P (PLP)

MUHAMMAD MUNIR, C. J.‑A daring case of mass assassination occurred on 31st March 1949 in village Dhulian, one mile away from Police Station Dinga in the Gujrat District. In the morning of that day five men were murdered‑two brothers Muhammad Yar and Hasan Muhammad in their havela, Nazar Muhammad in a street and Shera and Muhammad, also brothers, in their own house. Thirteen men were accused of these murders. Of them, three, namely, Karam Ilahi, Gaman and Sardara, are absconding while the remaining ten were tried by the Additional Sessions Judge of Gujranwala. Of the ten, one Behram Khan was acquitted, while all the remaining nine were found guilty and sentenced to death. The condemned men have appealed and their sentences are before us for confirmation on the reference side. Dhulian is not a very large village and its inhabitants are preponderantly Gujars. Next in importance to the Gujars are some families of Balochis. For the last fifteen years these two tribes have been engaged in a campaign of abductions and murders, and almost all the cases that came to Court in respect of these offences resulted in acquittal. In the present case, all the five deceased persons were Balochis while the accused men are Gujars, with the exception of Sardara who is a Mirasi. One entire family, namely, Ghulam Muhammad and his five sons Faiz Ahmad, Raja, Hyat, Ghulam Ali and Rahmat are in the list of the accused. The next family involved is that of the three brothers Karam Ilahi, Gaman and Muhammad. The remaining two accused, Muhammad Sadiq and Muhammad Malak are also brothers. It is not clear how Behram Khan, the thirteenth accused was brought into the affair. It is unnecessary to go into the details of all the incidents which constitute the background of the terrible massacre which is the subject‑matter of this case. It will suffice if the past main events were stated in bare outline. Some fifteen years ago a Balochi woman, Mst. Sardari, who was the sister of Shera and Muhammad, deceased, was abducted by Ghaus, a Gujar. The woman was recovered shortly after her abduction but was not allowed to return to the family house, and was done away with by her own people. The Balochis, who were on the look out for Ghaus, one night broke into the house of Jiwan Khatri where they suspected Ghaus to be present. But not finding Ghaus there they murdered Jiwan instead. This was in May 1935. The crime went unpunished as none was convicted. Some four years later the Balochis succeeded in murdering Ghaus but again nobody was convicted. Six years after this, Phalla, a brother of Nazra deceased, was murdered by the Gujars and law again failed to punish anybody. In the next round three Gujars, namely, Sardara and Sultan, brothers of Karam Ilahi, Gaman and Muhammad, who figure as accused in the 'present case, and a servant of theirs Maulu, were killed by the Balochis in August 1947. Again, though eleven men were prosecuted for these murders, the case resulted in clean acquittal. The present crime, in which five Balochis were ferreted out of their homes like rats from their holes, chased and killed, was a retaliation for the three murders of the Gujar party in August 1947. The murders were 'committed at about charawela on 31st March 1949. The report at Police Station Dinga was lodged at 8 o' clock in the morning and thus without any delay. The informant was Sardara, brother of Nazra a deceased. In that report he stated how with his deceased brother he was present at his house when he hard the sound of gunfire and immediately thereafter his son Bashir Ahmad, who is a mere boy, came running and told him that " Gaman, etc., Toppas " were coming to attack. On receiving this news, Sardara and his brother ran in the direction of the house of their maternal cousins Shera and Muhammad to inform them to be on their guard. While the two brothers were running, the twelve accused (Behram Khan not mentioned) came up armed with guns, spears and hatchets. Sardara heard a gunshot and looking back saw that his brother Nazra had fallen to the shot of Muhammad appellant. Sardara then ran to the house of Shera and Muham mad who were present in their courtyard, and informed them of the impending attack. The murderers entered the house and out of them Rahmat appellant, fired his gun on Muhammad who dropped down dead. Shera ran inside the kotha, but was followed and attacked by Gaman and Sardara absconders and some others. Sardara ; climbed a ladder and going on to the roof of the house ran over house‑tops to the house of Muhammad Yar and Hasan Muhammad, only to learn from their mother lost. Bhari that they both had been attacked by the same men who had murdered the other three men in his presence and that while Hasan Muhammad was dead, Muhammad Yar lay seriously wounded. Sardara alleged in his report that the culprits were armed with guns, except Ghulam Muhammad who bad a hatchet and Sardara who had a spear. The report, however, contained no indication of the mistaken identity of anyone of the miscreants, both Muhammad and Rahmat having been unequi vocally attributed definite parts in the transaction. On receiving the report Sub‑Inspector Farzand Ali Shah, Officer‑in‑Charge of the police station, at once came to the village and started investigation. He recorded the statement of Muhammad Yar who was still alive. In that statement Muham mad Yar gave a full description of the attack on him and his brother, and named ten men, that is to say, all the accused with the exception of Muhammad, Rahmat and Behram Khan, as the offenders. He, however added, that two more men, whom he could not identify, had their faces muffled and were among the gang of murderers. The other witnesses, who claimed to have seen the occurrence, made similar state ments but instead of' saying that the two muffled men could not be identified, stated that they looked to be Muhammad and Rahmat. In Court while Sardara (P. W. 4) and Zulfiqar (P. W. 5) stuck to the story of two muffled men, who appeared to be Muhammad and Rahmat, being among the assassins, the other witnesses went back upon that story and alleged that these two men were Muhammad and Rah mat and that they had not covered up their faces. At the trial, Muhammad and Rahmat alleged that they were mad not in the village at the time of the murders and that they re mained in the lock‑up of Police Station, Jhelum City, from 8‑30 o'clock of the evening of 30th March up to 10 o'clock of the morning of 31st March 1949 when they were produced before a Magistrate, summarily tried, sentenced to fine which they could not pay, and taken to jail to undergo one week's imprisonment in default of payment of fine. They produced evidence; oral and documentary, from Jhelum, which 'originally was relied on by the prosecution but was later abandoned, to show that in the evening of 30th March they had a scuffle with Abdul Hamid, nanbai at his shop in Jhelum from where they were taken by a policeman to Police Station, Jhelum City where they were confined for the night in the lock‑up and from where the next morning they were taken to Court, convicted and sent to jail, The learned Additional Sessions judge has held that in fact these two appellants did take the part which hag been assigned to them by the eye‑witnesses in the murders and that the whole evidence relating to their presence in Jhelum on the night of 30th and early morning of 31st March is false and has been fabricated in-collusion with Sub‑Inspector Nadir Ali, officer‑in‑charge of Police Station, City Jhelum. This evidence consisted of not only the relevant entries in the Police roznamcha and two separate chalans under section 160 of the Penal Code, which were. presented in Court, but also of the depositions of the nanbai with whom these two men had a quarrel, of the two police officials who found them engaged in an affray with the nanbai, of the foot constables who guarded the judicial lock‑up during the night, of the several prisoners who were confined with them in the judicial lock‑up, and of Sub‑Inspector Hasan Ali Khan of Chakwal who had seen both these appellants in the City Police Station, on the evening of 30th March: The learned Additional Sessions Judge has subjected this evidence to severe scrutiny and come to the conclusion that it is all false. To make the documentary evidence consistent with the evidence of the eye‑witnesses who depose that these appellants were seen taking part in the murders on the morn ing of 31 March, he suggests the following two alternative explana tions. He says: "It is not at all difficult for me to solve this mystery because the position is absolutely clear. Muhammad and Rahmat were not confined in the lock‑up at 8‑30 p.m. on 30th March 1949. If at all they went to Jhelum, they may have met the S. I. at 6‑30 p.m. as Hasan Khan D. W. has told us. It was pro bably at about 6 p.m. on 30th March 1949 or even earlier that a conspiracy to prepare a false evidence of alibi was hatched up between the two accused and Nadir Ali, S. I, because there is a feudal affinity between them. The roznamcha was decided to be kept blank. Unfortunately a prisoner from Pind Dadan Khan, poured in at about 8‑30 p.m. An entry No. 41 with respect to his admission had got to be made. The roznamcha was again kept vacant and entry No. 42 about the admission of Muhammad and Rahmat, was made after that at some convenient hour. There can be the following two possibilities :‑

1. That Muhammad and Rahmat, accused, ran to Jhelum and met the S. I. at about 9 or 10 a.m. on 31st March 1949 after they had taken part in the commission of these murders. " The roznamcha which was left blank was filled in to suit the con venience of the S. I. and the accused. The admission of the accused in the lock‑up was entered at entry No. 42 which pur ports to have been, made at 8‑30 p.m. on 30th March 1949. The accused were then handcuffed and taken to the Court of the A. D. M. I am fortified in this observation by the fact that there is nothing to show in the roznamcha that any meals were serv ed to th~s3 accused on the morning of 31st March 1949. Even their descriptions are not mentioned in the report, No. 42, and they were never produced before any doctor for medical examina tion, obviously because there was hardly any time for medical examination.

2. This entry No. 42 was made at about the time when it purports to have been made and two prisoners, one a child and the other a Mianwali man, were put in the lock‑up to make up the number. The names and particulars of the accused were correctly recorded in the report, but a rider was added that the Sub‑inspectors does not believe them to be correct. These two prisoners, the child and the Mianwali man, were kept in the lock‑up throughout the night and quietly released after Muhammad and Rahmat had approached during the day time. In that case, even if a superior Officer of the Police had paid a surprise visit to the lock‑up, he would have found the number as 6 and it could be very conveniently stated before him that the child and the Mianwali man had given the particulars as Muhammad and Rahmat, and that these particulars as given by them were not ‑prima facie believed by the S. I. to be correct:" He has been biased against the defence evidence because of Sub‑Inspector Nadir Ali's associations with Gujrat. This officer is a Gujar like the appellants and belongs to Baukan, a village in Police Station jalalpur, in the Gujrat, District. In 1940‑41, he was a Head Constable at Police Station, Dinga itself and remained in the Gujrat District for five years when in 1945, he was transferred to another district after being promoted as a Sub‑Inspector. I have examined this evidence with great care and do not find it possible to reject it on either of the grounds on which it was rejected by the learned Additional Sessions Judge. The second alternative, suggested by him, namely, impersonation of Muhammad and Rahmat by a child and a Mianwali man cannot stand a moment's 'scrutiny because, according to the roznamcha entries, eight and not six men as held by the learned judge, were in the lock‑up on the night in question. It is common ground that Abbas Khan, Sardar Hussain Shah, Muhammad Hussain and Feroze were in that lock up on that night. Besides these four prisoners, two others, namely a child and a man from Mianwali; were also there. This brings the number of prisoners to six and if Muhammad and Rahmat's names as mentioned in entry No.' 42 are added, the number of prisoners becomes eight. The learned Judge; overlooked those entries in the roznamcha which show that on the night of 30th and 31st March, a twelve‑year boy, named Ijaz and another man Kashmiri Lal were in the lock‑up besides the six already mentioned, and that while Ijaz was discharged from the lock‑up on the 1st April, Kashmiri Lal did not leave the lock‑up 'before 8th April: That being the position, no theory of impersonation could be founded on the admission of some of the witnesses that the number of prisoners in the lock‑up was six on that night. The other theory, namely, that of Muhammad and Rahmat having come to Jhelum at about 6‑30 on the evening of 30th March, of their returning to Dhulian the same evening and then going back to Jhelum after committing the murders on the following morning is equally untenable. In the first place, the plan was hardly worth the bother because the murders could quite easily be committed without Muhammad and Rahmat having had to return to their village. The hypothesis is based on th assumption that it was decided sometime on 30th March that murders should be committed on the following morning, and if that assumption be correct, these two appellants could well ha, stayed away at Jhelum, leaving the execution of the plan to the others; this being nobody's case that the murders could not have been committed unless Muhammad and Rahmat were actually present among the murders. In the next place, the alleged con spiracy between Nadir Ali Sub‑Inspector and the two appellants was not only difficult but was also calculated to expose a large number of police officers to dismissal and prosecution for giving and fabricating false evidence. The plan could only be success ful if not only Nadir Ali and Sub‑Inspector Hussain Khan had colluded, but several head constables and police constables and at least six prisoners who were confined in the look‑up that night had been taken into confidence. I cannot imagine that overnight Nadir Ali could have been successful to win all these persons to a plan which exposed every one concerned to very serious consequences. Further, the police station, the scene of the alleged conspiracy, is at the headquarters of the district and should be visited at any time by any superior officer. Nor could the roznamcha be left vacant in a city like Jhelum, because Nadir Ali could not have been sure that no event of any importance will have to be recorded in it. The entries in the roznamcha show that about seven persons other than Nadir Ali and Sayed Ahmad Shah, Naib Muharrir signed the roznamcha before 10 o'clock of 31st March, and it is difficult to imagine that all these persons together with the several prisoners, Abdul Hamid nanbai, and a responsible police officer from Chakwal could have readily agreed in the course of a couple of hours to join in a dangerous and discreditable conspiracy. It may be that Nadir Ali is a Gujar from Gujrat and might have had some associations with the Gujars of that district including the party of the accused, but that could not, in my opinion, in the circumstances of this case, be a sufficient reason for him to take the risk of being dismissed from service and prosecuted not only for fabricating false evidence but also for facilitating the murders. I must accordingly hold that both Muhammad and Rahmat were, as stated by the several defence witnesses, in the police look‑up of Police Station, Jhelum City on the night of 30th and in the morning of 31st March, and that they were not present in village Dhulian when the murders were committed. Now what is the effect of this finding on the prosecution case ? If there had been no circumstances tending clearly to show that the witnesses saw the murders, it would have been our duty to hold, that because they named Muhammad and Rahmat, they did not see the occurrence and thus to acquit the whole lot. The same would have been the result, if there had been no other, evidence against any one of the appellants tending to show that he did take part in the murders. Generally when it is proved that some innocent persons have been dishonestly implicated in, a crime, the Court is entitled, and it is safer, to acquit every those who have not been able to prove that they were falsely implicated. The rule, however, is not absolute, and its indiscriminate appli cation in this Province is as dangerous to the administration of criminal justice as the general application of the contrary rule, that in such cases the only persons against whom the, evidence off the witnesses may be rejected are those who succeed in proving their innocence. Judges with vast and intimate experience of the administra tion of criminal justice in this country have often felt that where falsehood has been intentionally mixed with truth, they are under no obligation to winnow the grain of truth from the chaff of false hood. Others with equal experience and keen insight into the character and mentality of witnesses who generally give evidence in criminal cases in this Province have emphasised the grave danger of miscarriage of justice if oral evidence were judged by the maxim falsus in uno, falsus in omnibus, and have considered proof of perjury on a material point by itself not to be a sufficient reason to reject that portion of the evidence which appears to be true. There are other observations on the subject, some plain in language and idea.; others forceful epigrams, such as, that false evidence can never be corroborated, that zero added to a quantity adds nothing to that quantity and that whatever quantity be multiplied by zero, the result must still remain zero. I have always felt that the question of questions for the judge in such cases, is how to get at the truth with that degree of certainty as is always insisted upon in criminal cases and it seems to me that if you can do that, the result need not be determined by any general rule. It may be that the greater and clearer the false hood, the more difficult the task of extracting the truth, but that is the real task before a judge, I have never felt any uncertainty about. I cannot, therefore, accept Mr. Sleem's contention that since it is proved in this case that the witnesses have involved at least two men who could not have taken any part in the murders, their evidence against the other accused must for that reason alone be rejected. In the present case, the murders were committed in the morning in the heart of a populous village and it cannot be supposed that nobody witnessed the crime. The very fact that the five victims of the crime were in their houses shows that generally the inhabitants of the village were, at home when the crime was committed. Mst. Sardari (P. W. 10), Mst. Bhari (P. W. 11), Zulfikar (P. W. S) and Allah Yar (P. W. 9), all live almost opposite to the haveli in which Hasan Muhammad and Muhammad Yar were murdered. There can, therefore, be not the slightest reason to negative their claim that they were present when the two men were murdered in the haveli opposite to their houses. In the same way Sardara (P. W. 4) who is the brother, and Mst. Fatima (P, W. 14) who is the widow, of Nazra deceased and Mst. Kliurshid (P. W. 15), widow of Muhammad deceased, must have been in their house when Nazra, Muhammad and Shera were murdered. Now, if the several witnesses really saw the murders, they could not have possibly omitted to mention the names of the actual murderers though it may be that they might have included in the list of accused some other men who did not in fact take part in the crime. In these circumstances, the obvious and safer course to follow would be to see whether the deposition of these witnesses when they say that the appellants took part in the murders receives such degree of corroboration as might persuade us safely to hold that a particular person did take part in the crime. When the case is approached from this angle, it seems tome that, apart from the three absconders whose case is not before us, two of the appellants, namely, Ghulam Ali and Sadiq, can be safely convicted. I have already mentioned that almost the very first step in the investigation of the case was the recording of the statement of Muhammad Yar deceased. In that statement, which is admissible as a dying declaration, though recorded by the investigating officer, Muhammad Yar stated that Ghulam Ali fired at him and his brother Hasan Muhammad, but that the shot missed and injured the camels and that his brother was killed by a shot fired by a guman whom he did not see. 7 he evidence of Dr. Abdul Hamid, Veterinary Assistant Surgeon (P. W. 6); shows that some camels produced before him on 1st April 1949 had gunshot wounds. According to the evidence pf Sub‑Inspector Farzand Ali Shah (P. W. 32), Sardar Khan (P. W. 22) and Karam Dad (P. W. 30), Ghulam Ali dug out a gun, Exh.P49, which lay buried in a grove of trees in the village. The first two of these witnesses further state that a fired gun cartridge, Ex. P‑10, was produced by Mst. Khurshid when the police arrived for investigation. Mst. Khurshid herself deposes that she had picked up this cartridge from inside the house of Shara just after the firing. The C. I. D. Scientific Laboratory Expert, Mr. Abdul Majid (C. W. 1), on the basis of experiments performed by him, states that the cartridge Ex.P‑10 was fired from the gun EX.P.19. We have ourselves examined the photographic enlargements of the mark found on the crime cartridge and the test cartridge, and think that the percussion caps of both these cartridges must have been struck by the same striker. It is true, that Mr. Abdul Majid staked that it was not possible for him to say with certainty whether the gun P‑19 had been fired or not, but it is apparent from the context of his deposition that what he intended to say and did in fact say was that he could not be sure whether after the gun was fired it had been cleaned or not. It was of course, impossible for him to say that the gun had never been fired. Mst. Khurshid (P. W. 15) definitely accuses Ghulam Ali as one o the men who fired on Shera whose in juries, according to the medical evidence, were caused by at least three separate shots. I am, therefore, of the view that the evidence of the eye‑witnesses and the dying declaration of Muhammad Yar deceased receive against Ghulam Ali that degree of confirmation as is sufficient to convict this appellant, inasmuch as the circumstantial evidence tends unmistakably to show that, he must have been one of the band of men .who committed these murders, 'and the dying declaration of Muhammad Yar and the evidence of at least two of the eye‑witnesses, namely, Sardara and Zulfiqar, are not at all open to the objec tion that they reveal an attempt falsely to implicate anyone. The next man against whom there is corroboration is Sadiq appellant. This man also mentioned in the dying declaration of Muhammad Yar and is stated by Zulfiqar (P. W. 5), Allah Yar (P. W. 9) and Mst. Sardari (P. W. 10) as the man who fired the shot which felled Hassan Muhammad almost at the threshold of the Kotha. According to the evidence of Sub‑Inspector Farzand Ali Shah (P. W. 32), Sardar Khan (P. W. 22) and Karam Dad (P. W 30), this appellant also produced a rifle, P‑18, which he dug out from very near the place from where Ghulam Ali had dug out the grin Ex.P‑

19. The two rifle cartridges, P‑11 and P‑12, which were recovered from the courtyard in which Muhammad Yar and Hassan Muhammad were attacked, were not fired from this rifle and must have been fired by the other gunmen who are alleged to have taken part in the firing at Muhammad Yar and Hassan Muhammad. 'The expert is, however, of the opinion that this rifle had been used, and the fact that it was recovered from very near the place from where a gun, which is proved to have been used in firing a cartridge found inside the house where Shera was killed, was recovered, clearly indicates that it was buried with the other gun at the same time and place because it is not at all likely that two men who are alleged to have taken part in the murders should have buried their weapons separately near each other and that while one of them should have taken part in the murder, the other might have been only an innocent concealer. The medical evidence establishes quite clearly that the entrance and exit wounds on the head of Hasan Muhammad were in all probability caused by the bullet of a high velocity rifle though the doctor was not specifically questioned whether this wound was caused by .a rifle bullet or by a shotgun. If the wound had been caused by a shotgun, some of the shots must have been found embedded in the head and if they all went out, there would either have been more than one exit would on the right side of the head, or the gun would have been fired from such a close range that marks of charring and deposit of gun‑powder would have been noticed by the doctor. The actual exit wound found was 12" X 3.6" and an exit gap of these dimensions in the absence of evidence of charring and gun‑powder deposit on the side of the entrance wound when a hard bony structure intervenes between the entrance and the exit wounds, could only have been caused by a rifle bullet. The piece of lead that was recovered from this wound also appears to be a place of a bursting bullet fired from a rifle. This circumstance in my opinion is a sufficient corroboration of the eye‑witnesses' claim that they saw this appellant shoot Hasan Muhammad in the head. Mst. Khurshid also specifically implicates this appellant as one of the several men who shot at Shara, and it seems to be quite clear from the description of the injuries on Shara that the elliptical entrance wounds Nos. 9, 11 and 12 and their corresponding exit gaps which are too large to be caused with pellets were caused with bullets. The third man against whom some corroboration is to be fund is Ghulam Muhammad. He is alleged to have been carry ing a hatchet, and some injuries which were caused with a hatchet were found on the person of Nazra. The first infor mation report, however, which was made by a person who claims to have seen the assault on Nazra does not mention this appellant as 'having injured him. We have seen this man in Court and do 'not think it to be likely that this old hunchback of 80 should have taken the active part attributed to him by some of the eye‑witnesses. We are 'now left with the case of Muhammad and Rahmat, the two appellants who have succeeded in proving that at the time the murders were committed, they were in the police lock up at Jehlum more than twenty miles away.' The question is whether their absence from the village is sufficient to exonerate them from the crime and to record a finding that they had nothing to do with the murders in question. On the very first day. of the investigation, the police theory seems to have been that the two appellants were in fact absent from the village and that having planned the murders a day before they had gone to Jehlum to create evidence of alibi. If this theory is correct, 'namely, that the murders were decided upon a day before in consultation with these two appellants, then they, are equally liable for the murders by reason of section 109 of the Penal Code. The charge, however, was not put against these appellants in this form and the particulars of the offence explained to ‑them before the commencement of the trial described them as actual participants in the murders. We cannot, therefore, straightaway convict them of murder under section 109 of the Code, but since we feel that if the evidence is examined from the point of view, whether these appellants fled to Jhelum after the conspiracy for the murders was formed in order to create evidence of alibi, it might be possible to find that their disappearance from the village was not innocent but in pur suance of a well‑thought out plan, we cannot acquit them. When this evidence of alibi is scrutinised, it presents every appearance of artificiality. Both Rahmat and Muhammad state that they left their village five or six days before the occurrence and went to Chak Jamal in the Jhelum District. They returned to Jhelum on the evening of 30th March 1949 on their way back to their village and took their meals in the shop of a nanbai sometime after sunsent. Since the nanbai gave them food which was Stale, they did not pay the price demanded This led to an excharge of hot words between the nanbai and them and when they began to grapple with the nanbai, the police came and took all three of them to the police station where a case was registered against them. The nanbai was admitted to bail because he was a local man, but because they themselves were strangers, they could not produce any surety, with the result that they were detained in the police lock‑up and remained confined there throughout the night. Next morning they were produced in handcuffs before the Additional District Magistrate who sentenced them to pay a fine of Rs. 10 each or to undergo one week's imprisonment in default. As they did not have sufficient money to pay the fine, they were sent to jail to undergo the sentence of imprisonment, from where some days later the police arrested them. There is no evidence from Chak Jamal to show that these appellants had gone there before 30 March To say the least, it is curious that two, men belonging to well‑to‑do families should go to a village in another district without sufficient money on them for their return journey; that the return journey should be on the evening preceding the day on which the murders were committed ; that the shop where they took their food should be that of the police nanbai : that they should ask for food when they had no money to pay for it ; that they should not be in a position to arrange for their food with a friend or re lative at Jhelum or borrow money to pay for it ; that the nanbai at 8‑30 p. m. should .not be able to give them fresh food ; that there should be such a scuffle over this payment that two policemen should be attracted to the spot ; that the only evidence of this scuffle should be the police nanbai and two police officials who are both chance witnesses ; that the scuffle should not have attracted some other policemen on duty nearby ; that they should be arrested and marched to the thana in connection with a matter which could not be investigated by the police ; that no attempt to follow Police Rule 26.7 should have been made ; that though they had injuries they should not have been sent for medical examination ; that an experienced Sub‑Inspector should have decided .to investigate a non‑cognizable case and to put in two separate challans in Court ; that no surety should have been forthcoming for then ; that next morning they should have been too willing to confess ; that the confession should have been made when they knew that that they were not in a position to pay the fine ; that, though they were at a short distance from their homes, nobody should have been forthcoming to pay their fine and' to have them released from jail ; and that the fact of their arrest and imprisonment in 1helum should have been known next morning to their relations when the police arrived for investigation. All these circumstances are very signi ficant and require an innocent explanation and though, in the light of the evidence produced, the suspicious features of the story do not lead to the inference that the whole evidence of their detention in the police lock‑up is false, it seems to be quite possible that this arrest and detention followed by a con viction might have been enacted either in collusion with or by hoodwinking the police. If the whole incident did not come about in a 'natural way but was invented with an ulterior mo tive, namely, that of providing proof of their presence elsewhere at the time of the murders, one conclusion follows inevitably, namely, that these two men knew that the murders were coming on next morning. Now, if it be reasonably possible that these men may not have been a party to the conspiracy that must have been formed before they fled from the village but had merely knowledge of it and apprehending that their names might be mentioned in connection with those murders, they fled from the village to create an incident so that it might land them into the lock‑up for the night, they will not be liable for the murders though their omission to inform the police as to the impending murders might render them liable to punishment under some other provision of the law. But if the above hypothesis is not reasonably possible, and from the circumstances the only reason able inference that can be drawn is that they took part in the conspiracy to murder which ex hypothesis had been hatched on 30th March before they fled to Jhelum, then they would undoubt edly be liable .for the murders as 'if they had themselves committed them. Since we feel that if the case is examined from that point of view, one might come to the conclusion, as seems to have been the view of the investigating officer at the very beginning of the investigation, that these two appellants were members of the conspiracy to murder, we think that the proper order to make in their case would be to direct the lower Court to examine the evidence from this standpoint. One thing is plain, namely, that these two appellants could wish that the murders should not be brought about because if that had been the state of their minds, they would certainly have discharged their statutory obligation under section 44 of the Code of Criminal Procedure, that lies on men so circumstanced, namely, 'to give information of the conspiracy to murder to the nearest magist rate or police officer. Whether it is possible to go further and hold not only that they knew of the coming murders but also abetted them, will depend upon the evidence that may be produced at the trial: That Muhammad had the strongest possible motive to wish these murders to come about because two of his real brothers Sardara and Sultan had 'been murdered less than two years ago is obvious. For the reasons given above, we dismiss the appeal of Ghulam Ali and Sadiq and confirm their sentences of death. The convictions and sentences of Muhammad and Rahmat are set aside and they are ordered to be re‑tried by the Sessions Judge himself. The appeal of Ghulam Muhammad, Faiz, Ahmad, Raja, Hayat and Muhammad Halak is accepted, their convictions and sentences are set aside and they are acquitted. A. H. Orders accordingly.