the learned Sessions Judge believed the evidence of the complainant, Khalil Ahmad and Mehrban who were injured and that Muhammad Sharif, and opined that the incident had taken place at about sunset when the victims of assault were in a position to identify their assail--ants.
10. The learned Single Judge in the High Court also believed the evidence of Abdul Karim, Mehrban and Muhammad Sharif and agreed with the view taken by the first two Courts that there was enough light to enable the injured witnesses to identify their assailants and that their evidence was sufficiently corroborated by medical evidence. The learned Single Judge, however, acquitted Muhammad Nazir accused because of the discrepancy in the evidence as to how Mehrban had received injury on his head. According to the F. I. R. Muhammad Nazir had hurled a stone which hit Mehrban on his head, while Abdul Karim in his evidence stated that Mehrban was given a lathi blow by Muhammad Nazir. This discrepancy created a doubt in the mind of the learned Single Judge resulting in the acquittal of Muhammad Nazir. The fourth eye-witness namely, Muhammad Sharif who though supported the prosecution was not relied upon because, he was not named in the F. I.
11. R. As eye-witness in the case.
12. The main argument in the appeal centered round the alleged identification of the three appellants and the acquitted accused by the three injured witnesses, namely, Abdul Karim, Khalil and Mehrban. Learned counsel for the appel--lants submitted that having regard to the time at which the incident occurred, the distance from where gunshots were fired at the three eye-witnesses and the terrain where the incident occurred, it was not possible for the three eye--witnesses to identify the three appellants and the acquitted accused. It was also stressed that the long delay of about 23 hours intervening between the incident and the making of the F. I. R. At the police station also assumed importance. It appears to -us that the argument is not without substance.
13. There are definite indications on the record that by the time the three injured witnesses were returning from their unsuccessful errand to the Pir and were confronted by the three appellants and the acquitted accused Maghrib prayer time was already over by which time the visibility must have been reduced considerably. According to the F. I. R. Abdul Karim (along with Khalil and Mehrban P. Ws.) had started from his Dhoke at digerwela for Dhoke Galla at a distance of one mile.
14. There he went to the house of Ghulam Rasul P. W. To inquire about Pir Manzur Husain. This must have taken him some time. Ghulam Rasul told Abdul Karim that the Pir had gone to Dhoke Salhar and according to one version, the party had proceeded to Dhoke Salkar from Dhoke Galla, when they were attacked by the three appellants and the acquitted accused. See for instance the statement of Mehrban P. W.
7. This lends considerable support to the statements of Ghulam Rasul (P. W. 3) and Sarwar Khan (P. W. 4) though both of theca were declared hostile. In their evidence they stated that it had become dark and it was not possible to identify the assailants. The incident took place. 16-11-1967 when the sunset was at about 6 minutes past 5 p. m. The terrain being hilly and winter having set in when the evenings are proverbially short in Rawalpindi district. From these circumstances, it would be fair to infer, that the visibility had already been reduced considerably before the incident took place.
15. Another material factor in the case is that according to the prosecution evidence, the assailants were spotted at a distance of about 50 yards, and on their lalkara Abdul Karim and his companions in order to save themselves ran to the other side, maintaining between them and the assailants more or less that distance. This is also borne out by the medical evidence because of the dimensions of each gunshot injury on the person of the three injured P. Ws. 1/8" only, and what is more, the pellets were remained embedded in the bodies of the three witnesses. This clearly indicated that the shots were fired from a considerable distance or else the pellets would have made wider apperture in each case and should have also caused exist injuries. There was no charring either. Even according to the evidence of Doctor Rauf Beg Mir (P. W. 6), the shots were fired from a distance of more than 18 feet though h was not in a position to say definitely whether that distance could be 5 yards.
16. The cumulative effect of all these circumstances is that the possibility of mistaken identity cannot be excluded and this makes the prosecution case doubtful. Allowing the appellants the benefit of doubt, we accept their appeal, set aside their convictions and sentences and acquit them. 'They are already on bail and are discharged of their bail bonds.