P L D 1957 Dacca 523 (PLP)

RAHMAN, J.‑

We have before us a Reference under section 307 of the Code of Criminal Procedure by the learned Sessions Judge, Jessore, in respect of two accused persons, and an appeal against conviction by another accused in the same case. All the three accused were tried by the learned Sessions Judge, Jessore, and a special Jury on a charge under section 302 read with section 34, P. P. C. At first, the Jury returned a unanimous verdict of guilty under sections 302/34 of the P. P. C., against the two accused persons in respect of whom this Reference has been made, as also returned a unanimous verdict of guilty under section 304, Part II, against the appellant in the appeal before us. The learned Sessions Judge considered this verdict inconsistent and irreconcilable, and, therefore, recharged the Jury. After the re‑charge the Jury returned a divided verdict. They found the accused Aftab uddin Sardar guilty under sections 302/34 by a divided verdict of 6 to

3. In respect of the accused Sbamser Ali and Ansar Ali Sardar, the Jury were again divided in the proportion of 7 to 2, the majority returning a verdict of guilty under sections 302/34. The learned Sessions Judge considered this verdict of the Jury as against the accused Aftabuddin Sardar and Shamser Ali perverse and against the weight of evidence. Hence the Reference under section 307 of the Criminal P. C. The learned Judge, however, considered the verdict of the Jury against the appellant Ansar Ali Sardar reasonable, accepted the majority verdict, and sentenced him to trans portation for life. The facts of this case are very simple. The prosecution alleged that the deceased Iman Ali came home from a music party at about midnight of the 18th of August 1955, had his meal and went to bed in the southern room of his building in which he usually used to sleep. This building was a newly constructed one; no doors and windows bad till then been fitted to it. He had two wives who slept in two different huts in the same homestead. Nothing is known as to what happened during the night, but early next morning when the first wife of the deceased went to the room of her husband Iman Ali, she found him lying dead with his throat cut open on his bed in a pool of blood. She raised a hue and cry which attracted her co‑wife and other neighbours, who also came and found Iman Ali lying dead on his bed. One of the neighbours, Elahi Bakhsh Sardar, lodged the first information report at the Kesbabpur Police Station, which was some six miles away from the house of Iman Ali at 8‑15 a.m. on the 18th of August 1955. Thereafter, the investigation of the case was taken up by the Police, and several persons were arrested, of whom the accused Ansar Ali Sardar made a confessional statement before a Magistrate of the First Class at about 1 p.m. on the 19th of September 1955. On the 8th of October 1955, the said accused Ansar Ali Sardar, however, by petition filed before the Sub‑divisional Officer, Sadar, retracted the said confession. Ultimately, on the 15th of November 1955, the Police submitted a charge‑sheet against these three accused persons, and some six others; but only these three accused persons were committed to stand their trial before the Court of Sessions. At the trial, the prosecution called 21 witnesses in support of its case, and put in the evidence of one Kshento Bewa recorded in the Committing Court under section 33 of the Evidence Act, as she died in the meantime. Out of the 21 witnesses called, 3 were only tendered for cross‑examina tion namely, prosecution witnesses 5, 6 and

14. The defence declined to cross‑examine prosecution witnesses Nos. 5 and 14 but cross‑examined prosecution witness No.

6. Of the rest, P. W. 12 is the Magistrate who recorded the confessional statement. P. W. 15 is the Doctor who carried out the post mortem examination on the dead body of the deceased Iman Ali. P. W. 17 is the Constable who took the dead body to the Doctor for post‑mortem examination. P. W. 16 is only a witness to the inquest held by the Investigating Officer as also a witness to the seizure list prepared by the Investigating officer at that time when the latter seized some blood‑stained bedding, mosquito net, a red check gamcha and one blood stained brick. P. W. 20 merely proves the death of Kshento Bewa, and P. W. 21 is the Investigating Officer in this case. P. Ws. 1 and 2 are the two wives of the deceased Iman Ali, and apart from proving how their late husband came home at midnight, had his food and went to sleep, and how he was found with his throat cut in the morning, the only other evi dence that they give is that they speak of enmity between their husband and the three accused in this case over certain lands said to have been inherited by the deceased from one Golam Hossain. Again, P. Ws. 3, 4, 18 and 19 also add nothing very material to evidence in this case, apart from proving that the deceased had some sort of enmity over landed properties with these accused persons. The material evidence, therefore, in this case is that of P. Ws. 7 to 10, 11, 13, 18 and

19. All that P. W. 7 says is that on Wednesday, the last day of Sravan, she saw the accused Shamser Ali and the accused Aftabuddin Sardar in the house of the accused Shamser Ali when the latter was sharpening a dagger. This evidently was during the daytime. P. W. 8 claims to have seen the accused Shamser Ali soon after evening on that day coming from the direction of Panzia Hat with an umbrella near about the house of the accused Aftabuddin Sardar. This witness states that on seeing him the accused Shamser Ali held the umbrella in an inclining position to screen his veiw, but he raised his burning lantern which he was carrying, and in the light of the lantern saw that the accused Shamser had a dagger in his hand, which he was trying to hide from the witness. P. W. 10 claims that on the morning of that day he met accused Shamser Ali when the witness was returning from his paddy field, and on enquiry from Shamser Ali learnt that the latter was coming from the house of the accused Aftabuddin Sardar. Next comes the evidence of Kshento Bewa which is put in under section 33 of the Evidence Act. In her examination‑in‑chief, she said that she did not see any of the accused going anywhere on the night of the murder of Iman Ali; but she was declared hostile, and was cross examined by the prosecution; and on such cross‑examination she stated that on the night of the murder, when she took out her grandson to answer call of nature, she saw the accused Aftabuddin and Shamser going towards Aftab's house across her courtyard. She does not give the time nor does she state as to how far her house is situated from the house of the deceased Iman Ali. P. W. 9 states that on Thursday, i.e., the day after the murder, in the early part of the morning, he saw accused Shamser and Aftab coming out of Aftab's house which is close to a bamboo grove. There the accused Aftab made over some rags to the accused Sbamser, who put them in his closed umbrella, and went away with it under his armpit towards a beel which is to the north of that place. Then P. W. 11 states that again on Thursday, early in the morning he saw the accused Shamser coming from the North, that is, from the beel side with an umbrella under his armpit, and then he saw the accused Shamser bend down near a bamboo clump. In the Sessions Court he refused to say that he saw Shamser do anything near the bamboo clump, but it appears that in the Committing Court he did state that at the bamboo grove he saw the accused Shamser bring out some rags from inside the umbrella and bury it under the mud. His evidence in the Committing Court was put in under section 288 of the Criminal P. C. We ought also to mention here the evidence of P. Ws. 18, 19 and 21 who state that after his arrest the accused took them to his hut, and in their presence produced the dagger from beneath the auri (granary) in his north Mid hut, and that he also took them to the bamboo clump from where he produced some blood‑stained rags which were buried under the mud. This is all the evidence against these two accused persons, namely, Aftabuddin Sardar and Shamser Ali. As against the accused Ansar Ali Sardar, as we have already stated, there is a retracted confession which was recorded by P. W.

12. Apart from that confession and the general evidence of motive given by some of the wit nesses, there is hardly any other evidence as against this accused. The learned Deputy Legal Remembrancer appearing on behalf of the State, however, wishes to rely upon the evidence of P. W. 13 also as against this accused. The evidence of P. W. 13 is to the effect the on Thursday following the murder whilst he was going to the beel to fish early at dawn he saw the accused Ansar standing on the bank of a tank where some others including one Karim (P. W. 3) were coming out of the tank after having a bath. Having indicated the nature of the evidence in this case, we now proceed to deal first with the Reference under section 307 of the Criminal P. C. In his letter of Reference, the learned Judge has pointed out that the only ad missible evidence in this case against the accused persons Aftabuddin Sardar and Shamser Ali was nothing more than bits and pieces of disjointed circumstances upon which no conviction could in law be based, and that the Jury had clearly brought in a perverse verdict by finding these two accused persons guilty under sections 302/34 on such evidence. The learned Judge has also pointed out that although the names of these two accused persons figure prominently in the confessional statement made by Ansar Ali Sardar, the said confessional statement cannot be evidence as against these two accused persons, because of the fact that it was retracted by the accused Ansar Ali Sardar, and there is no independent evidence to corroborate the state ments in the judicial confession. The learned Judge points out that he took pains to tell the Jury "that the retracted confession of the co‑accused Ansar is not evidence against any of these accused persons;" but the learned Judge feels that notwithstanding his aforesaid direction with regard to the retracted confession the Jury were unable to think in com partments, and probably the retracted confession persisted in their minds and influenced their verdict against these accused persons. With regard to the retracted confession, we would like to point out that although in law strictly speaking such a retracted confession of a co‑accused is not inadmissible; but as a rule of prudence, which has now hardened into one of universal application, and almost a rule of law it would be wholly unsafe to base a conviction upon such a retracted con fession alone of a co‑accused unless it is corroborated in material particulars by other independent evidence. In the present case, we are unable to say that the circumstances, to which we have already alluded and apart from which there is no other direct evidence of the complicity of these two accused persons, provide such independent corroboration of the confessional statement, and in our view, therefore, if the learned Judge meant that it could not even be taken into consideration then the learned Judge was strictly not correct, but if by saying that the retracted confession was not evidence he only intended to say that it was not evidence under section 3 of the Evidence Act, he was perhaps right. In any event he was right in pointing out that upon it alone the conviction of these two accused persons could not be based. Apart from this, as already indicated the other evidence is purely circumstantial. It is not necessary to repeat each of them over again, but we are in entire agreement with the learned Judge when he says that none of these circumstances, even if accepted, are such that can be said to be incapable of explanation upon any other reasonable hypothesis than that of the guilt of the accused. Even when all the circum stances are taken together, they, in our opinion, leave too many links unconnected to bring home the offence to these accused persons. As pointed out in the case of Ata Muhammad Khan AM and others v. Crown (P L D 1950 Lah. 288), by a Full Bench ‑ of the Lahore High Court presided over by Chief Justice Munir: "To find a man guilty of a criminal offence on circum stantial evidence, the facts proved must all be consistent with the theory of his guilt and incompatibe with the theory of his innocence . . . . . . "The possibilities that influence judicial determinations in favour of accused persons in cases pending on circum stantial evidence are not all conceivable possibilities, how ever, remote and unlikely, but only such possibilities as keeping in view all the circumstances surrounding the transaction in dispute, might well have existed." We have in the light of the above observations given our anxious consideration to each of these circumstances keeping in view the reasonable possibilities that could have existed, but we cannot say that taken either singly or as a whole they are incompatible with any other hypothesis than that of the guilt of the accused. In these circumstances, we accept the Reference and acquit them of the charges under sections 302/ 34 of the P. P. C. In our opinion, on such evidence, no reasonable body of persons could have returned the verdict that the Jury did in this case. Now, with regard to the appeal of the accused Ansar Ali Sardar, there is a preliminary objection taken to the verdict which must first be disposed of. The learned Counsel appearing on behalf of this accused contended that the verdict was wholly illegal, and could not be accepted. His conten tion was that the learned Judge, after taking a first verdict of the Jury, was incompetent in law to recharge it, and ask it to reconsider its verdict. According to the learned Counsel, the verdict first given was neither accidental nor mistaken, and, therefore, the provisions of section 304 of the Code of Criminal Procedure were not attracted, and there was no warrant in law for recharging the July, and for asking it to reconsider its verdict. In support of this contention, the learned Counsel placed great reliance on the cases of Sundaram Aiyar v. Emperor (A I R 1931 Mad. 775) and Dori and others v. Emperor (A I R 1935 All. 1020). In the first case, the accused appellant and seven others were tried on a charge under section 395 of the Penal Code. The Jury at first brought in a verdict as against the appellant in these terms: "Accused I should be let off because he did not intend to cause wrongful gain to himself, only to show that he was all powerful." The learned Sessions Judge upon this again re‑charged the Jury, and explained the definition of "dishonestly in the Code, and sent the Jury back to reconsider their verdict in the light of the legal definition. On return this time, after a long deliberation, the Jury unanimously returned a verdict of guilty against the said accused. Two learned Judges of the Madras High Court held that in this case there was nothing in the first verdict to show that it was delivered either by accident or by mistake; or that the verdict did not express the Jurors' real meaning, and, therefore, section 304 of the Criminal P. C. was not applicable to such a case. In the Allahabad case also, it was held that: "After the Jury have considered the verdict and the foreman has informed the Judge what is their verdict or what is the verdict of a majority, the Judge has no jurisdic tion to charge the Jury afresh. The law contemplates only one charge by the Court, and that after the case for the defence and the prosecutor's reply are conclud ed . . . . " As against this, however, the learned Deputy Legal Remem brancer points out that where the verdict is, on the face of it, inconsistent or absurd, section 304 would apply, and the learned Judge would be perfectly right in recharging the Jury and asking them to reconsider their verdict. It appears that there is considerable authority in support of this view also. In the case of Hamid All Haldar v. King Emperor (I L R 57 Cal. 61) Chief Justice Rankin and Ghose, J. pointed out that in such a case the Judge is not obliged to accept an absurd verdict either as a verdict of guilty or as a verdict of not guilty, and if in such a case the Judge thinks it better to recharge the Jury on certain specific points, there is nothing in the Criminal P. C. to prevent him from doing so. In this case, what happened was that the Jury had first found all the 11 accused guilty under section 147, whose names the foreman of the Jury read out. Then the foreman also proceeded to read out the names of 5 more accused, and to say that the Jury found them guilty under section 364, but went on to say that others were not guilty under that section. The verdict was duly recorded and the Judge typed his judgment and sentence, which he read out in Court. At this, the foreman of the Jury promptly protested that that is not what the Jury had said. According to the foreman what the Jury meant was that these 5 people were guilty under section 364, but that they gave them the benefit of the doubt. In these circumstances, the learned Judge recharged the Jury telling them particularly about the benefit of doubt, and what section 364 meant, and sent them back to reconsider their verdict. They came back, and delivered their verdict finding the 11 accused guilty under section 147, and finding certain accused guilty under section

365. The Calcutta High Court held that the latter verdict was not illegal, and the Judge had a right to recharge the Jury in the circumstances of that case. Similarly, in the case of Girish Chandra Namadas v. Emperor (I L R 58 Cal. 1335). Lort‑Williams and S. K. Ghose JJ. held that where after a confused verdict the Judge explained the law under the appropriate sections, and asked the Jury to retire again, and eventually the Jury returned a proper verdict, that verdict should not be interfered with. What happened in this case was that nine accused were tried under a charge under section 395 of the Penal Code. The Jury when asked for their verdict said that they found one of the accused not guilty, and the remaining eight accused guilty, but they mentioned only seven names. They were, therefore, again asked whether all the Jurors found all the 8 accused guilty under section 395, and the foreman replied that 5 of them are guilty. Then they were asked whether 5 were guilty of committing dacoity, and whether the rest were not guilty of that offence, but were guilty of some minor offence. Then the Judge again explained the law under the appropriate sections, and asked the Jury to reconsider its verdict. Eventually, the Jury came back, and returned a verdict finding all guilty under section

395. Similarly, in the case of Rafat Sheikh v. Emperor (I L R 60 Cal. 729), Costello and S. K. Ghose, JJ held that where the verdict is obviously and admittedly an inconsistent verdict, the Judge is competent to make a further charge to the Jury, and ask them to reconsider their verdict. In this case six persons were put upon trial on charges under section 304 read with section 34 and under section 304 read with section 149 and section 147 of the Penal Code. The Jury found some of the accused guilty under section 304 read with section 34, and some guilty under section 304 read with section 149, but upon the charge under section 147 acquitted all the accused in that case. Upon this, the learned Sessions Judge felt that the verdict of the Jury with regard to section 147 was inconsistent with the verdict which they bad already given with regard to the other charges, and thereupon he recharged the Jury in order that they might arrive at a proper verdict on a charge under section

147. The facts of this case appear to us to be at par with the facts of the case before us. Here also, it is obvious that the Jury after return ing a unanimous verdict under section 302 read with section 34 against the accused Aftabuddin Sardar and Shamser Ali clearly returned an inconsistent verdict in respect of the accused Ansar Ali Sardar by finding him guilty only under section 304, Part II. We are inclined to accept the view taken in the Calcutta High Court and particularly in the case reported in I L R 60 Cal. 729 as the correct view, and to hold that the learned Judge rightly, in the circumstances of this case, recharged the Jury, and asked them to reconsider their verdict. This also appears to be the view of the Patna High Court. Vide Janak Singh and others v. Emperor (A I R 1942 Pat. 446). The next ground, upon which the conviction of this accused is sought to be challenged by the learned Counsel, is that the learned Judge misdirected the Jury by placing the retracted confession before them. According to the learned Counsel, even in this case, the learned Judge should have told the Jury that no conviction could legally be based upon such a retracted confession alone unless substantially corroborated in material particulars by other independent evidence. We are unable, to agree with the learned Counsel that even as against a maker of a confession the law requires the con fession to be corroborated by independent evidence. As against the maker, the confession, if otherwise accepted to be true and voluntary, and not induced by torture or by coercion or inducement, is, in our opinion, sufficient in law for a conviction to be founded. But whether in the facts and circumstances of a particular case a Judge or a Jury should act upon such a confession alone is entirely a different matter. Whatever might be the rule, with regard to the use to be made of a retracted confession as against a co‑accused, so far as the maker of the confession himself is concerned, particularly in the case of a judicial confession, we are not aware of any provision of law, which requires even in such a case that the confession must be corroborated. In this connection, we may usefully quote the observations of Chief Justice Muhammad Munir in the case Nawab Din v. Crown (P L D 1952 Lab. 345), which were made after an exhaustive review of all the decisions of almost all the High Courts in India and Pakistan: "It is an unquestionable proposition of law that if a Court believes a confession, judicial or extra judicial retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. At the same time Courts have always treated extra judicial confessions as suspicious evidence, and have emphasised the necessity of great care and caution in acting upon them in the absence of corrobo rative evidence. But during the last 100 years or so that the Statutes of evidence have been in force in this sub continent it has never been ruled that a conviction based on an extra judicial confession is an illegality or that the rule requiring corroboration of such a confession has the force of law." So far as extra judicial confessions are concerned, it appears that these observations of Chief Justice Munir did not find favour with the Federal Court in the case of Quotba v. The Crown (P L D 1954 F C 197), where their Lordships of the Federal Court observed that the rule of practice or prudence which requires corroboration of extra‑judicial confessions even when using than against the maker appears to have become virtually a rule of law. In our opinion, however, at any rate, so far as judicial confessions are concerned, there is no such rule that without corroboration in material particulars it cannot be acted upon even for founding a conviction of the maker of such a confessional statement. It must, of course, depend upon the facts and circumstances of each case as to what particular weight or value should be attached to such a confessional statement. This takes us to the second ground of attack put forward by the learned Counsel, namely, that in the facts and circum stances of this particular case the confessional statement should not have been given any weight, at all, and that the Jury should have been directed to that effect. The circum stances which, it is alleged, have considerably reduced the weight of this confessional statement are; Firstly‑, that no sufficient time was given to the accused for reflection before making this confessional statement, secondly, that there was considerable delay in producing the accused before the Magistrate for having his confessional statement recorded; thirdly, that the confession was not a voluntary confession, but was obtained by torturing the accused; and lastly, that the statements in the confession itself have been contradicted by other prosecution witnesses. With regard to the first circumstance, we need only point out that it is clear from the confessional statement, Exh. 1, that three hours time was given to the accused for reflection, and, therefore, the learned Counsel is not correct in saying, that no time for reflection was given. With regard to the delay in the production of the accused before the Magistrate the learned Counsel pointed out that the accused was arrested at 11 p.m. on the 17th of September 1955, and not produced before the Magistrate until 1 p.m. on the 19th of September 1955. Apart from the statement of the accused himself, there is no evidence to show that the accused was arrested at 11 p.m. on the 17th September 1955. The evidence that is on the record, and which the accused has not been able to assail indicates that the accused was arrested on the 18th of Septem ber 1955, at 7‑30 a.m., and that he was sent to the Court from the Thana on the morning of the 19th of September 1955. It also appears from the order‑sheet of the Committing Court that the accused Ansar Ali Sardar was in fact produced before that Court on the 19th of September 1955, and there after sent to the learned Magistrate for the recording of his confession. There was, therefore, in our opinion, no inordi nate delay in producing the accused before the Magistrate, We are also unable to say that the statements in the confes sion have been contradicted in any material particular by the evidence of any other witness. Next, with regard to the question as to whether the con fession was voluntarily made or not, it appears from the confessional state rent, Exh. 1, that after the accused was produced before the Magistrate the learned Magistrate duly explained to him that he was not a Police Officer, but a Magistrate, that the accused was not bound to make any confession, and that if he did do so it may be used in evidence against him; and that again to ascertain whether the accused was prepared to make the said confession of his own free will or not, the learned Magistrate also put certain questions to him. One of these questions was; "You are not bound to make a confession. What you will confess, it may be used in evidence against you, and put you to Jail or hanging. Do you see?"; and the answer was; "Yes. I shall make a con fession." It seems to us that this question of the learned Magistrate clearly elicited the fact that the accused was making a confession of his own free will. In addition to this, we must also point out that the accused did not make any complaint of any ill treatment before the Magistrate nor did the learned Magistrate find any injuries on his person. The learned Counsel, however, referred us to the fact that this confession was retracted by a written petition some 18 or 19 days after it was made, and in this petition the fact of torture was alleged. Again, in the cross‑examination of P. Ws. 18 and 21, very definite suggestions were put to these witnesses that this accused had been tortured both at the house of the said prosecution witness No. 18 and at the Police Station. Again, in his statement under section 342 of the Criminal P. C., the accused clearly stated that he was tortured, giving details of the nature of the torture, and saying that he made this confession according to what was dictated to him because he could not tolerate the beating. It is further alleged that no proper directions were given by the learned Judge to the Jury on this point, and, therefore, the Jury wa; misguided and misled in returning this verdict. Our attention is also drawn to the fact that the learned Judge actual directed the Jury to the effect that the accused spoke to th, Magistrate at a time when "he was full of remorse, and way burning with a consuming passion to pour out the truth" It is contended that if this was a direction as to fact, the it was no part of the function of the Judge. It was for the Jury to say whether the accused was pouring out the truth or not. On the other hand, if it was only an expression of opinion, it was an expression couched in such emphatic terms that it could not but have had a considerable effect on the, minds of the Jurors. Apart from this, the learned Counsel urges that the learned Judge misdirected the Jury on a question of fact also by telling them that t he story of torture of the accused at the house of Rabi Kumar Sarkar, P. W. 18, could not be given much credence as this was not put to Rabi Sarkar when he was cross‑examined. This was clearly wrong because a reference to the cross‑examination of P. W. 18 Rabi Sarkar would show that `that witness was cross‑examined at length on this point' and a definite suggestion was put to him that it was he who brought the accused under arrest, and tortured him the whole night in order to extort the confession, and to this the reply was: It is not a fact that I brought the accused Ansar under arrest and tortured him for the whole night in order to extort confession. I did not torture the accused Ansar at all. The accused Ansar was not brought to my house after arrest." The learned Judge, it is said, also did not draw the attention of the Jury to the statement of the accused under section 342 of the Criminal P. C. As against this, it is urged on behalf of the State that it may be that the language used by the learned Judge is not in places quite happy, but on the whole the learned Judge has given all the necessary directions to the Jury, and indeed left it to them to consider whether in the facts and circumstances of this case the Jury would accept the confession as true, and as one made voluntarily. It is also pointed out on behalf of the State that although it was not necessary for the learned Judge to do so he has stres sed the fact that in order to see whether the confession con tained a true account the Jury must insist on corroboration of it in material particulars. The confession in this case was according to the State, also corroborated at least in two material particulars, namely, that the dead body of Iman Ali was found in the southern room, and that its neck appeared to be cut by a sharp cutting weapon like a dagger. We have given the matter our careful consideration, and whilst we agree with the learned Deputy Legal Remembrancer that it was entirely for the Jury to say whether the confession was in their opinion true and voluntarily made, and that they having accepted that confession and acted upon it, we should not lightly interfere with their verdict. We are, however, constrained to say that at least on two very material points the learned Judge did misdirect the Jury; firstly, when he pointed out to them that no suggestion had been put to Rabi Sarkar, P. W. 18 with regard to the torture of the accused. In this, as we have already shown, he was entirely wrong. Secondly, it also appears that he did not point out to the Jury that in his statement under section 342 the accused had stated that he had been tortured. Furthermore, we cannot help observing that the expression of opinion by the learned Judge in such emphatic terms almost amounts to a direction on a question of fact, which was not proper on the part of the learned Judge to make. It is, therefore, difficult to say what effect these might have had on the minds of the Jury. For these reasons, we think that this appeal should also be allowed, the conviction and sentence of the accused Ansar Ali Sardar set aside, and he be directed to be retired on the said charge under sections 302/34 of the P. P. C. We accordingly direct that Aftabuddin Sardar and Shamser Ali be set at liberty forthwith, if not required in any other case, and that the accused Ansar Ali Sardar do remain in custody pending retrial. ISMAIL, J.‑

I agree. Z. A. S. Reference accepted: Appeal allowed. P L D 1