P L D 1953 Federal Court 35 (PLP)

This criminal appeal, by special leave of this Court, raises a number of questions of grave and far‑reaching importance which are not directly connected with the facts of the case or the matters arising for decision therefrom. The consideration of these general questions, if they may be so described, may conveniently be postponed until the last mentioned matters have been duly resolved. The facts of the case are in themselves simple, and we regret to find that through the introduction of matters which appear to us to be essentially extraneous to the decision of the case, the case has become overlaid with much complexity which it will be our unpleasant duty to disentangle, in this judgment. The appellants are six in number, namely, Fazal Elahi and Fateh Haider, his son, who are the principal figures in the appeal, and Painda Khan, Dost Muhammad, Khuda Bux, and Ghulam Abbas. They were tried along with a seventh person, named, Muhammad Akbar, by the Sessions Judge of Jhelum in the Punjab on three charges, viz. that on the 26th May, 1951, at their village Arrar, they constituted A unlawful assembly with the comet an object of murdering Abdul Aaiz, Muhammad Khan, committed the offence of rioting armed with deadly weapons, punishable under section 148, the offence of murder under section 302/149 in relation to the killing of Abdul Aziz, and thirdly, the offence of attempt to murder Muhammad Khan and Fazal Dad punishable under section 307/149, P. P. C. The incident having occurred at digarwela (about 4‑0 p. m.) a report was made at the thana seven miles away at 10‑15 p. m. by Fazal Dad, who was taken there by his relatives. Briefly, the story in the report is that on account of certain pre‑existing enmity, the details of which are immaterial, the seven accused persons collected on the roof of the house of one Fateh Muhammad in Arrar village, and when they saw Fazal Dad, Abdul Aziz, and Muhammad Khan, who were returning from a visit to a neighbouring village Khokhar, Fateh Muhammad shouted and thereupon the seven accused persons jumped down from the roof and assaulted the three men. The assailants were all armed. Painda Khan had a spear. Fazal Elahi and Ghulam Abbas had hatchets, and the other four, Fateh Haider, Khuda Bux, Akbar, and Dost Muhammad had lathis. Fazal Dad and his companions, tried to stop them by throwing stones at them, but without effect. Abdul Aziz was attacked by Fazal Elahi and Fateh Haider, each of whom delivered a blow on his head, Fazal Elahi's blow being struck with the blunt side of his hatchet. Thereupon Abdul Aziz fell down, and Fazal Elahi, Fateh Haider, and Painda Khan continued to beat him. Abbas and Dost Muhammad attacked Fazal Dad. Abbas delivered a blow on his head with the blunt side of his hatchet and Dost Muhammad hit him on the left shoulder and then on the head, whereupon he fell down, and the two men continued to beat him thereafter. Khuda Bux and Akbar beat Muhammad Khan. As has been seen, they had only lathis. Two eye‑witnesses Mirza and Bahadur Khan were named, who through fear did not intervene to stop the beating. It was said that all the assailants went back together, and that "Fazal Elahi while injuring Abdul Aziz shouted that they have avenged themselves and that we would die in due course". It was also mentioned that Abdul Aziz had died while he was being carried to the police station. It appears that injuries were sustained by both parties in this incident, and it is necessary to state these injuries in some detail, as they have a bearing on the question of the intention behind the blows which caused injuries to the two persons, Abdul Aziz and Fazal Dad, who sustained the heaviest part of the attack. Abdul Aziz's body was found at the post‑mortem examination to bear five contused wounds on the head, under one of which situated to the right of the head at the back, the skull had been fractured. There were two bruises on the left arm and underlying them a simple fracture of, the humerus. On the right leg there were two bruises on the knee and ankle respectively, and two small incised wounds just above the ankle. The whole of the left leg from the knee to the ankle was bruised and swollen, but no bone was broken. An area 7" x 7" over the left buttock was bruised as well as an area 12" x 12" over the back of the chest. When examined at the trial, Dr. Moonis who performed the post‑mortem examination traced the death to "shock and haemorrhage as a result of fracture of the skull and left humerus caused by blunt weapons". It appears that the beating had affected some of the internal organs as well, for there was congestion of both lungs, and it was found that the liver had been torn. The Doctor thought that the five injuries on the head could have been caused either by a lathi, or the blunt side of a hatchet, or even with stones. The bruises could have been caused with a lathi, or with the blunt side of a hatchet equally. The incised wounds on the right leg were characteristically spear wounds. No injuries appeared on the body such as might have been caused with a sharp hatchet blade. Fazal Dad who survived was examined by Dr. Mukhtar Ahmad who noted 18 separate hurts. On the head there were three contused wounds as well as a contusion, and two small injuries on the face. There were three contusions on the arms and shoulders. In addition, there were five large contusions on the back and a contusion on the left buttock. A simple small injury appeared on the right leg at the ankle, but the left leg was wholly swollen and red in colour obviously from repeated blows and the left fibula bone was fractured. The Doctor thought that all these injuries had been caused with blunt weapons, but no less than four were "probably" caused with stones. Muhammad Khan had three contusions one on the nose (which the doctor thought was probably caused with a stone) and two on the right arm as well as a swollen left ankle. It would seem that be avoided a more severe beating by using a danda in self‑defence against his two assailants, who he says were Muhammad Akbar and Khuda Bux. According to the evidence Fazal Dad and Abdul Aziz only used stones, having apparently no weapons. Several of the accused persons also received injuries, which were however far fewer in number than those of the others. Fateh Haider received a small contused wound on his lip, and an abrasion on the right arm, but his most serious injury was a i penetrating incised wound on the left leg, and a bone in this leg had also been fractured as the result of a blow with a blunt weapon. He was in hospital in consequence of the last mentioned injuries for at least 38 days. Fazal Elahi had a small contused wound on the chin. Dost Muhammad had two abrasions on the face, and a small contusion on his left shoulder. Ghulam Abbas had a small swelling over his right foot, which the doctor thought might be an accidental hurt. Khuda Bux had a scratch on his face, and another on his left knee, besides a contusion two inches in length on the left arm. In the doctor's opinion the two former injuries were probably caused with stones. This opinion supports the evidence for the prosecution, and indeed, all the injuries of these persons with the exception of the two serious injuries of Fateh Haider, and the possible exception of Khuda Bakhsh's contusion, appear from their description to be the probable result of stones thrown by the intended victims. Three persons, namely, the injured men Fazal Dad and Muhammad Khan and a bystander Mirza, were produced at the trial as eye‑witnesses. Bahadur Khan who was named as an eye‑witness in the report was not produced and his absence was not accounted for. It is necessary to refer in detail to the statements of these eye‑witnesses which relate ; to the actual assault allegedly made on the three victims. Fazal Dad said Fazal Elahi delivered a blow with a reversed hatchet on Abdul Aziz's head and Fateh Haider followed with a lathi blow, also on the head, and then Abdul Aziz fell down, whereupon Painda Khan assaulted him with a spear, but Fazal Dad could not see whether he actually hit the deceased. He added however that "the three accused then continued striking the deceased". As for himself, he said Ghulam Abbas's blow on his head with a reversed hatchet was the first he received, and then Dost Muhammad hit him on the left arm with a lathi and he fell down, whereupon they con tinued to strike him. In the cross‑examination, it was brought out that the distance between the spots where Abdul Aziz and Fazal Dad were respectively thrashed was 10 karams equal to 50 feet. Muhammad Khan's statement on the point of beating given to Abdul Aziz and Fazal Dad is as follows: "Fazal Elahi, Fateh Haider and Painda Khan accused, beat the deceased. Dost Muhammad and Abbas, accused assaulted Fazal Dad, P. W." This statement was not elaborated in his cross‑examination. Mirza's statement too contains little detail. He said :‑ " Fazal Elahi, accused, opened the attack. He caused an injury to the deceased on the head with the blunt side of the hatchet. Fateh Haider, accused, also caused an injury to the deceased with a lath! on his head. Painda Khan, accused, speared the deceased that hit him near the ankle. Fazal Dad, P. W., was assaulted by Abbas, accused, with the blunt side of the hatchet. He was given a lathi blow by Dost Muhammad, accused. He then fell to the ground and was given some more injuries by the accused." It is obvious that the evidence led as regards the attack on the two persons who were most heavily beaten and the details of that attack, was fragmentary and superficial. One witness mentions only three blows struck by three different persons to the deceased Abdul Aziz. His evidence is clearly inadequate to support the finding reached by the learned Judges of the Lahore High Court that the appellants Fazal Elahi and Fateh Haider "subjected the deceased to a concentrated, merciless and long continued assault". Although Fazal Dad mentions that the three assailants continued the beating after Abdul Aziz had fallen, this detail is lacking in the evidence of the other injured man Muhammad Khan. It is important to note further that there is nothing in the evidence of the eye‑witnesses to indicate that the beating given to Abdul Aziz was more prolonged or heavy than that given to Fazal Dad. The learned Judges of the High Court having found that Painda Khan caused Abdul Aziz only two slight injuries with a spear, it would follow that they believed that twelve external injuries to Abdul Aziz were caused by Fazal Elahi with a hatchet and Fateh Haider with a dang, of which three or four might have resulted from multiple blows, while Fazal Dad had 18 external injuries, one caused by multiple blows, struck with the same weapons viz., a hatchet and a lathl. There is nothing to indicate that any of the accused persons remained on the spot, for the purpose of beating any of the victims or for any other reason, for any greater length of time than the others; on the other hand, the evidence as well as the initial report go to show that they all left the spot at the same time, and that this was before people from the village had begun to collect on the spot. The statement attributed to Fazal Elahi in the report viz., that the victims would die, was not repeated by Fazal Dad in his evidence, nor has he or any other eye‑witness deposed concerning any words used by the assailants at the time of the assault which might be relevant to the question of intention or knowledge, in relation to the injuries caused. The previous enmity adduced as motive touched only Akbar and Khuda Bakhsh accused directly, and the interest of Fazal Elahi is traced by the prosecution solely to the fact that he is Akbar's maternal uncle. The pleas taken in defence may also be briefly mentioned although no attempt was made to support them independently by evidence. Fazal Elahi, Painda Khan and Ghulam Abbas denied participation in the incident. The other four admitted participa tion as and to the extent appearing from a detailed statement made by Akbar, to the effect that he had given offence to a police officer named Fateh Muhammad by abducting his niece, and on the day of the occurrence he passed by the house of Muhammad Khan, P. W., who was present there with his father‑in‑law Fazal Dad P. W. and the deceased Abdul Aziz, in the company of the afore said Fateh Muhammad. Seeing him, these persons challenged and pursued him. He ran towards his threshing floor where Khuda Bux, Fateh Haider, and Dost Muhammad were present. His pursuers were pelting him with stones, and Dost Muhammad, Khuda Bux, and Fateh Haider also started throwing stones in return. In the meantime, a large crowd collected and all joined in stone‑throwing, in which Akbar participated. Fazal Dad speared Fateh Haider. In the resulting confusion, Akbar, Dost Muhammad and Khuda Bux left the spot, but Fateh Haider lost consciousness owing to his serious hurt. This story was rejected by the Sessions Judge as "belated" and "unsupported by any evidence". In the High Court, the learned Judges found that Fateh Haider's penetrating wound required explanation, and they thought it "reasonable to presume that one or more members of the prosecution party were carrying sharp‑edged weapons with them." However, the defence story was rejected as being unsupported by evidence, and "incompatible with the actual result of the fight, it fight there was any". For the latter conclusion, reliance was placed on the circumstance that numerous injuries appeared on the prosecution side which "were caused with weapons other than stones". It does not appear that the learned Judges adverted to the circumstance that, on the prosecution case, none of the injuries sustained by the prosecution party could possibly have been the result of stone‑throwing. The medical evidence indicated that five injuries received by Fazal Dad and Muhammad Khan were probably due to being hit with stones, and no less than five of Abdul Aziz's injuries, all on the head, could also have been caused, in the opinion of Dr. Moonis, which he was never asked to revise, by the same means. The assessors having opined that the accused persons were innocent and had acted in the right of self‑defence, the Sessions Judge found on the evidence that the accused Akbar might have been falsely implicated through the influence of his enemy Fateh Muhammad and acquitted him, but as to the other six, he regarded their participation as being proved beyond doubt. Holding that an unlawful assembly for the purpose of murdering Abdul Aziz had been established, he convicted the six accused persons under section 148, P. P. C., and under section 302 as well as section 325 each read with section 149, P. P. C. For the major offence he awarded death sentences to Fazal Elahi, Fateh Haider and Painda Khan accused who he held had "joined in the beating of Abdul Aziz accused", but the other three he sentenced to transportation for life. The sentences awarded under section 325/1.49, P. P. C. were of four years' rigorous imprisonment and those under sec tion.148, P. P. C. of two years' rigorous imprisonment. In the High Court, the learned Judges found that although the accused persons were collected at Fateh Muhammad's house "by design", it would "be safer not to accept the theory that their intention in collecting at the house of Fateh Muhammad was to murder Abdul Aziz". The learned Judges held accordingly that the six appellants before them were members of an unlawful assembly formed with a view to attacking Abdul Aziz and his companions, and that they "must have known that the attack was bound to result in grievous hurt to one or more of their victims". These words appear to be intended to attract the rule laid down in section 149, P. P. C. whereby every member of an unlawful assembly is made liable for every "offence committed by any member of an unlawful assembly ... ..such as the members of that assembly knew to be committed in prosecution of the (the common) object (of that assembly)". On this view, they held that "those who did not attack Abdul Aziz should have been convicted under section 425/149, P. P. C. and not under section 302, P. P. C." With reference to the attack on Abdul Aziz they found that Painda Khan caused only two injuries with his spear, and "in his case it seems difficult to apply section 34, P. P. C. to make him liable for murder". In the result the convictions of Dost Muhammad, Khuda Bux, Ghulam Abbas and Painda Khan under section 302/ 149 were altered to section 325/ 149, P. P. C. and sentences of "seven years" rigorous imprisonment were awarded under the latter section. At the same time, the convictions recorded by the Sessions Judge under section 325/149 for which four years rigorous imprisonment had been awarded were maintained. The learned Judges seem to have thought that this separate conviction under section 325/149 related to "the injuries to Fazal Dad", although nothing on the point was said by the Sessions Judge. As regards Fazal Elahi and Fateh Haider, the view was taken by the learned Judges on the facts, that they had "subjected Abdul Aziz to a prolonged attack", and had "mercilessly thrashed (him) while he lay on the ground". The resultant injuries included a fracture of the skull and the left humerus bone, a tear in the liver and a congestion in the lungs. It appears that, in the course of arguments, on the 25th April, 1952, the learned Judges gained the impression that these facts were sufficient to sustain a charge of murder against Fazal Elahi and Fateh Haider, provided it could be shown that the injuries, other than those specified by the doctor as being the direct cause of death, also contributed to bring about that consummation. An order was recorded the same day from which the relevant portion is repro duced below :‑ "One of the points taken by Mr. Saleem is that section 34 is not applicable to the case of Fazal Elahi and Fateh Haider, so as to make them liable for the murder of Abdul Aziz. Accord ing to the medical evidence, the deceased had fourteen injuries, of which Nos. 5 and 7 were fractures of the skull and the humerus and the cause of death was "shock and haemorrhage as a result of fracture of the skull and left humerus". It seems to us, though we are not deciding this point at the present stage, that the application of section 34 to the case of Fazal Elahi and Fateh Haider to make them both liable for the murder, may depend upon whether the injuries other than the two fractures mentioned above had anything to do with the death of the deceased. Mr. Muhammad Sharif, learned counsel for the Crown, contends that it is obvious from the nature and extent of the injuries that death was the cumulative result of those injuries, and that on the medical evidence we should so hold. He also claims that if we have any doubt in the matter, we should recall the doctor and question him on the pint. On the present opinion of the doctor as to the cause of death, we cannot accept the first contention of the learned counsel for the Crown and as regards the second, it is obvious that Mr. Muhammad Sharif cannot claim the right to recall the doctor. The doctor was the very first witness to be examined at the trial and neither was he questioned on this point by the Public Prosecutor nor was any other medical expert examined by the Public Prosecutor to prove that the other injuries had contributed to the death of the deceased. But this by itself is not a sufficient reason for us not to exercise the power given to us by the law to recall a witness in appeal if we consider the exercise of such power to be necessary in the interest of justice. Since, in the present case, we do consider that the result of our omission to exercise that power may possibly lead to a miscarriage of justice, we direct Dr. S. M. Moonis, Medical Officer, Chakwal, to appear before us on 30th April for further examination. We may note that Mr. Sleem expressed his intention of claim ing a retrial if the doctor was recalled. We will decide that question after the doctor has been examined." In his supplementary statement, the doctor opined that the injury to the liver had contributed to the death, and that the other injuries (not including the fractures) had accelerated and aggravated the shock which was one of the proximate causes of death. As regards the liver injury, he thought that if the skull had not been fractured, the man might have survived, though even then death would still have been a probability if there had been no treatment. He thought the internal injuries to the lungs and the liver were the result of the blows which had caused the bruises covering an area of 12" x 12" on the back. After concluding the record of the doctor's evidence, the case was adjourned and on the 27th May, 1952, the learned Judges noted that "counsel for the appellants states that he does not wish to contradict the evidence of the doctor recorded in appeal". It has been stated before us by the same learned counsel that the opportunity offered by the High Court was not for a retrial but merely to contradict the doctor's evidence, and this was thought by the legal advisers of the appellants to be of no utility for the purpose of their clients. The claim for a retrial was never abandoned by or on behalf of the appellants. The judgment of the High Court was pronounced on the 30th May 1952. It appears from it that the question of the criminal liability of Fazal Elahi and Fateh Haider and, in particular, of the effect thereon produced by the additional evidence given by the doctor, although it was evidently a cause of serious concern to the learned Judges, was treated as of less importance than the question whether, in law, the doctor's additional evidence could be recorded in an appellate Court. No less than 14 pages out of the 27 pages occupied by the judgments of the High Court in‑the paper book are taken up with discussion of the latter question, which was purely a legal one, and almost the entire discussion centres round the views expressed by this Court in dealing with an earlier appeal from the Lahore High Court, namely, that of All and Bashir (P L D 1952 F C p. 71). This discussion, in its various aspects, has given rise to the grave questions and complexities (to which reference has been made above.) The nature of the discussion and other allied ques tions pertaining thereto will be dealt with in due course. Here it will be sufficient to say that the sole ground furnished by the learned Judges as providing the necessity for this discussion is that in their view, although not in the submission of counsel appearing for the appellants before them, consideration of the Federal Court decision in All and Bashir's case was necessary for the purposes of deciding whether the claim for a retrial was well founded. The conclusion reached at the end of the discussion is as follows :‑ "If the contentions put forward on behalf of the two appellants were to be accepted, the accused will not only be entitled to contradict the additional evidence, but a retrial would be a necessary result whenever the appellate Court acted under section 428 of the Code of Criminal Procedure. This has never been held before and, as far as I know, is not the law." While admitting that the new evidence had served to strengthen the Court's opinion about the application of section 34, the learned Judges did not think that this fact alone entitled the appellants concerned to claim a retrial, and in coming to this conclusion they noted that Fazal Elahi's defence was alibi and Fateh Haider's story was not affected one way or the other by the additional evidence, and therefore they concluded "both on general principle and the authority of the Federal Court judgment as explained above that the right of the defence in the case was confined to contradicting the additional evidence". The exact purport of this conclusion, will require detailed examination later. At this stage, it need only be mentioned that the learned Judges felt that the additional evidence recorded in appeal removed all difficulties in relation to "the application of section 34 to Fazal Elahi and Fateh Haider in order to make them liable for the murder of Abdul Aziz". After recapitulating the medical evidence regarding the injuries, they concluded "that if all this damage can be said to have been caused in furtherance of 'the common intention of the two appellants, section 34 would immediately be attracted to make them both liable for the total damage and thus for murder". Finding that Fazal Ilahi and Fateh Haider were present on the spot by design and had acted in concert they held that the entire beating was administered in furtherance of a common intention applying to both of them, and therefore maintained their convictions under section 302, P. P. C. but altered the sentences from death to transportation for life for a reason which has been expressed as under:‑ "Since killing might not have been their original or direct intention." The convicts applied to this Court for special leave to appeal from the decision of the High Court. It is necessary for the purposes of this judgment to set out, in some detail, the substance, and even the wording of a number of the grounds upon which such leave was sought. In the first ground it is urged that having rejected the prosecution story that the unlawful assembly was formed with the object of committing murder, the High Court could not make Fazal Elahi, Fateh Haider alone liable for the murder of Abul Aziz under section 34, P. P. C., the more so as they had exonerated, in particular. Painda Khan of the charge. The second ground attacks the re‑examination of Dr. Moonis as ''not legally justified", and goes on to say "This step was taken to fill a gap in the prosecution case as well as to justify another judgment of the High Court which was reversed by the Federal Court in P L D 1952 F C p. 71 (Ali and Bashir v. The Crown"). The third ground sets out that if the High Court thought the case suitable for the application of section 34, P. P. C. they should have ordered a fresh trial so as to place both parties on a footing of equality. The fourth ground may be reproduced Perbatim :‑ "That the remarks of the Honourable Judges betray a lack of the knowledge of elementary principles bearing on the administration of criminal justice. They seem to ignore the basic fact that an accused person is presumed to be innocent unless he is proved to be guilty and that the interests of what they call society can be safeguarded best by protecting the honour and liberty of a subject in accordance with the cardinal principles of criminal jurisprudence." (This ground has reference to certain observations made by the two learned Judges of the High Court who dealt with the case, indicating that they did not deal with the case as one between the Crown and the accused person only, but bad been conscious of the presence of a "third party, namely, society", whose interests also had to be considered in exercising the power to take further evidence.) The last three grounds do not raise any question of a nature requiring consideration in this Court. In the order of this Court granting special leave to appeal, seven questions have been formulated as inter alia requiring careful consideration. Fiver of these questions are concerned with the discussion of the judgment in Ali and Bashir's case which is contained in the judgment under appeal. and these will be con sidered in due course. The two questions relating directly to the criminal liability of the appellants are whether the case was a fit one for recording of additional evidence in the High Court, and whether the prayer made for a retrial in consequence of the recording of additional evidence was rightly refused. We have carefully perused the record and after consideration of the very full arguments advanced on both sides have come clearly to the conclusion that the answer to the last mentioned question must be in the negative and that, In the circumstances of the case, it is not necessary to propose an answer to the first question. The consideration of the case may appropriately commence with two findings on questions of fact recorded by the learned Judges of the High Court, with which we find ourselves in complete agreement, vie. firstly, that the appellants constituted an unlawful assembly, and secondly, that the common object of this assembly was to assault Abdul Aziz and his companions, in order to give there a beating in such a manner as the assailants knew was likely to result in grievous hurt to one or more of the victims. Such a finding has two effects. Firstly, it settles the dominant or overriding purpose of all the members of the unlawful assembly, and secondly since in this case the assault was not a means to any other end, but was an end in itself, this finding also determines that the most serious offence of hurt for which any of these members can be convicted is, in the absence of special circumstances, an offence punishable under section 325/ 149, P. P. C. Thus there can be no question but that, on this finding the conviction of Khuda Bakhsh who has been held to have injured Muhammad Khan only, causing nothing but simple hurt, would nevertheless be appropriately for the offence of grievous hurt caused as a member of an unlawful assembly, in the prosecution of the common object of that Assembly, which was to cause grievous hurt, and grievous hurt having actually been caused, although by some other member or members of the assembly. In like manner on this view, and irrespective of what it will be necessary for us to point out as arising from the evidence, if it be believed that Painda Khan caused only two simple injuries with a sharp weapon to Abdul Aziz, nevertheless he is rightly convicted under section 325/ 149, P. P. C. These are instances of two persons, members of the unlawful assembly, who have been found on the evidence not to have caused grievous hurt, and yet by virtue of constructive liability are rightly held guilty of, and are therefore punishable for, the maximum offence committed by any member of the unlawful assembly, which was within the contemplation, or more precisely the common object of the assembly. The question which has been raised on behalf of the two appellants Fazal Elahi and Fateh Haider is that, in the absence of any evidence to show that they were pursuing a different object from that of the other members, or were animated by a different common intention, it is not open to the Court to find them guilty of any offence exceeding that which is limited by reference to the common object of the assembly of which they were members. In this connection, learned counsel arguing on behalf of these two appellants did not hesitate to point out that on the reasoning in relation to them by the High Court their alleged companion Painda Khan was equally liable, for he has been found to have been present with the others near the place of murder by design, and also to have acted in concert with Fazal Elahi and Fateh Haider in assaulting and beating Abdul Aziz. The last‑mentioned contention is inconclusive. The Assistant Advocate‑General of the Punjab, appearing for the Crown, has submitted in reply that on the facts, the acquittal of Painda Khan of the charge of murder is erroneous, but that is not a sufficient ground for acquitting Fazal Elahi and Fateh Haider as well on this charge, if there is evidence to support the major charge against them. It seems to us that the fallacy underlying the treatment of the question of the liability of Fazal Elahi and Fateh Haider by the High Court goes deeper than any error which can be pointed out on behalf of the appellants or the Crown, in regard to the finding in respect of Painda Khan. It is true that the High Court has held that Painda Khan was present with the others by design, and has accepted the evidence showing that he acted in concert with Fazal Elahi and Fateh Haider in assaulting Abdul Aziz. In finding that Painda Khan inflicted only two blows with his spear, the learned Judges appear to have proceeded upon an assumption, based upon the two incised wounds found on the de ceased's lower right leg, but a spear may readily be used as a lathi, and the assumption receives no support either expressly or by implication from the ocular evidence on the point. So far as that evidence goes, meagre though it is, Painda Khan was fixed with an equal share, along with the two others, in the beating of Abdul Aziz, and consequently, a doubt felt by the learned Judges con cerning the intention entertained, or the knowledge possessed, by him might reasonably be thought to extend equally to his collabo rators. In a case of death resulting from a concentrated, mer ciless and long continued assault", such as a High Court has found was made upon Abdul Aziz, every blow must be deemed to contribute to the death, and the finding of the learned Judges in regard to Painda Khan would appear to necessitate the conclu sions not only that any blows delivered by him did not have such a result, but also that in striking a blow or blows, at the same time as Fazal Elahi and Fateh Haider, he acted with a different knowledge, namely, that neither he nor any other member of the unlawful assembly was likely to produce any result more serious than grievous hurt. The latter conclusion brings into sharp relief the necessity for requiring clear evidence, whether direct or cir cumstantial, in order to be satisfied that Fazal Elahi and Fateh Haider, although the overriding purpose in their minds was (as found by the High Court), an assault with such force as they knew was likely to cause grievous hurt, jointly possessed a knowledge, which was confined to themselves, and which was not shared with, or communicated directly or indirectly to Painda Khan viz. that their assault upon Abdul Aziz was of such a nature that it was likely to cause death. No proof of this nature is brought to light by the most care ful examination of the entire evidence. Indeed, certain indications to the contrary effect appear, of which we may mention two. Firstly, the remoteness of Fazal Elahi's relationship .with Akbar might be thought to show, that being personally unconnected with the previous incidents which culminated in the present crime, the malice if any borne by Fazal Elahi and his son Fateh Haider towards Abdul Aziz would be of a lower rather than higher order. Secondly, the prosecution have failed altogether to explain the pre sence of five probable and five possible stone injuries on the per sons of Abdul Aziz, Fazal Dad and Muhammad Khan. The eye‑witnesses have clearly stated that nine of the accused persons threw any stones, and on the other hand, Akbar's statement may tend to indicate that there was stone throwing by persons other than the accused persons, at the three men injured on the prosecu tion side. The five injuries on Abdul Aziz's head were all possi ble stone injuries, and the fatal injury, namely, fracture of the skull was found under one of these. A doubt appearing in rela tion to the liability of one or other of these two appellants for the fatal injury cannot be without effect upon the inference to be drawn regarding the intention or knowledge behind the blows which they struck. But apart from these indications, it appears to us to be suffi ciently plain that in all visible respects i.e. such as might have been observed by a well‑situated and impartial bystander, the parallel between the attack believed by the High Court to have been made upon Fazal Dad by Dost Muhammad with a lathi and Ghulam Abbas with a hatchet, and that believed by the High Court to have been made upon Abdul Aziz by Fazal Elahi with a hatchet and Fateh Haider with a lathi is for practical purposes, almost exact. The weapons used are precisely of the same kind, and no thing appears to show any preponderance of effectiveness or weight on the side of the appellants Fazal Elahi and Fateh Haider. The nature of the attack is also almost precisely the same. There are a number of blows on the head, and a number on the back, and there is a marked similarity between the repeated blows struck at the left legs of both Abdul Aziz and Fazal Dad. Abdul Aziz's left leg from the knee to the ankle was covered with bruises, but the whole of Fazal Dad's left leg, including the thigh, was swollen and red from blows. If, following the finding of the High Court, the two incised wounds of Abdul Aziz be eliminated, the total of his injuries is reduced to 12 of which 3 might be regard ed as multiple injuries. Fazal Dad's external injuries, excluding a "complaint of pain in both arms", number 17 of which that involving his left leg necessarily includes a large number of sepa rate injuries. The similarity is carried further in respect of the use of the two hatchets; in each case it was the reversed side which was used. There is no indication, even of the slightest degree to suggest that the beating of Abdul Aziz was continued for a longer period than that of Fazal Dad, but on the other hand, the witnesses seem to be agreed that the accused persons after completing the beating left the spot together, and as this was be fore villagers bad begun to collect, the inference might reasonably be drawn that the actual assault was not protracted in any real sense. In any case, the delivery of 15 or 18 blows by two per sons to a single man would not require more than half a minute at the outside. We have looked in vain for any circumstances, such as might stave been visible to a bystander, which can serve in the slightest degree to specialize the intention or knowledge of Fazal Elahi and Fateh Haider, in the manner which is necessary for the purpose of concluding that their act is an act of culpable homicide, although an exactly similar act by two other persons, whose intention and knowledge at the outset were exactly the same as their own, must be regarded as an act of causing grievous hurt only. Unless there, be intention or knowledge of one of the kinds specified in section 299, P. P. C. no conviction for culpable homicide can be had. It is true that the internal results of the blows given to Abdul Aziz were such that one of them was likely to cause death and another aright have caused death in certain circumstances. The learned Judges of the High Court have evidently confined their attention to this circumstance in determining the intention or knowledge in the minds of those who, in their belief, caused these injuries. In so doing, and at the same time reaching the finding which they have recorded concerning the common object of the assembly and the extent of injury which the members thereof knew to be likely to be caused, and the further finding in respect of Painda Khan, the learned Judges appear to us to have fallen into inconsistence For it is quite clear that the evidence does not assist to exclude Fazal Elahi and Fateh Haider from the general finding that the highest injury which any member of the unlawful assembly, knees, to be likely to be caused was grievous hurt Further, having given the benefit of this finding to Painda Khan in view of the impossibility or differentiating the external and visible acts of Fazal Elahi and Fateh Haider from those of Dost Muhammad and Ghulam Abbas no relevant reason remained for placing the liability of the former on any higher basis than that of the latter pair. The case might have been different if the acts of Fazal Elahi and Fateh Haider had been more imminently dangerous in themselves, for instance, if the sharp edge of Fazal Elahi's hatchet had been brought into play, but in the absence of arty such circumstance, we can see no escape from the conclusion that irrespective of the internal results, which need not necessarily have been either intentional or within knowledge, the criminal liability of Fazal Elahi and Fateh Haider must be placed on the same basis as that of Dost Muhammad and Ghulam Abbas. It follows that the convictions of Fazal Elahi and Fateh Haider under section 302 must be set aside. The principal offence of Fazal Elahi and Fateh Haider appears to us to lie properly under section 325/149. The separate conviction under the same provision of law recorded against each of the appellants, in respect of the grievous injury to Fazal Dad may be allowed to stand, since it is undeniable that grievous hurt was caused to him as well. The constructive nature of the liability is sufficiently taken into account by the order for all sentences to run concurrently. The convictions under section 148 are clearly right on the findings reached by the learned Judges of the High Court. We propose, in this judgment, to direct that the record of the High Court be amended, as indicated above, in relation to the offences of which the several appellants have been found to be guilty, as well as in relation to the sentences. Before leaving this part of the case, we may briefly examine the question regarding the refusal of a re‑trial to the accused persons Fazal Elahi and Fateh Haider. In the view which we have taken, the inference of a special intention or knowledge in the minds of Fazal Elahi and Fateh Haider, which led the learned Judges to make an order for the additional evidence of the doctor, was not sustainable on the facts, irrespective of the evidence of the doctor, and the examination of the doctor did not in any way improve the situation. Nevertheless;,‑when, as appears to be t: e case, the learned Judges came to the conclusion that with the additional evidence of the doctor there was a prima facie case against Fazal Elahi and Fateh Haider under section 302/34, P. P. C., this conclusion was in our view equivalent to the formulation of a case outside the accusation which these persons had been called upon to meet at the trial, as should have been clear from the finding that the common object of the assembly was merely to give a beating and at the most to cause grievous hurt. Such a conclusion involves the imputation of a special intention or knowledge confined to these two accused persons, and arising in the course of the prosecution of the common object aforesaid and while there can be no doubt that, if in the opinion of the learned Judges, all the evidence of the facts necessary to constitute a case under section 302/34, P. P. C. was before them it would have been open to them to convict accordingly, not withstanding that the charge was originally under section 302/149, P. P. C. if they were satisfied that there had been no disadvant age to the accused person, we entertain no doubt that if such a case could only be formulated with the aid of evidence as to facts freshly recorded there would be proper ground for enquiry into the new case on the lines indicated in section 231 of the Code of B Criminal Procedure. Even though the Court may not have chosen to frame a formal charge, the fact that the evidence necessary to constitute the new case was only completed in the appellate Court so that it was only at that stage that the accused could be called upon to plead to the new charge, if it may be so called, gives rise to a right in the accused person similar to that provided by sec tion 231, Cr. P. C. The proceedings envisaged in that sec tion are in the nature of a limited enquiry relevant to the new matter appearing in the added or altered charge, and in the present case, such a limited enquiry may also have been conducted or directed under the powers derived from section 375, Cr. P. C Therefore, while we consider that the demand for a re‑trial, in the sense of a completely new trial was excessive, it appears to us that there was a case for allowing a limited enquiry as indicat ed above, and such an enquiry would, in our opinion, have been practically conducive to the dispensation of justice in the case. This is particularly so in view of the opportunity required to be given, not only to the accused person but also to the prosecution to adduce fresh evidence in relation to the matters newly raised. It is now necessary for us to commence consideration of the judgment of the Lahore High Court, in so far as it purports to examine, or as the learned Chief Justice has said "explain", the judgment of this Court in the case of All and Bashir. The need is said to have arisen, as already stated, out of a claim for a retrial raised by the appellants. In the view taken by us, the question need never has arisen, for we find that, for a just and proper decision of the case, no additional evidence need have been recorded, and that the additional evidence actually recorded did not have the effect which the learned Judges thought it had. But that finding is without material effect upon the propriety or legality of the order. We entertain no doubt that in the circumstances, as they appeared to the learned Judges on the 25th April 1952, they acted in the interest of justice, in making the order for addi tional evidence. Similarly, it has been found that the claim for a partial retrial was tenable on the view of the case, as altered by the additional evidence received, which was apparently taken by the learned Judges, but that is not to say that they were not competent to take the contrary view, as they did. Nor can fault be found with the fact that the learned Judges thought fit to consi der the bearing upon that question of the law laid down by the Federal Court in Ali and Bashir's case, although as will appear presently, the facts and the questions arising therefrom in that case bore no resemblance to those of the present case. We recog nise that they were free to hold that the case before them was not governed by the law declared by the Federal Court in the case of AU and Bashir, although, since the case was not relied upon before them by the counsel appearing for the appellant, any reference to it might appear to be gratuitous. But the remarkable fact is that the lengthy and laborious examination of that case by the learned Judges did not enable them to extract any principle there from which they regarded as binding upon themselves. It appears merely to have provided the learned Judges with an opportunity to restate the facts of the case, to add certain facts relating to the proceedings before them in appeal, to criticise in words of no uncertain import the findings of fact reached by this Court on several aspects of the case, and after a statement of what the learned Judges conceived to be the principles laid down by this Court (in language carefully adapted to the new facts, as found afresh in the High Court) to indicate that absurd results would follow from the acceptance of those principles in easily‑imagined circumstances of common occurrence. So far as we are aware, from our own knowledge of judicial practice and precedent and from the assistance provided by learned counsel appearing before us for the parties, and as amici curiae (from among whom we select the learned Advocate‑General of the Sind Province. Mr. A. K. Brohi, for special measure of grati tude), such treatment, accorded to the highest appellate tribunal of a country by a Court from whom judgments and orders, it is empowered to receive and hear appeals of every kind, is altogether unprecedented. No words are needed to emphasise the departure from the attitude which is traditionally adopted by Courts, how ever high be their status, towards other Courts to whose appellate jurisdiction they are subject. The Federal Court of Pakistan is the successor, by virtue of a constitutional instrument, viz., the Privy Council (Abolition of Jurisdiction) Act, 1950, of the entire jurisdiction previously exercised by the Privy Council in relation to the High Courts in Pakistan. The solitary occasion which finds mention in the published judgments of the Privy C Council, when a Court in India purported to disregard findings of fact and of law recorded by the Privy Council occurred as far back as 1925, and the judgment delivered by Mr. Ameer Ali in that case (Mata Prasad v. Nageshar Sahai (52 I C 398)) lays down with clarity and completeness the limits which all Courts in India must observe in dealing with judicial pronouncements by the Judicial Committee. Having reconsidered the observations of the Judicial Committee, we hereby declare our considered opinion that precisely the same limits apply to the Courts in Pakistan in relation to judicial pronouncements by the Federal Court, and the Federal Court will not hesitate to enforce them, in such manner as may seem appropriate. It is therefore of great importance that these observations should b: reproduced in this judgment in their entirety :‑ "In view of the peculiar course adopted by the Subordinate Judge in dealing with this case, and in order to prevent other Courts in India from falling into same error, their Lordships think it desirable to point out that it is not open to the Courts in India to question any principle enunciated by this Board, although they have a right of examining the facts of any case before them to see whether and how far the principle on. which stress is laid applies to the facts of the particular case. Nor is it open to them, whether on account of "judicial dignity" or other wise, to question its decision on any particular issue of fact. Any application for review of judgment on grounds permissible by law only lies to the Judicial Committee." Lest it should be thought that the present position is in any respect different from that existing in the 1925 case, by reason of the constitutional changes which have since been introduced, or by virtue of the facts that the Court to be considered is a High Court, we propose to refer briefly to those constitutional provisions which determine the present position. The Federal Court, a envisaged in the original Government of India Act, 1935, was a Court whose jurisdiction was mainly of two kinds viz., an original jurisdiction, to hear and decide disputes concerning a legal right arising between two or more of the administrative entities created by or under the Act, viz., the Central Government, the Provinces and the Federated States (section 204), and an appellate jurisdiction to deal with cases which were certified as involving a substantial question of law as to the interpretation of the Constitution Act and constitutional instruments issued thereunder (section 205).1 But, as provision was made for the Federal Court to hear other questions, besides the constitutional question, in appeals under section 205, the appellate jurisdiction could be said to have a general aspect as well. With the addition of the entire jurisdiction previously vested in the Privy Council in relation to Pakistan, there can be no manner of doubt that the Federal Court is now, in the fullest sense of the expression, a Court of general jurisdiction. The limitations imposed by statute upon the Judicial Committee, in respect of its final order, viz., that they should be expressed in terms of advice to the Sovereign, has been removed at the same time by amendment of section 209‑vide section 8 (2) of the Privy Council (Abolition of Jurisdiction) Act, 1950‑so that the Federal Court "in the exercise of its appellate jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it." The scope of the jurisdiction possessed by the Privy Council was of a character so extensive as to be without parallel in the British hierarchy of Courts. The following extract from Halsbury's Laws of England, Hailsham Edition, Vol. VIII at p. 534 will, indicate its pre‑eminence in this respect :‑ "The jurisdiction of Courts is either original or appellate and 9n either case may be unlimited or limited as to the nature of the actions or matters of which the particular Court has cogni zance. The Judicial Committee of the Privy Council has jurisdiction in every kind of action, as its appellate jurisdiction is not only co‑extensive as regards classes of actions with that of the House of Lords and that of the Supreme Court of Judicature, but also includes jurisdiction in criminal matters, and it is the ultimate Court of Appeal from all Civil Courts from which appeal does not lie to the Supreme Court of Judicature or to the House of Lords. In the case of all other Courts there is some limitation, be it greater or less, of the classes of actions or matters of which they have cognizance." And again on page 550 of the same volume, it is said :‑ "The jurisdiction of the Judicial Committee of the Privy Council to hear appeals to His Majesty in Council arise from an Order in Council directing that all appeals or petitions, including complaints in the nature of appeals and petitions, in the matter of appeals, shall be referred to the Judicial Committee." By section 4 of the Judicial Committee Act, 1833, power was reserved to His Majesty to refer to the Judicial Committee "Any other matters whatsoever as His Majesty thinks fit". A general statement of the nature of its jurisdiction in respect of Courts outside the United Kingdom will be found at p.552, from which it will be useful to quote the following extract :‑ "As, therefore, His Majesty the King is supreme over all persons and Courts within his dominions, a right of appeal in all cases civil and criminal to the King in Council exists from the highest Court of each separate Dominion, colony, province, state, or possession, except so far as the prerogative in this behalf has been surrendered." It should therefore be abundantly clear that apart from express statutory provisions anything in the nature of a positive limitation upon the jurisdiction of the Federal Court, as the successor of the Privy Council, in relation to "all cases, civil and criminal decided by "the highest Court of each separate province (or) state" in Pakistan cannot be contemplated. It is a different matter that, in certain respects, this Court may, by following the practice of the Judicial Committee or any principles laid down upon itself, decline to interfere in specified classes of cases, unless certain conditions are satisfied. In addition, it is laid down, as an article of the Constitution (vide section 212) that, "The law declared by the Federal Court shall, so far as applicable, be recognised as binding on, and shall be followed by all Courts", in Pakistan, with some qualifications in relation to the Courts of Federated States. It is desirable that the content and effect of this constitutional provision should be clarified in two essential respects. Firstly, on a proper construction of this section, it becomes clear that it has the effect of constituting the Federal Court as the supreme tribunal of Pakistan, and as such, the sole Judge of the extent of its own jurisdiction. It follows that no Judicial means exist of questioning or challenging the exercise of jurisdiction on the part of the Federal Court. Whether the case be one that has been decided, or is one that is pending (in which the plea to the jurisdiction may, of course, be raised), does not affect the position, for, provided the matter be brought up in appeal or by way of complaint in the nature of an appeal, from an order of a High Court, it must fall within the plenary jurisdic tion previously exercised on His Majesty's behalf by the Privy Council, unless the Federal Court, in a case before it, decides to the contrary effect. Any other Courts in Pakistan which concern themselves with doubts raised regarding the jurisdiction of the Federal Court, in matters of the kind indicated above, indulge in mere futility. We trust that this will be a sufficient warning against such waste of public time and money in future. The second aspect of this provision in the constitution is not less important. It has been repeatedly laid down by the Privy Council, and we take the opportunity of declaring the rule to be applicable to the pronouncements of this Court as well, that their judgments were not to be construed as laying down the law generally, but only as declaring the law in relation to the precise findings of fact reached or accepted or assumed by them. It is in this limited sense that section 212 is to be understood. For, if the words of that section be understood in their widest import, they undoubtedly purport to invest the Federal Court with a legislative power, which, at any rate, could not be resisted by "all Courts" mentioned in the section. That is clearly not the true interpretation of the section, for it would be contrary to the clear division of functions between the Legislature and the Judicature, which is rightly and universally recognised as inherent in British constitutional practice, and which it was one of the purposes of the Government of India Act, 1935, to provide. But the sole limitation which can conceivably be placed upon the power clearly vested in the Federal Court by means of this section, is that of laying down the law for each particular case, that is to say, in respect of the facts found in that case. It is obvious that the recognition which is required of the Courts must extend both to these facts, as well as to the law laid down thereon, if the section is not to be deprived of its effect. That is to say, it is not open to any Court, whether in the same or in any other case, to revise, or re‑examine, or otherwise attempt to reach a different finding upon, any matters of fact on which the Federal Court has reached or accepted a finding or made an assumption in relation to which it has then declared the law. This prohibition applies irrespective of whether such Court eventually finds that the principle of law laid down by the Federal Court is, or is not, applicable to the case before it. The most frequent case ink which this principle will need to be applied is one in which the Federal Court decision is relied upon, as applicable to the case before the Court, and for such a case, the rule laid down by the Privy Council in "Mata Prasad v. Nageshar Sahai", which has been cited above supplies all that is needed to restrain the Courts from exceeding their proper functions. We desire to express the hope that the position has now been clarified on this point, and that we shall not be required to deal with transgressions of the rule in any future case, in the manner which we find :; impossible to avoid in this case. The most thorough examination of the entire case conducted with the utmost impartiality o: which we are capable, has left us in no doubt whatsoever that. irrespective altogether of the startling failure of that courtesy which the relative positions of the High Court and this Court might have led us to expect, there has been a violation of a clear provision of the Constitution of Pakistan, as well as of the clearly established rule relating to the use of judicial precedent constituted by the decisions of this Court as the successor of the, Privy Council. The breach is of such a serious nature, and the circumstances attending it (among which may be mentioned the fact that while the judgment of the High Court under appeal was published in the Pakistan Law Reports, Lahore Series, which are under the control of the Lahore High Court, within three weeks of its being delivered, this Court's judgment in the Ali and Bashir case laying down the law definitively, has not yet appeared in that publication, which purports to contain cases determined "by the Federal Court of Pakistan on appeal from the Lahore, High Court") convey so damaging an impression, that we have decided, after mature consideration, to take appropriate action to efface the error so as to minimise its mischief to the law and the judiciary of the country. We desire to emphasize our sense of extreme pain that such a duty should have been imposed upon us at all. It has beer, necessary in the course of this judgment to use expressions of nature which, by reason of the subject‑matter and the objects to be attained, possess a certain emphasis not ordinarily found in judicial pronouncements. We desire to make it clear that nothing which may fall from us is said in anger, but only in sorrow, that our intention and fervent hope is that the action which we propose may eliminate once for all the possibility of this hurtful process having to be repeated, and that whatever we say should be accepted in the sense in which it is meant, namely to ensure the preservation of, and to advance, judicial committee among the Courts in Pakistan. We are conscious of the high status of some of the Courts to which our observations relate, and, which would henceforward be required to govern themselves by such course of conduct as we have indicated. We are not unaware of the duty falling upon us to respect the judicial opinions expressed in case coming before us by Judges of the High Courts and subordinate Courts, and we regard it as entirely natural and proper that these learned Judges should entertain a feeling of personal pride in the conclusions and convictions which they reach in cases decided by them. We realise and wish hereby to acknowledge that in the great majority of cases, these conclusions and convictions are reached only by the exercise of high judicial qualities. Bearin2l these factors in mind, we wish to express the hope that nothing which we say in this judgment will be made the occasion by any one for a repetition. in the same or any other form, of the grave errors which we now propose to demonstrate have indeed beer committed in the course of the judgment under appeal. Much has been heard during the arguments in this case concerning the subordination of Courts inter se. That such a relationship exists cannot be doubted. The indicia of subordination of Courts are too well‑known to require exhaustive enumerati‑n at our hands. To establish pre‑eminence of this Court, in tuffs respect, it is sufficient for us to refer to the following constitutional provisions namely :‑ (i) that all orders of every kind made by a High Court are appealable to this Court, unless an appeal be barred by , statute ; (ii) that all Courts are enjoined, not only to follow the law laid down by this Court, but in addition, to recognise it as binding, a requirement connoting mental cognition, in the nature of a submission ; (iii) that all authorities, civil and judicial, throughout Pakistan are required to act in aid of this Court ; and (iv) that all its orders made in the exercise of jurisdiction conferred upon it, are enforceable throughout Pakistan, the manner of such enforcement, where not already provided by existing law, being left to be prescribed by rules made by this Court, in accordance with law. But from the viewpoint of the present discussion, we would wish to emphasize another, and essentially more important aspect of the matter. It is that from the highest to the lowest, the Courts are all engaged in the same duty, namely that of administering justice in the cases which came before them. For this purpose, the judicial system has provided a gradation of Courts, charged g with the duty of ascertaining the facts of such cases, and applying thereto the law as contained in the statutes and judicial precedents which are of binding effect. In this process, which is obviously designed for the elimination of error, the law,, in its wisdom, has provided that the determination of facts shall ordinarily be concluded at an earlier stage than the determination of law and legal principles. It is therefore that the Courts of highest appellate jurisdiction are frequently restricted either by law or by their own practice in their approach to the facts as found by Courts which precede them in the gradation. But in regard to the legal principles which are ascertained as applying to these facts, and any further legal principles which may, conformably to relevant statutes, be drawn from the case, the view of the highest Court of appellate jurisdiction must necessarily prevail. This does not connote anything in the nature subordination of the Courts which dealt with the case at earlier stages, but on the other hand, can only rightly be regarded as r the last product of a fruitful collaboration by all such Courts including the highest appellate Court, for a common end, viz. the application of reason to the resolution of problems arising out of human affairs, according to the due processes of law. That indeed furrishes the clue to the bond which exists between the Courts constituting the gradation referred to above. Each in its place doing justice according to its lights, in conformity with law and the limitation upon its functions, is bound to its inferiors as well as its superiors by a single tie, namely, of that amenability to reason applied for the purposes of justice in accordance with law the observations contained in this judgment are made, and we hope will be accepted, entirely in this spirit. The learned Chief Justice, writing the principal judgment in the present case (with which Kayani, J., agreed "generally") having admitted that counsel for the appellants had not rested his claim for re‑trial upon the case of Ali and Bashir, proceeded to say "It is necessary to examine the whole position with special reference to the facts of and the principles deducible from the Federal Court judgment in Ali and Bashir v. The Crown (P L D 1952 F C 71) in order to decide (the) claim for a re‑trial". Thereafter, the learn ed Chief Justice set out the facts in the case of All and Bashir in narrative form. A point concerning this narrative is that mention is made twice of the fact that three of the eye‑witnesses in that case, Muhammad Sadiq, Saidu Naul, and Nawab, bad been in the company of the deceased Amir Ali from the time when he left his village in the morning, throughout the time when he stayed at the country town of Nankana till 3‑30 p.m., and were still with him at the time of his murder which was approximately 4‑30 p.m., the crime having been committed a few furlongs outside the town of Nankana. This was indeed a central feature of the pro secution story, as will appear with great clarity from the follow ing statement of the prosecution story appearing in the judgment of the High Court itself in the case of Ali and Bashir (the judgment was written by Muhammad Jan, J., with whom the learned Chief Justice concurred) :‑ "On the day of the occurrence at about 8‑30 a.m. Amir Ali set out for Nankana where he had to make an application to the Tehsildar for the recovery of land revenue from some de faulters. Amir Ali was a Lambardar and had paid the amount due from his own pocket. Since his acquittal in the murder case of Raja, Amir was afraid that the relatives of Raja might cause him harm. He, therefore, look some men with him for protection wherever he went. On the day of occurrence, he took his tenants Sadu Naul (P. W. 3), Nawab (P. W. 8) and Ibrahim. Muhammad Sadiq (P. W. 2) a cousin of Amir Ali also went with him because he owed some revenue and had to settle ac count with the patwari. Amir Ali and Saidu Naul went riding and the others walked. They reached Nankana which is about 2 miles from Abianwala at about 10‑0 a.m. and after tying their mares in the mandi outside the shop of Dil Muhammad (P. W.12) who belonged to Amir Ali's brotherhood went to the Tehsil. Amir Ali had the petition written by a petition‑writer. As the Tehsildar was not working in this Court they went to his house. Amir Ali went in and presented the petition to the Tehsildar. He came cut after about 20 minutes and returned to the mandi with his companions at about 11 o'clock. They remained there till about 3‑30 p.m. when all of them left the shop of Dil Muhammad for their village. At a short distance from the mandi, they met Sadu Kharal (P. W. 9) of village Khudiana ..he was also riding." (The narrative then leads directly to the circumstances at tending the fatal assault upon Amir Ali and his murder at a place a little over a mile from the mandi). This statement of the case is in exact accordance with the evidence of each of the eye‑witnesses, Muhammad Sadiq, Nawab and Saidu Naul, and there can be no manner of doubt that all the facts comprised therein constituted part of the prosecution story. For the case rested purely on the ocular evidence of these witnesses and Sada Kharal, a `chance' companion, all of whom were of partisan nature to the extent that, in view of the bitter enmity pre‑existing between the parties, their evidence would have carried no credence if they were unable to give a really convincing reason for their presence in the company of the de ceased when he was murdered in the open fields between his village and Nankana. Hence the care devoted to that aspect of the prosecution case which related to the grouping of the eye witnesses, from its commencement till the accomplishment of the crime. That the matter had caused concern to the investigating police will appear clearly from the following extract taken from one of the judgments of this Court :‑‑ "Now the witness Dil Muhammad was not examined by the Police until a month and a half after the occurrence when he and one Sajad, the owner of an adjoining shop, were questioned regarding the grouping of Amir Ali and his companions at Dil Muhammad's shop at 3‑30 p.m. on the day of occurrence. This clearly shows the anxiety of the Police to investigate the allegation that the witnesses were in the company of Amir Ali at or about the material time obviously, the importance of obtaining corroboration of their allegation of grouping was not realised until five weeks after the occurrence and the presumption would be that the investigation then specially carried out would bring to light all the movements and doing of the group from the time of their departure from the mandi up to the time of the occurrence. Yet nothing was apparently elicited from the witnesses concerning the second visit to the Tehsildar even at this stage." It will be observed that the matter referred to in the last sentence of the above passage is missing from the statement of facts reproduced above from the judgment of the High Court. It is mentioned in that judgment at a later stage, in the recital of arguments presented for the appellants, in a passage which may be usefully reproduced verbatim :‑ "Sadiq, Saidu Naul and Nawab say that they first went to the shop of Dil Muhammad in Mandi Nankana, from there they went to the Tehsil, from the Tehsil to the Tehsildar's house from where they returned to Dil Muhammad's shop and rested there till 3‑30 p. m., when all of them, including the deceased, left together for their village. On the way they were joined by Sada Kharal and, a little further on, Amir Ali was killed. No one has stated that Amir Ali parted from his companions, at any time, for howsoever short a period to go anywhere or to see anyone. The Tehsildar Ch. Muhammad Ashraf (P. W. 4) has stated that Amir Alf paid him a second visit at 4 or S p. m. We have seen the statements of Muhammad Ashraf before the Committing Magistrate and the police. We find that he has been saying this from the very beginning. It is argued by the learned counsel for the appellants that if these witnesses had been with Amir All, at least some of them would have mentioned the second visit of Amir Ali to the Tehsildar when giving detailed account of their activities in Nankana. No one has done so." The argument was overcome in the High Court, on the basis of additional evidence recorded to show that on the way home from Dil Muhammad's shop, the "bodyguard" witnesses, with the exception of Saidu Naul stopped at a certain place to drink water, and in this interval were out of touch with Amir Ali whom they saw immediately when they recommenced the journey, outside the Tehsildar's house in the company of Saidu Naul. The judgment of the High Court does not show what view the learned Judges might have taken of the effect of the Tehsildar's evidence upon that of the eye‑witnesses, had there been no additional evidence, but two of the judgments in the Federal Court clearly declare that the gap which thus appeared in the prosecution story was calculated to break down the case altogether. It is necessary to quote the relevant portions from these judgments, to avoid all doubt: "Chaudhari Muhammad Ashraf, Tehsildar, was examined as a prosecution witness at the trial. He stated that Amir Ali deceased had visited him at his house at 9‑0 or 10‑0 a.m. at Nankana. He had also visited him at 4‑0 or 5‑0 p.m. in the afternoon. The second visit was not mentioned by any of the eye‑witnesses ..It was known at the trial that the Tehsildar was a Government official of position, that he was a disinterested person, and that his testimony would carry great weight with the Court. It was the duty of the prosecu tion, therefore, to request the Sessions Judge to examine the eye‑witnesses then and there regarding the serious contradiction between the testimony of the Tehsildar and that of the eye witnesses. The whole foundation of the case for the Crown had been shattered. The prosecution, after the statement of the Tehsildar, could no longer claim that Muhammad Sadiq, Saidu Naul, and Nawab never let the deceased out of their sight. It was obvious that the absence of the mention of this incident from the statements of the eye‑witnesses would provide a ground for the defence to urge that the eye‑witnesses were not present on the scene of occurrence, and that the whole evidence had been fabricated at a later stage. This argument would be strengthened by the fact that two of the eye‑witnesses were the servants of the deceased, while the other two were his partisans, being related to him." (Per ABDUL RASHID, C. J.) "This significance of the statement of the Tehsildar that Amir Ali visited him on the 6th August 1949, not once but twice, and that the second occasion was between 4 and 5 p.m. lies in the fact that the eye‑witnesses of the bodyguard who professed to have been in Amir Ali's company at Nankana, throughout, had made no mention of this second visit at the trial or in any earlier statement. On the contrary their story was that the party had left in a group from Dil Muhammad's shop at 3‑30 p.m., and had proceeded in a group continuously up the scene of the occurrence, without having either jointly or separately engaged in any other activity except walking or riding together at a slow pace. The unimpeachable evidence of the Tehsildar shows that Amir Ali had become separated from the others, at some time after the alleged departure from Dil Muhammad's shop and before the time given for the murder viz., 4‑30 p.m. Their ignorance of this fact cannot be explained otherwise than on the supposition that they were either not with him on that day at all or they had then become separated from him. In either case the probability at once arises of Amir Ali being unaccompanied when he was killed." "In this Court, the learned Advocate‑General appeared to suggest, by way of explanation, that the conflict of evidence did not strike anyone connected with either the prosecution or the defence until the case was argued before the High Court. I am entirely unable to accept this explanation. The point having clearly been made in the evidence on the two occasions by the defence, and going as it did to the roof of the question whether the bulk of the eye‑witnesses were at all present on the spot, it can hardly have been ignored in pre senting their case. It is true that the particular point is not mentioned in the judgment of the Sessions Judge, but the general question of the grouping of the `bodyguard' witnesses, of which it forms a part, was fully argued, as appears from the lengthy treatment given to it in that judgment." "For this is a case resting purely on ocular evidence in close accordance with an initial report alleged to have been made within half an hour of the occurrence. No circumstantial evidence of any kind was led to implicate any one of the accused persons. The partisan nature of the witnesses was brought pointedly to the notice of the learned Judges. A well founded doubt created regarding either the promptness of the report or the presence of the witnesses on the spot was calculated to break down the entire case." (Per CORNELIUS, J.) No opinion was expressed on this point in the third judgment (by Akram, J.) but it was held that refusal of the prayer for an opportunity to produce evidence in rebuttal of the additional evidence which had been received, had "highly prejudiced the appellants in their defence" and constituted a "violation of the fundamental rules of practice necessary for the safe administration of criminal justice". The following observation was made in that judgment regarding the evidence :‑ "but looking into the case in its broad features, without entering into details, it seems to me that it may well be urged in view of the method adopted in the disposal of the appeal, that the High Court itself, in some measure, was in doubt with regard to the question of affirming the conviction or setting it aside upon the evidence as it stood on the record before the additional evidence was taken, and that the appellants, therefore, were entitled to the benefit of the doubt, the more so, as the assessors had given a unanimous opinion in favour of the appellants." It should however have been sufficiently clear from the explicit views of two of the members of the Bench (with whom Akram, J. did not disagree on the point) that the Federal Court considered the uncontradicted evidence of the Tehsildar regarding the second visit as constituting no mere discrepancy or even contradiction between witnesses on the same side inter se. The view taken was that it served to break down the story on which alone the prosecution relied to convince the Court that the eye witnesses were indeed present on the spot in the absence of such belief, their evidence was intrinsically, by reason of their evident partisanship, unworthy of belief. It is this conclusion which has been criticised and sought to be avoided by the learned Judges of the High Court, in the passage reproduced immediately below :‑ "In the judgment delivered by the Federal Court an assump tion is repeated several times that the case for the prosecution was that the eye‑witnesses had never let the deceased go out of their sight from the time that they had started from Kot Amir Ali till the time when he was killed. This will be apparent from the following passages in that judgment :‑ "The basis of the case for the prosecution is that three of these eye‑witnesses never let the accused out of their sight from the time that they started from Kot Amir Ali till the time when he was killed." Apparently the word "accused" here is a mistake for the word "deceased". "As the Tehsildar's statement completely falsified the claim of Muhammad Sadiq and Saidu Naul, that they had never let the deceased out of their sight on the day in question, it was open to the prosecution to elucidate this point from the testimony of the remaining eye‑witnesses." "The prosecution, after the statement of the Tehsildar, could no longer claim that Muhammad Sadiq, Saidu Naul and Nawab never let the deceased out of their sight." "Their story was that the party had left in a group from Dil Muhammad's shop at 3‑30 p.m. and had proceeded in a group continuously up to the scene of the occurrence, without having either jointly or separately engaged in any other activity except walking or riding together at a slow pace." " If the position had been as set out above by the Federal Court, and we had taken the evidence of ‑Muhammad Sadiq, Saidu Naul, and Nawab to mean that they had not lost sight of the deceased even for a single minute from the time of their departure from Kot Amir Ali up to the time he was killed, we should not at all have ordered a recall because In that case we should have taken the Tehsildar's evidence as being in conflict with the evidence of the eye‑witnesses and it would then have been a question for us to determine which of these two conflicting statements we were to accept. It was precisely because the witnesses had said nothing of the kind and the evidence, on the contrary, was that even in the morning Amlr Ali was alone with the Tehsildar for some time that we decided to recall them at the suggestion of Mr. Sleem in order to discover whether their omission to refer to Amir Ali's second visit to the Tehsildar was or was not consistent with the Tehsildar's evidence. The action was therefore taken at the suggestion of Mr. Sleem and in the interests of the convicted persons though we did not say so expressed in our order, the reason for it being that the witnesses could be recalled in appeal not because Mr. Sleem asked for their recall but because we considered such recall necessary in the interests of justice. That the recall was suggested by Mr. Sleem and that it was in the interests of the convicted persons appears further from the fact that though after the examination of Ch. Muhammad Ashraf and Muhammad Sadiq we did not consider the re‑exami nation of the other witnesses necessary. Mr. Sleem did cross -examine Nawab at length. And when the petition for special leave to appeal, which was not signed by Mr. Sleem, came up for hearing, Mr. Sleem does not appear to have made any grievance of this recall and the special leave to appeal did not purport to have been granted on that ground. Commenting upon this aspect of the case, the Federal Court took this order of recall as an invitation by the High Court for perjured evidence and as an attempt to clear glaring contradiction between the statements of the eye‑witnesses and the statement of the Tehsildar. How a step taken at the request of the defence counsel and in the interests of the convicted persons with the sole purpose of ascertaining whether an argument which otherwise was not available to their could be put forward by their counsel on their behalf amounted to an invitation by the High Court for perjured evidence or to an attempt to fill up the gaps in the prosecution case is, I say with the greatest respect, beyond my comprehension". It is evident that the learned Judges entirely failed to grasp the purport of the passages in the judgments of this Court from which they have quoted extracts. Some of these passages have been reproduced above, and it is plain that they do not have the effect attributed to them by the High Court, and further that they are in strict accordance with the case for the prosecution and the evidence led in support. If this Court believed that the `bodyguard' witnesses claimed to have kept the deceased within sight throughout the day, it believed no more than the witnesses themselves purported to say, for they claimed to be in his company, as a `bodyguard' and the function would cease to be performed if they let their man go out of their sight in any circumstances of potential danger. The reference by the learned Judges to Amir Ali being alone in the Tehsildar's house, where he could not be in any danger from his enemies, while the `bodyguard' naturally waited outside, is in the circumstances difficult to appreciate. And we cannot refrain from saying that the observation "it was precisely because the witnesses had said nothing of the kind and the evidence, on the contrary, was..." which gives the lie direct to the view taken of the same evidence by the Federal Court, is wholly unworthy of a Court enjoying the status of a High Court. The ensuring passage is an attempt to justify the recall of the witnesses on the ground that this was suggested by Mr. Sleem (counsel for the appellants in the High Court). Great importance was evidently attached to this matter, for it is mentioned no less than five times in this passage, having already been mentioned three times earlier in the judgment. It will be observed that on the basis of this matter the learned Judges have founded a strongly worded criticism of the view taken by this Court regarding the probable effect of the recall of certain partisan witnesses. In so doing, they have committed more than one error, which it is our duty to indicate. We shall first examine the record to ascertain whether there is any foundation for the categorical statement, repeatedly made, by the learned Judges that it was at Mr. Sleem's suggestion that the witnesses were recalled for re‑examination in the appeal of Ali and Bashir. At the hearing of the petition for special leave, our attention was naturally attracted to this statement, which is directly contrary to the impression conveyed by, be it noted, the concise statements presented by both parties, and even, at the hearing, by counsel for both parties, in this Court. It had been clearly stated in the grounds of appeal that "after the arguments in the case were concluded in the High Court, the Honourable Judges reserved judgment, but on the 13th November 1950 passed the following order." The order itself need not be reproduced here ; it sets out the contention of the appellants' counsel regarding the "contradiction" of the eye‑witnesses by the Tehsildar's statement regarding the second visit, and concludes: "We, therefore, consider it expedient in the interest of justice to examine Muhammad Sadiq P. W. 2, Saidu Naul P. W. 3, Nawab P. W.

8. Dil Muhammad P. W. 10 and Muhammad Ashraf Tahsildar P. W. 4, to elucidate this point." No indication appears from the order that the recall was made at the suggestion of defence counsel. The responsibility for recall resting entirely with the Court, this was not to be expected, but we pause here to note that in the original order, which we have seen, and which we are satisfied was made in the absence of Mr. Sleem or any counsel for the appellants (and even perhaps the Crown) despite the misleading superscription, the words "as' suggested by defence counsel" appear in type at the end of the extract reproduced above, but have been struck out in ink. No doubt has been expressed by any party in this case that the words were struck out by the learned Judges themselves, and it is equally clear that they did so of their own accord, and not at the request or suggestion of any party. In the remaining grounds of appeal, nothing appears to shake the clear impression that the learned Judges had not leaned on a suggestion from any party in making the order of recall. In the concise statement filed on behalf of the appellants, after the grant of leave, the following clear averments appear :‑ "They (i.e., the eye‑witnesses) pose themselves as eye‑witnesses simply because of their enmity and consequently it was urged before the Honourable Judges of the High Court that no reliance should be placed on their evidence. The Honourable Judges Instead of discarding their evidence decided to re‑examine these witnesses on this point.". "the witnesses should not have been afforded an opportunity to explain the serious contradiction as that amounted to filling the gaps of the prosecution case" We were unable to avoid the impression that these forthright declarations could hardly have been made, if the defence counsel had themselves been responsible for the quandary in which their clients found themselves. The impression was confirmed on reference to the concise statement presented on behalf of the Crown, in which the reply on this point was worded as follows :‑ "The Honourable Judges are fully competent under the law to call witnesses examined at the trial for elucidation of certain points which they consider proper and expedient in the interests of justice." Further, in order to justify the order refusing leave to produce evidence in rebuttal, it was said: "...no additional evidence was taken by the High Court inasmuch as the same prosecution witnesses were called for clarification of some points and the appellants were afforded full opportunity of cross‑examining these witnesses." The concise statement on behalf of the Crown was signed by Mr. C. M. Sharif, an Assistant Advocate‑General of the Punjab Province, who appears from the record to have appeared for the Crown in all the proceedings in Ali and Bashir's appeal in the High Court. He assisted the Advocate‑General of the Punjab at the hearing of the appeal in the Federal Court, which lasted for no less than five days. Throughout that period, not a word was uttered by counsel for either party, in the arguments on this hotly debated question, which could have conveyed to the Court the faintest hint that action of the High Court had been induced by counsel for the appellants themselves. It was therefore entirely natural and completely in accordance with the records which were before this Court in the case of All and Bashir and the arguments presented by senior counsel of high competence, that the conclusion was reached by this Court that the witnesses were recalled by the High Court suo mote, and upon this conclusion, this Court then proceeded to declare the proper course which should have been taken in law. Be it noted that in law no other conclusion could be arrived at than that the appellate Court was exclusively responsible for the recall. The use of the expression "in the interest of justice" both in statute as well as in the order reproduced above makes that perfectly clear. But here the matter has descended into the realm of fact, and falls to be resolved exclusively on the basis of evidence. When, therefore, this Court discovered that, by means of the judgment in the present case, the learned Judges of the High Court had taken it upon themselves to criticise, in vigorous terms, the law laid down by this Court on the point, after having attempted to destroy the substratum upon which that law was based, by the assertion that the recall was ordered at the 'suggestion" or "request" of Mr. Sleem, it became incumbent upon this Court, as a part of its duty to respect the findings of the High Court, to investigate the factual position, before pro ceeding to express its views on the propriety of the action taken by the learned Judges. Accordingly, Mr. Sleem was desired to appear before us to make a statement on the point, and on the 3rd November, 1952, he declared categorically that he never made a request, and never suggested to the learned Judges of the High Court, that they should recall any witness. He asserted that in his opinion as defence counsel, it would have been against the interest of the accused persons to recall the prosecution witnesses, and asked categorically "how could it benefit the accused "? He added that, his argument in the High Court was that the Tehsildar's evidence contradicted that of the witnesses, and " That being so, and knowing from my experience at the Bar, that if a witness who is giving false evidence is caught out on a certain point, and he is given a further opportunity to meet that point, he is likely to invent an explanation, it was obvious that I could not consider it in my interest that they should be given any further opportunity." The factual position, as it appeared from this evidence, required that the matter should be distinctly placed in issue and that an opportunity should also be allowed to the learned Judges to state their views. This was done by framing, as one of the matters which required consideration in the present appeal, the following question : ‑ "Does the discussion in the judgment of the High Court (of the Federal Court judgment in Ali and Bashir's case) proceed on inaccurate statements concerning the facts, and the arguments addressed to the High Court by counsel, in the case of Ali and Bashir?" A copy of the order admitting the appeal, in which the above question appears in full, was transmitted to the High Court along with a copy of the statement made in this Court by Mr. Sleem. We regret to note that no assistance has been afforded to us by the learned Judges in relation to the question of fact so acutely raised by the documents and arguments in the case of AU and Bashir, and the statement of Mr. Sleem, when contrasted with the assertions contained in the judgment under appeal. We have instead been furnished by the Advocate‑General of the Punjab with copies of statements recorded by the learned Judges of the following advocates viz, Mr. Sleem, Mr. C. M. Sharif, and the Punjab Advocate‑General himself, Mr. Abdul Aziz Khan. It would be tedious, and it is unnecessary to reproduce these statements in this judgment. The substance, so far as it is relevant to the case, may be stated fairly shortly. Mr. Sleem was questioned by the learned Judges at great length, and was quite clear :‑ (i) that he never suggested or requested that the witnesses should be recalled ; (ii) that the learned Judges had the impression that he wanted the witnesses to be recalled (we understand that this was said after being shown the order of the 13th November 1950, and in particular, the words "as suggested by defence counsel" which had been crossed out) ; and (iii) that the impression may have been based on something which he had said having been misunderstood, but his recollection was clear that he had not made any suggestion to that effect. Mr. C. M. Sharif stated that during the hearing of the case in the High Court, the learned Judges "conferred with each other, and asked Mr. Sleem if he would like your Lordships to recall the witnesses to clear this point, and he either nodded in the affirmative or accepted the sugges tion or welcomed it. This is my impression.". As to the hearing of the case in the Federal Court, he declared that he told his senior, the Advocate‑General, that it was not fair for Mr. Sleem to complain about the recalling of the witnesses, because they were really recalled at his suggestion, that the Advocate‑General got up and raised the point, and when Mr. Sleem denied it, Mr. Sharif asked the Advocate‑General not to press the point. Mr. Abdul Aziz Khan's statement was that so far as he could remember', he submitted in the Federal Court that his junior, Mr. C. M. Sharif, had told him that "so far as he remembered the witnesses had been recalled at Mr. Sleem's suggestion". When Mr. Sleem got up and denied the allegation, he did not pursue the matter further. We may also reproduce here a question and answer appear ing in the record of Mr. Sleem's statement before the High Court : " Question.‑The position in a nutshell is that I definitely remember, my brother definitely remembers, and the learned counsel for the Crown, who was opposing you in that case, definitely remembers that you made the suggestion. Is it not possible that you may be mistaken? Answer.‑I have already said that anybody can be mis taken." It seems to us a matter of infinite regret that a point of this nature should have become the subject of proceedings of the type which have taken place. Viewing the matter in the most sympathetic light, we are still unable to appreciate that the intensive cross‑examination to which Mr. Sleem was subjected was either necessary or proper. The only piece of contemporary documentary evidence shows that though the learned Judges initially proposed to say that the order was made at the sugges tion of Mr. Sleem, they, on second thoughts, struck out those words, and one inference might be that, irrespective of the factual aspect, they preferred to undertake full responsibility for the recall themselves (as indeed it was their duty in law to do). If this assumption be correct‑and in our view this would have been the proper attitude‑the assertion which is repeated many times in the judgment under appeal, that the recall was at Mr. Sleem's suggestion must be regarded as indicating a de parture from that attitude. The alternative view, that the words were struck out for inaccuracy, may be ignored, in view of the nature of the recollection of the learned Judges as appearing in the question reproduced above. It is desirable that we should state quite clearly that none of the Judges of this Court who heard the appeal of Alt and Bashir recollects or retains any record of, any submission of the kind mentioned in the statements of Mr. Abdul Aziz Khan or Mr. C. M. Sharif. It was no part of the case for the Crown, and accordingly, as the judgments of this Court will show, it was not necessary for this Court to consider any argument except that contained in the concise statement for the Crown, which has been reproduced above, and which alone, in the recollection of the Judges of this Court, was pressed on behalf of the Crown at the hearing. An extract from one of judgments delivered in this Court shows very clearly the attitude of the contesting parties, as it appeared to this Court at the hearing :‑ "It is unnecessary to emphasize the prejudice caused to the convicts by the order (i.e., the order refusing to allow evidence to be produced in rebuttal of the additional (evidence) on this point. It will suffice to add that the learned Advocate -General appearing for the Crown seemed to admit at one stage that a right to produce evidence in rebuttal should have been allowed, and, when he subsequently resiled from that position, was unable to furnish any ground for his assertion that the refusal was justified." If, within the clear recollection of one of the counsel appear ing for the Crown before us, the additional evidence had indeed been called at the request of the counsel appearing on the opposite side, we feel no doubt that the eventual position of the Advocate- General would have been very different from the resourcelessness which he, in fact, displayed on the point. We greatly regret that a conflict of evidence should have arisen on a point of this nature. We derive no particular relief from the consideration that for the present purposes, it is immaterial whether a finding is given one way or the other on the question. For the duty remains to be performed of pointing out to the High Court that the criticism of this Court's findings of law which the learned Judges have attempted is a direct contravention of the Constitution of Pakistan, as it infringes section 212 'thereof in a manner admitting of no doubt, and that the contravention is by no means mitigated, but is on the contrary, aggravated by the attempt to break down the substratum of fact on which that law was declared. We have pointed out already that any attempt to vary the findings or assumptions of fact on which a declaration of law by this Court is founded is, in all respects, equivalent to setting that law at naught, which the Constitution in clear terms prohibits. Such a proceeding is also prohibited by the universal practice in h relation to declarations of law by Courts of ultimate jurisdiction. We have cited a clear dictum of the Privy Council to this effect, but lest it should be thought that the pronouncement was based on some special position accorded to Judicial Committee in the British Empire, we may cite in support of the generality of the proposition two cases, to which our attention was drawn by Mr. A. K. Brohi, in the House of Lords, namely, "Allen v. Flood" ((1898 A C 1)) and "Quinn v. Leathem" ((1901 A C 495)) and in particular the dicta of the Earl of Halsbury, who presided over the House, on each occasion, in the capacity of Lord Chancellor. The eminence enjoyed by Lord Halsbury as a jurist is universally acknowledged and needs, no words of ours to emphasize or assert. In "Allen v. Flood" the Lord Chancellor was, in his own words, "compelled to differ widely" with a majority of the members of the House, and his view of the facts was overborne by that of the majority. The case falling to be considered at the hearing of the later appeal, the Lord Chancellor made the following observations, concerning the treatment of the facts upon which a pronouncement, of the law by the ultimate tribunal of the United Kingdom is based :‑ "Now, the hypothesis of fact upon which Allen v. Flood was decided by a majority in this House was that the defendant there neither uttered nor carried into effect any threat at all : he simply warned the plaintiff's employers of what the men them selves, without his persuasion or influence, had determined to do, and it was certainly proved that no resolution of the trade union had been arrived at all, and that the trade union official had no authority himself to call out the men, which in that case was argued to be the threat which coerced the employers to discharge the plaintiff. It was further an element in the deci sion that there was no case of conspiracy or even combination. What was alleged to be done was only the independent and single action of the defendant, actuated in what he did by the desire to express his own views in favour of his fellow members. It is true that 1 personally did not believe that was the true view of the facts, but as I have said, we must look at the hypothesis of fact upon which the case was decided by the majority of those who took part in the decision." At an earlier stage, the Lord Chancellor had declared the principle limiting the binding nature of judicial precedents of the House of Lords‑which, in our opinion, are applicable equally to the precedents of every tribunal of ultimate jurisdiction in the following words :‑ "Now before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it." We trust that this instance of a Lord Chancellor, accepting with grace and dignity, a view of the facts of a precedent case with which he himself did not agree at all, for the purpose of appreciating and limiting the law laid down thereon, by the majority of the Judges who decided that case, will serve not only to establish that, in the recognised mode of treatment of judicial precedents of Courts of ultimate jurisdiction, the hypothesis of fact upon which the law has been laid down is no less sacrosanct, in relation to Courts which are obliged by law to follow such precedent, than the law which has been laid down, but will also assist such Courts in the realization that any resistance, by the exercise of powers vested in them, for the purpose of asserting their own varying views either of the facts or L the law, is neither consistent with judicial tradition and decorum not to be recommended as likely to produce any result, much less a useful result. To continue with the examination of the judgment under appeal, the learned Chief Justice, after stating a few further facts concerning the proceedings in the appeal of All and Bashir before the High Court, proceeded to quote and extract from one of the judgments delivered in this Court, and with reference to such extract to state :‑ (i) that Saidu Naul had never been re‑examined by the Court, and no opportunity to rebut any fresh evidence by him had been sought ; (ii) that Nawab had not been re‑examined by the Court, but had been "called and examined at length" by Mr. Sleem ; (iii) that he (the learned Chief Justice) knew "of no rule where an accused person may himself recall a witness and examine him in appeal and then claim as of right an opportunity to rebut his evidence", and that if this were recognised as a "rule of law or principle of natural justice", such proceedings could be prolonged ad infinitum ; and (iv) that Muhammad Sadiq had been recalled by the High Court at the instance of Mr. Sleem. The reference to Saidu Naul is clearly uncalled for, and the learned Chief Justice must have been aware that what this Court was holding was that the refusal of opportunity to rebut the additional evidence recorded in appeal, was a violation of a fundamental rule of natural justice. We need only refer here to the relevant passage in the judgment of Akram, J. to make this perfectly clear :‑ "Turning now to the present case, out of the 12 witnesses examined in the Sessions Court, 4 were of a formal nature (P. Ws. 1, 5, 6 and 7) of the remaining 8, the High Court recalled six ; with the exception of P. W. 3 (tendered only for cross‑examination) the rest were all questioned and cross -examined ; some of the questions put were in the nature of cross‑examination which had the effect of nullifying the benefit of what may have been stated by the witnesses earlier in favour of the appellants ; at the same time the prayer for an oppor tunity to adduce evidence in rebuttal made by the defence was rejected : all this was, in my opinion, plainly wrong procedure a violation of the "fundamental rules of practice" necessary for the sale "safe administration of criminal justice." In the passage which the learned Chief Justice has seen fit to reproduce, there is indeed mention of Saidu Naul, but the purport of the passage is plain. It lays down a principle which is in relevant respects, in accordance with the clear dictum of Akram, J., and which is unaffected by the reference to the names of particular witnesses. But, in dealing with the witness Nawab, the learned Chief Justice has clearly fallen into error, for as will be clear from the order already cited, Nawab was recalled, by an order of the High Court, from which all reference to any request or suggestion of the defence counsel had been struck out deliberately. He was a prosecution witness, and Mr. Sleem cross -examined him in accordance with permission granted by the learned Judges in the following words :‑ "As the point that needed explanation has been clarified by the further examination of Muhammad Sadiq (P. W. 2) we do not wish to take any additional evidence, except that of Chaudhri Mran Bakhsh. Mr. Sleem, however, is at liability to cross‑examine the witnesses on the point to explain which they were called." In view of these facts, the statement that it was Mr. Sleem who called Nawab and examined him at length is, with all respect to the learned Chief Justice, difficult to understand. The witness did not change his allegiance by suffering cross‑examination, and the further conclusion, that through an opportunity given to rebut his evidence in cross‑examination, by evidence called by the defence, the proceedings could be "prolonged indefinitely" does not seem to follow in logic. In any case, it could be presumed that the Court would be alert to prevent any such abuse of its own process. It is not necessary to refer again to the facts relating to the recall of Muhammad Sadiq, and the other witnesses. These statements of fact, made by the learned Chief Justice, only serve to illustrate the difficulties which attend any attempt by a Court to justify its action in a previous case, where its findings have been reversed by an appellate Court. It is erroneous to suppose that the rule that findings of fact reached in an appellate Court are binding upon that Court, as well as on all Courts preceding it in the gradation, is designed only for the benefit of such appellate Court. The rule is of positive nature. Infringements are not to be lightly regarded. For any leniency in this respect could very easily break down the whole system of administration of justice as it exists today. All the circumstances combine to produce the clear result that acceptance by each Court of the findings arrived at in appeal from its decision by the next Court in the gradation is a necessary condition of the administration of justice and breach of this condition cannot fail to imperil the entire structure, composed of the Courts in Pakistan, which is provided by the law and the Constitution for the purpose. Proceeding further with the examination of the judgment, the next passage deals with the right of rebuttal of evidence received by an appellate Court under sections 428, 375, 540, Criminal Procedure Code, with particular reference to the new evidence of Muhammad Sadiq which, in the opinion of the learned Chief Justice, was directed to a fact which "was not in itself an incriminatory fact, but merely introductory to his evidence about the main fact". A distinction is sought to be drawn between a "new relevant fact", in relation to which a right to produce evidence in rebuttal is conceded, and a mere clarification of a "point in his (i.e., a witness's) evidence", where it is said that no right of rebuttal exists. The conclusion is drawn that if the law declared by the Federal Court had been applied in relation to the fresh evidence of Muhammad Sadiq, the Court would have been required to give an endless series of opportunities for rebuttal, and would have found itself : "hopelessly involved in an enquiry into a subordinate fact, not relevant per se namely whether there was a water‑post in the flour mill, who were the persons present at the flour‑mill, how they happened to be there and what opportunities they had of observing those who came for a drink of water at the water- post. With reference to these animadversions of the learned Chief Justice, it will be sufficient for us to say that it having been de cided by the Federal Court that in the circumstances of the case, opportunity to rebut the additional evidence should have been allowed by the High Court, it is, at the least, disrespect of a high order for the High Court to attempt to argue with respect to the same facts that the direction was misconceived and its obedience would have led to absurdity. In undertaking further analy sis of the position, with a view to drawing new principles, not touched upon by the High Court in their judgment, or by counsel in the arguments in appeal before this Court, or by this Court in its judgments, the learned Chief Justice has ventured far outside his true province, which was to deal with the precedent case only to ascertain whether on the facts it bore any similarity to those of the case before him, and to the extent of such similarity, to apply any principle of law laid down in the precedent case. It is not surprising that the excursion led to the conclusion of absurdity as to which we need only say that it does not appear to us to follow in logic. But even if it did, it is not open to any person or Court, who or which is enjoined by the constitution to follow the law laid down by this Court, to avoid this duty by making an effort to show, on his or its own basis of reasoning, that obedience will lead to absurd results. In this respect, the duty of obedience is as plainly to be derived from the words employed in the constitu tion, as it is universally recognised to be in relation to the law declared by statute. The argument of the learned Chief Justice is vitiated by an erroneous conclusion regarding the nature of the additional evi dence given by Muhammad Sadiq. This conclusion is inconsis tent with the findings of this Court, which, on reconsideration, we are persuaded, are entirely correct. No weight can therefore attach to this conclusion of the learned Chief Justice. As to the detailed treatment accorded to the question of the right of rebuttal, we cannot refrain from remarking that, like much else in the judgment which will presently be noticed, it falls in the category of over‑generous elucidation of the law, of which the effect is usually the opposite of clarification. The next passage in the judgment requires to be reproduced in extenso :‑ "From what I have said above it will be apparent that the implications of the Federal Court judgment are far‑reaching and that the rule laid down there may lead to results which were never intended by their Lordships. The principle laid down therein must therefore be confined to the assumptions on which that judgment was rendered and that principle is: (1) that it is an improper exercise of power on the part of an appellate Court to recall partisan evidence merely to have gaps in the prosecution case filled up or discrepancies in the prosecu tion evidence removed ; and (2) that where fresh evidence is taken in appeal by the Court suo motu or at the instance of the prosecution, not at the re quest of the defence counsel, the accused is entitled to rebut that evidence if it relates to a new relevant fact." But as to (1) above, it must be borne in mind that the mere fact that a witness is a partisan is no ground for not recalling him if the appellate Court considers such recall in the interests of justice. If, for instance, an important witness, thoroughly biased against the accused, has not been questioned in the trial Court about a statement made in the course of investigation, which statement is in favour of the accused, the appellate Court will be acting rightly and justly in recalling him to en able the accused person to rely on a self‑contradiction." We are unable to conceive of a statement which in comparison with the above extract, could be regarded as at the same time more misleading in regard to the use of precedent and more calculated to divert the course of the precedent constituted by this Court's judgment in the case of All and Bashir into an artificial channel. It is undoubtedly a proper exercise for a Court dealing with the precedent of a superior Court to endeavour to extract therefrom the principles which it lays down. But it is evident that here, in the process of drawing alterations and additions have been effect ed, so that the statements do not represent at all the views of this Court, and they must consequently be totally repudiated. This Court did not deal with "discrepancies in the prosecution evidence" at all ; its rejection of the prosecution case in Ali and Bashir was based on a much wider ground, as has already been indicated. The question whether or not the additional evidence was taken "at the request of the defence counsel", was not so much as mentioned before this Court, and it is inconceivable that in laying down a principle of law, this Court should have qualified it with reference to any such question. The doctrine of a "new relevant fact" in relation to the right of rebuttal (as to the sound ness of which we express no opinion) undoubtedly figures largely in the judgment under appeal, but it is entirely foreign to, and unconnected with, either the discussion or the ratio decidendi of the judgments delivered in this Court in Ali and Bashir's case. It is difficult to understand how these two last‑mentioned matters have been "tacked on" as qualifications in a statement of a prin ciple which is represented as having been laid down by this Court. It is necessary for this Court to declare its unqualified disapproval of such a proceeding. Courts of law, and in particular,! High Courts, are entitled, in the performance of their judicial' duties to enunciate the law on relevant points, as it may appear to them to be, but, for the preservation of the law, it is of paramount importance that when they attempt a statement of the O law laid down in statute, or equally, the law laid down by a Court of ultimate jurisdiction, which they and all other Courts are bound to recognise and follow, they should do so with strict accuracy. This Court finds it impossible to tolerate, in a judgment of a High Court which has already been published, either the existence of the plainly inaccurate statements of principles, said to be derivable from its judgment in the All and Bashir case, or the misleading words with which these statements are prefaced We emphasize the golden words of Lord Halsbury, already quoted :‑ " ..a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it." Our judgment in the case of Ali and Bashir is authority for what it decides, and no Court in Pakistan can be permitted to question the facts we have found and the declarations of law based thereon. We entirely deny that its validity and binding effect can be challenged on the basis of any propositions which may be drawn from it by any person or Court, however exalted, by any process, logical or otherwise. The passage following the statement of "principles' is clearly designed to minimise their effect. Though we have repudiated that statement, we must nevertheless notice this passage for two reasons. Firstly, the words used have the effect, not of nullifying but on the contrary of advancing the mischief which, in our opinion flows from that statement. Secondly, these words directly negative a clear direction on the point contained in one of the concurring judgments delivered in this Court, in the case of Ali and Bashir, and attempt to' support the denial of the law laid down by this Court by reference to a by hypothetical case. We have already stated that such a proceeding is not open to any Court in Pakistan in respect of the law laid down by this Court. There follow, in the judgment of the learned Chief Justice, certain observations of a particular character relating to the examination of the doctor in Fazal Elahi's case, succeeded by general remarks regarding "the fundamental distinction between filling up gaps in the prosecution evidence and removing discre pancies in such evidence", and after the reference to section 428, Cr. P. C., it is observed that "the Court of Criminal Appeal always has a third party before it, namely society, and its discre tionary powers are not controlled by rules of estoppel, waiver, etc. "The discussion concludes with a re‑iteration of the distinction already declared earlier, which commended itself to the learned Chief Justice, between the right to rebut additional evidence relating to a "new relevant fact", and the right to rebut other evidence. Thereafter, the claim for a retrial is examined, and eventually, the conclusion is reached that the right was confined to contradicting the fresh evidence of the doctor. This is a point upon which we have earlier expressed our difficulty in following the reasoning of the learned Chief Justice. A "new relevant fact" might have been thought to have appeared from the circumstance that the new evidence enabled the Court to hold two men jointly liable for the death of a man where‑previously they were in doubt as to which of them struck the fatal blow. But, ignoring this aspect of the matter, and that a right of rebuttal would probably have been allowed by the learned Judges if they had adopted it, the basis fcr the right of limited contradiction being allowed does not appear with any clearness. In Both places where the question of the right of rebuttal has been discussed, the case of additional evidence not constituting a "new relevant fact" is declared to be "government by different principles", which are not stated. The point is however of no practical importance in view of our finding that in the circumstances a limited retrial ought properly to have been allowed. The reference to a "third party" must be reserved for comment at a latter stage, for in this part of the judgment we are mainly concerned with the errors committed in the course of the judgment under appeal, in the treatment of the precedent Federal Court case of Ali and Bashir, which cannot be allowed to pass unnoticed by reason of their involving violation of a clear provision in the existing Constitution of Pakistan. At certain stages of the argument the plea was heard that as the judgment is that of a Court of Record, the absolute correctness of everything said therein cannot be questioned, and further that it is immune from amendment at the hands of the Federal Court. It is true that in certain text books by learned English writers, the statement appears that the, records maintained by a Court of Record are conclusive proof of what they contain. The dictum is incapable importation into, the jurisprudence of Pakistan, for here the matter is embodied in a statute, viz., section 80 of the Evidence Act, 1872, which confers no higher probative value upon two regards or a Court of Record than on any other Courts, how‑low‑soever, viz., that the Courts shall presume their correctness until the contrary is established. But this circumstance is entirely without relevancy to the principal question viz., whether the decision, and conse quently the records, of a Court of Record are liable to correction for error. To that the only answer can he that the question turns on whether or not an appeal lies from the Court in question to a higher Court. The mere appellation "Court of Record" confers no immunity in this respect. Those who may be interested to exaggerate the content of the description can derive no consola tion from the fact that in England there are nearly two hundred 'Brough and local Courts of Record'. No exact counterpart of these Courts is to be found in the hierarchy of Courts in Pakistan. Their powers may perhaps be compared with those of Courts of Magistrates and Civil Judges which used, at one time, to tae designated "City" Courts, for which no one would ever make a claim of infallibility, even in respect of their records or of immunity from correction. Indeed, the only remaining special privilege which goes with the name is that of punishing summarily for contempts, and as this is becoming increasingly a matter of express provision in the instrument creating the Court, under the existing practice, the term is in danger of being left with little content to justify its grandiloquence. Yet, in Pakistan, the term has been applied to a very few, and those the highest, Courts and we acknowledge that the High Courts, being Courts of Record, they and their Judges are entitled to the highest respect. Nevertheless, they are sub potestate constitutae. The incident of appeal to the Federal Court renders nearly all their proceedings liable to correction, but that is by no means the only limitation which is placed upon their powers. A complete list would require an exhaustive survey of all the statutes bearing upon the question. Here we are concerned only to emphasize those which derive from the Constitution. The position of a Judge of a High Court is indeed a special one. It is essential for the proper exercise in the interests of justice, of the very large discretionary powers entrusted to him, that he should be left free in regard to both thought and expression, in the performance of his duties to the greatest possible extent, and it is a proof of this plenary liberty vested in him, that his terms of service impose no other obligation than that, under a solemn oath, he should bear "true faith and allegiance to the Constitution of Pakistan, as by law established". The Federal Court could desire no more powerful assurance of the preservation of its powers and functions, as specified in the Constitution, for, when these are closely examined, it appears clearly that, although it can rely on "all authorities, civil and judicial", to act in its aid, in the very great majority of cases, it is from the High Courts that it must expect and require such aid. This follows directly from the consideration that the bulk of this Court's work consists of appeals from deci sion of High Courts. The correct attitude to be maintained by a High Court as a Court Record towards directions issued to it by the Federal Court, which is a superior Court of Record, is therefore one of ready compliance, and we take this opportunity of recording our satisfaction that such has indeed been the case hitherto. Bearing in mind the single duty of administering justice which all the Courts are engaged in performing, a condition of harmonious co‑operation is what the wise words of the Constitution both imply and enjoin. We entertain the strong hope that when the years have lengthened out sufficiently, the relationship will be grounded at least as strongly in tradition, as for the moment it is founded in the supreme statute law. To illustrate our meaning, we propose to refer to a remarkable case, from the records of the English Courts, that of the Balls (1911 A C p. 47). That case is, within our knowledge, the only case in which an acquittal has been converted into a conviction, in an English Court, as a result of an order made in appeal, and the facts were that the two accused persons, who were brother and sister, had been convicted of acts of incest, during stated periods in the year 1910. At the trial evidence had been admitted, despite objection, to show earlier acts of the same kind, and even of the birth of a child to the sister, of which the brother was registered as the father. On appeal to the Court of Criminal Appeal, the question was quashed and the Court directed a "judgment and verdict of acquittal to be entered", on the ground that the evidence objected to had been illegally admitted. An appeal was taken before the House of Lords, with a certificate of the Attorney‑General as required by the Criminal Appeal Act, 1907, and such was the novalty of the proceeding that there were at the time no rules of the House of Lords in respect of criminal appeals, and the matter was ordered to be treated "under such standing orders as may be applicable thereto", special orders being made regarding the preparation of the paper‑book of the case. In the course of arguments. the House being satisfied that the evidence to which objection had been taken was "clearly admissible on the issue that the crime was committed", the Attorney‑General asked for an operative order to give effect to the decision. At this stage it is necessary to reproduce the contentions of counsel and the interpellations of members of the House to indicate the nature of the problem, and the manner in which it was resolved : "Sir Refus Isaacs, A. G."...........With regard to the form of the proceedings on the present appeal, there are two views of the jurisdiction of the House. The first is, that the object of conferring this jurisdiction was only to enable the highest tribunal to give an opinion on the practice for guidance in future case which opinion may not affect the conviction or acquittal of the particular person charged. The second view is, That the House can do more than pronounce a decision on the law‑that it can restore the conviction. Section 1, subsection 6 of the Criminal Appeal Act, 1907, which enacts that, where the Director of Public Prosecutions or the prosecutor or defendant obtains the certificate of the Attorney‑General that the decision of the Court of Criminal Appeal involves a point of law of exceptional importance, and it is desirable in the public interest that a further appeal should be brought, they may appeal from that decision to the House, assumes that in such a case the determination of the Court of Criminal Appeal is not "final". It is to be observed that it is not only the Director of Public Prosecutions, who can appeal, but also "the prosecutor, or defendant"; and if the judgment of the Court of Criminal Appeal should be reversed, it is sub mitted that the House will deal with the particular case before it. The House does not give a merely academical de cision. Where the Court of Criminal Appeal comes to the conclusion that a conviction is wrong it orders the record to be amended, but if this House comes to the conclusion that that record ought never to have been amended it may clearly direct the Court of Criminal Appeal to amend the record de novo. [Lord Loreburn L. C. You ask us to say that where the prosecutor under the fiat of the Attorney‑General appeals, and we think that the quashing of the conviction was wrong, the original conviction must stand.] It is submitted that where an appeal is successful it must be assumed that there is power to direct the Court of Criminal Appeal to act upon the order of this House. [Lord Shaw of Dunfermline. Would it be sufficient for year purpose that the judgment of the Court of Criminal Appeal should be reversed, and that the House should remit the case to the Court of Criminal Appeal to allow the remedy to be worked out?] That would be sufficient. The Court of Criminal Appeal would then order that the verdict and judgment which they have quashed should be restored, and upon that the Court before which the defendants were tried would be ordered to restore the verdict and judgment. A certificate of conviction could then be obtained and a warrant issued for their arrest. An order of the House reversing the decision of the Court of Criminal Appeal will have the effect of restoring the convic tion." In the result, the order of the House was couched in the following words:‑ "Ordered and adjudged, in the name of the House of Lords, by the Lords of Appeal sitting in the House of Lords during the dissolution of Parliament, by virtue of a writing by His Majesty the King under his Sign Manual, dated the 28th day of November 1910, pursuant to the provisions of the Appellate Jurisdiction Act, 1876, that the said order of His Majesty's Court of Criminal Appeal of the 8th day of November 1910, complained of in the said appeal, be, and the same is hereby, re versed. And it is further ordered that the cause be, and the same is hereby, remitted back to the Court of Criminal Appeal, to do therein as shall be just and consistent with this judg ment." The matter having been received in the Court of Criminal Appeal, and a motion having been made for an order in all respects the reverse of that enrolled earlier in respect of the case by the Court, counsel for the "defendants" entered a plea to the jurisdiction of the Court to make such an order. In view of the entirely unprecedented nature of the case, it would have been surprising if the plea had not been taken. Great reliance was placed upon the facts firstly that "acquittal at the trial is final, and so also is the order of this Court allowing an appeal against conviction, and directing a judgment and verdict of acquittal to be entered", and secondly, that as the power thus exercised was a statutory one, and there was no provision for revision of such exercise of power, the order was final. The Court of Criminal Appeal presided over by that great Judge, Lord Alverstone, Chief Justice, overruled the contentions raised for the defendants, and made an order giving full effect to the directions of the House of Lords, from which it is of advantage to reproduce the following passage:‑ "Lord Alverstone, C. J. We entertain no doubt as to the power and duty of this Court upon this application . . . . The appeal to the House of Lords has succeeded, and the order of this Court has been reversed with the natural conse quence that the conviction ought to be restored. In those circumstances the proper procedure has been adopted, namely, of applying to this Court, which is a Court of record, to give effect to the order of the House of Lords by restoring the con viction and dismissing the original appeal, and to expunge from the record the order of this Court quashing the conviction and directing a judgment and verdict of acquittal to be entered . . . . "The point was discussed in the House of Lords, and it was thought right to adopt the form of order simply reversing the order of this Court, because it was considered that this Court has full power to give effect to the decision of the House of Lords, Section 1, subsection 6, makes the determination of an appeal by this Court final subject to an appeal to the House of Lords; and the power of this Court under section 4, subsection 2, is "subject to the special provisions of this Act". Section 9 also provides that this Court may be exercised "any other powers which may for the time being be exercised by the Court of Appeal on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the Court." In these circumstances it seems to us that the conviction has been in effect restored by virtue of the decision of the House of Lords and we have power to give effect to that decision by directing that the original appeal be dismissed, and the conviction be restored, and we make an order directing the record to be amended in accordance with the decision of the House of Lords." To emphasize the parallel between this case and the present case, in the relevant respects, it is necessary only to point out that:‑ (1) the Federal Court is the highest 'ours of Record in Pakistan, as is the House of Lords in the United King dom, and the High Court, though a superior Court of Record, is situated in the same way, in relevant respects, to the Federal Court, as is the Court of Criminal Appeal as a superior Court of Record in the United Kingdom, to the House of Lords; and (2) the Federal Court being empowered by 'section 209, as, R amended recently, to make orders and decrees of all kinds, such as may be "necessary for doing complete justice in any cause or matter pending before it", and such orders being expressly made enforceable throughout Pakistan, even the slight difficulty which was felt in the case of the Balls, arising out of the absence of express statutory provision for the order eventually made, does not exist in Pakistan. The graceful manner in which the second highest Court of Record, in a country where Courts of Record are an institution with a tradition extending over some six centuries, submitted to a direction received from the highest Court of Record, to which its own decisions were subject in appeal and considered, suo mote be it noted, in the sense that there ‑was no positive command to that effect, the taking of steps "to expunge from the record" its own previous order, and eventually directed "the record to be amended in accordance with the decision of the House of Lords", is an example worthy of emulation by such Courts in other countries, where Courts of Record are figuratively and com paratively speaking but creations of yesterday. It remains for us, before we proceed to the final directions which we regard as necessary, to consider two further matters, one of which arises out of the judgment under appeal, and the other out of a petition presented to us, being a petition in the matter of this appeal. We have had occasion to refer to an observation of the learned Chief Justice, to the effect that a Court of Criminal Appeal always had a third party before it, namely society. The point may be thought to be clarified by an observation of Kayani, J., in his brief note of concurrence, which we reproduce below:‑ "As regards the taking of additional evidence, I think we have power to take it on any point bearing upon the guilt or innocence of the accused, that is to say, it may bear on his guilt or it may bear on his innocence. For the interests of justice are not always identical with the interests of the accused, and if in the present case we were told that we filled gaps for the prosecution, we should accept the accusation only if we thought that our function was not to do justice to the accused and to the person whom he is alleged to have killed, but to find a pretext for acquitting the accused. In that case, we would be doing injustice to the deceased person and the society for the reason that the society was inefficiently represented at the time of the trial. It is to these observations of the learned Judges that the fourth ground of appeal in the present case is addressed, which we have reproduced above. We confess that these observations have caused us some concern. The introduction of a third party into a matter which we have always understood to lie between the State and the criminal (we do not concern ourselves with lesser crimes which may be prosecuted, and the prosecution maintained throughout, as a private proceeding) is apt, in our view, to give rise to dangers in the administration of the criminal law. The matter is of the utmost importance both to the safety and well being of the State and its subjects, as well as to the liberty of the individual subject, to whom the processes of criminal justice may be sought to be applied. This is not, however, a suitable occasion for an exhaustive discussion of the subject, which is dealt with in numerous admirable text‑books well‑known to students of criminal law. We express our approval of the notably precise statements on the subject appearing in Halsbury's Laws of England, Hailsham Edition, Vol. IX in the monograph on "Criminal Law and Procedure" which we reproduce below:‑ "A crime is an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment. While a crime is often also an injury to a private person, .who has a remedy in a civil action, it is as an act or default contrary to the order, peace and well‑being of society that a crime is punishable by the State . . . . . Legal punishment is punishment awarded in a process which is instituted at the suit of the Crown, standing forward as prosecutor on behalf of the subject on public grounds . . . . . It is a matter of common knowledge that the development of political thought and constitutional practice in the countries included in what is now known as the British Commonwealth of Nations has, for all practical purposes, relevant for the proper appreciation of the propositions stated above, effaced all distinction as a source of duality, between the Crown and the State. When therefore the Crown "stands forward" as the prosecutor and asks for punishment of a criminal before a Court (which may itself be a creation of the Crown) through a prosecutor, the action is taken on behalf of the State, as constituted by the people thereof, and it is in the same sense that the Crown claims authority to punish a crime. It is entirely true to say that in these aspects of its duties and functions, the Crown is the embodiment of the State. The learned Judges of the High Court were clearly conscious of this position. So much appears from their reference to society as a third party before them. If the expression `society' was! employed to denote an entity other than the State, as embodying` the whole community, we would consider it our duty to express a strong caution against the introduction into a solemn proceeding, lying exclusively between the State and the alleged criminal, whose consequences might be of the gravest character, of considerations relevant to any other person or body of persons what so ever. But we conceive that what the learned Judges probably intended to say was that the interest of the State, in pursuing and securing punishment for "an act or default contrary to the order, peace and well‑being of society", is too important to be exclusively entrusted, for its preservation and judicial recognition, to the agent whom the State (or Crown) might appoint as a prosecutor, i.e. that the Court itself must bear this interest in mind, in its handling of the case. We are aware that there are some judicial pronouncements‑not, be it said with satisfaction, of any great authority‑to the effect that a Judge of a Criminal Court trying a case is not expected to be a mere spectator of the proceeding inter parties before him, but is himself invested with an interest in arriving at the truth. . We are not aware of any case, other than the, present, where this duty is, said to attach also to a Court of Criminal Appeal, though we appreciate that, in relevant respects, the duties of a Court of first instance and a Court of Appeal are not materially different. Yet we desire to express a caution against any tendency to confusion of duties among the. various authorities and functionaries to whom belongs the difficult task of stating and clarifying the accusation against a subject, and of presenting and subjecting to sharp scrutiny, by the process of cross‑examination, the evidence led to support, and on the other side to avoid, that accusation. We commend to the careful attention of all those upon whom this anxious duly devolves, and in particular to the presiding officers in Criminal Courts, whether of appeal or first instance, a recent case decided by the Privy Council, that of Adan Haji Jana published as 1948 A. C. p.

225. We note, in passing, that this case was cited by Akram, J. in his judgment in Ali and Bashir's case. Adan Haji Jana had been tried by a Judge sitting with assessors. No public prosecutor appeared, and the Judge himself examined the prosecution witnesses, presumably from depositions before the committing Magistrate. The Judge made the following remarks:‑ "For some reason, which has not been communicated to me there has not been prosecuting officer in this c)se. Although a Judge is entitled to question witnesses, he would be exceeding his duty and acting improperly if his questions could be construed into the cross‑examination of defence witnesses. For that reason, I have refrained from asking questions in the nature of cross‑examination " The matter coming before the Privy Council, the conviction was quashed, on the following grounds :‑ "The Lordships have no doubt that the trial Judge did his best to be scrupulously fair to the accused, but it is impossible to be sure that a Judge, who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence. The Judge rightly refrained from cross‑examining the defence witnesses . It has been said many times that it is necessary not only that justice be done, but that it may be seen to be done. The accused and their friends can hardly have felt assured that impartial justice would be meted out to them by a Judge who was acting as prosecutor." We are conscious that the present Case affects the omission of only a few questions to a particular prosecution witness at the trial, which was sought to be made good at the hearing of the appeal, but it is no. for the purpose of drawing a comparison on any such ground that we have mentioned, and quoted passages, from this judgment. One reason for this action is to stress the paramount importance of keeping the functions of Judge and prosecutor distinct, the greatest possible extent, both in the mind as well as in practice. If they are read subject to their cardinal principle, the passages in question in the judgment under anneal will be free of all danger of misconstruction. The second reason is not less important. It is relevant to the following observation appearing in the judgment of Kayani, J. :‑ "For the same reason, I am not impressed by the argument that questions put by the Court of Appeal should not be in the nature of cross‑examination. If the power to call in evidence lies with the Court, and the Court exercises it, I do not under stand why it should sometime have to say to the prosecutor" I am not going to cross‑examine the witness lest I should betray an anxiety to bring out the truth if indeed the object of cross examination is to bring out the truth." The passage appears to have reference to certain clear state ments of opinion, which were statements of law, contained in this Court's judgment in the case of Ali and Bashir, of which that from the judgment of Akram, J. has been quoted above. It will be observed that Akram, J., regarded the fact that "some of the questions put (scilicet by the Court) were in the nature of cross‑examination which had the effect of nullifying the benefit of what may have been stated by the witnesses earlier, in favour of U the appellants" as being "plainly wrong procedure‑a violation of the fundamental rules of practice necessary for the safe admi nistration of criminal justice". In one of the other judgments a number of the questions put by the Court to the Tehsildar were reproduced, and the following observation was made :‑ "The criticism that these questions were of the nature of cross‑examination, and as such improper questions to be put by the Court was found difficult to meet. In all the circumstances, it would have been much better in every way, if the Court had not put these questions itself. The Crown was represented by an Assistant Advocate‑General, who cross‑examined the witness at some length a little later." (Per CORNELIUS, J.) The passage quoted above from the judgment of Kayani, J. can be read in no other sense than that the learned Judge did not consider himself bound by these statements of the law relating to the matter of cross‑examination by a Court of Appeal which has the effect of "nullifying the benefit of what may have been said by the witnesses earlier in favour of the appellants". Allowing that the view of the learned Judge is based upon his own concep tion of his duty to advance the interest of justice, it is neverthe less impossible to understand how he could have felt justified in directly, and if the words employed be an index to his attitude at the time, almost casually, overruling the clear pronouncement of law on the subject by the Court. We can only suppose that the remarks were made per incuriam, but the disregard must then understood to embrace not only the duty of respect to this Court, owing from him, as a Judge of a Court, most of whose orders are subject to appeal to this Court, but also the clear provisions of the constitution to which we have referred more than once already. The presence of these observations in a judgment, which by reason of its publication, is liable to confuse and pervert law, cannot be tolerated. We have been asked by learned counsel for the appellants also to examine certain other observations made by Kayani, J. on the ground that they are liable to misconstruction. In a passage cited a little earlier, the learned Judge observed that "the interests of justice are not always identica with the interests of the accused." Being in the negative form, the statement would appear to be unexceptionable, but it is urged that the same cannot be said of the reference to the same topic at the conclusion of the judgment. Tote passage in question reads as follows :‑ "I think it is the moral fear of confessing to others our anxiety to punish the guilty that has brought us to this deplor able state‑to identify the interests of justice in all cases with the interests of the accused." The remark cannot be dismissed as obiter, being relevant to the stand taken by the learned Judge earlier in his judgment on points directly relevant to the decision. Although the first per sonal pronouns "we" and "our" are employed, it still remains difficult to see to whom the statement is addressed and of whom is made. It is urged that, in the absence of any tendency among criminal Courts to dispense justice as if it meant serving exclusively the interests of accused persons, the observation is being con strued as detracting from the two fundamental rules of evidence in criminal law viz. that the prosecution must prove an accused person's guilt beyond reasonable doubt, and that the benefit of any doubt must be given to the accused, to the extent that it affects his case. We do not see that the words of the learned Judge can reasonably be understood in the sense suggested, but by way of precaution, we shall say that they should be understood and applied subject to the two cardinal principles to which learned counsel for the appellants has referred regarding the burden of proof resting on the prosecution, and the accused's right to the benefit of any doubt appearing from the case against him. The second matter requiring our attention arises out of a peti tion by one 13agh Ali, a relative of some of the appellants, in the matter of this appeal, filed on the 5th December, 1952. Briefly, this petition brought to the notice of the Court that all the legal advisers of the appellants, who were themselves in prison, had been served with a notice by the High Court to show cause why, on .account of some words used by them in the grounds of appeal to this Court, their "licenses should not be forfeited". It. was urged that if such action were taken before the appeal was heard, there would be grave prejudice to the appellants, who were very poor and could not afford the expense of engaging other counsel and an attorney afresh. The plea was also taken that while the matter was pending before the Federal Court, the High Court had no jurisdiction to commence the proceeding. The petition reached this Court while it was on circuit at Dacca, and was accompanied by a copy of the notice issued by the High Court from which it appeared that the action was contemplated in relation to grounds (ii) and (iv) of the grounds of appeal, of which the relevant por tions have been reproduced earlier in this judgment. An order was made by this Court on the 8th December, 1952, from which the following extracts may be reproduced with advantage :‑ "The two grounds mentioned in the notice to the advocates and the attorney form a part of the grounds preferred in the Federal Court. There is a great deal of force in the contention that as the appeal of the convicts is pending before the Federal Court, the case' of the convicts would be gravely prejudiced if the same matter is adjudicated upon by the High Court ...... In these circumstances we direct that the proceedings which have been started against the advocates and the attorney of the convicts shall be stayed till the disposal of the appeal. It would be open to the Advocate‑General, Punjab, to show cause against this stay on the 7th January, 1953, when the Federal Court reopens at Lahore after the Christmas vacation." It should be mentioned that the appeal itself was fixed for hearing on the 12th January 1953, and the earlier date 7th January had been fixed in order to enable any party concerned to contest this Court's jurisdiction to make the stay order, to do so con veniently at Lahore. No contest was raised on the 7th January, and it appears that this was so because on the 15th December, 1952, (the date originally fixed for the advocates and attorney to show cause, in terms of the notice) the High Court had, in com pliance with this Court's order, not proceeded with the notice, but instead, a Full Bench sat to consider this Court's stay order, for the purpose, appearing from the eventual order of the 19th December. 1952 (of which we have been furnished with a certified copy on behalf of the appellants) in the following terms :‑ "As this order was the first of its kind received by this Court since its constitution, and such as had never been issued before either by the Privy Council or by the Federal Court and It had the effect of restraining the High Court from functioning within its constitutional limits, we decided to examine its jurisdictional aspect. We took this course because it appeared to us to be obvious that if an order is without jurisdiction, it is a nullity and binds nobody, much less a Chartered High Court, however exalted the Tribunal issuing it may be." We have had occasion, earlier in this judgment, to make a pro nouncement on the subject of challenge to the jurisdiction of this Court, and do not need to repeat the observations here. It will suffice to say that as it was plain from the content of our stay order, that it had been issued with reference to, or, in other words "in the matter of" Fazal Ilahi's appeal which was pending before us from a judgment of the same High Court, there was scarcely any room for doubt regarding the existence of jurisdiction. We desire to express the hope that after the clear enunciation of the law on this point, no Court in Pakistan will henceforth engage itself with question relating to the existence or otherwise of jurisdiction in the Federal Court in any matter of which it has taken seisin. As we have remarked, the interim hearing was fixed with the sole object of providing an opportunity of contesting the jurisdiction, should this have been desired, and we desire to reiterate, without in any way, detracting from what we have said earlier on the subject m this judgment that in the circumstances of this case, the question of this Court's jurisdiction could only have been raised before, and decided by this Court. The order of the High Court ends with a direction that the proceedings under the notice be adjourned until the present appeal is determined by the Federal Court. In doing so, the learned Judges reserved their opinion concerning this Court's jurisdiction, but complied with the order, for reasons expressed as under :.‑ "Since we feel that even if the Federal Court had no jurisdic tion to issue the order, courtesy requires that in view of the fact that the order is not absolute and the period for which proceedings are required to be stayed is very short, we comply with the order." This was indeed a very proper attitude on the part of the High Court, and as we find from the order that the arguments of counsel presented before the learned Judges did not remotely touch the true foundations upon which the order was based, we avail our selves of this opportunity to say that the order was made in this exercise of the inherent power of this Court to preserve the due course of a proceeding pending before it and of which it was properly seized. In respect of a Court of inferior jurisdiction, whose proceedings might have such an effect of interference, the proper mode by which the obstruction may be removed is by a stay order, limited to the period necessary for the completion of that process of justice, the preservation of which is the object of the order. But, even in this order of the High Court, we regret to find observation to which strong exception can, and must, be taken. Dealing with an argument of counsel which has been stated in the following words :‑ "because the Federal Court decided to issue the order in question, we (i.e., the Full Bench) must take that Court to have "declared" that it had the jurisdiction to issue that order", the learned Chief Justice, after saying that the results from acceptance of this argument "would indeed be startling proceeds to observe as follows:‑ "For example, if a person who is not entitled to be a Judge of the Federal Court takes part in making an order or if the order sought to be enforced is against the Governor‑General or a Governor or if the Federal Court itself tries a person and sentences him to be flogged until he dies and requires, say, the Chief Justice of a High Court to have the convict flogged to death in his own presence, or if the Federal Court determines and decrees a dispute of the character mentioned in sections 130 and 132 of the Constitution Act, the decree, order or sentence, though without jurisdiction, will, if the argument be correct, have to be carried out, whereas the law in all such cases is that any authority, civil or judicial, which carries out such order would be acting at its own peril." It is rare indeed to find the soundness of a legal proposition being tested in relation to possibilities so highly fanciful and exaggerated as those which commended themselves to the learned Chief Justice. He has himself described them as "extreme cases". There being not the slightest danger of this Court ever acting in any of the remarkable ways suggested in this order, we are able to say, without the slightest sense of self‑regard, that it has deeply shocked us to find that such possibilities one of which can truly be described as hideous can even be conceived by any Court in Pakistan, concerning any other Court, least of all concerning its own immediate appellate superior, which is the Court of ultimate jurisdiction in Pakistan. The majority of the illegal orders which have been used as examples, are orders directly infringing specific provisions in the Constitution. Each Judge of this Court, before he enters upon his office, is required to make and subscribe a solemn oath to "bear true faith and allegiance to the Constitution of Pakistan", and as this provision in the Constitution must be presumed to be within the knowledge of the learned Judges, it becomes even more difficult to understand how they could persuade themselves that hypothetical instances of this kind, involving breach of their oaths by several Judges of this Court at the same time, could usefully be employed to counter an argument of counsel. At the very least, the courtesy which formed the ground of their eventual compliance, and the realisa tion that the dignity and permanency of their records, as a Chartered High Court and a Court of Record, required that all matter placed thereon should be both in language and content, worthy of such enrolment, ought to have acted to restrain the learned Judges from committing such sentiments to writing in a solemn order. With reference to this proceeding, it was strenuously urged before us by and on behalf of the advocates and attorney for the appellants, that we should ourselves record a finding whether the two grounds of appeal in this case, to which exception has been taken by the High Court, constitute in any relevant sense a breach of their duty. The stand‑point taken is that the sub stance of what was said in these grounds was said bona fide with due regard to the necessities of the client's case, viz. a petition for special leave, in relation to this Court's declarations of the limits within which it will exercise its jurisdiction in criminal cases, but the counsel and attorney concerned were prepared to concede that that words they used, and the form in which they were put, might have been ill-chosen and such as could give offence, and for this they were prepared to tender an apology in this Court. Mr. A. K. Brohi, as amicus curiae put in a strong plea that this Court should extend full protection to its advocates and attorneys to enable them to discharge their difficult duties, in the administration of law, with complete fearlessness. He cited a case reported as "Munster v. Lamb" (11 Q B D p. 588) for the proposition that "the rule of law is that what is said in the course of the administration of the law is privileged". That was laid down in bar of an action for defamation, and the case here is different. Having given our most careful considera tion to the question, we have decided to express no opinion upon the question, at this stage when the proceeding has already been commenced and is pending in the High Court. It only remains to state that, in selecting those passages which we consider must he expunged from the judgment under appeal, we have exercised the greatest care to include only such matter as (1) offends in outrageous manner against the provisions of the Constitution and the rules relating to the treatment of judicial precedents of Courts of ultimate jurisdiction, and (2) would, if allowed to remain as a part of a published judgment of a High Court, have the effect of confusing and diverting the law into a channel different from that which this Court's judgment in the case of Ali and Bashir was intended to lay down. We realize that expeungment is a process to be carried out, if at all, in no wholesale or sweeping manner. The word, by its derivation, means "pricking out", and the reference is obviously to writing enrolled on parchment, where amendment would require to be made, letter by letter, with the utmost care. It is with the like care that we have scrutinized the judgment under appeal, and have come to the conclusion that the passages specified by us, must be deleted if the Constitution is to be vindicated, and the law of precedent as embodied in the judgments of this Court and the High Courts, is to be kept free from corruption. We have considered, with the utmost care the question whether we have the power to make an order for expeungment. We have reached the conclusion that there cannot be the slightest doubt regarding the existence of such a power in this Court. The Indian High Courts have uniformly regarded the power as being a necessary concomitant of their appellate jurisdiction. A fortiori the very much larger appellate jurisdiction which in this Court exercises, in relation to the High Courts in Pakistan., must be deemed to be fortified by a similar power inherant in this Court. The same conclusion can also be based upon the con sideration of more than one of the relevant provisions in the Constitution of Pakistan. To take only one such provision, the words "doing complete justice in any cause or matter pending before it" occurring in section 209, are used with intention to invest the Federal Court with the widest possible powers for the dispensation of "complete justice", which must be understood in a sense extending beyond the mere resolution of the right inter se of the parties before this Court in any cause. Hence also the employment of the expression "matter", which has reference to all justifiable matters, and therefore possesses a scope for exceeding that of the word "cause", which is limited by the sense it carries of a grievance coming to notice at the instance of a party against another. It goes without saying that, if for the sake of doing "complete justice" in a matter, it become necessary for this Court to examine its own records, for the purpose of deleting matter therefrom, it will not allow itself to be deterred in the performance of that duty, by any consideration of its own dignity or of the sanctity of its 'records. Instance are not lacking of action of this kind being taken by Courts in India previously. The Punjab Chief Courts which was the pre decessor of the Lahore High Courts took precisely such action in the case reported as "In Re Malik Umar Hayat Khan" (5 I C Lah. 611). We can think of no circumstances in which the power can be more appropriately exercised than, as in this case, to uphold the Constitution against violation by a Court, and to maintain the integrity of the definitive law laid down by this Courts, against unauthorised interference and attack by a Courts of inferior jurisdiction. Yet in all the circumstances, we have considered it most appropriate that the action in the present case should rather follow the lines indicated in the case of the Bills, already cited, with the necessary difference arising wholly from the disparity between the circumstances of the two cases, that we have not been able to avoid indicating to the High Courts, the exact action which is required of them. In the result we allow the appeal to this extent, namely, that we alter the conviction of Fazal Ilahi and Fateh Haider under section 302 of the P. P. C. to one under section 325/ 149 of the P. P. C., and replace the sentence of transportation for life by a sentence of seven years' rigorous imprisonment. In all other respects the appeal is dismissed. In the case of Khuda Bakhsh, we consider that an equal sentence for the constructive offence of grievous hurt with the other five accused persons, in view of his youth, and the distinction which on the evidence, clearly exists between his proved acts and those of the others, is undeserved. But as this Courts does not ordinarily interfere with sentences awarded to the accused persons whom it finds to have been rightly convicted, we content ourselves with recom mending his case to the Provincial Government for appropriate remission of this sentence We further direct:‑ (1) that the record of the High Court shall be duly amended to give effect to the above order ; (2) that the record of the High Court shall also be amended, so as to expunge from the judgment recorded by the learned Judges, the following passages, namely, (i) from the separate judgment of Muhammad Munir, C. J., the passage commencing "In the Judgment delivered by the Federal Court" and ending "is, I say with the greatest respect, beyond my comprehension" (printed at pages 404 to 406 of 1952 P L R (Lah. Series). (ii) from the separate Judgment of Muhammad Munir, C. J., the passage commencing "From what I have said above" and ending to "enable the accused person to rely on a self‑con tradiction" (printed at page 409 of the aforesaid P L R). (iii) from the separate judgment of Kayani, J. the passage commencing "For the same reason I am not impressed" and ending "if indeed the object of cross‑examining is to bring out the truth" (printed at pages 414/415 of the aforesaid P L R). (For the avoidance of doubt, we mention here that each of the passage referred in to the second direction above has been quoted in extenso in our judgment) ; and (3) to contain, and if possible, suppress the mischief which the existence of these passages in the judgment is likely, to effect, we direct that the passage specified in direction (2) above shall be excluded in any copies of the judgment which are supplied henceforth by the High Court. A. H. Appeal partially allowed.