P L D 1961 (W (PLP)

SHABIR AHMAD, J‑Moonda son of Shah Muhammad, (2) Raja son of Haku, (3) Dargahi son of Karam Elahi, (4) Siraj son of Shafa, (5) Lai son of Fazal Elahi, (6) Sardara son of Fazal Elahi, (7) Muhammad son of Bahadur, (8) Allah Dad son of Rakha, (9) Niaz Ali son of Haku and (10) Sardara son of Muhammad Ali were tried by Mr. S. M. Tirmizey, Sessions Judge, Gujranwala, under sections 302/149, 323/149, 325/ 149 and 148 of the Pakistan Penal Code for killing Ghulam Haider, Ali and Nadir and causing' hurt to Jalal. By his order dated the 12th of April 1960, the learned trial Judge convicted all the ten under section 302/ 149 of the Pakistan Penal Code and while sentencing Allah Dad. Niaz Ali and Sardara son of Muhammad Ali to transportation for life, sentenced the other sevetl to death for that offence, but passed no separate sentences with regard to any of the other offences for which the accused were tried. The ten convicted persons have 'presented a joint appeal, while the learned trial Judge has referred the case to this Court under section 374 of the Code of the Criminal Procedure for confirmation of the sentence of death passed on seven of the accused. In addition, a petition (Criminal Revision No. 375 of 1960), was presented in this Court by Niaz Ali son of Fazal Din with a view to having the sentences of Allah Dad, Niaz Ali and Sardra son of Muhammad Ali enhanced to death. The appeal, the reference for confirmation of the seven sentences of death, and the petition for enhancement of sentence will be disposed of by this order.

2. The case against the appellants has had a career the tortuousity of which is perhaps unparalleled. The incident out of which the case arose occurred on the 15th of April 1956. Originally sixteen persons were sent up for trial but one of them, namely, Ibrahim, died during the pendency of the trial. The first trial was held by Sheikh Muhammad Akbar, the then Sessions Judge, Gujranwala, who, by his order dated the Rth of January 1957, convicted six of the accused, namely Dargahi Muhammad, Raja, Niaz Ali, Allah Dad and Sardara son of Muhammad Ali. These six persons perferred an appeal to this Court (Criminal Appeal No. 93 of 1957), while the Provincial Government preferred an appeal (Criminal Appeal No. 573 of 1957), against four of the acquitted accused, namely Moonda, Siraj, Lai and Sardara son of Fazal Elahi, but did not question the acquittal of the ether five. The appeal by the six persons sentenced to death by Sheikh Muhammad Akbar, and the one moonda by the Provincial Government against four of the nine acquitted ware by him were disposed of by a Bench of this Court comprised of Abdul Aziz Khan and A. Tc. Changez, JJ., on the 9th of Shabir January 1958. The order passed was that all ten were to be Ahmad, J hanged by'the neck till dead. Against that judgment the four against whom conviction had been recorded by this Court on the appeal of the Provincial Government preferred an appeal to the Supreme Court while the six, whose sentence of death had been confirmed by this Court, presented a petition for special leave to appeal. Both these matters were disposed of by means of one judgment which is Moonila v. The State (PLR(1958)2WP1186). Their Lord ships of the Supreme Court accepted the appeals on the 17th of April 1958, and in the ultimate paragraph of their judgment passed the following order :‑ "We accordingly allow the appeal of Moonda, Siraj, Lai and Sardara son of Fazal Elahi, and set aside the order of convic tion made against them by the High Court. We also allow the petition of Dargahi, Muhammad Raja, Niaz Ali son o Haku, Allah Dad and Sardara Mirasi, and while granting them leave to appeal, we set aside their convictions as well. In both cases, we make a direction as follows, that is to say, the case shall be remitted to a Sessions Court to be selected by the High Court and shall be retried from the point of conclusion of the prosecution evidence as against the ten appellants before this Court who shall be re‑examined by 4 the trial Court under section 289 of the Criminal Procedure Code, and the trial shall proceed from that point according to law to its conclusion in a judgment of conviction or acquittal, as the case may be. In particular, and to avoid any doubt we direct that each of the ten accused persons affected by this order shall be expressly allowed an opportunity to stat whether or not he will adduce evidence in his defence and shall be given such reasonable opportunity as the law requires to produce his evidence, if any. Orders regarding the custody of these appellants will be made by the High Court in the first instance and therefter by the Sessions Court when is seized of the case."

3. After the above order of the Supreme Court, the 'case was laid before my Lord the Chief Justice of this Court who, on the 8th of May 1958, passed the following order:‑ "As Sh. Muhammad Akbar is no longer in Gujranwala, the case should go back to that district for retrial. For the rest, it should be placed for orders before the Bench which heard the appeals." In compliance with this order, the case went to Chaudhri Muhammad Ali , the then Sessions Judge, Gujranwala. When the case was placed before him, Chaudhri Muhammad Ali made a reference to this Court in which he said that he would find it difficult to try the case from the defence stage and pass a judgment when the prosecution evidence had been recorded by Sheikh Muhammad Akbar. He suggested that Sheikh Muhammad Akbar may be called upon to take the remaining proceedings because it was well‑established that a Sessions Judge who had not heard the whole evidence should not decide a Sessions case. Papers were laid before my Lord the Chief Justice who, on the 17th of October 1958, passed the following order :‑ "If the Supreme Court permits partial retrial by a Sessions Court to be selected by the High Court', it envisages trial by any Sessions Court, and by implication excludes the original Sessions Judge." The case was consequently sent back to Chaudhri Muhammad Ali who, in obedience to the orders of the Supreme Court, proceeded to try the case from the point of the conclusion of the prosecution evidence. Before Chaudhri Muhammad Ali, the case proceeded against the ten accused persons who had been appellants before the Supreme Court and are the appellants now because no appeal had been presented against the acquittal of the other five by the Provincial Government. These ten persons produced as many as thirty‑one defence witnesses before Chaudhri Muhammad Ali who, by his order dated the 15th of December 1958,.sentenced all the ten to death under section 302/ 149, to two years' rigorous imprisonment under section 148, and to three years' rigorous imprisonment under sections 324/149 and 325/149 of the Pakistan Penal Code, the sentence of 'imprisonment being directed to run concurrently and to come 'into force only if the sentences of death were not confirmed, Against this order of Chaudhri Muhammad Ali, the ten accused presented an appeal (Criminal Appeal No. 27 of 1959), in this Court and Chaudhri Muhammad Ali referred the case to it under section 374 of the Code of Criminal Procedure. These two matters were considered by a Division Bench comprised of Sheikh Muhammad Shah and M. B. Ahmad, JJ., who by a judgment dated the 14th of January 1960, set aside the convic tions and remanded the case for re‑trial to the Sessions Judge, Gujranwala. The ultimate paragraph of the judgment recorded by Sheikh Muhammad Shafi, J., with which M. B. Ahmad, J., concurred, was in the following terms.:‑ "The difficulty, however, has arisen as a result of the order passed by their Lordships of the Supreme Court. I must respectfully agree with my Lord the Chief Justice that the phrase used in the judgment that `the case shall be remitted to a Sessions Court to be selected by the High Court and shall be retried from the point of conclusion of the prosecution evidence', envisages a trial by any Sessions Judge, but I do not agree that it implies that the trial should be by a Sessions Judge other than the one who tried the case. But assuming that their Lordships .of the Supreme Court by implication wanted the case to be tried by a Sessions Judge other than the Sessions Judge who originally tried the case, I don't think they meant that in that case the trial should commence from the point of con clusion of the prosecution evidence. It clearly meant that if the trial was to be conducted by the same Sessions Judge who had recorded the prosecution evidence, then he should proceed from the point of conclusion of the prosecution evidence otherwise the trial should be absolutely de novo.~ Supreme Court could not have meant otherwise. As the law stands, there is no alternative but to accept this appeal, set aside the convictions and sentences of the accused‑appellants and remand the case to the Sessions Judge, Gujranwala, for trial de novo. The case cannot be sent back to Sheikh Muhammad Akbar because we understand he has retired from service." It is as a result of the order of a de nova trial passed by means of the above‑reproduced paragraph that the case was taken up by, Mr. S. M. Tirmizey who had succeeded Chaudhri Muhammad All as the Sessions Judge, Gujranwala.

4. In view of the facts detailed above, the first question that fails for determination is whether the trial field by Mr. S. M. Tirmizey in consequence of the order passed on the 14th of January 160, by a Bench of this Court comprised of Sheikh M. Shafi and M. B. Ahmad, JJ., was a proper trial in the eye of law or whether the record of proceedings prepared by Sheikh Muhammad Akbar and his successor Chaudhri Muhammad Ali, who was in his turn succeeded by Mr. S. M. Tirmizey, is the record which has to be taken into consideration. There can be no doubt that the language employed by their Lordships of the Supreme Court in the ultimate paragraph of their judgment in the case Mooda. v. The State, which paragraph has been reproduced in the last paragraph but one of this judgment, was not susceptible of any interpretation other than this that the proceedings that were to be taken for carrying out their order was the examination of the accused as envisaged in the Code of Criminal Procedure at the stage of the close of the prosecution case and proceeding with subsequent stages in Sessions trials contemplated by that Code. Nor can there be any doubt that their Lordships of the Supreme Court intended that the case was not necessarily to go to Sheikh Muhammad Akbar because if that had not been their intention they would not have left the choice of the Sessions Court to the High Court. It follows, therefore, that the interpretation placed on the judgment of the Supreme Court in Moonda v. The State by the learned Chief Justice of the Court in his orders dated the 8th of May 1958, and the 17th October 1958, reproduced in the preced ing paragraph of this judgment, was the only .possible interpreta tion of that order.

5. The two learned Judges of this Court who directed the re‑trial of the case from the beginning mentioned in their judgment dated the 14th of January 1960, the last paragraph of which has been reproduced in the last paragraph but one, that their Lordships of the Supreme Court did not mean that in case the proceedings envisaged by them in their order dated the 17th of February 1958, were to be taken by a Sessions Judge other than Sheikh Muhammad Akbar, they were to start before the new Sessions Judge from the stage of the close of the prosecution evidence. This way of looking at the matter was, if I may say so with all respect, not the correct one. I am clear in my mind that no other Court in Pakistan is competent to place on a judgment of the Supreme Court an interpretation which does not flow from the words used therein. Occasion for interpreting a judgment of the Supreme Court can arise either when it is to be determined what the law declared by that Court is or when it is to be determined what the Supreme Court has directed in a particular judgment to be done. In the former case it is permissible to look into all judgments of the Supreme Court dealing with the point but in the latter attention has to be riveted on the particular judgment. But in‑,either case by the method of interpretation of a judgment of the' Supreme Court which Court by reason of the fact that being the Court of ultimate jurisdiction its‑judgments are not open to appeal has in its own field powers of a Supreme Legislature, cannot be any different from the method enjoined for interpretation of statutes‑which is that the word's used are to be given their ordinary meaning. This is, however, subject to the condition that some other parts of the same judgment does not make it appear that the words used had any other than their plain and ordinary meaning.. 1 am fortified in my view, that any Court in Pakistan is competent to use a part of a judgment of the Supreme Court for holding that some words used therein had not the meaning which they appear to have, by the fact that this thing done by the learned Chief Justice of this Court and myself in Ibrahim v. The State (P L R (1959) 2 W P 689: P L D 1959 Lah. 715) in connection with the judgment of the Supreme Court in this very case which is Moonda v. The State was not disapproved by their Lordships of the Supreme Court who, on the 18th of January 196 t, dismissed the appeal against that judgment, namely, Ibrahim v. The State (S C A No. 43 of 1960). Carrying out of the orders of the Supreme Court ' was enjoined on all executive and judicial authorities in Pakistan by the second clause of Article 163 of the Constitution of the Islamic Republic of Pakistan which was in force at the time when the judgment of the Supreme Court in Moonda v. The State was given on the 17th of April 1958 and the position has not been changed on account of the abrogation of that Constitution. If anyone called upon to carry out the directions of the Supreme Court follows a method of interpretation other than the one indicated above, he lays himself open to the charge of disobedience of lawful orders. If, for example, the Supreme Court were to reduce to trans portation for life the sentence of death passed on a man convicted of an offence under section 303 of the Pakistan Penal Code, for which offence the only penalty prescribed by the Legislature is the capital punishment, will it be open to the High Court to have the man hanged by the neck till he be dead on the ground that the Supreme Court could not have intended that the sentence be any other than that of death? The answer to ‑the question is clearly in the negative. If the Supreme Court errs‑and manned by human beings as it is by no means impossible that it may sometimes err‑no one can evade carrying out its orders on the ground that they could not have been intended to be given. The remedy in cases in which the Supreme Court is believed to have committed an error is review or judgment by that Court itself, or the correction of the error by ~ the law‑maker.. As the words used in the ultimate paragraph of the judgment of the Supreme Court in, Moonda v. The State which paragraph has been reproduced in paragraph No. 2 above were entirely unambiguous. I . m clearly of the view that the proceedings taken by Chaudhry Muhammad Ali, who succeeded Sheikh Muhammad Akbar as Sessions Judge, Gujranwala were in strict compliance with the orders of the Supreme Court and could not have been overlooked by the Bench of this Court which ordered a re‑trial of the case from the beginning. I might add that as I am of the view that this Court is incompetent to do so in this case because of the orders of the Supreme Court I will not enter into the discussion one finds in the judgment which resulted in the re‑trial of the whole case by Mr. S. M. Tirmizey, with regard to whether a Sessions Court can act on evidence partly recorded by itself and partly by another Sessions Court.

6. But though I hold that the judgment of a Bench of this Court which resulted in the re‑trial of the case from the begin ning was not correct, for the reason that. it took irrelevant matters into consideration and thereby placed an unwarranted interpretation on unambiguous words used in the judgment of the Supreme Court in Moonda v. The State,I am of the view that the contention of Mr. M. Anwar, learned‑Advocate‑General of West Pakistan, who represented the State at the hearing of this appeal, that the only record of the proceedings relating to the‑trial which can be taken into consideration is the one that contains proceedings taken by Sheikh Muhammad Akbar and after him by Chaudhry Muhammad Ali cannot be accepted. In this regard, I find great force in the contention of Mr. Saleem, learned counsel for the appellants, who urged that the case of his clients has to be dealt with on the basis of the record prepared by Mr. S. M. Tirmizey. He contended that the two learned Judges of this Court who had ordered re‑trial of the whole case had under the law the right to interpret the judgments of the Supreme Court, and the fact that their interpretation of the judgment may be considered by this Bench to be wrong. does not entitle this Bench to consider the case on the basis of a record other than that prepared by Mr. S. M. Tirmizey. There is no doubt that that Bench was competent to interpret the judgment of the Supreme Court, and it follows, therefore. that it is. not open to this Bench to sit on judgment over their interpretation. It was open to the State as well as the appel lants to have appealed to the Supreme Court against the order of the Bench comprised of Sheikh M. Shafi and M. B. Ahmad, JJ., whereby a re‑trial was ordered, but neither of the parties did so, and that order, therefore, holds the field and would be binding on the parties unless it is set aside by the Supreme Court. No power vests in a High Court to review its own judgments in criminal cases except to correct clerical errors or by a judgment passed on appeal in cases in which an appeal to that Court itself is allowed as by section 411‑A of the Code of Criminal Procedure. There is no clerical error in the judgment of Sheikh M. Shafi and M. B, Ahmad, JJ., nor is their order l open to appeal to this Court and it follows, therefore, that it has to be acted upon in spite of the fact that it. may be believed to be erroneous, as this Bench is clearly incompetent to set at naught the direction of, that Bench to the effect that the case shall be tried from the beginning. In this connection the question arises whether the judgment dated the 14th of January 1960, passed by the Bench comprised of Sheikh Muhammad Shafi and M. B. Ahmad, JJ., by which a re‑trial of the case from the beginning was ordered, did not amount to a review of the orders passed by the learned Chief Justice on the 8th of May and the 17th of October 1958. That question I answer i 6n the negative because I agree with the learned counsel for the appellants that the learned Chief Justice passed those orders in an administrative and not in his judicial capacity and though his orders would not have been open to appeal or review in this Court if they had been passed on the judicial side, nor would his orders in an administrative matter be open to scrutiny by any Judge or a Bench of Judges of this Court unless an appeal is provided for against them, the same sanctity does not attach to his orders passed in an administrative capacity with regard to a judicial matter. It is not without interest to note that the arguments of the learned counsel for the appellants and Mr. M. Anwar, learned Advocate‑General, with regard to the point under consideration, have this in common that each wanted the law to be followed though the case of the party be repre sented would be benefited if the law were not strictly followed because if the proceedings taken by Chaudhri Muhammad Ali were to be taken into consideration, the appellants could have the benefit of the evidence of 31 witnesses they produced in defence, and if the record of the proceedings conducted by ,Mr. S. M. Tirmizey are the basis of decision, the clients of Mr. Sleem will not have the benefit of the evidence of more than three defence witnesses who were produced at the trial before. Mr. Tirmizey. In view of what I have said above, I would hold that the proceedings that have to be dealt with in this appeal are the proceedings taken by Mr. Tirmizey, but I might add that in order that the accused persons should not suffer because of same technicality, I would not hesitate to give the accused persons the benefit of the deposition of any of their 3 l defence witnesses produced before Chaudhri ‑Muhammad Ali.

7. Before dealing with the merits of the case, I will dispose of another point which Mr. Sleem touched upon during argu ments, I .have mentioned already that though Sheikh Muhammad Akbar had, by his order dated the 8th of January 1957, acquitted nine of the fiftee&accused tried by him, the Provincial Government presented an appeal against only four of them and allowed the acquittal of the other five to go unchallenged. It was urged by Mr. Sleem that the attitude of the Provincial Govern ment with regard to the five of the nine acquitted accused cannot but be an admission that there was no case against the five against whom appeal under section 417 of the Code of Criminal Procedure had not been presented and, therefore, the ten appel lants could take benefit of the fact that the case against five of the accused persons was believed by the Provincial Government to be false or if not false at least of doubtful nature. I, am clearly of the view that this contention of the learned counsel for the appellants does not merit acceptance. The fact that the Pro vincial Government did not choose to file an appeal against the acquittal of five of the nine accused acquitted by Sheikh Muhammed Akbar cannot stand on the same footing as a finding by a Court of law that those five had been falsely implicated. If the evidence of the prosecution witnesses had been held by a Court of law to be false against some of the accused persons that finding would, to a great extent have reflected on the weight attachable to the evidence of witnesses who had been proved to have implicated five ‑innocent persons, but the same result cannot follow because the Provincial Government presented an appeal against only some of the acquitted accused. By the 417th section of the Code of Criminal' Procedure it has been left to the Provincial Government to question the acquittal of an accused person. by an appeal to the High Court and if the Provincial Government, that is to say, the officer in charge of this work on behalf of the Provincial Government, chooses no to file an appeal, the order of acquittal cannot be construed as) a finding by a' Court that the case against those accused was false unless the order of acquittal says that it was. A similar point was raised but repelled in the case Ibrahim, etc. v. The State in which the decision of their Lordships of the Supreme Court in Moonda v. The State was fully considered. The appellants in that case did not succeed in this Court and their appeal to Supreme Court entitled Ibrahim' etc. v. The State Supreme Court Appeal No. 43 of 1960 was dismissed by that Court on the 18th of January 1961‑. In Ibrahim's case the facts material for the present discussion were very similar to those in this case inasmuch as the provisions of subsection (1) of section 21: of the Code of Criminal Proce dure had not been followed in both of them and the acquittal of only some of the accused acquitted by the trial Court had been questioned ' in the appeal presented by the Provincial Government under section 417 of the Code of Criminal Proce dure. The view I expressed in Ibrahim v. The State with regard to the effect of the omission of the Provincial Government to file an appeal under section 417 of the Code of Criminal Proce dure against some of the acquitted accused not being very material can, in view of the dismissal by the Supreme Court of the appeal in Ibrahim's case, be taken to have been approved by their Lordships of the Supreme Court, because if the omis sion of the Provincial Government to present an appeal against some of the acquitted accused had been of any great conse quence the Supreme Court would not have left it unnoticed.

8. I will now take up the consideration of the case on merits As mentioned already, the incident occurred on the 15th of April 1956, at a time described as chahwala which would Mean any .time between 7‑30 and 9 a.m. A report about the incident was made the same day at about I p.m. at Police Station Dinga, which is at a distance of five miles from village Raju where the incident occurred. The informant was Niaz Ali who appeared as the third witness for the prosecution at the trial held by Mr. S. M. Tirmizey. According to the report, the victims of the incident, namely, the three persons who lost their lives and Jalal who received some injuries along with some other persons were busy in cutting crops when the ten appel lants and six others came there. The attack was opened by Sardara Mirasi son of Muhammad Ali who fired with the rifle he was carrying. He fired twice but failed hitting anyone. Thereafter the companions of Sardara Mirasi fell upon the victims who had started running away to save their lives with the result that three persons, namely, Ghulam Haider, Ali and Nadir, died and one, namely, Jalal received injuries.

9. At the trial, the eye‑witness's account of the occurrence was given by Niaz Ali (P. W. 3), Jalal (P. W. 4) and Rahmat (P. W. 5). All the three, whose names were mentioned in the report to the police as some of the eye‑witnesses, were at one in saying that the attack had teen made by the ten appellants and their six com panions one of whom died during the pendency of the trial. before Sheikh Muhammad Akbar. They also specified the persons who were resp,insible for causing certain injuries. According to the evidence of these witnesses the motive was that a few months before the occurrence under consideration, Raja, one of the appellants, had been beaten by Haider and Ali, two of the victims of the present incident, and one Walli, brother of Ali, and their trial by a Magistrate of the first class at Gujrat for an ollence under section 325, P. P. C. for causing grievous hurt had termi nated in their acquittal about a week earlier than the present incident. It was, the prosecution case that the murderous attack under consideration had been made for avenging the beating given to Raja for which redress had not been granted by Court.

10. When questioned by the learned trial Judge at the conclusion of the prosecution evidence to explain the circumstances appearing in that evidence against them, each of the appellant disowned all knowledge of the incident and asserted that the case against him was due to enmity. The statements of the appellants made before the committing ,Magistrate on the 15th September 1956 were to the same general effect with this difference that before the Magistrate Dargah‑i‑appellant had said that at the time when he was stated by the prosecution witnesses to have taken part in the commission of murders he was an in‑door patient in the dispensary at Kharian Dargahi produced two witnesses in defence, namely, Dr. Syed Ahmad (D. W. 1) who was at that time Medical Officer at Kharian, and Reham Dad (D. W. 2) who was Ward Collie at the Civil Dispensary, Kharian, in the month of April 1956, but had retired from service about six months before the 9th of April 1960 when he appeared as a defence witness at the present trial. The statement of Dr. Syed Ahmad was to the effect that Dargahi had come to him at Kharian Dispensary on the 14th April 1956 and had complained of pain in the abdomen and had been advised by him to have his urine, blood and stools examined and then come to him. According to the doctor, Dargahi insisted on getting himself admitted in the hospital as an in‑door patient on the plea that he had been suffering from the ailment for a long time and had‑come from a distant place. On the following day at about 10 a. m. or 11 a.m. Dargahi saw the doctor and went away saying that he was going to Jhelum but returned the same evening at about 5 or

6. On the 18th of April, Dargahi left the hospital again and returned at about 11 a.m. with a report from some laboratory assistant of Jhelum. In cross‑examination the doctor admitted that he had no knowledge of the movements of Dargahi between the afternoon of the 14th of April and 11 a.m. on the 15th of April 1956. In reply to another question the doctor said that when Dargahi had come to the dispensary he could easily walk and that his condition could not have prevented him from riding a horse or a bicycle and that the ailment mentioned by Dargahi did not appear to be so serious as to make it necessary for him to get himself admitted as an in‑door patient. Reham Dad (D. W. 2) stated that he had seen Darghat in the hospital on the 14th of April 1956 in the afternoon and then at sargiwela on the morning of the 15th of April. The witness went on to say that he had seen Dargahi at about 9 a.m. On the 15th of April 1956 and that Dargahi had informed him that he was going to Jhelum.

11. Learned counsel for the appellants urged that the report to .the police was made with considerable delay because even if it be assumed that by the word "chahwela" was meant 9 a.m., village Raju where the incident took place being only five miles from the police station, the report could have been made by 11 a.m. at the latest and that the report was made at t p.m. because it had been considered necessary to hold consultations before going to the police station. Niaz Ali (P. W. 3), who had made the report, was questioned about the delay and he explained it by saying that because of the fear of the accused he went to the police station at Dinga by a tortuous route and that though the shortest route from Raju to Dinga was five miles, he actually covered 12 miles before he reached his destination. This explana tion appears to me to be correct. It cannot be forgotten that Niaz Ali had seen four persons receive injuries at the hands of the assailants and if he was afraid of an attack on himself while on the way to the police station his apprehensions cannot be said to be unreasonable. I cannot, therefore. accept the contention of learned counsel for the appellants that the report to the police was made with considerable delay and for that reason the prosecution case should be looked at with suspicion.

12. It was next contended by learned counsel for the appellants that the number of assailants mentioned in the first informatics report and in the depositions of persons produced as eye‑witnesses by the prosecution was so large that it appeared that some innocent persons had been implicated. The number of assailants mentioned by the prosecution witnesses is no doubt large but that fact alone cannot be a ground for throwing out the prosecution case which can suffer only if it is found that it was reasonably possible that some innocent persons had been named and it was not possible to determine which of the appellants was innocent and which guilty. The evidence of the doctors, who examined the victims, shows that the four victims received about 130 injuries in all. It was 'the prosecution case that the four victims had with them five more persons, two of whom, namely, Niaz Ali (P. W. 3) and Rahmat (P. W. 5), have appeared as witnesses while the other three have not. Four of a party of nine persons, some of whom had sickles with them, as is established by the fact that the police officer who went to investigate the case found about half a dozen sickless lying in the limit where the victims were said to have been working at the time when the attack opened, received such an extremely large number of injuries that it can be safely presumed that the assailants had outnumbered them extremely. If there had not been disparity between the number of the assailants and the persons who were attacked, the results would not have been so disastrous for the party which had been attacked. The mere fact, therefore, that the prosecution case was that the assailants were sixteen in number is no ground for holding that some of the appellants had been falsely implicated.

13. It was then contended by the learned counsel for the appellants that the defence evidence produced by Dargahi appellant was reliable and that if Dargahi was established to have been falsely implicated, the whole of the prosecution case must suffer because it could not then be said with certainty that the witnesses had not named some other persons falsely. If it is held that the defence evidence produced by Dargahi appellant astablishes that he had not taken part in the incident, the contention of the learned counsel for the appellants will have very great weight and the point to determine, therefore, is whether the evidence of the two defence witnesses produced by Dargahi appellant proved con clusively or made it highly probable that he had not taken part in the incident. I have considered the evidence of the two defence witnesses produced by Dargahi appellant with extreme care and have arrived at the conclusion that it is not as strong as the learned counsel for the appellants would have it held to be. It is first of all very unusual for a cultivator like Dargahi to want to become an indoor‑patient for an ailment which was by no means serious and it is not improbable that Dargahi had become an in door‑patient with a purpose. Moreover, Dr. Said Ahmad D. W. saw Dargahi appellant in the hospital on the afternoon of the 14th of April and then at 11 a.m. on the 15th of April. The incident had occurred at any time between 7 and 9 a. m. on the 15th of April and as the distance between the scene of the occurrence and the hospital at Kharian does not appear to have been more than about twelve miles it was by no means difficult for Dargahi appellant to participate in the occurrence and then appear before the doctor at Kharian at about 1 l a.m. The evidence of D. W. 2 did not impress me, and I am not prepared to accept his assertion that he had seen Dargahi in the hospital at Kharian at 9 a. m. on the 15th of April. This witness is a man of no substance and could easily have been made to give the evidence regarding his presence in the hospital at Kharian is not such as to induce me to hold that he had not taken part in the incident.

14. The third witness produced by the defence only said that he had at the previous trial of the appellants produced some copies of entries in a register kept at a cattle pound. The learned counsel for the appellants did not rely on this evidence, and as the statement of the witness stands on the present record, it is not possible to understand how it could benefit all or any appellants. The third defence witness was Ghulam Kaisar who had appeared as the 17th witnesses for the defence before Chaudhri Muhammad Ali on the 29th‑ of November 1958. The record prepared by Chaudhri Muhammad Ali shows that the evidence of Ghulam Kaisar was that according to some entries in the register of the cattle pound at village Kharian; Niaz Ali son of Haku of village Rajo had on the 28th of October 1955 put two cows in the cattle pound and had said that he did not know the name of the owner of the animals. The witness added that Jalal son of Nasib Ali had got two cows from the cattle pound by paying Rs. 3 as penalty for each cow. Niaz Ali appellant stated at the present trial that about six months before the occurrence under considera tion he had put the cows of Jallo, a maternal nephew of zalal p. W. in the cattle pound, and one may. Presume that the Niaz Ali mentioned by D. W. 3 was Niaz Ali appellant. That the entry in the register of the cattle pound did not relate to Jalal (P. W. 4) is clear from the fact that the name of the father of the Jalal mentioned in the register of cattle pound was Nasib Ali while that of the father of Jalal (P. W. 4) is Ahmad. There is no reliable evidence that the man whose two cows were put in the cattle pound by Niaz Ali appellant was related to Jalal (P. W. 4) as asserted by Niaz Ali appellant. The evidence of Ghulam Kaisar (D. W. 3) does not help the appellants or any of them.

15. The evidence produced in defence before Mr. S. M. Tirmizey at the present trial does not make it probable that any of the appellants had been falsely implicated and as the evidence of the other twenty‑eight witnesses produced in defence before Chaudhri Muhammad Ali does not alter this position in any regard, there is no reasonable ground for holding, merely on the basis of the number of the persons stated to be assailants being large, that the case against all or any of the appellants was not proved beyond all reasonable doubt. The nature and number of injuries inflicted on the three persons who lost their lives in the incident made it clear that the assailants intended to kill them but at any rate there is no escape from the finding that the common object of the members of the unlawful assembly, almost all of whom carried highly dangerous weapons, was to cause death. But even if it be held that the common object of the unlawful assembly was not to commit murders, the position will not alter in favour of the appellants because in view of .the dangerous weapons that were carried each member of the unlawful assembly could not but have known that murder was a likely result of their concerted attack. In this respect the injuries received by Jalal (P. W. 4) also stand on the same footing as the fatal injuries to his three companions and I would, therefore, uphold the convictions recorded against the appellants by the learned trial Judge.

16. As the sentences for the offences other than murder, if imposed, would have been directed to run concurrently with each other and to come into operation against those who had been sentenced to death only if the sentences of death were not confirmed, I do not consider it necessary to determine whether it is open to a Court of law to refrain from imposing a sentence after passing an order of conviction unless action is taken under section 562 of the Code of Criminal Procedure, as was done by the learned trial Judge in the present case, and will confine myself to the sentence for the offence of murder. Seven of the ten appellants have been sentenced to death, while against the three, who were sentence to transportation for life, there is a petition for enhance ment of sentence. I would not have considered the forfeiture of ten human lives as a punishment for taking three a severe penalty in the circumstances of this case had it not been for some fact which I will mention. The occurrence took place about five years ago and the disposal of the case against the appellants has bees, delayed for no fault of theirs. Moreover, the appellants had had to undergo the worry of three protracted trials for one incident. In view of these circumstances, I consider that the exaction of the extreme penalty from none of the appellants is called for. Consequently, I would decline to confirm the sentence of death imposed on seven of the appellants whose sentence I would reduce to transportation for life each and would dismiss the petition for rev4sion seeking the enhancement of sentence of three of the appellants who had been sentenced to transportation for life by the learned trial Judge. Except for the modification mentioned above in the sentence of .the seven of the appellants who were sentenced to death by the trial Judge, the appeal is dismissed. MASUD AHMAD, J.‑I am in substantial agreement with the conclusions arrived at by my learned brother and with the final order which he proposes to pass; but would like to add a few words. Whether the interpretation placed by the Division Bench of this Court on the operative part of the judgment of the Supreme Court is correct or not, the fact remains that the 'convictions and sentences of the accused‑appellants, recorded by Ch. Muhammad Ali, were set aside and for the purpose of decision of the present case only the record of the trial held by Mr. S. M. Tirmizey can be locked at. Out of the three alleged eyewitnesses of the occurrence, the presence of one, namely, Jalal, who had received serious injuries, could not be doubted, nor could there be any doubt about the presence of the other two, Niaz Ali and Rahmat. There also cannot be any doubt that the occurrence took place in the manner deposed to by these witnesses.

2. Much capital was made of the fact that according to the medical testimony the stomach of Raider deceased was found to contain 1 klbs. of semi‑solid food and that of Ali deceased 1 lb. of semi‑solid food, but the stomach of the third dead person, namely, Nadir, was found to contain only an ounce of a pinkish liquid. The occurrence took place during the month of Ramzan, and it was contended that as two of the dead persons were killed shortly after they had taken their last meal, the occurrence could not have taken place at chhahwela, namely, between 8 and 9 a.m., and would have taken place much earlier, say about 4 or 5 in the morning, sometime after sehriwela. There in, however, nothing on the record to show that the three dead persons were fasting on the day of occurrence, It is common knowledge that villagers do take some kind of food in the morning, after they have done a part of the day's work and, therefore, two of the dead persons might have had their last meal an hour or so before the occurrence, and the third, whose stomach was. found almost empty, may not have, by the time of his death, taken anything. On the strength of this piece of evidence, it could not, in my opinion, be legitimately argued that the occurrence had not taken place at chahwela, as alleged by the prosecution witnesses.

3. The learned counsel for the appellants also laid a good deal of stress on the testimony of Dr. Saeed Ahmad (D. W. 1) and Reham Dad (D. W. 2) to support the contention that it was physically impossible for Dargahi to be present at the time of the occurrence. The doctor's evidence was to the effect that this person came to the Kharian Hospital on the afternoon of the 14th April 1956, and was admitted as an indoor -patient and that he left the hospital, in spite of the doctor's protest, on the next day at about 11 a.m. and came back the same evening at 5 or 6 p.m. The doctor admitted that he had no personal knowledge of the patient's movements between 4 p.m. on the 14th April 1956, and 11 a.m. on the 15th April 1956: When the patient came to the hospital. he had complained of pain in the abdomen and he was advised to get his urine, stools and blood examined. After his return to the hospital on the evening of the 15th of April 1956, the patient, again, left the hospital on the 18th April and returned to the forenoon, with the test reports. It appears, therefore, that the condition of this patient was not so serious as to prevent his movements from one place to another, nor was his condition such that his admission in the hospital was essential for treatment. The doctor frankly .admitted that if he had been. a patient of the locality, he would not have admitted him as an indoor-patient, but as he had come from a long distance, he acceded to his request. It appears to me that the object which this appellant had in mind was to create evidence to support the plea of alibi and this he could not have done unless he had some ulterior object in view. After having created the necessary evidence, for no rhyme or reason, he meets the doctor, again, on the next day at I1 am. to create further evidence. The doctor was not aware of his movements between 4 p.m. on the 14th April 1956, and 11 a.m. on the 15th April 1956, and unless the evidence of Reham Dad (D. W. 2) is believed, it will have to be held that before he met the doctor on the 15th April 1956, he had visited village Rajo and taken part . in the occurrence. The evidence of Reham Dad (D. W. 2) who, at the relevant time, was employed as a ward coolie in the Civil Hospital Kharian, read as a whole, does not inspire confidence. The witness deposed that from 4 p.m. on the lath April .1956, until 9 a.m. the next day, the patient remained in the hospital, that he remained constantly in touch with him, and that even at sehriwela he saw him and offered him food. It is not understood how, of all patients in the hospital, this witness took particular care about this patient and remained in constant touch with him throughout the period in question. The witness admitted that he had a house in the town and that there was only one kothri in the hospital which was occupied in turns by him, the water‑carrier and the sweeper. It is, therefore, improbable that during the whole of this period this witness remained in constant touch with Dargahi appellant. In my opinion, the evidence in support of the plea of alibi led by Dargahi appellant, at the trial is extremely unsatisfactory and on the strength of that evidence it could not be held that this appellant had not taken part in the occurrence:

4. Considering all the circumstances of the case and the evidence on the record I am of opinion that the guilt of the appellants for the offences complained of had been established beyond reasonable doubt. As to the sentences, for no fault of the appellants this case has remained pending for about five years and as they must have undergone considerable worry and expense, on account of three trials, exaction of the extreme penalty provided by law would be unjustified. Ends of justice would, therefore, be met if the sentences of death imposed on seven of the appellants are converted into sentences of transporta tion for life. A. H. Order accordingly.