Seven persons were put on their trial in the court of Subordinate Judge Magistrate 1st Class, under a number of sections, namely 307, 366/511, 448/452 and 148/149 R.P.C. This formidable array of sections was attributed to a story which is soon told. It appears that on the evening of 2nd Poh 2000 at about 10-25 P.M. report was made at the Police Station Jammu that some disturbance was taking place in the house of one Budha Kanjar in Urdu Bazar Jammu. Mian Said Ali Inspector of Police, who happened to be at the Police Station at that time repaired to the scene at once. It was alleged that a number of persons-all the accused who were put on their trial-had entered the house of this Kanjar, Ghulam Nabi is alleged to have entered into a room in which a daughter of Budha (Mst. Fazilat) was sitting on a charpoy and is alleged to have fired a shot from his pistol. Nobody was injured and the bullet mark was found subsequently in the wall at a Height of 1 1/2 below the ceiling. The party made good their escape before the arrival of the Inspector. Ghulam Nabi was arrested the next clay and it not till late in the evening on the 3rd that the pistol was recovered from his room in the Metro Hotel in the City. It was in these circumstances that these seven persons were put upon their trial. The trial court convicted Ghulam Nabi under section 307 and sentenced him to undergo three years rigorous imprisonment and to pay a fine of Rs. 50. lie was also convicted under sections 366/511, 452 and 148 R.P.C. and was sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 5 an each count. The other accused persons were convicted under sections 366/511, 452 and 148 and sentenced each to undergo one years rigorous imprisonment and also to pay a fine of Rs. 5 on each count. The sentences of imprisonment were ordered to run concurrently. 5 an each count. The other accused persons were convicted under sections 366/511, 452 and 148 and sentenced each to undergo one years rigorous imprisonment and also to pay a fine of Rs. 5 on each count. The sentences of imprisonment were ordered to run concurrently. In appeal the lower appellate Court maintained the conviction of Ghulam Nabi under section 307 and the sentence thereof but acquitted all the other accused persons excepting Shahab-ud-Din whose conviction under section 452 was altered to that under section 451 along with that of Ghulam Nabi and the sentences were reduced to three months rigorous imprisonment and a fine of Rs. 5. The prosecution story is sought to be supported by the evidence of Abdul Rashid the son of Budha Kanjar, Mst. Zamard his grand daughter and Mst. Bilo and Mst. Fazilat his daughters. There is also produced the evidence of two other persons of the name of Ram Singh and Ram Lal who happened at that time in the house having come to hear music. A small background is necessary to appreciate the main facts of this case. It appears that about 8 or 10 years before this occurrence Mst. Bilo, daughter of Budha Kanjar, was married to one Ghulam Rasul, the elder brother of the accused Ghulam Nabi in this case. Sometime prior to this occurrence this woman who had come to Jammu along with her husband contrived to escape from his custody and get back to her parents and took to her vocation as a dancing girl. This, the prosecution, story is, was a matter which caused umbrage to Rasul and Ghulam, Nabi. These two are stated before me to be belonging to a respectable family but have fallen on evil time and have taken to evil ways. The reason for the raid made by this party on the house of Budha is adumbrated by the prosecution to be an attempt to recover Mst. Bilo. It is, however, significant that the case of the prosecution itself is that Gulam Rasul was not there although it is not quite clear whether be was in Jammu or not, The prosecution story, as has been found to be proved by the learned Sessions Judge, may be stated in his own words. Bilo. It is, however, significant that the case of the prosecution itself is that Gulam Rasul was not there although it is not quite clear whether be was in Jammu or not, The prosecution story, as has been found to be proved by the learned Sessions Judge, may be stated in his own words. In discussing the various events as they happened he remarked at the very out-set: " From the prosecution story as summarized above it appears that Ghulam Nabi had entered the house of Budha Kanjar on the night intervening from Poh 2000. He fired a shot from his pistol he held is also proved." The Session Judge further goes on to say at another place " From the over-whelming evidence on the record it is clear that so far as the visit of Ghulam Nabi to the house of Budha Kanjar is concerned it is established beyond doubt that he did visit the house of Budha Kanjar and he held a pistol which he fired on going in. After the statement made by the accused Ghulam Nabi it appears to me rather pompous to call the fact of his visit to the house as a finding arrived on overwhelming evidence because it is not denied by Ghulam Nabi that he had gone to the house of Budha Kanjar. Ghulam Nabi says that he has in the habit of visiting this house off and on because Mst. Bilo, daughter of Budha. Kanjar happened to be his sister-in-law. He goes on to say that sometime prior to that at the request of Mst. Bilo. he had given an exhibition of his prowess at pistol shooting by shooting at a mark in the room. His suggestion is that the bullet that was extracted was not fired on the 2nd but previously. Be that as it may, what has to be seen and what the learned Sessions Judge set himself to see in this case was; what offences were committed by this party. His suggestion is that the bullet that was extracted was not fired on the 2nd but previously. Be that as it may, what has to be seen and what the learned Sessions Judge set himself to see in this case was; what offences were committed by this party. In discussing this matter the learned Sessions Judge came to the conclusion I have already dealt with at length that there is no proof as to any preparation having been made by the accused persons in respect of causing hurt or assault or wrong ful restraint." Having come to this conclusion the learned Sessions Judge acquitted five out oi seven accused persons and in the case of shahab-ud-Din as also in the case of Ghnlam Nabi altered the conviction from section 452 to 451 on this consideration. If there was no proof as to any preparation having been made by the accused person in respect of causing hurt or assault or wrongful restraint theft it is obvious that the fact oi firing the pistol remains only .a sposmadic act without pre-meditatjon or "intention, But leaving this aspect of the matter for the nonce there is no evidence whatever in this case which would invest Ghnlam Nabi with the intention of committing an offence under section 307 of which he has been convicted. It will be noticed that the main ingredients of the ofience under section 307 which have to be definitely proved by the prosecution are that the act in dispute is done "with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder." The difference therefore between an offence under section 302 and 307 is that in the former death is caused and in the latter death is not caused and the matter stops at an attempt to cause death. There is in the evidence of the prosecution not even a suggestion that Ghulam Nabi came with the intention of killing anybody. The nearest that one could get, as has been very rightly pointed out by the learned Assistant Advocate General, is in the statement of Mst. Fazilat who was present in the room and felt some apprehension of being hit by the pistol shot that was fired by Ghulam Nabi. " Her statement is that she was sitting on a charpoy in. Fazilat who was present in the room and felt some apprehension of being hit by the pistol shot that was fired by Ghulam Nabi. " Her statement is that she was sitting on a charpoy in. a room and Ghulam Nabi was shoutim- for Mst. Bilo when he entered and lie again shouted for Mst. Bilo and then fired a shot from his pistol. She added that she dodged down otherwise the shot would have hit her. This will appear to be a mere colouring and is certainly not credible. The plan ot the room in which all this happened was made by the investigating officer but from his examination and from the plan many of the important tilings, i.e., the height of the room and its size, were left un explored. I, therefore, thought it proper to send down a Sub-Inspector of Police to the spot to make a fresh plan and take measurements. This plan is now before me and it would appear that this room is no more than 14 in length and 10 in breadth. Its total height is 81\2 and the height of the bullet mark from the floor is 7 i.e., the mark is only at a distance of i| below the ceiling. If any inference has to be drawn from the fact of the location of the bullet mark, it is obvious that in a room of such small dimensions the fact that the mark is only 1-1\2 below the ceiling would only go to show that the intention ot the person who fired could not be to kill anybody but only to cause a scare. Besides, it appears that when the pistol was recovered from the possession of the accused as many as 15 cartridges were found with it and if Ghulam Nabi had gone there with so many persons and pistol, and so much ammunition he would not have missed his target that evening looked at from whatever point of view, therefore, the ingredients of an offence under section 307 do not appear in my estimation to have been proved. Nor does the meagre prosecution evidence which has been led in this case carry conviction. As has been stated above the prosecution evidence consists only of six witnesses. Four of these consist of Budhas son and daughters. Nor does the meagre prosecution evidence which has been led in this case carry conviction. As has been stated above the prosecution evidence consists only of six witnesses. Four of these consist of Budhas son and daughters. Of these the evidence of two persons has been discarded by the learned Sessions Judge, i.e., Abdul Rashid and Mst. Bilo, 1 shall have to revert to the statement of Abdul Rashid. at some length. It is not possible to place any reliance upon his evidence. lie keeps a tailoring shop which is located just in front of his house in Urdu Bazaar. It is well known that Urdu Bazaar is a very densely populated locality and at this time of the evening attracts many idling vagabonds because of the houses of these Kan-jars. There is no dearth of people loitering about. Abdul Rashid s story, as given in the first information report, is that he went to his house on hearing the sound of a pistol shot. In his statement before the court he said that he was attracted to the scene by the noise of the people going into his house and that Ghulam Nabi fired a pistol. This portion may be stated in his own words:- Aur jab khirki kenazdik pahuncha to Ghulam Nabi tmulsim ne Pastaul ka fair kar diya. The only interpretation that can be placed on these words that he wanted it to be believed that the pistol was fired in his presence. It is not possible to expect that Abdul Rashid would have heard the sound of the pistol shot from his shop. If that were so, many other people would have done so and the prosecution would not be reduced to the necessity of producing only the inmates ot the house to prove this occurrence. Then it appears that all these witnesses have their knife in Ghulam Rasul, the brother of Ghulam Nabi. Abdul Rashid in his statement in the first information report says about Ghulam Rasul "jo ajkal Jammu hai" in describing the antecedents of the story between Ghulam Rasul and Mst. Bilo whereas in his statement before the Court he said :- Ghulam Rasul bhe motor main se utra tha awryeh tmam hamare mukan main dakhal huye the mujhe achhi tarah yad hai ke Ghulam Rasul ne he mulzman ko kaha tha ke pakr lo aur maro. Bilo whereas in his statement before the Court he said :- Ghulam Rasul bhe motor main se utra tha awryeh tmam hamare mukan main dakhal huye the mujhe achhi tarah yad hai ke Ghulam Rasul ne he mulzman ko kaha tha ke pakr lo aur maro. Ghulam Rasool ka nam police main lakhaya tha aur yeh bhi zahir kiya tha ke us ne mulzman digar ko kaha tha ke pakr lo. It is obvious that all this is an unabashed surplusage. There is.no doubt that this witness is willfully giving perjured evidence. His evidence has rightly not been believed by the lower court and I have no hesitation in discarding it. There then remains the evidence of Mst. Zamard. Her evidence is also tinted with more or less the same defects. In a round manner she corroborates the statement made by the accused Ghulam Nabi that he used to go to her place on previous occasions also with a pistol. Mst. Bilos statement also has been discarded by the courts below and I need not revert to it because apart from the fact that she is anxious not to have to go back to her husband Ghulam Rasul she contributes nothing needful to the prosecution case. Mst. Fazilats evidence has been discussed above. The story unfolded by her falls short of attracting an offence under section 307 against Ghulam Nabi. Mention may be made here of the statement of Ram Singh and Ram Lal, the witnesses who are entirely independent and would have carried great weight had it not been for the fact that the prosecution thought it fit to have them declared as hostile. They say that they had gone to, this house that evening for the purpose of hearing music ands that Ghulam Nabi also came there for the same purpose and intended to appropriate the singer to himsel . As they had been there before him they wanted that they should be served first. On Ghulam Nabis quarelling about the matter they left the house and found that Ghulam Nabi also did the same. Assuming that this is belitting the whole occurrence the fact remains that as far as the question of so many people coming with an intention of committing an offence is concerned, the suggestion is clearly negatived by the evidence of these witnesses. Assuming that this is belitting the whole occurrence the fact remains that as far as the question of so many people coming with an intention of committing an offence is concerned, the suggestion is clearly negatived by the evidence of these witnesses. I have not thought it necesary to revert to that part of the evidence of the prosecution witnesses which relates to the case of those who have been acquitted. I might only say a few words about the offence under section 451. Conviction in the first instance had been recorded under section 452. The lower court converted it into one under section 451. As far as the question of trespass, in the abstract, is concerned I am loath to believe that visit in the evening to the house of a prostitute could be said to be trespass. In any case because of the fact admitted in this case that Ghulam Nabi was in the habit of visiting the house because Mst. Bilo was his sister-in-law there is no point in maintaining conviction under this count. The result, therefore, is that conviction of Ghulam Nabi under section 307 and 451 R.P.C. is quashed. The conviction of Shahab-ud-Din under section 451 is also quashed. They shall be set at liberty forthwith if not wanted in connection with some other case. The fine, if paid, shall be refunded. I cannot leave the matter here. As has been remarked by me in the course of discussing the evidence of Abdul Rashid there is no doubt that he has been deliberately giving perjured evidence. His statements with regard to the firing of the pistol and the presence of Ghulam Rasul particularly do not admit of any explanation. I would, therefore, direct that a notice under section 476 Cr. P. C., be issued against Abdul Rashid to show cause why lie should not dealt with perjury,