P (PLP)

"37. (1) Notwithstanding the provisions of section 36, the orders passed by the Courts of Session before the enactment of this section shall not be illegal only because the cases in which the orders were passed were triable without the aid of assessors or without having been committed by the Magistrates in accordance with the provisions of sections 208 to 220 of the Code. (2) The cases received in the Courts of Session before the enactment of this section shall not be deemed illegal not withstanding that any provisions of sections 208 to 220 of the Code were not complied with in respect of these cases. (3) The cases which were pending or instituted in the Courts of Session before the 15th August 1949 and of which trials were commenced without the aid of assessors before the enact ment of this section shall continue to be tried without the aid of assessors." It would appear from these circumstances that the difference "of opinion", which had occasioned this enactment, related only to the interpretation of a proviso to section 36 of the Act of 1949 and that the questions which were engaging the attention of the Governor were : (1) whether cases should be committed to the Court of Session in accordance with the procedure laid down in sections 208 to 220 of the Code of Criminal Procedure and (2) whether trial in the Court of Session should be held with or without the aid of assessors. Explanation 2 of the validating Act made it clear that cases pending or instituted in the Court of Session before the fifteenth day of August 1949 were to be tried with the aid of assessors. Explanation 3 made it clear that similar cases pending before a Magistrate shall be subject to the procedure for commitment laid down in sections 208 to 220 of the Code. Section 37, which is a new addition, consists of three subsections. The first two are intended to validate certain past acts, while the third validates the procedure in a pending trial, that is to say, if a case was instituted in the Court of Session before the 15th August 1949 and was, on the date of the validating Act, being actually tried without the aid of assessors, it would continue to be so tried. To crystallize the Act still further, while Explanation 2 provided that cases pending the fifteenth day of August 1949 should be tried with the aid of assessors, subsection (2) of section 37 conceded that if the trial has clearly started in such cases without the aid of assessors it shall continue to be so conducted. In other words, Explanation 2 accepted the interpretation put upon the proviso to section 36 of the Act of 1949 by The Crown v. Shams-ud-Din (P. L. D. 1950 Lah 93). Bearing this in mind, we should now approach the validating provisions of section 37, subsection (1) of that section says that the "orders passed by the Courts of Session before the enactment of this section shall not be illegal only because the cases in which the orders were passed were triable with the aid of assessors." Now, the draftsman could not but have intended to "validate the orders either in those cases which, as the Crown contends, were triable with the aid of assessors but were not so tried or which, as Mr. Saleem contends, were triable without the aid of assessors but were not so tried. If any cases of the latter class existed, then Mr. Saleem's contention would be correct and the present would not be a case which was intended to be covered by subsection (1). It is clear, however, from the general tenor of the validating Act that the intention was to validate such convictions as had resulted from trials held without the aid of assessors and it is also clear that if the word "triable" is substituted by "tried", the inten tion would be manifest. Mr. Saleem, however, contends that since the subsection, as it stands, makes no sense, it is contrary to the rules of construction to confer upon it any meaning. He relied on Green v. Mood (7 Q. B. 177) reported on page 455 of the English Reports, Volume 115, King's Bench Division. In that case Lord Deman, C. J., observed as follows : We are bound to give to the words of the Legislature all possible meaning which is consistent with the clear language used. But, if we find language used which is incapable of a meaning, we cannot supply one. It is true that we have here words which, as they stand, are useless; a circumstance, perhaps, not altogether, unprecedented. But, to give an effectual meaning, we must alter, not only `or' into `and' but `issued' into `levied'. It is extremely probable that this would express what the legislature meant. But we cannot supply it. Those who used the words thought that they had effected the pur pose intended. But we, looking at the words as judges, are no more justified in introducing that meaning than we should be, if we added any other provision. We can do no more than give such a meaning on the words authorise. William, J., observed: There is abundant authority for construing `or' to mean `and', if that would supply a meaning. But then comes the pressure of the difficulty. For it is admitted that this is not enough unless we go further, and say that `issued' means `levied'. That is so violent a change that it amounts to framing a new section, instead of interpreting what we find." The present case is not so hopelessly without meaning. We know what the intention is. All that seems to have happened is that by an oversight of faulty grammar the word "triable" has been used for "tried". In Salmon v: Duncombe (1886 Appeal Cases 627), where the drafting was even more faulty, the Privy Council held:

Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftman's un skillfulness or ignorance of law, except in the case of necessity or the absolute intractability of the language used. Their Lordships were dealing in that case with Natal Ordinance No. 1 of 1856 which stated its object in the preamble as being "to exempt persons settled in this district, being natural born subjects of the United Kingdom of Great Britain and Ireland, from the operation of the laws in force in this district relating to testamentary dispositions of property, both real and personal, and also to make provisions for exempting such Khan natural-born subjects of the United Kingdom of Great Britain crown and Ireland from the said law in cases of marriage contracted within this district." Section 1 of the Ordinance was as follows:-- Any natural-born subject of Great Britain and Ireland resident within this district may exercise all and singular the rights which such natural-born subject could or might exercise according to the laws and customs of England in regard to the disposal by last will or testament of property, both real and personal, situated in this district, to all intents and pur poses as if such natural-born subject resided in England. It was found by their Lordships that the intention of the Ordinance would be defeated whether the word "resident" in section 1 were given its ordinary meaning or were treated as being equivalent to the word "domiciled". Their Lordships finally came to the conclusion, that if the last nine words of section 1 were deleted, although "it would the be very inarti ficially drawn, it would not be difficult to construe it so as to give effect to the before declared object." In The King v. Vasey and Lally (1905 Law Report 2 Kings Bench Division 748), the question was one of interpreting section 13 of the Salmon Fishery Act, 1873, which, as it stood, did not yield any grammatical meaning and it was held that the section should be read as though it did not contain the words "in lieu of the words `private rights of fishery"'. Lord Alverstone, C.J., observed that "if the effect of our judgment had been to extend the meaning of the statute, whereas by following the strict words of the enactment its operation would be limited, the case would be different. In Maxwell on the Interpretation of Statutes, 3rd ed., p. 319, the principle of construction is laid down in these terms: Where the language of a statute, yin its ordinary meaning and grammatical construction, lead to a manifest contradiction of the apparent purpose of the enactment, or to some incon venience or absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence'; and for that proposition several authorities are cited." Turning now to the present case, we find that subsection (1) of section 37 opens with the words "notwithstanding the provisions of section 36". The reference apparently is to section 36 as it stands after the addition of the three explanations. Now, since, according to explanation 2 cases pending or insti tuted in a Court of Session before the fifteenth day of August 1949 are to be tried with the aid of the assessors, subsection (1) of section 37 should be interpreted to mean that notwith standing that explanation 2 provides for trial only with the aid of assessors, if any conviction has resulted from a trial held with out the aid of assessors, it should be deemed valid. Clearly section 36 did not provide for trials without the aid of assessors and, therefore, the word "triable" is an obvious mistake for "tried"; and since no other object can be served if the word "triable" were allowed to stand, it should be read as "tried". We, therefore, hold that Act IV of 1850 have saved the present trial from illegality, although it was held without the aid of assessors. Objection was also raised to the validity of the West Punjab Public Safety Act, 1949, on the ground that it had not received the assent of the Governor-General. The gazette copy of the Act produced before us showed that it received the assent only of the Governor. We found, however, from the authenticated copy of the Act that the Governor had merely reserved it for the consideration of the Governor-General and that the actual assent was that of the Governor-General. It was then discovered that in the printed words. "I assent to this Bill in His Majesty's name'', the last four words "in His Majesty's name" had been acored out. Mr. Saleem thereupon contended that the assent was not proper as section -76 of the Government of India Act required that "when a Bill is reserved by a Governor for the consideration of the Governor-General, the Governor-General shall declare, either that he assents in His Majesty's name to the Bill, or that he withdraws assent there from." The matter, being of some importance, the following two questions were referred to a Full Bench (1) whether, when the Governor-General says he assents to a Bill, it should be presumed that he does so in His Majesty's (2) whether it is no longer necessary for the Governor-General to assent in His Majesty's name. The Full Bench has answered the first question in the negative. Since the trial was not legal, we proceed to discuss the case on merits. The alleged murder of Sultan Sahu, son of Inayat took place at about 11 A. M. on the 11th of November 1948 at a distance of about a hundred feet from the abadi of village Mamdal which is fifteen miles from the Station Alpa. There are two parties in the village, one that of the accused, the other that of Abdur Razzaq, and to this latter party the deceased also belonged. Shortly before the occurrence, Pehlwan (P. W. 11), a servant of Abdur Razzaq, had ploughed a field at some distance from the village and was standing by his bullocks when Mahmmi alias Muhammad Bakhsh (D. W. 1), a servant of the accused, passed along with his calf in a field which Pehlwan had sown with wheat. There was an exchange of abuse, where after the two grappled with each other and while they were grappling Ali Nawaz accused came from the direction of his dera which is to the north west of the spot and gave a dang blow to Pehlwan on the head. Pehlwan fell down and received two more blows on the back. Attracted by the noise, the deceased came running from a street to the east of the spot. When Ali Nawaz accused saw him, he ran back to his dera and shouted to his father to come out. Sarfraz Khan accused responded to the call with a rifle in his hand. His son told him that Sultan Sahu, who had on a previous occasion given evidence against their party, had come to oppose them and incited his father to shoot him. Sarfraz Khan fired and hitting the deceased in the stomach killed him on the spot. Mahmmi and Pehlwan, who had continued grappling with each other during this interval, separated after the shot had been fired and while Mahmmi and the accused retired to the dera of Sarfraz Sarfaraz Khan, Pehlwan first ran to the village abadi and then to his well, Chah Anggsiwala. The incident was also witnessed by Muhammad Nawaz, a partisan of Abdur Razzaq, and his servant Sultan Amrana, son of Imam Bakhsh. These two persons had gone to Chah Angasiwala to have a look at a bullock belonging to Abdur Razzaq which Muhammad Nawaz intended buying but not finding Abdur Razzaq, they were returning to their village. At the beginning of the trial, when the accused were asked to show cause why they should not be convicted for the murder of Sultan Sahu, Sarfraz Khan accused stated that he had not committed any offence and that the case against him had been started "on account of factional spirit". Ali Nawaz stated that he was in Azad Kashmir territory during the days of the occurrence. At the end of the trial, Ali Nawaz maintained his previous plea while Sarfraz Khan made the following state ment: The case has been started against me on account of factional feelings. In 1942, Karam Khan and others, who belong to the other party, assaulted my brother Haji Rab Nawaz., Karam Khan and others were challaned under sections 325 and 342 Penal Code and were convicted and sentenced to 6 months' rigorous imprisonment each. Their conviction was maintained in appeal also. Ex. D. D. is a certified copy of the order of the trial Court in that case. In 1942 the son of my maternal uncle, Chaudhri Allah Ditta died sonless, leaving behind 5 daughters and 60 squares of land. Chaudhri Allah Ditta had executed a will bequeathing his property to his five daughters, one of whom was betrothed-to my son Ali Nawaz, and another daughter of his had been betrothed to the son of my brother Haji Rab Niwaz. The Nikah of the third daughter of Chaudhri Allah Ditta had been performed with Ashiq Muhammad, the son of my brother Haji Fazai Haq; the consummation of marriage however had not yet taken place during the life time of Allah Ditta. The marriage (barrat) ceremony took place after the death of Chaudhri Allah Ditta. The fourth daughter of Chaudhri Allah Ditta is married to my sister's son, Manzoor Hussain. This took place after the death of Chaudhri Allah Ditta. Chaudhri Allah Ditta's fifth was married to Chaudhri Ahmad Khan during the lifetime of Chaudhri Allah Chaudhri Muhammad Aslam, the first cousin of Chaudhri Allah Ditta, and who is the sister's son of Karam Khan and the sister's husband of Muhammad Nawaz, P. W.; filed civil suits regarding the property bequeathed by Chaudhri Allah Ditta in favour of his daughter, at the instance of Chaudhri Karam Khan, son of Chaudhri Inyat and Muhammad Nawaz. "There was a thoroughfare in our village Mamdal, which was so closed by Muhammad Nawaz, P. W., Abdul Razzak, Karam Khan and others, that we could not use it. Members of either party were arrested by the police in connection with this closing of the thoroughfare, and proceedings under sections 151 and 107, Criminal Procedure Code, were instituted against both the parties, Both the parties were hound down, but subsequently were discharged because a compromise had been arrived at Khan between the parties. Exs. D. E. and D. F. are the certified Crown copies of the challan in that case, which I produce. There were cross-suits regarding that thorough are between Muhammad Kayani, J Nawaz, P. W., and others on one side and Chaudhri Ahmad Khan on our side. Ex. D. G. is the certified copy of the plaint that Chaudhri Ahmad Khan bad filed in the suit instituted by him, and I produce it. Haji Allah Dia was murdered in Mamdal. He was the uncle of Muhammad Nawaz, P. W. and the sister's son of Karam Khan. Ahmad Khan myself and four tenants of Ahmad Khan were made accused in that case. Muhammad Nawaz, P. W., appeared as an eye-witness in that case, but I was acquitted in that case. Muhammad Aslam's daughter was married to my son Ali Nawaz. This Muhammad Aslam is the same who is the sister'shusband of Muhammad Nawaz, P. W. and sister's son of Karam Khan. We were appearing in Court in connection with the murder case in which we had been implicated when in our absence from the village, Karam Khan, Muhammad Nawaz, P. W., and 8 or 9 other persons took away the girl after marrying her to Manzoor Hussain, the nephew of Karam Khan. Manzoor Hnssain is present in Court today. In connection with the incident Ali Nawaz, my son, filed a case under section 494, Penal Code in the Court of Chaudhri Muhammad Siddiq, Magistrate, 1st Class, Multan. Ex. D. H. is the certified copy of the complaint in that case. The complaint was filed as it could not be properly prosecuted because of our being implicated in the present murder case. He added, that Sultan Amrana, a witness for the prosecution in this case, had started criminal proceedings against Ali Nawaz and his servants in a dacoity case at the instance of Muhammad Nawaz P. W, and that his information to the police having proved to be false, he had been prosecuted under section 182 Indian Penal Code and convicted. Four witnesses appeared in defence, the chief being Mahmi (D. W. 1). He took the responsibility for the shooting of Sultan Sahu on himself and stated that the occurrence had taken place in the following manner. He was going from his house to that of his master Sarfraz Khan when he came across four persons, namely, Abdul Khaliq, Sulah Arain, Ramzan Mocbi and Allah Ditta Paoli. He was then carrying a rifle with him. He heard these four persons saying that they would close a certain street which led to his house. He remonstrated with them and Abdul Kaliq abused him. He abused back and thereupon Pehlwan P. W., who apparently came afterwards, gave him a blow with a gandasa on the back. He struck Pehlwan with the barrel of his rifle once or twice. Each of them then seized hold of the other's weapon and struggled for some time until Pehlwan had raised an alarm, attracting ten or fifteen persons of .his party including Abdur Razzaq, Muhammad Nawaz P W., and Sultan Amrana P. W. Some of these persons were armed with rifles and others with hatchets. Abdur Razzaq, who led them was armed with a gun. Feeling that his life was in danger, Mahmmi wrenched himself free from Pehlwan and ran towards the dera of Haji Rab Nawaz. He was yet eight or nine Karams from the dera when Khan he received a gunshot injury in his calf. He staggered a little Crown but collecting himself, turned round and fired in the direction of his pursuers in order to scare them away. The shot hit Sultan Kayani, J. Sahu who fell down while his companions ran away. Mahmmi limped up to the dera of Haji Rab Nawaz and lying down on a bed, sent Karam Ali (D. W. 2) to the police station. It was here that the Sub-Inspector of Police saw him at about peshiwela and recorded his statement taking the rifle from him. This rifle, he said, belonged to himself though it was without a license. He had bought it of some Pathans about a year before the occurrence. Karam Ali (D. W. 2), who is a servant of Chaudhri Allah Ditta, a partisan of the accused, stated that he had been attracted to the spot by a noise and had found Mahmmi arguing with the four persons named above. Pehlwan had then come up and given a blow with a gandasa to Mahmmi. The rest of the story, which is identical with that related by Mahmmi, need not be repeated, except that Mahmmi had asked the witness to make a report at the police station. When he had gone about half a mile from the village, he learnt that the Sub-Inspector was in village Dandi, about three miles from the spot. He, therefore, made for Dandi where he reached simultaneously with Muhammad Nawaz (P. W. 8). The Sub-Inspector heard both sides but recorded the statement of neither, explaining that he would be better able to appreciate the two versions at the spot. Con sequently, they all went to the spot where the Sub-Inspector recorded on the one hand the statement of Muhammad Nawaz, on the other that of Mahmmi. After some private consultation with the party of Muhammad Nawaz, the Sub-Inspector sent the statement of Muhammad Nawaz only to the police station. The third witness for defence is Khan son of Jahana, a resident of Muzaffargarh District, who had come to Mamdal to purchase cloth. He supported the defence version. The fourth witness is Sada, an old man of sixty years. Remarkably enough, he is the father of Pehlwan (P. W. 11). His evidence is that his son Pehlwan had told him that Abdur Razzaq had fired with his gun on Mahmmi and that Mahmmi had fired with his rifle and killed Sultan Sahu. As Pehlwan himself was not asked during the cross-examination whether he had made any such statement to his father, the statement of Sada should be dismissed as hearsay. It was disclosed from his cross examination that his son Pehlwan had parted from him since ten or twelve years and it was suggested to him that he bad turned out Pehlwan's mother from his house, though he did not accept the suggestion. The incident, as already stated, took place at about 11 A. M. Muhammad Nawaz (P. W. 8) and Sultan Amrana (P. W. 9), it has been pointed out, were returning from Chah Angasiwala. The plan of the spot shows that they were at a distance of about 125 feet to the south-west of the scene of the occurrence. Further away in the same line was a water course in which they hid themselves out of fear and crawling for some distance towards the village, they reached their dera. Then satisfying himself barraraz that Sultan Sahu was dead, Muhammad Nawaz sent Sultan Khan Arnrana to sit near the dead body, while he himself went to the Crown village Dandi where he knew the Sub-Inspector to be. The first report, according to the prosecution, was thus recorded at Dandi Kuyani, a. at 12 0 clock and from there forwarded to the Police Station Alpa, fifteen miles away. The prosecution story is that from Dandi the Sub-Inspector went to the spot where the Sub-Inspector, after conducting preliminary investigation in relation to the dead body, recorded the statement of Mahmmi (D. W. 1) also, taking into custody a rifle which Mahmmi produced but which, according to the prosecution, is the rifle used by Sarfraz Khan accused. In other words, it was not at the village Dandi that the defence version was given to the Sub-Inspector by Karam Ali (D. W. 2) or by any other person. The Sub-Inspector registered one case under section 302, Indian Penal Code against the present accused and another under section 307, Indian Penal Code against certain persons named by Mahmmi as his assailants, but no arrests were made on either side until the 15th of November 1948, four days after the occurrence, when the Deputy Superintendent of Police came and ordered the arrest only of Sarfraz Khan appellant as his son Ali Nawaz was then absconding. At this stage it would be convenient to describe in some detail the injuries received on either side and I shall start with the deceased.

1. Sultan Sahu deceased: (1) An entrance wound of a bullet 5", above the navel and half an inch to the right of the middle line. The wound was one-third of an inch round and presented no powder marks or marks of scorching. (2) An exit wound on the right flank 1 " x " practically vertical in direction. According to the doctor, the bullet must have been fired from the left side of the deceased from the direction of his left shoulder. II. Pehlwan (P. W. II). (1) A contused wound, 1" x 1/6", skin deep on the left- half of the head. (2) A contusion mark, 3" x ", on the upper one-third of the right arm. (3) A contusion, mark, 2 " x 4", on the top of the left III. Muhammad Bakhsh Alias Mahmmi (D. W. 1). (1) A gunshot wound on the left leg with entrance on the medico posterior line, or, the upper one-third. The entrance wound was one inch circular with margins burnt with gunpowder and blackened, while the exit wound on the opposite side was 6" x 5" with a depth of 2 . (2) An incised wound 4" x ", superficial layer of the skin was cut and removed on the right side of the back of the chest in the doreal area with a continuous linear cut of incised nature on the left side of the back of the chest. In his cross-examination the doctor showed a deplorable lack of medico-legal knowledge in respect of the distance from which the gunshot wound might have been fired. His first opinion was that, in view of the blackening and charring of the wound, it had been fired from a near range . He explained that by near range he meant a distance of two to three yards. He added that if a distance of five yards were suggested to him, he would not be able to deny it because he was not a gun expert, but, in any case, the distance was below ten yards. He further said that injury No. (1) of Mahmmi was caused while he was in motion and could not have been self-inflicted or self-suffered, because nobody with the slightest regard for life would agree to under take such an experiment. In re-examination he made a concession to the prosecution by agreeing that a distance of six inches would be included in his opinion that the shot had been fired from a close range. It is necessary to give the previous history of the relations of the parties and for this purpose it would be convenient to show some of the prosecution witnesses or their partisans in the form of a pedigree-table : Karam Khan | | | | | Allah yar Allah Dia Gul Muhammad Allah Ditta (murdered in 1947) | | Abdur Razzaq Muhammad Nawaz (P.W.8) In 1942 certain members of the party of Abdur Razzaq were prosecuted and convicted under sections 147 and 32'5 Indian Penal Code for beating Haji Rab Nawaz, brother of Sarfraz Khan appellant. There were at the same time proceedings under section 107 of the Code of Criminal Procedure. About this time a civil suit was instituted by Muhammad Aslam, a brother-in-law of Muhammad Nawaz (P. W. 8); for a declaration that a will alleged to have been made by his cousin Haji Allah Ditta (not the father of Abdur Razzaq) was forged. By this will Haji Allah Ditta had bequeathed his property, which consisted of sixty squares of land, to his five daughters, one of whom is married to Ali Nawaz appellant. In that case Allah Dia, uncle of Muhammad Nawaz (P. W. 8) gave evidence for the plaintiff. This Allah Dia was murdered on the 30th of June 1947, the motive for his murder being understood to be that he had given evidence in the case relating to Haji Allah Ditta's will. A number of persons including Sarfraz Khan arid h-is relative Ahmad Khan were prosecuted for the murder of Allah Dia but were acquitted in June 1948 as the evidence against them was doubtful. Muhammad Nawaz (P.W. 8) appeared as an eye-witness in that case also. After the murder of Allah Dia, Sarfraz Khan and Ahmad Khan remained absconding far some time and were proclaimed as offenders. The property of Ahmad Khan was attached and while proceedings under sections 87 and 88of the Code of Criminal Procedure were pending, Sultan Sahu deceased and Sultana Amrana (P. W. 9) gave evidence for the prosecution. The prosecution story, as already indicated, consists of the evidence of Muhammad Nawaz (P. W. 8), Sultan Amrana (P. W. 9) and Pehlwan (P. W. 11). The main objections taken to this evidence may be reduced to the following points :

The prosecution has not accounted for the shotgun injury u (D. W. 1) and if Mahmmi received the injury in the related by him, the prosecution case will fall to the ground. (2) Muhammad Nawaz and Sultan Amrana make a false statement when they say that they were returning from Chah Angasiwala. If they had been present, then, since the accused had more reason to hit Muhammad Nawaz than Sultan Sahu, Muhammad Nawaz should not have been spared. (3) The only motive against Sultan Sahu was that on a previous occasion he had given evidence against a partisan of the accused and that was not sufficient to induce the accused to kill him. (4) The first information report was not recorded by the Sub -Inspector at Dandi but at the spot. (5) The prosecution story that the deceased came running from an easterly direction and was fired at from the north-east is falsified by the location of his injury which shows that he must have been fired at from his left. (6) The deceased is supposed to have received the fatal shot when he was about sixty six feet1 from the place where Mahmmi (D. W. 1) and Pehlwan (P. W. 11) were grappling. From this latter place the distance to the dera of the accused is almost equal to the distance which the deceased had travelled from the street when he was shot. If it is true that Ali Nawaz ran into the dera and brought out his father, then, since the father must have taken some time in loading his rifle, the deceased ought to have reached the point where Pehlwan and Mahmmi were grappling together before Sarfraz Khan appellant had time to come out and shoot him. (1) It requires no extraordinary exertion to see that the shotgun injury of Mahmmi (D. W. 1) was not caused to him from behind while he was running away. It is clear from various books on medical jurisprudence, passages from most of which have been reproduced by the learned Sessions judge in his judgment, that where the wound of entrance is found scorched and where the shots leave a single aperture, the distance from which the gun is fired is generally within twelve inches of the mark and in no case beyond three feet. "If there are marks of powder or burning, the weapon was not more than a foot away when fired" (Taylor's Medical Jurisprudence, page 540). "In the case of 'wounds presenting the characters dependent on the entry of gas into the wound, or of burning of the skin, it is safe to say that the injury must have been caused by a shot fired within an inch or two of the body" (Lyon's Medical jurisprudence, page 244). "In the case of a shotgun wound, if the distance from which the gun is fired within twelve inches, the wound will as a rule, be single, while beyond this, each shot will make a s1parate wound" ..................."A shotgun must be discharged at a distance of not more than ten or twelve inches from the body to produce a round opening resembling that produced by a bullet. If fired from twelve to eighteen inches the opening will be irregular, with lacerated borders. At thirty-six inches the shots will scatter" (Medico Legal Court Companion, by Major H. W. Cox, pages 434 and Mr. Saleem cited passages from Modi's Medical ,Jurisprudence which says at page 206 that if the shot is fired from a distance between one and three feet, there will be a single aperture but the shots will scatter after they have entered the body. At page 210., however, the author says that no definite opinion can be given about such wounds, apparently meaning that in most cases it cannot be said precisely whether the shot was fired from a distance of two inches or two feet. This cannot, however, mean that if the shot is fired beyond a distance of three or four feet, it will result in a single injury, circular in shape, one inch in circum ference, burnt with gunpowder, and blackened. Now, if as Mahmmi says the shot was fired-when he was running away, the distance between him and his assailant was not likely to be three or four feet. Further, if the shot had been fired from behind, it would have penetrated his calf and injured the shin bone in front. The exit would in this case, however, was exactly opposite to the entrance wound which clearly shows that the shot was fired sideways, that is/to say, from the right to the left or from the left to the right, the intention being clearly to injure the softer tissues. In his discussion of fabricated wounds Lyon's Medical Juris prudence states at page. 238 that "the-fabricator will only produce as much injury as he thinks will suffice to confirm his story; he will be very careful to avoid doing himself any serious harm; he will not wound those regions of the body that he considers are dangerous". As regards the second injury on Mahmmi, supposed to have been inflicted with a gandasa, it is an incised wound, 4" x ", superficial; with the layer of the skin cut and removed on the right side of the back and may very conveniently be inflicted by a partisan to support a false charge. If any foresight had been used in the infliction of this injury, it would have been caused while Mahmmi was wearing his shirt. Both Mahmmi, and Karam Ali D. Ws. say that there was a corresponding cut on the shirt which was stained with blood over a space of four inches and Mahmmi adds that he produced the shirt before the doctor. Neither the doctor nor the Sub-Inspector were cross-examined on this point. It is true that the Sub-Inspector should have been asked by the prosecution also whether he had examined Mahmmi's shirt and I consider this a, serious omission, for 'it is the object of the prosecution to arrive at the truth, not to avoid an inconvenient situation. At the same time there is considerable force in the argument that after it had been decided to prosecute the appellants, it was for them to prove the counter version and an excellent way of proving it would have been to produce the shirt of Mahmmi. It was contended for the appellants that in order to establish a right of self-defence, it would have been enough quietly to inflict an injury on Mahmmi with a sharp-edged weapon rather than to proclaim the fabrication by firing a shot-gun, particularly when one of the prosecution witnesses, Sultan Amrana, was standing at some distance from the dead- body and that if any shot had been fired, Sultan Amrana would have undoubtedly heard it and told the Sub-Inspector after the injury of Mahmmi became known that it had possibly been inflicted subsequent to the occurrence. Now, Sultan Amrana, was not questioned on this point and Pehl wan (P. W. 11), who was questioned by the defence, stated that soon after he had run back to his well, he heard a shot fired. In a village, which is afflicted with the existence of hostile camps where quite a number of people carry unlicensed arms, it is not an unusual phenomenon to hear an occasional shot being fired and such a shooting is not likely to attract extraordinary attention. So far as the appellants went, they were faced with the unpleasant situation of a man killed with rifle fire and in a desperate moment they could not have thought of anything more effective in defence than to inflict a gunshot or a bullet injury on one of their partisans, with as little risk as was possible in the circumstances. Mahmmi himself was principally concerned in the fight and at the moment the appellants could not foresee that in the first report only a minor part would be assigned to him. So far, therefore, as Mahmmi went, the question was not one of pure loyalty to his masters but one of personal safety. Next, it will be seen that, according to Karam Ali (D. W. 2), some blood trickled down to the ground at the spot where Mahmmi was hit with the gunshot and that drops of blood went in a trail from the spot to the dera of Haji Rab Nawaz where Mahmmi is supposed to have taken respite. These places, according to the witnesses, were shown to the Sub-Inspector. Here again no question was put to the Sub-Inspector by either side. The Sub. Inspector did collect bloodstained earth but not form the street. He collected 'it from the place outside the abadi which is the scene of occurrence according to the prosecution. Mahmmi says he was hit when he was at a distance of eight or nine karams from the dera. It was here that he turned back and fired at this pursuers. Considering the burnt nature of his injury, the foremost of his pursuers must have been at a distance of four or five feet from him, and it was this person primarily at whom his rifle fire should have been directed. If this person had been Sultan Sahu, then Sultan Sahu should have fallen at a place four or five karams from the dera. Actually he fell at a place which is eighteen karams from the dera, and not in the direction from which Mahmnli was taking flight. That direction is to the south while Sultan Sahu was actually found dead at a point ninety feet: south west of the dera. It will be also found that the earliest version which Mahmmi gave of the incident was materially different from that which now forms his evidence during the trial. I need not refer to the statement which he made to the Sub Inspector at the spot because that has been materially reproduced in the complaint which he made to a Magistrate on the 3rd of January 1949, quite a month and a half after the occurrence. Para. 3 of the complaint is as follows: "On 11th November 1948, at one pehr after sunrise I was going from my house to the dera of Sarfaraz, Thahim, when Pehlwan, accused, struck me a gandasa on the back. On this I turned round and grappled with him. After this all the accused with other persons who were armed attacked me saying give him a lesson for Allah Dia's murder. Abdur Razzaq accused fired a gun on me which by chance hit me in the calf. I had a rifle at the time. I fired it to save my life and to disperse the crowd. It hit Sultan Sahu. Op this all the accused ran away. The present story, it will have been noticed, was that while he was going in the street,. he saw four persons discussing the closure of a street which affected him, that he fell in argument with them and that then Pehlwan had come from somewhere and given him a gandasa blow. While he was grappling with Pehl wan, the latter raised an alarm which attracted a large number of his partisans. Mahmmi then wrenched himself free from Pehlwan and started running in the direction of the dera. It was then that a shot was fired at him from behind, and, turning round, he fired back. I have no doubt that the defence story is false. (2) The next point, is whether Muhammad Nawaz and Sultan Amrana P. Ws. had occasion to be returning from Chah Angasiwala in time for the occurrence. Attention was drawn to the fact that although the way from the village to the Chah in question would pass over the field where Pehlwan (P. W. 11) was working, Pehlwan himself did not see them going to the well but saw them only coming back. Since the well is only 200 karanrs from the spot and since the witnesses did not find Abdur Razaq, on whom they were calling, they should have passed Pehlwan only about half an hour before the occurrence, and normally Pehlwan should have seen them going. It may be, however, that Pehlwan was not then observant enough. In any case, since the presence of Muhammad Nawaz and Sultan Amrana has been admitted by Mahmmi himself at all stages of the case, the argu ment is pointless. Not only in the first report which Mahmmi made to the Sub-Inspector at the spot did he mention the two persons in question as among those who had been attracted by the grappling of himself and Pehlwan, he mentioned them in the same context even in the complaint which he lodged a month and a half later and during the trial he included them with his puruers. Mr. Saleem argued that while their presence as pursuers of Mahmmi was not denied, what was denied was that they were returning from a peaceful mission at Chah Angasiwala. If, however, the deference version of the incident is not accepted, then it cannot but be held that their presence at the spot was in. the manner related by themselves. (3) It was next argued that the motive was inadequate against the deceased whose only part in the persistent litigation between the parties was to give evidence in subsidiary attachment proceed ings, not against the appellants themselves but against one of their partisans, Ahmad Khan. It was pointed out that if the appellants were disposed to shooting down somebody, they would obviously prefer Muhammad Nawaz (P. W. 8) to Sultan Sahu. There is no doubt that if in a dispassionate moment the question had been put to Sarfaraz Khan appellant whether the murder of Muhammad Nawaz would be more appeasing than that of Sultan Sahu, his reply would have been in the affirmative, but this was not a dispassionate moment and the immediate provocation against Sultan Sahu was immense. In the statement Exh. P. N., which the deceased made during the attachment proceedings, he described himself as a " wasda " of these Zamindars and originally a resident of Mari Sahoo. Here then was an outsider who had not only butted into the private affairs of the, Zamindars on a previous occasion, but he must interfere again. One may tolerate the insolence of an equal, but when it proceeds from a lower social stratum, it may become intolerable. Muhammad Nawaz was a considerable distance away and was not interfering, possibly, as Sultan Amrana has explained, because he was in danger of for feiting his security bond. (4) It is not unlikely that the first information report was recorded by the Sub-Inspector not in village Dandi but at the spot. This report is supposed to have been sent by the Sub-Inspector from Dandi to the police station through a certain Allah Bakhsh but. appears from memorandum Exh. P. G., which was prepared at the spot on the same day, that Allah Bakhsh signed it as an attesting witness and since the distance to the police station is fifteen miles, it is inconceivable that the preparation of Exh. P. -G., which relates to the taking of blood-stained earth into custody, could have been postponed until Allah Bakhsh should have returned late on the same day or on the following morning. This does not, however, necessarily point to the inference that Karam Ali (D. W. 2) had also made a -verbal report to the Sub-Inspector at Dandi and that the Sub-Inspector deferred the writing of the report in order that he should be able to reconcile the two conflicting versions. Assuming that there was any delay in the recording of the report, it did not exceed an hour and a half, for while Muhammad Nawaz (P. W. 8.) reached Dandi at about 12 o'clock, the Sub-Inspector came to the spot at 1-30 p.m. And, in any case, Muhammad Nawaz must have instructed himself with a plausible story before he went to (5). The fifth and quite a serious objection to the prosecution is that the deceased had received his injury not as though he was making for the place where Mahmmi and Pehlwan were grappling with each other, but as though he were facing the direction of the dera of Sarfaraz Khan appellant and even then were turning somewhat to the right. If he had been shot while running from east to west, as the prosecution story is, the wound of entrance would have been in the right flank and the exit somewhere on the left. It is apparently for that reason that the witnesses stated during the trial that when Ali Nawaz appellant was calling his father out of the dera, the deceased turned a little in their direction. He must have turned a good deal in order to receive the injury which he did and there is nothing startling in that posture. The reason why this explanation was not given in the first report may be that a first report is seldom explanatory of injuries, but it is also possible that none of the witnesses was then completely cognizant of details. There was Pehlwan grappling with Mahmmi who was thus focussing on Mahmmi and could hardly have seen the deceased or the appellants anywhere except on the fringe of his consciousness. There were Sultan Amrana and Muhammad Nawaz over two hundred feet away, dividing their attention between the two grappling individuals, the two- appellants near the dera a hundred feet still further away and Sultan Sahu rushing from the direction of the village in the east. It is, therefore, no wonder that they did not particularly notice the deceased turning round. As a matter of fact, that is what the deceased out to have done when he saw Ali Nawaz appellant running to the dera and calling out his father When he saw Sarfraz Khan appellant come out with a rifle, his attention must have diverted com pletely north-west and it is not impossible that he even tried to turn back and effect escape, but that before be had done so he received the bullet. It is thus possible to conceive the deceased in a posture which would expose his left side to the rifle range. The objection now raised may have proved very formidable if the story for the defence had been that the shot had actually been fired from the left where Muhammad Nawaz and Sultan Amrana were trying to hide themselves in a water course. The defence story, however, carries the scene nearer the village and receives no support from the position of the de ceased's injuries. (6) The last objection was that the deceased should have fallen not at point No I in the plan but at point No. 4, after proceeding another sixty-six feet, where P6hlwan and Mahmmi were fighting and which was his objective. This is not very diffi cult to explain. The deceased was primarily rushing to the assistance of Pehlwan because he had seen Ali Nawaz striking him with a dang. When Ali Nawaz, on seeing the deceased coming, rushed back to the dera, the deceased may well have slackened his pace and although Pehlwan still needed some little help against Mahmmi, the deceased may have become more absorbed in what Ali Nawaz was doing. Now, although the previous statements of the witnesses show that Ali Nawaz "brought his father out" of the dera, indicating that he first went into the dera arid then both father and son came out, the former armed with a rifle, it seems obvious that he must have shouted to his father as soon as he thought his father could hear him and that his father should have come out before Ali Nawaz had actually reached the dera. It is common phenomenon of rural life, particularly where blood feuds exist, that people keep their firearms loaded day and night in order that they should not be taken by surprise. Sarfaraz Khan, therefore, was likely to leave his dera immediately upon hearing the alarm, and as the attention of the deceased must have been diverted from the two grappling men to this more urgent spectacle, there is nothing extraordinary in his having been shot down before he reached his original objective. Our finding, therefore, is that the three witnesses for the prosecution were present at the spot and, although it is possible for them, in view of the previous relations of the parties; to give false or exaggerated account of the happening, the account that they have given could not be, are true in broad outline. There could be no mistake as to the person who had fired the actual shot, and indeed it would have been meaningless to sub stitute any other person for the actual culprit. The only exag geration from which the account suffers relates to the part assigned to Ali Nawaz, for although, according to the first report, all that Ali Nawaz said to his father was that Sultan Sahu, who had given evidence against their party in a previous case, had now come to oppose them, the evidence during the trial makes him directly responsible for the conduct of his father inasmuch as he instigated his father to shoot the deceased. We, therefore, hold that Ali Nawaz is not guilty of the offence of murder and acquit him. We uphold the conviction of Sarfraz Khan, because, in the circumstances of the present case he could not have but in tended to kill the deceased. The argument that he might have been hit in a different part of the body if he had not turned round is without force because the effect of his turning round was not to shift his body to a higher or a lower level so that it could have been argued that although the intention was to disable him by hitting him on the leg, he frustrated this in tention by dropping down immediately and receiving the bullet on an upper part of the body. As regards the sentence, we do not think the learned Sessions judge was giving a good reason for inflicting the lesser penalty when he said that the conduct of Sarfraz Khan was influenced by a natural tenderness for his son, and after holding that he had not been incited by his son, even that reason would disappear. But while we cannot think of a good reason for imposing the lesser penalty, we should hesitate to enhance the sentence unless an equally good reason exists for enhancing it, and considering that the shoot ing in this case was more or less sudden, we would merely up hold the sentence of transportation for life. The petitions for en hancement are, therefore, dismissed. In view of the fact that our decision on the form of the assent given by the Governor-General involves an interpretation of the Government of India Act and the Independence Act, we certify under section 205 of the Government of India Act that this is a fit case for appeal to the Federal Court.