P L D 1957 (W (PLP)

KAIKAUS, J.‑

Murad, Shera and Haider were tried by the learned Additional Sessions Judge, Gujrat, of an offence under section 302/34, P. P. C. for the murder of one Bahawal Sher. Shera and Haider were acquitted, while Murad was convicted under section 326, P. P. C. and sentenced to rigorous imprisonment for ten years. The State has filed an appeal against the acquittal of Murad under section 302, P. P. C. which is Criminal Appeal No. 4 of 1956, while Murad has filed appeal No. 808 of 1955 against his conviction. This judgment will dispose of both the appeals. The fields on the behaks of the complainant as well as the accused adjoin each other. The prosecution story is that on the 2nd of August 1954, at digarwela, a she‑ass of Murad appellant damaged the bajra crop of Bahawal Sher deceased. At this the deceased rounded up the animal and took it to his dera presumably with the intention of subsequently taking it to the cattle round. After some time, Jalal P. W., who is a siri (a partner in cultivation who gets a share of the crop for services rendered) of the deceased, went to the water‑pump of Murad appellant to fetch water. Murad appellant caught hold of Jalal, slapped him in the face, broke his pitcher and made him sit down, holding him as a hostage for the return of the she‑ass. Murad appellant had to attend his cattle while Jalal was sitting there and, seeing the opportunity, Jalal ran from the place. He was pursued by Murad and the two acquitted accused, Shera and Haider, Murad being armed with a pistol and the other two with ballams. When Jalal reached the behak of Sultan and Hayat which adjoins the behak of Bahawal Sher deceased, Bahawal Sher tried to help Jalal. At this Murad appellant fired at him with his pistol three or four times.. One of the bullets (it is stated to be the very first) hit the deceased in the chest and he fell down. The other two accused, Shera and Haider, also gave the deceased blows with the blunt parts of their ballams. Murad son of Taja P. W. came up armed with a dang. He gave blows to Murad appellant as well as to Shera accused and snatched the pistol from the hand of Murad appellant. The appellant and his companions then left the spot. The deceased was first carried to his dera and then to the hospital at Phalia, which is at a distance of four miles from Dhaul Kalan, the place where the incident took place. The doctor found the condition of Bahawal Sher to be serious and informed the Sub‑Inspector in charge of Phalia Police Station who brought the Naib Tahsildar to record the dying declaration of Bahawal Sher which serves as a first information report in this case. The bullet which had hit the deceased had pierced the left lung, its pleura, the stomach and the peritoneum, and had ruptured the spleen, and as an operation was considered necessary, he was taken to the Mayo Hospital, Lahore. An operation by which the spleen was removed was performed on the 3rd of August 1954, but on the 5th of August Bahawal Sher expired. The post‑mortem, examination of the deceased showed the following injuries :‑ (1) A bullet wound, " x ", almost circular with inverted edges, lower and front part of left side of the chest, 44" below the left nipple. It was wound of entrance. (2) A bullet wound of exit, " x 1/3", ovalish with overted edges, 3" below inferior angle of left shoulder blade. (3) A contused wound, " x 1/6". oblique, upper part of back of right side of head. (4) A stitched operative wound, 5 " in length, in left paramedium line. On the internal examination of the body, left pleura, left lung diaphragm and peritoneum were found to be pierced through and through. Stomach was grazed. Spleen had been removed. Death, in the opinion of the doctor, was due to shock and haemorrhage which resulted from the injuries mentioned above as well as by the removal of the spleen. The accused were also medically examined. Murad appellant was found to have five injuries on his body, one a contused wound, one a contusion and three abrasions. Shera accused had four injuries on his body, one a contused wound and the rest contusion marks. The evidence produced by the prosecution consisted of (1) the dying declaration of the deceased, (2) statements of eye‑witnesses, and (3) the recoveries of the pistol used by Murad appellant and the broken pieces of the earthen pitcher of Jalal P. W. The dying declaration is in the following words :‑ "Today on the 2nd August 1954, at digarwela, when I was at my behak for cattle at a distance of one mile from the village, the she‑ass of Murad Ali, son of Muhammad, started damaging the bajra and cotton crop. I rounded it up and took it to my dera. I asked Murad Ali to keep his she‑ass tethered, as it injured my crop. The dera of Murad Ali is nearby. My siri went to fetch water from his pump as our well was polluted. Murad Ali broke the pitcher of my siri, Jalal, made him sit there and said that he would not let him go. He slapped Jalal who bagan to weep. Jalal came running. Murad Ali, son of Muhammad, Shera, son of Shah Muhammad, and Haider, son of Shah Muhammad, came running after Jalal. I asked them to desist and wanted to rescue Jalal siri. Thereupon, Murad Ali drew out a pistol and fired shots at me. The first bullet hit me on the front side of the chest. The other persons, Shera son of Shah Muhammad and Haider son of Shah Muhammad were armed with spears. They too gave me blows, using the spears as dangs. In the meantime, Taja, son of Ahmad, Murad, son of Taja, Hayat, son of Hakim, and Sultan, son of Hakim, whose behaks were nearby, also came up and rescued me. Taja, Hayat, Murad and Sultan picked me up and brought me to my behak. They placed me on a cot and brought me to Phalia. Murad, son of Taja, snatched the pistol from Murad Ali, son of Muhammad, and the accused ran away. Murad Ali, son of Muhammad, harbours an old grudge against me. They belong to one faction and I to another. Previously he gave a beating to my cousin (father's younger brother's son) Sultan also." Eye‑witnesses produced in support of the prosecution story are Murad, Hayat and Sultan P. Ws., all first or second cousins of the deceased, and Jalal, his siri. They supported the prosecution story before the Committing Magistrate. Before the Sessions judge, in their `examinations‑in‑chief, they gave the main incidents of the story almost in accordance with their statements before the committing Magistrate, while under cross‑examination they made admissions in favour of the appellant some of which, it is not even denied on behalf of the appellant, are not true. It was stated before the learned Sessions judge that there had been a compromise between the parties, a girl of the accused having been given in marriage to the complainant. The learned Sessions judge, on the request of the Public Prosecutor, allowed him to cross‑examine Murad and Jalal P. Ws. The learned Sessions judge has also transferred the statements of these two witnesses under section 288, Criminal P. C. He refused to allow cross‑examination of the other two eye‑witnesses though there was no adequate reason for the distinction. A reference to this will be made later in this judgment. The pistol which is alleged to have been used by Murad appellant was produced before the police by Murad P. W. It contained four empty and two missed cartridges. The Sub Inspector also recovered from near the water‑pump of Murad appellant pieces of the broken pitcher. Murad appellant, when examined by the Committing Magistrate, denied that he had caused the death of the deceased and stated that the deceased along with his companions, being armed with a pistol, had attacked him in his behak. He did not specify the reason for the attack. Before the learned Sessions judge, in answer to the question as to where‑from he received his injuries, he said: "Bati, Sai, Jalal, Ghulam, Saleon, Haider and Bahawal Sher deceased came to my behak to attack me along with Murad P. W. Murad was armed with a pistol while the rest were armed with sticks. During that occurrence he fired his pistol at me. It missed me and hit Bahawal deceased. The occurrence took place in my behak and not in that of the complainant party." The learned Sessions judge came to the conclusion that the prosecution story in so far as it attributed any blow to Shera and Haider was untrue because there were no injuries by a blunt weapon on the deceased. He was also of the opinion that the prosecution had not told the whole truth and that it was not possible to say exactly where the occurrence took place. He found that the prosecution witnesses had been won over. He found no reason to discredit the story as to the firing of the pistol by Murad appellant. He convicted, him, however, under section 326 P. P. C. only on the ground that the removal of the spleen by means of an operation had, according to Dr. G. M. Shah, contributed towards the causing of death. We will first take up the appeal of Murad. Learned counsel for Murad appellant has urged in the first place that the prosecution evidence is so unreliable and the story so improbable that it is not possible to say that the deceased met his death at the hands of the appellant. In any case, he says, circumstances show that the appellant acted in exercise of the right of private defence. In support of the first contention, learned counsel urges that motive is non‑existent in this case. This contention does not seem to us to have any force. Even when we asked him to state what was his own theory as to what had happened, learned counsel put forward a theory in which the cause of the incident was the damage by‑the she‑ass. His real point seems to be that the story which is put forward by the prosecution as to the attack by the appellant and his companions is not probable. He urges that Jalal P. W., having been made to sit at the pump of Murad appellant, it is more likely that his companions would go and try to rescue him, rather than that the appellant and his companions would pursue Jalal, armed with a pistol and ballams. We see nothing improbable in Jalal running away when he found an opportunity to do so and the accused pursuing him. So far as the pistol is concerned, it may be that the appellant had not brought it particularly for the purpose of pursuit, and that he was already carrying it. So far as the ballams being attributed to Shera and Haider are concerned, it possible that they may be carrying dangs or may be carrying no arms and this may be only an exaggeration. There is only one blunt‑weapon injury on the deceased which is a minor one. It may be possibly due to a blow given by his assailants by a dang or it may due to a fall. Learned counsel for the appellant attacks the dying declaration on the ground that it contains false recitals for in it Shera and Haider are stated to be armed with ballams and to have caused injuries using them as dangs and the learned Sessions judge has found this part of the prosecution case to be untrue. We are prepared to accept that this part of the statement of the deceased is not altogether correct, for although one of the two acquitted accused may have given a blow, both of them could not have done so, there being only one blunt‑weapon injury on the deceased, But we cannot on this ground discard the whole dying' declaration, for there is no reason why the deceased should substitute someone else for the person who had fired at him. One point urged is that the doctor had found singeing of hair and charring and blackening of the skin at the place of the bullet wound. It is contended that according to the statements of the prosecution witnesses before the Sessions Court, the shots had been fired from a distance of three or four karams and this is inconsistent with the medical evidence. But this distance appears only in the statements of the prosecution witnesses before the learned Sessions Judge. So far as these statements are concerned, there cannot be the slightest doubt that the witnesses have tried to help the accused and have admittedly made false statements in their favour. It is not necessary to refer to any portion of the statements of the witnesses to substantiate this, for a perusal of the statements makes this abundantly clear. Some witnesses after stating the whole story go so far as to say that they did not see the occurrence. The learned Sessions judge has said in his judgment that after the decision of the case by the High Court he intends to prosecute these witnesses. As stated already, learned counsel for Murad appellant himself admits some of those statements to be untrue and instead of relying upon those portions of the statement which go in his favour, learned counsel is forced to urge that the witnesses have apparently no regard for truth and no conviction should be based on their evidence. Therefore, on the distance between the assailant and the deceased, which is stated by the witnesses only in the Sessions Court, no argument can be based. So far as the statements before the Committing Magistrate are con cerned, no distance has been mentioned. It may very well, be that shots were fired from very close range. It is urged that two or three shots had, according to the prosecution, missed, and this could only happen if shots were fired from some distance, but a person who is not an expert may miss shots even when firing from close range. Another point of attack is that the story of the snatching away of the pistol by Murad P. W. is wholly improbable. Learned counsel for the appellant urges that if Shera and Haider were armed with ballams, they would certainly have used them when Murad P. W. was trying to snatch the pistol from Murad appellant. That may be true, but this is rather a reason for not accepting the prosecution story that they had ballams, and it is not a good argument for holding that the story of snatching away the pistol is untrue. It may even be that if one or both of them had dangs, they preferred not to use them after the deceased had been hit with a pistol, because between the parties there was no serious enmity before and when the three accused were pursuing Jalal, they were not doing so with the intention of killing either him or Bahawal Sher. Probably the incident of pistol came to them as a surprise and they thought things had gone too far. It is not even necessary that Shera and Haider should have had known the existence of pistol with Murad appellant when they were pursuing Jalal P. W. Great stress has been laid by learned counsel for Murad appellant on the presence of blood at the behak of Murad appellant and its entire absence from the place where the prosecution alleges the incident to have taken place. This argument, which at first sight seems to have some force loses its value on a close consideration. Let us consider first whether any significance attaches to the fact of there being blood at the behak of the appellant. Blood was found by the Sub‑Inspector at one place only in the behak of the appellant. The Sub‑Inspector has stated that the earth on which he found this blood seemed to have been placed there and it did not appear that the blood had in fact fallen from an injured person at that place. It is to be remembered that it was not only the deceased who had bled. The clothes of Murad appellant and Shera accused were blood stained on account of their own injuries. Assuming, therefore, that the blood was not planted, it could very well be the blood of one of them. So far as the absence of blood at the spot is concerned, it is urged on behalf of the State‑and there is prosecution evidence to the effect‑that the deceased did not bleed immediately on receiving the injury and he had been put on a charpoy shortly after he received the injury. The injury was one which had caused a great deal of haemorrhage inside, but there is nothing to show that it had caused a gushing of blood either‑ from the wound of entry or from the wound of exit. Unfortunately no question was put to the doctor on this point either by the prosecution or by the defence, but the story that in fact no blood fell on the spot cannot be ruled out as very improbable. It should be remembered that if blood was gushing out of the bullet wound, then, even though the occurrence took place in the behak of the appellant, there would at least be some blood in the dera of the deceased to which he .was taken. An objection has been taken that the first information report was delayed. We are satisfied that there was no delay in this case. The occurrence took place at digarwela which on the 2nd of August may mean 6 p.m. or even later. The distance from the police station of village Dhaul Kalan is four miles. The place of occurrence is one kos from the village though it does not appear in which direction. The report, that is the dying declaration, was made at 10‑30 p.m. It cannot be suggested that there was any motive for delay in going to the hospital. On the other hand, the concern of the relatives of the deceased would make them reach the hospital as soon as possible. After that there could not be any delay on the part of the complainants. The doctor sent the ruqqa to the Sub‑Inspector and the Sub‑Inspector brought the Magistrate to the hospital. We have not the slightest doubt that the pistol shot which hit the deceased was fired by the appellant. He was named in the dying declaration and by all the prosecution witnesses as the person responsible for the injury. No reason appears on the record as to why he should be substituted for the real culprit. The story put forward by the appellant, for the first time in his statement before the Sessions Judge, that the deceased had been hit by mistake by a shot fired by Murad P. W., has not been pressed before us and we reject it without hesitation. Even when Murad P. W. was cross‑examined before the Committing Magistrate, this story had not been put to him. We are not prepared also to accept the story of an attack by the complainant's party. If the complainant had in fact attacked after preparation, there is little likelihood of the result being as it is. The prosecution story is quite natural though the precise details of what happened when Jalal ran from the water‑pump of the appellant have not been given. We would accept the statement of Jalal P. W. before the Committing Court, for we do not think he had any strong motive for making a false statement in favour of the prosecution, being only a siri. This story is also corroborated by the recovery of pieces of a broken pitcher from the water‑pump of the appellant. The appellant has not been able to suggest any other reason able cause of the incident. He has stated before the Sessions judge that it was because Sultan P. W. had been beaten by them about two months before the occurrence that the complainants had attacked them. But this beating was only by fists and there were no proceedings before the police or before any Court with respect to it, and it cannot be the immediate cause of the present incident. The statements of Murad and Jalal P. Ws. in the Committing Court have been transferred under section 288 of the Criminal P. C. and we find that this story of attack by the complainants was not put to them in the Committing Court though they were fully cross‑examined. Had the complainants attacked the accused in their own dera, one would also expect a report to the police by the accused. The accused did not even appear before the police till the third day after the occurrence. We are inclined to believe, looking at all the circum stances, that the accused planted blood in their own dera in order to make out a case but had not the courage to persist in this contention. We agree with the learned Sessions Judge that there is doubt as to whether any injury was caused to the deceased by Shera and Haider. We do not agree,, however, that there is any doubt as to the venue of the fight. The prosecution story we find to be substantially true and we would dismiss the appeal of the convict. Coming to the appeal of the State, the question for determination is whether Murad had caused death within the meaning of section, 299 P. P. C. That he had the intention of doing so is not open to reasonable doubt. The facts in so far as they bear upon this question may be restated in brief, The bullet had pierced the left lung and its pleura, the stomach, the peritoneum and the spleen. The spleen had been ruptured with the result that there was profuse bleeding. An operation was considered necessary. The abdomen was opened, the tear in the stomach was stitched and the spleen was removed, but the patient did not survive. Death was due to shock and haemorrhage caused by the piercing of the various organs and the removal of the spleen The argument on behalf of the respondent is : if the operation was not performed, death may not have occurred at all, for the operation itself was partly the cause of death, and there fore it cannot be said that the respondent has caused the death of the deceased. On behalf of the State two arguments are offered: (1) that the death was a certainty if no operation was performed and the respondent cannot take advantage of the fact that an operation which became necessary had actually contributed towards death ; (2) that if a person, with the intention of causing death, inflicts a dangerous injury and in the opinion of competent experts an operation is the proper course to adopt for saving the person injured from death, then the offender becomes responsible also for the effect of an operation performed with due care, and the mere fact that the operation contributes towards death does not make death any the less the effect of the act of the offender. Without at all rejecting the first ground urged by the learned Assistant Advocate‑General, we propose to rest our decision on the second ground urged. There can be little doubt that an operation had been considered necessary by competent experts. That is the effect of the evidence of Dr. Hussain Mirza though he does not say this in so many words. The facts are so strong that even a layman can under stand the need for an operation. The spleen had been ruptured and had caused profuse bleeding inside. Unless this haemorrhage was stopped, it must sooner or later have resulted in death. The only way to stop the haemorrhage from the spleen was to sever the spleen. There was no cross‑examination of Dr. Hussain Mirza either to show that an operation was not necessary or to show that the operation was performed negligently. The facts, therefore, which are assumed to exist in the argument of learned counsel for the State, did exist and we have no hesitation in accepting the proposition of law which it embodies. There are no Pakistani or Indian cases in point, but there are two English cases which directly support the proposition. The first case is Queen v. Pym (1 Cox Cases 339) wherein an injury had been caused by a pistol shot and an operation had to be performed which resulted in death. Dealing with the question as to whether the prisoner was responsible for the result of the operation, Erle J. said "I am clearly of opinion, and so is my brother Rolfe, that where a wound is given, which, in the judgment of competent medical advisers, is dangerous, and the treat ment which they bona‑fide adopt is the immediate cause of death, the party who inflicted the wound is criminally res ponsible, and of course those who aided and abetted him in it. I so rule on the present occasion; but it may be taken, for the purposes of future consideration, that it having been proved that there was a gun‑shot wound, and a pulsating tumour arising there-from, which, in the bona‑fide opinion of competent medical men, was dangerous to life, and that they considered a certain operation necessary, which was skilfully performed, and was the immediate and proximate cause of death, the counsel for the prisoner tendered evidence to show this opinion was wrong, and that the wound would not inevitably have caused death, and that by other treatment the operation might have been avoided, and was therefore unnecessary. I will reserve this point for the consideration of the judges, although, as I have already stated, I have no doubt upon the subject. To admit this evidence would be to raise a collateral issue in every case as to the degree of skill which the medical men possessed." The point was no doubt reserved but the learned judge recorded a clear and emphatic opinion. The second case is Queen v. McIntyre (2 Cox Cases 379). In that case the prisoner had been indicted for murder of his wife by kicking her. The surgeon who appeared as a witness said death was due to shock and haemorrhage caused by kicks, but admitted that he had administered brandy to the deceased in order to restore her, that a portion of the brandy had, he fancied, gone the wrong way into the lungs and that death might have occurred as a result of the brandy going into the lungs. He added that the deceased's power of swallowing had been affected by her state of weakness (caused by the kicks). It was objected on behalf of the petitioner that death was caused not by the kicks but by the brandy, and in the indictment brandy was not mentioned at all. At this, Coleridge J. observed: "This is like a case where a dangerous wound has been given, and an operation is performed, of which the person dies. Would it be necessary, in such a case, to describe the operation in the indictment?" The assumption of this observation is that in case the injured person dies of the operation, the offender would be held responsible for causing his death. Dealing with the question as to what was the character of the offence committed by the prisoner, the learned judge said: "There is no doubt whatever that if a person had received a small wound, and the surgeon administered a poisonous salve, it could not be said that the party giving the wound occasioned the death by the wound or by the salve. That is very unlike the case where a person has received a mortal wound, and dies in consequence of his constitution, or from being very drunk, or from not having medical advice, or from having been injudiciously treated. There the party who gave the mortal wound is the cause of death, though it comes on sooner than it otherwise would. The blow was the cause of death. The mode was a general shock to the system and the loss of blood. The surgeon says the heart way empty. He had to administer stimulants, and the power of swallowing was affected. If the woman had been well, she might, by hiccoughing, have prevented the brandy from going the wrong way, or rejected it. He says, "I did fancy a little brandy went into the lungs, and that might have caused death;" but then, recollect that the power of swallowing was affected in consequence of the blows". Support for this proposition is also to be found in the report of the Indian Law Commission (the authors of the Penal Code). In their note on Explanation to section 299 they say; We see no reason for excepting such cases (the cases of persons who die of a slight wound, which, from neglect or from the application of improper remedies, has proved mortal) from the simple general rule which we propose. It will, indeed, be in general more difficult to prove that death has been caused by a scratch than by a stab which has reached the heart; and it will, in a still greater degree, be more difficult to prove that a scratch was intended to cause death than that a stab was intended to cause death; yet both these points might be fully established. Suppose such a case as the following It is proved that A inflicted a slight wound on Z, a child who stood between him and a large property ; it is proved that the ignorant and superstitious servants about Z applied the most absurd remedies to the wound ; it is proved that under their treatment the wound mortified, and the child died. Letters from A to a confidant are produced ; in those letters, A congratulates himself on his skill, remarks that he could not have inflicted a more severe wound without exposing himself to be punished as a murderer, relates with exultation the mode of treatment followed by the people who have charge of Z, and boasts that he always fore‑saw that they would turn the slightest incision into a mortal wound. It appears to us, that if such evidence were produced, A ought to be punished as a murderer. Again, suppose that A makes a deliberate attempt to commit assassination; in the presence of numbers he aims a knife at the heart of Z, but the knife glances aside, and inflicts only a slight would . . . In such cases there is no doubt whatever as to the intention. Suppose that the person who received the wound is under the necessity of exposing himself to a moist atmosphere immediately afterwards, and that, in consequence, he is attacked with tetanus and dies. Here again, however, slight the wound may have been, we are unable to perceive any good reason for not punishing A as a murderer. Although proof be given that the wound or other bodily injury if skilfully treated might not have resulted in death, yet if in fact death is the result, the wound "causes" death. And it does not avail the offender to prove that the first might have been removed or rendered inoperative by the application of proper remedies and that death might thus' have been prevented. 'Proper remedies and skilful treatment' may not be within the reach of the wounded man ; or, if they are at hand, he may be unable or unwilling to resort to them. But this is immaterial so far as relates to the due interpretation of the words cause of death'. The primary cause which sets in motion some other cause as the severe wound which induces gangrene or fever and the ultimate effect, death, are sufficiently connected as cause and effect, notwithstanding that the supervening sickness or disease might have been cured by medical skill. All that is essential is, that the death has been caused by the bodily injury, and, if there be any intervening cause, that it is connected with a sufficient degree of probability with the primary one. Cases not reached by either of the above Explanations may occur, in which there will be some perplexity in determining the cause of death. Suppose a person who has received some slight wound or hurt resorts not to 'proper remedies and skilful treatment', but to some ignorant and unskilful adviser ; and that, in consequence, the bodily injury is aggravated by the application of unwholesome salves and death ensues‑or suppose he drinks spirit immoderately in a hot climate or suppose he is carried to a hospital where erysipelas happens at the time to be prevalent, and catches the disorder and dies of it‑or again suppose the bodily injury renders the amputation of a limb necessary, and that the patient is soon afterwards attacked by some complaint innocuous to a person in sound health, but which proves fatal to him in his weakly condition. In all these cases, if no bodily injury had been received, the man would not have died ; and it may therefore be said that the injury is in some sense the cause of death. But it seems indispensable that the death should be connected with the act of violence or other primary cause not merely by a chain of causes and effects, but by such direct influence as is calculated to produce the effect without the intervention of any consider able change of circumstances. In each of the instances we have last supposed, the bodily injury caused death under extraordinary circumstances. Its direct influence in producing that result was small, and the intervening circumstances which more immediately caused death could scarcely have been foreseen. Never theless the use of the words 'to cause death', without qualification or exception, brings such cases within this term of the definition of the offence of culpable homicide. The difference between these cases and others of less complexity is a matter to be considered by the Court in estimating the effect of the evidence. But it is difficult to conceive any evidence sufficient to establish an intention to cause death on the part of a person who inflicts a bodily injury which ends so unexpectedly in death." We have reproduced this lengthy extract for a reproduction of a part of it may not have given a correct picture of the view taken by the Law Commissioners. According to the Law Commissioners, in order to find whether in spite of an intervening cause the offender can be said to have caused death, it shall have to be determined whether the intervening cause "is connected with a sufficient degree of probability with the primary one". If we are to put it in our own words, we would say that if a person (who intends to cause death) brings into existence circumstances which in the normal course of events have resulted in death, that person has caused death. Applying this criterion there can be doubt that the respondent has caused death and we convict him under section 302, P. P. C. As regards sentence, we are of the opinion that although the attack was with a pistol, we should not award the maximum penalty. The affair was sudden; according to our own finding the respondent may have been carrying the pistol already ; and the details of what happened when Jalal P. W. ran from the water‑pump of the respondent have not been clearly brought out in evidence, so that there is room for extenuating circumstances. Also the occurrence took place more than two years ago. We sentence the respondent, therefore, to transportation for life. Before we close, there are two matters which have to be mentioned. The first relates to the transfer by the learned Sessions Judge of the statements of prosecution witnesses made before the Committing Magistrate. When Murad P. W. was being cross‑examined by the defence, the Public Prosecutor made a request that he should be allowed to cross-examine the witness as he was hostile. This was allowed. The next witness was Hayat and when a similar request was made by the Public Prosecutor with respect to Hayat, learned counsel for the defence said he had come fully prepared to argue the point and should be given an opportunity of quoting authorities. The learned Sessions judge, after hearing him, dictated an order in which he reproduced extracts from certain authorities wherein it had been laid down that the statements before the Committing Magistrate should not be transferred as a matter of course at the request of the Public Prosecutor and declined to transfer the statement. The Public Prosecutor repeated his request in respect of the next witness, that is Sultan, and the learned Sessions judge refused to transfer his statement too. But when the next witness, Jalal, was examined, the Public Prosecutor made a similar request and it was readily granted. We are unable, to see the distinction between the different cases of these prosecution witnesses. The learned Sessions judge has said in his judgment that all these prosecution witnesses were trying to help the accused and one has only to read their statements to see this. The statements of Hayat and Sultan were not in this respect different from the others. Hayat had stated in cross‑examination that the prosecution witnesses had held consultations as to who was to be involved and when a suggestion was put to him that the deceased had attacked Murad in the latter's behak, he did not reject it. Sultan had gone to the extent of saying that he did not see the occurrence at all. We fail also to see how the authorities cited by the learned Sessions judge which say that statements should not be transferred as a matter of course had any application to a case where it is patent on the record that the witnesses have perjured themselves to help the accused. The other matter relates to conduct of the trial. It appears that this case was being tried simultaneously with some other sessions case so that on some hearings the state ment of only one witness was recorded in this case. The witnesses whose statements were recorded piecemeal in the matter were all eyewitnesses in the case. Such procedure is undesirable for a sessions trial. No adequate reason appears on the record as to why the learned Sessions judge had not been able to adjust his work so as to give full attention to one sessions case at one time. As a result appeal No. 808 of 1955 by Murad is dismissed. Appeal No. 4 of 1956, is accepted, the conviction is altered from section 326 to section 302, P. P. C., and the sentence of imprisonment altered to one of transportation for life. A. H. Accused's appeal dismissed State's appeal accepted.