P L D 1962 (W (PLP)

MUHAMMAD IQBAL, J.‑This reference under section 374 of the Code of Criminal Procedure is in respect of two condemned prisoners, Islam and Mst. Allah Jawai, who were tried by the Sessions Judge, Multan, under sections 302/34 of the Pakistan Penal Code. The learned Sessions Judge convicted them on the said counts and sentenced them to death under section 302/34, P. P. C. The condemned prisoners have also preferred appeals from jail against their aforesaid convictions and sentences.

2. The circumstances which led to the prosecution of these two persons may briefly be stated as follows

3. Islam appellant 'and Ahmad deceased were first paternal cousins. Mst. Allah Jawai appellant, the widow of Ahmad deceased, is also their cousin. The wife of Islam appellant died about ten to twelve years ago, and he lived in a joint Ihata with Ahmad deceased and Mst. Allah Jawai in village Khutpur Sandha. The deceased and Mst. Allah Jawai had a daughter Mst. Sattan (P. W. 7). On the night between 27th and 28th of October 1960, the two appellants, Ahmad deceased and Mst. Sattan, were sleep ing in their Ihata. Mst. Sattan heard a noise of the striking of a vahola and when she got up, she saw Islam appellant giving blows to her father with the vahola Exh. P. 1, while her mother Mst. Jawai was holding the legs of her father. This happened about three hours after sunset which was at 17 hours and 19 minutes on the 27th October 1960.

4. Nawab (P. W. 6) is another cousin of the appellants and the deceased. He was sleeping on the night of occurrence in his shop, which is eighteen karams from the place of occurrence. He heard the alarm and hurried to the house of Ahmad where he found him lying dead on his bed with injuries on his person. He saw both the appellants there. Islam was holding vahola Exh. P. 1 in his hands. He remonstrated with Islam who, in the event of his interference, threatened him with dire consequences. The witness raised an alarm, came out of the Ihata of the deceas ed and went to the dera of Mehr Haq Nawaz (P. W. 8), which is at a distance of one mile from the place of occurrence. He met Haq Nawaz in his dera where Dara (P. W. 9) and one Farid Sargana (he was given up in the Court of committing Magistrate as unnecessary), were sitting. He informed theta about the incident. Haq Nawaz (P. W. 8) and Dara (P. W. 9) pro ceeded with him to the spot and Farid was detailed by Haq Nawaz to inform some of the persons of the Abadi who had gathered in Nawan Shahr, a place at a distance of four squares from his dera to a tamasha in the house of Allah Bakhsh tarkhan (P. W. 17). Haq Nawaz and his companions Nawab (P. W. 6) and Dara (P. W. 9) while on their way to the Ihata of Ahmad deceased, came across Nawab Chaddur, who told them that he had seen Islam accused dragging the dead body of Ahmad to the river. Dara (P. W. 9) states that Nawab Chaddur met them in the way and told them that after murdering Ahmad Kumhar, the two accused took away his dead body to the Chappar of Islam accused. This Nawab was not examined at any stage and, having been given up by the prosecution in the Court of the Committing Magistrate as an unnecessary witness, statement made by him was hearsay. On arriving at the Ihata of Ahmad deceased, they found Mst. Allah Jawai present there and questioned her. According to Nawab (P. W. 6) she told them that Islam accused bad carried away the dead body of Ahmad. Haq Nawaz (P. W. 8) says that she told them that Islam had killed her husband and had taken away his dead body to throw it in the river. Dara (P. W. 9), however states that Mst. Allah Jawai confessed before them that she and Islam accused had murdered her husband and Islam appellant had carried away the dead body towards the river.

5. Mehr Haq Nawaz directed Nawab (P. W. 6) to inform the police. He on his way passed through village Bruj. He came to know that the police officer was already in that village. He met Mushtaq Ahmad, Head Constable, (P. W. 19) in that village and made statement (Exh. P. A.) to him at about 8 a.m., on the 28th of October 1960. The place is only at a distance of about four or five miles from the place of occurrence and the Police Station Serai Sidhu is eight miles from Village Khutpur.

6. The Head Constable (P. W. 19) reached the spot at about 10 a.m. on the 28th of October. He took into his possession the blood‑stained cot P. 2 vide Memo. Exh. P. D. on which the deceas ed was stated to have been killed. A portion of baan which had stains of blood on it, was got removed and was sealed into a parcel. He recovered blood‑stained earth vide Memo. P. C., from the kotha of Islam, the appellant. He took blood‑stained Khirka P. 3 into his possession vide Memo. Y. D. and thereafter removed a portion of its blood‑stained wood and sealed it into a parcel. He also took into his possession the blood‑stained vahola P. 1 from the spot vide Memo. P. E. Mst. Allah Jawai appellant was arrested. On interrogation she led to the recovery of blood stained khes P. 5 and pillow P.

6. He took them into his posses sion vide Exh. P. F.

7. Islam appellant went to Sarfraz Khan (P. W. 12). It is admitted that the kotha where he lived is built on the land belong ing to Sarfraz Khan (P. W. 12). His clothes were stained with blood and he confessed before Sarfraz Khan that he and Mst. Allah Jawai, his co‑appellant, had murdered Ahmad deceased. He also told him that he had thrown the dead body in the river. On his request Sarfraz Khan produced him before the police.

8. Mushtaq Ahmad, Head Constable (P. W. 19) arrested him and took into his possession shirt P. 8 and chadar P. 9 from the person of Islam appellant vide Memo. P. H.

9. Mushtaq Ahmad (P. W. 19) at his instance and on his pointing out recovered from the river‑bed, at a distance of two and‑a‑half miles from the place of occurrence, forty‑nine pieces of bones and a tooth. Dr. S. M. Afzal, Professor of Anatomy (P. W. 1), certified the bones and tooth to be of an adult human being, but he could not give the exact age and the sex of the person, because, in his opinion, it could not be determined. This recovery was made on the 29th of October 1960 and it may be mentioned at this stage that neither the prosecution nor the defence asked him if he could from the bones determine or state the approxi mate time and date of the death of the person. The bloodstained articles were sent for chemical examination. The Chemical Examiner vide his report (Exh. P. O.) found all the articles to be stained with blood except shirt P.

8. A vahola P. 7, which was produced by Shera (P. W. 16), was also sent for chemical examination because he had produced it voluntarily by stating that Islam appellant had taken away the same from him on the 27th of October 1960 and returned it to him after midnight between 27th and 28th October 1960. This vahola was found not to be stained with blood. The Serologist vide his report (Exh. P. R.) could not give an opinion about baan khaji (which had been removed from the cot P. 2) and chadar P. 9, because of disintegration of blood and he found the remaining articles to be stained with human blood.

10. In this case the prosecution examined as many as nineteen witnesses to establish the guilt of the two condemned persons. The defence, as far as it can be gathered from the trend of the cross‑examination of the prosecution witnesses, appears to be that they were innocent and have been falsely implicated. Mst. Allah Jawai took a constant stand that she has been impli cated due to enmity with Nawab. Islam, appellant, stated before the Committing Magistrate that he had been involved in the case by Nawab, who was inimical towards him, but when examined in the Sessions Court he alleged that he had been involved at the instance of Haq Nawaz and Sarfraz, the landlords.

11. Of all the witnesses examined by the prosecution, only Mst. Sattan P. W. 7 could be said to be an eyewitness regarding the occurrence. Nawab, according to his own evidence, reached the spot after the incident. He saw Ahmad deceased lying dead on his bed and found the two accused standing by his cot. Mst. Sattan was also there in the house according to him. It is, how ever, contended by the learned counsel for the appellants that Nawab did not go to the place of occurrence at night and in fact nobody knew about the incident till the morning of the 28th October 1960. He raised this plea without prejudice to the con tentions raised by him that Ahmad had not been killed. . The basis of his contention were that corpus delicti in the case had not been found. We shall discuss this aspect of the case at some length, and before we do so we may consider the probative value of the evidence of Nawab (P. W. 6) and Mst. Sattan (P. W. 7). The former is the cousin of the appellants and the latter is the daughter of Mst. Allah Jawai, the appellant, as already stated. Both of them state that Islam had developed illicit intimacy with Mst. Allah Jawai, co‑appellant. This part of their evidence was not challenged in the cross‑examination nor has the learned counsel for the appellants taken exception to this part of their depositions. These witnesses are otherwise disinterested and in fact are so closely related that they would not have deposed about such relationship between the appellants unless it was true.

12. Mst. Sattan was admittedly living in that house along with her parents. She, therefore, could be the most natural witness of the occurrence and her evidence in respect of the inci dent cannot be easily brushed aside. She in her statement has exonerated her mother and attributed the murder only to Islam. She was, therefore, cross‑examined by the Public Prosecutor with the permission of the Court. The learned counsel for the appel lants contended that since she was declared to be a hostile witness (this is a term of convenience and not of law), she is a witness unworthy of any reliance and her evidence, therefore, should be completely brushed aside. This contention has no force. The fact that the witness is dealt with under section 154 of the Evi dence Act, and she is cross‑examined as to credit, in no way warrants that the Court is bound in law to place no reliance on her evidence. There is also no warrant for the proposition that the party who called and cross‑examined her can take no advant age of any part of her evidence. Her evidence is not to be rejected either in whole or in part. But the whole of the evidence so far as it affects both parties favourably or unfavour ably, must be taken into account and assessed like any other evidence for whatever it is worth. The first information report was lodged by Nawab (P. W. 6). He admits to have seen her in the house when he went there. He does not mention her name in the report. The only inference which can be drawn is that perhaps till that time she was not willing to support the prosecu tion story or the informant had a reasonable apprehension that she would not do so. She admitted that she was living with Nawab P. W. at the time she appeared as a witness and it is not inconceivable that she might be making her, statement under his influence. She unmistakably stated that her father was missing for eight days before the alleged night of occurrence, but at the same time complained that she had been made to state that he was killed in her presence. Immediately thereafter, in answer to a question put by the Court, she dis owned that statement and dubbed it as wrong and stated that her father was not missing from the house and was murdered there on the night of occurrence. Such a statement can hardly make her worthy of credence. She further positively stated that her mother was not an associate in crime and again she admitted that earlier she had told Nawab (P. W. 6) that the two co‑appellants had killed her father. When cross‑examined by the Public Prose cutor, she admitted that khes and pillow P. 5 and P. 6 respectively, were washed by her mother, but earlier, in the examination‑in- chief, she had stated that they were washed by Islam appellant. In the cross‑examination by the counsel for the appellants, however, she tried to reconcile both the statements and stated that after Islam threw the dead body of her father into the river, he came back and got the khes and pillow washed by her mother. She is a witness who is vacillating in her statement and willing to state what is suggested to her. Under the circumstances, she, cannot be believed without reservation. A part of her evidence is also not supported by the circumstances. She stated that the dead body was taken by Islam firstly to his own kotha and by lifting it on his head he carried it to the river. It fell from his head near the river and he then tied a rope round its feet and dragged it on to the river and also through the water for some distance. If the body had really been dragged there would have been some marks of dragging and blood‑stains. The prosecution led no evidence of the dragging or the blood‑stains at that place. Since, however, she is a natural witness and in all likelihood should have seen the occurrence, her evidence as to the crime should be accepted where it is corroborated by some other evidence. It will not be safe to convict any of the appellants on her uncorroborated testimony.

13. As far as Nawab (P. W. 6) is concerned, he is not a witness of the actual occurrence. He only saw Ahmad lying dead on the bed with two co‑appellants standing by his side. It was just a pehr after the sunset. The time of occurrence may be calculated to be about 8‑30 at night. It is contended by the learn ed counsel for the appellants that he did not see the incident, that no one visited the house of Ahmad deceased at night and that he lodged the report because he might have been morally convinced of what he stated. We find that this argument of the learned counsel is not without force. The witness states that he reported the matter to Haq Nawaz (P. W. 8) at his dera, which is only at a distance of one mile from the spot. They came back to the spot and Haq Nawaz directed him to go and lodge the first information report. The Police Station, Serai Sidu, is only at a distance of eight miles from village Khutpur. The report in such circumstances, if the incident had really been seen by the witness at the alleged time of the occurrence, would have been lodged somewhere at night. It was made, however, at 8 o'clock in the morning of October 28, 1961, at the village Bruj, which is at a distance of four or five miles, that is to say, nearer than the police station. It follows that Nawab came to know of the incident on the morning of 28th October and proceeded to lodge the first infor mation report. The houses of Chaddurs, Kumhars, Lohars, Sarganas and one Murid Husain are near the place of occurrence. Nawab admitted during the trial the proximity of their houses to the house of Ahmad deceased, but had denied this fact before the committing Magistrate, In the event of an alarm the persons who are admittedly neighbours, are most likely to reach the spot. Further, when there were persons living in the neighbourhood, there was no ostensible justification why Nawab did not seek their assistance and instead covered a distance of one mile to inform Haq Nawaz (P. W. 8). His statement in fact is full of contra dictions and he had been extensively confronted with his previous statements to discredit him. His evidence, otherwise, at places is unnatural as when he admits the presence of Mst. Sattan on the spot, but says that he had no talk with her.

14. We, therefore, do not hesitate to hold that though the evidence of this witness is reliable so far as the illicit relationship between the co‑appellants is concerned, it cannot be used for any other purpose. The evidence of Haq Nawaz (P. W. 8) and Dara (P. W. 9) is discrepant and they too have wrongly stated that they went to the place of occurrence at night. They took no steps to arrest Islam at night or to have the dead body recovered. 15.' We may at this stage deal with the contention of the learned counsel for the appellant that the death of Ahmad is not proved by the prosecution. Relying on the statement of Mst. Sattan (P. W. 7), he contended that Ahmad had been missing from his house for about eight days before the alleged night of occurrence and that he, therefore, might be alive. He further argued that conviction necessarily depended upon the corpus delicti being found. The recovery of forty‑nine bones and a tooth of course, do not help us in any way to hold that they were the bones of Ahmad deceased. The statement of Dr. Muhammad Afzal (P. W. 1), Professor of Anatomy, is of no assistance, because he could not throw light on the age and sex of the person whose bones he had examined. These bones were recovered almost thirty‑six hours after the incident. Muhammad Afzal (P. W. 11), had deposed that Islam appellant had told them that he had thrown the pieces of the dead body in the river. No part of the body, however, was recovered except the bones. It, was surpris ing that no flesh was found on these bones. It was otherwise inconceivable that the appellants could have had the bones so stripped of the flesh. Even if it he assumed that the flesh had been eaten away by the fish, the learned counsel for the State could not explain how the skull had fallen to pieces. We, there fore, ignore the evidence of the recovery of these bones. There is, however, tangible evidence, direct and circumstantial, in support of the fact that Ahmad had been murdered.

16. Mushtaq Ahmad, Head Constable, (P. W. 19) took into possession blood‑stained earth through the Memo. Exh. P. C., blood‑stained Khirka Exh. P. 3 vide Memo. Exh. P. T., blood stained cot vide Exh. P. D., a blood‑stained vahola (Exh. P, 1) vide Memo. Exh. .P. E. from the kotha of the deceased. The recoveries are proved by Ghulam Hasan (P. W. 10) and Sultan son of Wali Dad (P. W. 18). They are disinterested witnesses. Blood‑stained khes (Exh. P. 5) and pillow (Exh. P. 6) were also recovered at the instance of Mst. Allah Jawai. All these articles, except the portion of Man taken from charpoy Exh. P. 2, were found by the Serologist vide his report Exh. P. R. to be stained with human blood. The learned counsel for the appellants has not challenged the factum of recovery of these articles nor has he doubted the veracity of the recovery witness. The recovery of the aforesaid blood‑stained articles from the kotha of Ahmad deceased, proves substantially that the incident had taken place in the kotha of the deceased, Mst. Sattan has stated that her father was killed in the house and considering her statement in the light of the recoveries, there is left no room for doubt that Ahmad was murdered in the kotha. Ahmad has not been seen ever since, nor is a suggestion given by the appellants either in their statements or otherwise in cross‑examina tion of witness that he was still living. The direct and circum stantial evidence conclusively establishes the murder of Ahmad.

17. In the light of the observations made above in respect of the credibility of the witnesses, we are to see if the case is proved beyond reasonable doubt against both the appellants or any one of them.

18. As against condemned accused Islam the circumstances sought to be relied upon by the prosecution are: (1) That he had developed illicit relationship with her co -appellant Mst. Allah Jawai ; and (2) That he had borrowed a vahola (hoe) Exh. P. 1 from Muhammad son of Shahadat, (P. W. 5) and the same was recovered from his Chhapri, after the occurrence. This vahola was found to be stained with human blood as per report of Serologist (Exh. P. R). (3) That he was living in the kotha, which is situated on the land of Sarfraz Khan (P. W. 12). He approached him and confessed before him that he and Mst. Jawai had murdered Ahmad deceased and that he had thrown the dead body into the river. He also requested Sarfraz Khan P. W. to produce him before the police. . (4) That blood‑stained shirt P. 8 and chadar P. 9 worn by him were recovered from his person. (5) That forty‑nine bones and a tooth were taken out from the River Chenab by Fazil Diver (P. W. 13) as a result of his information that he had thrown the body of Ahmad deceased by cutting it into pieces. (6) Reliance is also placed on the evidence of Nawab (P. W. 6) and Mst. Sattan (P. W. 7).

19. The circumstances mentioned at serial Nos. 4 and 5 cannot militate against him. The blood‑stained shirt was found by the Chemical Examiner vide Exh. P. O. not to be stained with blood. So far as the loin cloth is concerned, the Serologist , vide his report (Exh. P. R.) said that, "the blood on Exh. P. 5 had been disintegrated." In his case, however, the extra‑judicial confession made by him has been proved by evidence of un‑impeachable character. The appellant admittedly was living in a kotha built on the land of Sarfraz Khan (P. W. 12). The appellant Islam went to him and it is quite natural that under such circumstances he would go to a person in whom he has confidence. Sarfraz Khan P. W. says that he confessed his guilt before him and it was on the request of the appellant that Sarfraz Khan P. W. produced him before the police: No question was put to him to challenge his veracity or respect ability. The witness is a respectable witness who has no reason to give false evidence against the appellant. There is no apparent reason to distrust him.

20. As regards the use which can be made of an extra -judicial confession in such cases, it appears that in the case of Nawab Din v. Crown (P L D 1952 Lah. 345) one of us (now the Chief Justice and the then Mr. Justice Kayani) observed as follows: ‑ "When an extra-judicial confession is sought to be admitted in evidence, the first question is whether it was actually made by the accused persons and the second question is whether it was made voluntarily and truly. Both these are questions of fact and being once satisfied as to these matters the Court may not find it necessary to apply the rule of caution relating to corroboration."

21. We are satisfied that in this case Islam appellant made a true and voluntary confession before Sarfraz Khan and applying the aforesaid rule his conviction even on his uncorroborated testimony can be sustained. The extra judicial confession of the appellant Islam, is, however, sufficiently corroborated by the facts proved on the record. The appellant had a motive to do away with Ahmad. His illicit intimacy with the co‑accused is prove on record. The blood‑stained vahola was recovered from the place of occurrence and he had borrowed the same from Muhammad (P. W. 5). It is further corroborated by the evidence of Mst. Sattan (P. W. i). Her testimony is the evidence of a natural witness which since it suffers from some infirmities can only be used when it is corroborated. The extra judicial confession and her statement mutually corroborate each other. There is over‑whelming evidence against the appellant Islam. The confession of the appellant, the evidence of Mst. Sattan and other circumstances prove the case against him.

22. The prosecution relies on the following circumstances for the conviction of Mst. Allah Jawai :‑ (1) That she had a motive as she was having illicit connection with her co‑appellant. (2) That he made an extra judicial confession before Haq Nawaz (P. W. 8) and Dara (P. W. 9). (3) That during the course of the investigation she produced bloodstained khes P. 5 and blood‑stained pillow P. 7 before the police.

23. There is no doubt about the fact that she had illicit relationship with her co‑appellant, and there is the evidence of Mst. Sattan (P. W. 7) and Nawab (P. W. 6) on this point and they in the ordinary course of things must have known about such a relationship, Nawab P. W. 6 is the cousin of the accused and would never make such allegations without basis. Unless such illicit intimacy was there and well known, he would never had said so against her own cousins. So far as the extra -judicial confession is concerned, it is neither true nor can it be deemed to be voluntary. Nawab (P. W. 6), Haq Nawaz (P. W. 8) and Dara (P. W. 9) reached simultaneously the place of occurrence. They questioned Mst. Allah Jawai about Islam appellant. If she had really made a confession before them of her guilt, all the three witnesses, namely Nawab (P. W. 6), Haq Nawaz (P. W. 8) and Dara (P. W. 9) would have been unanimous about this fact. Nawab (P. W. 6) makes no mention of any confession by Mst. Allah Jawai. He says that on being questioned she said that Islam had taken away the body of Ahmad. Haq Nawaz (P. W. 8) says that she stated before them that Islam has killed her husband and taken his dead body to throw it in the river. He further stated that she did not admit her own participation in that crime. Dara (P. W. 9) is the only witness who on the contrary stated that Mst. Jawai confessed before them that she and Ahmad had murdered her husband. Evidence of these witnesses is not at all. consistent and shows that no such confession was made by her. If she had really made a confession there would have been a unanimity in the statements of Haq Nawaz (P. W. 8), Dara (P. W. 9) and Nawab (P. W. 6). The only other evidence left against her is the recovery of khes (Exh. P. 5) and pillow (Exh. P. 6). They are blood‑stained and are stated to have been recovered at her instance. The recovery of these articles can hardly furnish a ground for convicting the appel lant Mst. Allah Jawai. The murder took place in her house. Islam appellant caused the injuries to her husband when he was asleep. The pillow and khes would be there in such an event and these articles were recovered from the house. She could under the circumstances be aware of their location. The recovery of these articles, therefore, does not connect her with the crime and at best, only a knowledge of the location of these articles can be attributed to her, which is least consequential so far as her participation in crime is concerned.

24. The evidence of Nawab (P. W. 6) has already been discussed by us and we are not prepared to believe him so far as his coming to the place of occurrence at night is concerned. Mst. Sattan does not make any allegation, against her mother. She in fact exonerated her completely. There is, therefore, no evidence against Mst. Allah Jawai to connect her with the crime. The extra‑judicial confession made by Islam appellant before Sarfraz Khan P. W. was not used against her by the learned Sessions Judge and in fact she was not questioned about it in her examination. All the same, we are inclined to consider whether the extra judicial confession of Islam before Sarfraz Khan (P. W. 12) can be used against her. The value of extra- judicial confession is generally meagre against a co‑accused, and it E becomes all the more weak, when it is retracted.

25. We may in this context refer to the observations of the Judicial Committee in the case of Bhubanisahi v. King (P L D 1949 P C 90) to the effect that confession of a co‑accused is obviously of a very weak type and cannot be made the foundation of conviction. It is true that a retracted confession of a co‑accused can be taken into consideration against a co‑accused by the provisions of section 30 of the Evidence Act, but its value is extremely weak and there could be no conviction without the fullest and strongest corroboration of material particulars. Corroboration in the full sense implies corroboration not only as to the factum of the crime, but also as to the connection of the co‑accused with that crime. The amount of credibility to be attached to a retracted confession, so far as it affects the co‑accused, always depends upon the circumstances of each particular case. Although a retracted confession is admissible against a co‑accused by virtue of section 30 of the Pakistan Evidence Act, as stated earlier, as a matter of prudence and practice, the Court would not ordina rily act upon it to convict a co‑accused without corroboration. The confession of Islam appellant before Sarfraz Khan (P. W. 12) I has already been held by us to be voluntary and true, Islam appellant retracted from this confession. It is then necessary to see whether such a confession, so far as Mst. Allah Jawai is concerned, has received full and strong corroboration in material particulars, both as to the crime and the appellant's connection with that crime. Allah Jawai had illicit relations with Islam, but this by itself will not be sufficient to prove that she, there fore, wanted to do away with her husband. There is no occular evidence to connect her with the murder. Mst. Sattan, her daughter, exonerates her completely. Her conduct belies the possibility of her participation. She throughout remained in the house and did not abscond. The fact that shy; pointed out the pillow (Exh. P. 6) and khes (Exh. P. 5) which are blood stained, in no way proves her connection with the offence and as stated earlier, she might just have been aware of the location of the articles in the house without being in any way connected with her offence. Nawab (P. W. 6), in our opinion had not seen anything at night, but assuming that he had come on the spot, his evidence also does not militate against Mst. Allah Jawai. He deposed that he only saw her standing by the bed side of the deceased. Such conduct is not incompatible with the innocence of the appellants. Mst. Sattan, P. W., admitted her presence there, but explained it by saying that her mother was threatened by Islam appellant to catch hold of the legs of the deceased. There is, therefore, in our opinion no corroboration of the extra‑judicial confession of Islam appellant which could show that the appellant Mst. Allah Jawai was a participant in the murder of Ahmad.

26. The Supreme Court has recently held in P L D 1960 S C 313 at p. 317, that if there was no evidence against the co‑accused except the confession of a co‑accused being jointly tried with him, then the confession by itself being a mere matter to be taken into consideration and not having the quality of evidence against the co‑accused, it could rightly be held in law that the conviction of the latter could not be sustained on the confession alone. The grounds for this conclusion would undoubtedly gain weight if the confession is also retracted. We find in this case that there is no evidence against Mst. Allah Jawai except the extra‑judicial confession of Islam, co‑appellant, and that confes sion also has been retracted. The guilt of the appellant not being free from doubt, we give her the benefit of doubt and acquit her. She shall be released forthwith, if not wanted in any other case.

27. We, however, for reasons given above, dismiss the appeal of Islam, appellant, uphold his conviction and confirm the sentence of death that has been passed upon him. A. H. Order accordingly.