P L D 1963 (W (PLP)

(6) One incised wound, about 2" x 1 ", in size, on the right frontal scalp. (7) One incised wound, about l " x 1", on the right frontal region of the skull. Internal examination

Small intestines were found perforated each in four places The left kidney was found ruptured. The fourth lumbar vertebra was also found fractured. The frontal region of the brain was found lacerated and damaged.

14. The death was due to shock and bleeding as a result of injuries caused by a firearm. Incised wound No. 5 was post mortem and Nos. 6 and 7 were ante‑mortem. Incised injuries 6 and 7 could not cause his death.

15. Qibla Alam appellant, when examined by the commit Magistrate, denied having committed the murder of the deceased in furtherance of his common intention with Gulzar co‑accused, but had admitted to have disposed of the dead body of the deceased with the help of Gulzar co‑accused from his house by throwing it in the fields. He admitted to have made the confession Exh. P. S. on the 15th of February 1962, before a Magistrate, and when it was read over to him, he admitted that It was correct. He denied having pointed out the place from where the chaplis Exh. P. 8 were recovered by the police. He admitted that the piece of bullet which the investigating officer had recovered from the field at his instance was the one which had hit the deceased. He had also admitted that the arms of the charpai on which the dead body was kept and which was recovered by the police at his instance was the charpai on which the deceased was murdered. He could not explain as to why Mst. Sahib Zara, Nazim, Gul Azam, and Azim deposed against him. In reply to a question as to why he was charged and what was his statement, he replied in the following words : One day at diger time Sadar Jan deceased came and put up with me as my guest. We took our evening meals. After that Khar Malik came with a V. D. rifle. He too stayed with me for the night. We all slept in the same kotha. My wife slept in another kotha. Some time in the night Khar Malik fired two shots at the deceased and killed him. "I rebuked him for killing my guest. Khar Malik pointed his V. D. rifle at me and told me to give axe blows to Sadar Jan who had already died. He had promised me Rs. 500 for not disclosing the incident. He went away after that and on the following night I requested Nasim, Gul Azam, and Azim to help me in disposing of the dead body which they did. Khar Malik came afterward and the same night he burnt the clothes of the deceased. He did not pay me a single penny. I gave axe blows to Sadar Jan after he was dead."

16. When he was examined at the trial, he admitted that his statement Exh. P. W. recorded by the Committing Magistrate was correct, but at the same time denied having committed the murder of the deceased in furtherance of the common intention of his co‑accused. He also denied having disposed of the dead body of Sadar Jan on the night between the 29th and 30th of January 1962, with the help of Gul Azam, Nazim and Azim, and disposed it of by throwing it in the fields with the intention of screening himself and his co‑accused from the consequences of their acts. He denied having made the confession Exh. P. S. on the 15th of February 1962, before Mr. Matiullah Shah, Magistrate First Class, Bannu. When questioned if he had made the con fession to P. W. Amanullah Khan S. I., as a result of which the wooden bars of the cot were recovered from his house, chaplis Exh. P. 8 of the deceased recovered from the sugar‑cane field and a bullet Exh. P. 9 recovered from the field at his showing while he was in the custody of the police, he replied in the negative, but added that it was a fact that he pointed out a bullet Exh. P. 9 lying in the field outside his house to the Sub‑Inspector. When he was questioned that some three years back Abdullah Jan, the husband of his sister, was murdered by Zanjir Gul, he replied in the affirmative. When questioned why P. Ws. Sahib Zara, Nasim, Gul Azam, Pir Matiullah Shah, and Aman Ullah charged him, he replied that P. W. Sahib Zara did not charge him, that he was a poor man, and Nasim and Gul Azam were charging him on account of it. He did not know why Pir Matiullah Shah and Amanullah Khan charged him. In reply to a question as to what was his statement, he made the following detailed statement before the trial Judge :‑ I am a poor man and I remained in police custody for at least 14 days. I made a statement in the Court which was not a confession but a disclosure of facts to some extent. The Magistrate wrongly wrote it as a confession. The local police off and on gave me allurements that if I revealed some facts of the case I would be set at liberty. Whatever I have given out before the Magistrate it was under the influence of that persuation. The truth is that Gulzar, who is my co‑accused, is a motabar and who was the enemy of the deceased, brought the deceased to my house on some pretext. I entertained them and even allowed them to sleep in my house. In the middle of the night Gulzar accused, who was armed with a rifle, fired a shot at the deceased, who was hit with it. Gulzar then aimed his gun at me and threatened me with it if I failed to strike the deceased with an axe. An axe was lying there and I did give blows to the deceased. But at the time of my blows the deceased was already dead. Gulzar then went away. I was at a loss what to do with the body. It was bound to be found sooner or later. On account of fear for myself, I requested Gul Azam and Nasim and his brother Azim to help me in taking the body from my house. We then took the body from our house and threw it in the fields. Gulzar asked me to give blows to the dead body of the deceased because he wanted to prevent me to give evidence against him. He produced no defence.

17. Gulzar alias Khar Malik pleaded not guilty in the Court of the committing Magistrate, and stated that Mst. Sahib Zar P. W. deposed against him because she wanted to save her husband. At the trial, in reply to a question as to why his co‑accused had charged him in his confessions and also at the trial, he replied that about two months before the occurrence he had beaten Qibla Alam as a result of some dispute over water rights, and he had charged him on that account. When asked why Mst. Sahib Zar charged him, he replied that she was the wife of Qibla Alam accused and had charged him in order to save her husband. In reply to the question what was his statement, he replied that he was innocent, and that there was no evidence against him except the statements of his co‑accused and his wife, who had charged him for the reasons he had given above. When asked how he explained his absence from his house on the 14th of February 1962, when S. I. Amanullah went for his arrest, he replied that he owned property in tribal territory, and that about a month before the occurrence he had gone to his house in tribal territory. He further said that on the 26th of February 1962, he came to Bannu and surrendered himself to the Deputy Commissioner, Bannu. When questioned as to how did he account for the absence of the three village defence rifles Exh. P. 12 to Exh. P. 14 from his house in village Muhammad Khel, he replied that he had distributed these rifles to other people for use in case of need, and that when the police demanded them Arsallah Jan collected them from those people and produced them to the police. He also produced no defence.

18. It is clear from the above‑mentioned circumstances brought on the record that the conviction of the two appellants is based on two separate sets of evidence. We, therefore, propose to sort out evidence incriminating each one of the appellants separately. We take up the case of Qibla Alam first.

19. His conviction is based on the following evidence':‑ (1) Confession Exh. P. S. recorded by Mr. Matiullah Shah, Magistrate, First Class, Bannu, on the 15th of February 1962. (2) His statement before the committing Magistrate, wherein he had affirmed the confession Exh. P. S. (3) His statement at the trial, wherein in the beginning he confirmed his statement recorded by the committing Magistrate to be correct. When the confession Exh. P. S. was put to him, he denied having made it voluntarily, but he also in the same breath admitted certain facts in the same statement which were already stated by him in the confession Exh. P. S. and also earlier before the committing Magistrate. (4) The recoveries made at his instance, (i) bullet Exh. P. 9 recovered from the field close by the police at his pointing out the place, (ii) recovery of the chaplis of the deceased from the sugar‑cane field near his house at his pointing out, and which was correctly identified by Badal P. W., brother of the deceased, in au identification parade held in the presence of Mr. Ahmad Khan, Treasury Officer (P. W. 1), and (iii) recovery of the four wooden bars Exh. P. 10 and four arms of the cot Exh. P. 11 on which the deceased was murdered and the Man of which was severed from the cot and was burnt. (5) The statements of Nasim (P. W. 10) and Gul Azam (P. W. 11), who helped him in disposing of the dead body, will serve as a corroboration that the dead body was lying in the house of Qibla Alam, from where it was removed and placed in the field from it was ultimately recovered. (6) The statement of Mst. Sahib Zara (P. W. 7), the wife of Qibla Alam, although in this statement she had thrown the entire burden on Gulzar appellant for the murder of the deceased, but she was consistent with respect to the place where the murder had been committed, and that was the house of her husband, and to the fact that it was committed in the presence of her husband. (6) The statement Exh. P. S. made by Qibla Alam under section 164, Cr. P. C. is not incriminatory in its entirety, but it is also not self‑exculpatory in its entirety. According to him he had given three or four blows with a hatchet on the head of the deceased, and according to the medical evidence, only one hatchet injury was post‑mortem, while the other two were ante‑mortem. If his statement is considered to be true with respect to the fact that it was not he who had fired two shots at the deceased, but his admission that he gave three hatchet blows, out of which two were proved by the medical evidence to be ante‑mortem, sufficiently proves the fact that he had a common intention with the person, who had fired at him, in murdering the deceased. Even the confession Exh. P. S. was admitted by him to be correct in his statement before the committing Magistrate, and partly in his statement at the trial. Qibla Alam had alleged in his statement at the trial that this confes sion was secured under persuasion by the police, and his counsel, therefore, has urged that it was inadmissible under section 24 of the Evidence Act. This contention would have had some force if Qibla Alam had not admitted this confession A to be correct before the committing Magistrate. He had admitted it to be correct before the committing Magistrate after about five or six months of having made the confession under section 164, Cr. P. C. and when he was no more under the influence of the police, being lodged in the judicial lock‑up. This confession, therefore, will be saved by the provisions of section 28 of the Evidence Act, which runs thus If a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. His confirmation of the confession Exh. P. S. in the committing Court, as well as most part of it in the trial Court, makes it relevant under section 28 of the Evidence Act. It, therefore, cannot be considered as a retracted confession of the type which was made when the confessor was in the custody of the police, and when he was removed from that custody, he retracted it, saying that the confession was made under undue influence or persuasion of the police. This contention was, therefore, not of much substance. If this confession be considered as a retracted confession, and not admissible under section 24 of the Evidence Act, without further corroboration, then the corroboration in this case is so voluminous and convincing that no two opinions can be formed about the guilt of the accused. He pointed out certain articles connected with the offence, as a result of which the police officer recovered those articles. The statement of the accused before the investigating officer with respect to these recoveries is admissible under section 27 of the Evidence Act. The recovery of the bullet, chaplis of the deceased, and the arms and the legs of the cot from his house, are the corroborating circumstances which go a long way to show the complicity of Qibla Alam in the commission of the offence, if not his being solely responsible for its commission. The statement of Mst. Sahib Zara, his wife, though calculated to exonerate her husband, further points out that Qibla Alam was not innocent and totally disconnected with the offence of the murder of the deceased. Mr. Ashraf Ali, Advocate, referred to a few judgments in support of the view that if the confession Exh. P. S. was not voluntary, then it was not admissible in evidence, but these cases would only apply when it was found that the confession was not voluntary. In the instant case, the statement of Qibla Alam before the committing Magistrate, as well as at the trial, sufficiently points out that what statement he made under section 164, Cr. P. C., and which is Exh. P. S., was quite voluntary, and that what facts had been mentioned in this confession are corroborated by independent evidence to the greatest extent. The authorities cited by learned counsel for Qibla Alam are not, therefore, applicable to the circumstances of the present case. In our view, therefore, the prosecution has succeeded in proving that Qibla Alam appellant was guilty for the murder of the deceased, or at least he was guilty for the murder of the deceased, committed in furtherance of his common intention with another person, whether he was Khar Malik, or someone else, and therefore, he was rightly convicted under section 302/34, P. P. C. It is not B material what was the motive for the offence. The learned trial Judge had disbelieved the motive cited by the prosecution at the trial, and which was admitted by Qibla Alam in his statement, probably on the ground that had Qibla Alam been an inimical terms with the deceased, the latter would not have visited his house and stayed for the night in the house of his enemy. The second reason for the murder is the deprivation of the deceased of his cash, which he was keeping with him, as the sale proceeds of chalghoza. The fact remains that the murder had been committed in the house of Qibla Alam and which had neither been denied by him in any statement, nor by his wife, as a prosecution witness. In such a case, the proof or otherwise of the motive is immaterial. Qibla Alam was, therefore, rightly convicted under section 302/34, P. P. C. The sentence, in the circumstances of the case, is quite appropriate. His appeal No. 45 of 1963 is dismissed, and his death sentence is confirmed.

20. There are authorities for the view that when the, murderer himself tries to screen the offence and removes the evidence of his guilt, he cannot be convicted under section 201, P. P. C. 1f any precedent is needed, Farid Muhammad v. The State (P L D 1959 Pesh. 12) can be referred to with advantage. In this judgment it has been laid down "that it has been admitted by the learned counsel appearing for the state that the conviction of the accused‑appellant under section 201, P. P. C. cannot be sustained, because a person cannot both be convicted of murder and for concealing evidence of murder." Following this precedent, the appeal of Qibla Alam is accepted against his conviction under section 201, P. P. C. and the sentence of three years' rigerous imprisonment, and he is acquitted of this charge.

21. The case against Gulzar alias Khar Malik stands on a different footing. His conviction was based on the partially retracted confession of his co‑accused, corroborated by the statement of Mst. Sahib Zara (P. W. 7). This confession suffers from serious legal defects in so far as Gulzar appellant is concerned. This confession, even if it was not retracted, could only be considered admissible against the co‑accused, if it was corro borated materially by independent evidence. With the exception of the statement of Mst. Sahib Zara, there is no corroborative evidence, circumstantial or otherwise, to connect this accused with the offence. A part of the statement which Mst. Sahib Zara had made at the trial may well be recorded herein below in verbatim to show that what she had stated previously at different stages was materially different from the statement she made at the trial, and therefore, her statement could not be safely relied upon as corroboration of the retracted confession of Qibla Alam. She stated in cross‑examination :‑ (7) "It is correct that the two accused and the deceased came to my house on the night of occurrence together. It was examined by the police after about 15 days of the occurrence (statement referred to, copy applied for and granted). It is incorrectly recorded in my police statement that first the deceased and Qibla Alam accused came to my house at evening time and that after that at khuftan time Gulzar accused came to my house. The fact is that the three of them came together to my house. It is incorrectly recorded in my police statement that at about mid‑night I heard shots while 1 was lying and then went to sleep again without going out. The fact is that I heard a shot and then went out of my side of the partition wall to the other side. It is wrongly recorded in my police statement that I went out of my kotha the following morning. It is wrongly recorded in my police statement that Qibla Alam accused threatened me when I told him that they had done a very wrong act. It is incorrectly recorded in my police state ment that Qibla Alam accused tied the deceased in trangar which was lying in my house. I ryas examined by a Magistrate on 15‑2‑1962 under section 164, Cr. P. C. It is incorrectly recorded therein that on the night of occurrence the deceased and Qibla Alam accused went to sleep in one kotha and I went to the other kotha for sleep. The fact is that Qibla Alam accused slept in the same kotha, where I slept. It is also incorrectly recorded therein that after going to sleep, I got up the next morning. The fact is that on hearing shots to the middle of the night I got up and went to the other kotha. I did state in my state ment that Gulzar accused fired a shot in my presence at the deceased but it is omitted from it I cannot explain it. It is wrongly recorded in my said statement that I told my husband that he had done a wrong act and that he threatened me and turned me out of the kotha. I was examined by the committing Magistrate on 1‑6‑1962. It is incorrectly recorded in my statement before the committing Magistrate that after serving meals to them I started for the kotha of my husband's brother and that when I was about to enter it, I saw Khar accused firing two shots at the Wazir and killed him. It is wrongly recorded in my statement before the committing Magistrate that Gulzar alias Khar brought the trangar Exh. P.

1. I did state to the police and also to the Magistrate who recorded my statement under section 164, Cr. P. C. that I had seen Gulzar accused firing at the deceased, but if it is omitted from my statements I cannot explain it." The above referred to portion of the statement of this witness speaks for itself and points out that she was all and all out for helping her husband and throwing the entire burden of the occurrence on Gulzar appellant, and in doing so, she has not hesitated in stating clearly contrary or diametrically opposed to what she had stated in her police statement and in her statement under section 164, Cr. P. C. and in the statement recorded by the committing Magistrate. Besides that she was examined about 15 days after the occurrence and she had not informed any person about the fact that a Wazir had been murdered in her house by Gulzar appellant, or by her husband, Qibla Alam. Her long silence, therefore, gives her the garb of a person who is no better than an accomplice, and her statement, therefore, requires cor roboration of a very material character. Her statement, therefore, suffers from the same defects as the retracted confession of Qibla Alam accused. With the exception of this evidence, there is no evidence, whatever, on the record, to connect Gulzar appellant with the offence. In the commentary of section 30 of the Evidence Act, by M. Munir, 4th Edition, at page 207, it has been written under the heading "May take into consideration, evidentiary value of the confession of a co‑accused ; conviction on such confession, whether legal ?"‑Confession of a co‑accused is not "evidence" as defined by section 30, nor does this section declare it to be "relevant". The Act requires a judgment to be based on facts declared by it to be relevant. Therefore, a convic tion which proceeds on the confession of a co‑parcener alone would not be justified by law. The language of the section is guarded, and the history of the Act leaves me in no doubt that this section was designedly framed in these terms. While admissions, a word which embrace confessions, are by section 21 relevant, and may be proved as against the person making them, all that section 30 provides is that the Court may take them into consideration as against other persons. This distinction of language is significant, and it appears to me that its true effect is that the Court can only treat a confession as lending assurance to other evidence against a co‑accused. Again on page 212 of the same Book, under the heading "Retracted confession", it has been laid down that "so far as mere admissibility of a confession against a co‑accused is concerned a retracted confession does not differ from one that is not retracted, provided the confession is not open to any objection under sections 24, 25 and

26. But the evidentiary value of a retracted confession against a co‑accused is considerably less and the very fullest corroboration of such a confession is necessary. The weight to be attached to a retracted confession must depend upon whether the Court thinks that the person retracting was induced by the consideration that the confession was untrue, or by realization that it had failed to secure the benefits the hope of which inspired it. The confession of a co‑accused is admitted in evidence because of the guarantee of truth afforded by self‑implication, but where this guarantee is rendered nugatory by the confessing accused himself retracting his confession and denying the truth of the statements made therein, then little or no reliance can be placed upon such confession so far as the co‑accused are concerned. A retracted confession should carry practically no weight as against a person other than its maker ; it is not made on oath, it is not tested by cross‑examination, and its truth is denied by maker himself, who has thus lied on one or other of the occasion. The very fullest corroboration would be necessary in such a case, for more than would be demanded for the sworn testimony of an accomplice on oath. The retracted confession of an accused is not sufficient alone to justify the conviction of a co‑accused, but where such confession stands unrebutted, and there is nothing to show that the accused bad any reason for naming other man falsely, and his story fits in exactly with the facts known or proved and is cor roborated sufficiently by material evidence against the co‑accused, the confession is a strong piece of evidence against the co accussed."

22. In Ghulam Muhammad alias Gama v. Emperor (A I R 1942 Lah. 271), it has been laid down "that the maker of a confession can be convicted on a retracted confession if found true, but it is unsafe to do so without independent corroboration. As against the co‑accused a retracted confession by an accused may be taken into consideration, subject, however, to the rule that it cannot form the basis of a conviction without substantial and independent corroboration, both as to the crime, and the criminal. Further as against the co‑accused a higher standard of corroboration in regard to the retracted confession must be demanded than in the case of the testimony of an approver because the testimony of an approver can be tested by cross‑examination, whereas the confession of an, accused cannot be subjected to such a test." It is, therefore, clear that the confession or a retracted confession of a co‑accused are almost on the same footing, and both of them require the L strongest corroboration with a view to base conviction on the facts stated therein. If there was no independent corroboration then the conviction of the co‑accused merely on the confession is illegal.

23. The learned trial Judge, therefore, has not considered at all this legal aspect as against Gulzar appellant. This fact is evident from the discussion of the confession of Qibla Alam appellant, in so far as it had been found to be sufficient to convict Gulzar appellant. In paragraph 27 of the judgment, the learned trial Judge discussed this point in the following words :‑ As observed above, the prosecution evidence against the two accused is not the same. However, after a careful examina tion of the entire evidence on record, and the statements of the two accused, I have no doubt in my mind that in spite of the inequality of the evidence against the two accused, the prosecu tion has fully proved its case against Gulzar accused as well. I have given a finding above that accused Qibla Alam did make the confession Exh. P. S. before a P. W. Pir Matiullah Shah, M. I. C. Bannu. Under section 30 of the Evidence Act, a confession of a co‑accused can be taken into consideration against the others also. This departure from the general rule that the confession of an accused can be used against him only is not without reason. An involvement in a case on capital charge which may result in death penalty, affords a certain guarantee of the truth of that statement. A confession in any other criminal case, where the punishment is only imprisonment, does not deserve as much merit as a confession in a murder case. Cases can be visualized in which an accused may confess his guilt and involve others in his confession for a consideration. The consideration is considered as adequate compensation for the punishment, but no consideration is adequate for the punish ment of death. Be that as it may, the legal position that I understand is that the confession of a co‑accused alone is not sufficient for the conviction of the others. "The Courts insist on production of evidence in corroboration of the confession. In my view there is ample corroboration of the confession of Qibla Alam accused and, therefore, it can be used against Gulzar accused also. In the first place, there is the corroboration of the confession by the medical opinion of Dr. Sabz Ali Shah. Qibla Alam has stated in his confession that Gulzar accused fired at the deceased with a rifle, while he inflicted axe blows to him. Dr. Sabz Ali Shah had found both stab wounds and firearm wounds on the deceased. Then there is the evidence of Mst. Sahibzara P. W. against Gulzar accused. She is before me and I am very much impressed by her straight‑forwardness. She has not proved enmity with Gulzar accused. She could not be expected to invent this long story. Further, her evidence receives support from the evidence of Gul Azam and Nasim P. Ws. the statement of Qibla Alam accused and the medical evidence of Dr. Sabz Ali Shah. I agree that she has contradicted herself with her previous statement but that is not un‑understandable. She is facing a severe ordeal. Her own husband is facing a trial on a capital charge. For a woman in her position, it is natural to contradict herself with her previous statement. I am of the view that the contradictions are of no avail to Gulzar accused. Further, there is the corroboration of the confession by the abscondence of Gulzar accused and the absence of the V. D. Rifles from his house. The explanation that the accused Gulzar has given for his absence from his village and for the absence of the rifles from his house in the absence of any evidence cannot be relied upon. Further, I cannot believe that he had distributed all the three V. D. Rifles to his fellow villagers. One will expect that he should have at least kept one rifle for his own protection. I am of the view that he made himself scare and took away V. D. Rifles because be was uneasy in his conscience. The charges stand fully proved against him too."

24. In our view, the reasons given by the learned trial Judge in that part of the judgment which we have given in verbatim above need hardly any comment, because they are self contradictory in many particulars. No doubt the medical evidence did point out that two kinds of weapons were used in the commis sion of the murder of the deceased, but this, by itself, was not sufficient to corroborate the confession of the co‑accused to the effect that Gulzar did use the rifle, while the confessing accused only used the hatchet. Again, these two weapons might have been used by the confessing accused himself. The version given in the confession Exh. P. S. and subsequently reiterated by the confessing accused further points out that he assigned the important and the major role to his co‑accused, as he attributed the firing with the rifle to the co‑accused, and he assigned himself the role of giving blows with a hatchet to the deceased when he had already died. This exculpatory confession, therefore, stands condemned by itself, and, therefore, requires extremely weighty corroboration to connect the co‑accused with the offence. The learned trial Judge had to admit quite frankly that Mst. Sahib Zara was faced with an ordeal and it was due to this that she had to make contradictory statements at the trial. We have given our anxious consideration to the statement which she made during the course of the cross‑examination by the counsel for Gulzar appellant. The falsity and the absurdity of her statement should be realized. If the statement of such a witness could be believed merely on the ground that she was facing an ordeal of her husband being on trial for a capital charge, then what criterion is left with which the veracity of such a witness could be tested. We are, therefore, not in agreement with the learned trial Judge that Mst. Sahib Zara was a truthful witness. As held above, she might be present in her house. But what she had witnessed, was given by her, quite differently at different stages, and therefore, it is extremely impossible for us to find out which one of statements given by her should be considered as correct. Her evidence, therefore, under the law, cannot be considered to be a corroboration of the confession of a co‑accused when her statement stands condemned on account of her untruth fulness.

25. In our view, Gulzar appellant had been successful in explaining his absence from the village and also the fact of his three village defence rifles having not been found by the Sub- Inspector during his house‑search when he was not present in the village. It is admitted that Gulzar appellant had two residences, one in tribal territory, and the other in village Khadri Mohd. Khel. In such an event, it was for the prosecution to have proved that he was present in the village during the days of the occurrence, and absconded immediately after the occurrence, and therefore, he was not living during the days of the occurrence in his second house in tribal territory. The prosecution has not produced any evidence to prove this fact, and, therefore, his absence from the village when the Sub‑Inspector had visited his house about 15 days after the occurrence raises no inference against his innocence. The absence of the village defence rifles from his house has also been reasonably explained. If Gulzar was absent from the village, as he had gone to his house in tribal territory, he was not expected to take along with him even one of the village defence rifles which are only required for the defence of the part of the settled district in which he was residing. All the three village defence rifles were produced by a relative of Gulzar appellant on the following day, direct to the investigating officer. This further points out that what explanation Gulzar appellant had tendered for the absence of the village defence rifles from his house at the time of his house‑search by the investigating officer was quite reasonable and true. We are clear, therefore, in our mind, that none of the circumstances suggested by the learned trial Judge to the corroboration of the confession of the co‑accused, could, in law, be considered as corroboration. The conviction, therefore, of Gulzar appellant was based by the learned trial Judge merely on the uncor roborated, retracted, and exculpatory, confession of Qibla Alam accused, and was obviously bad in law. We, therefore, accept Appeal No. 37 of 1963, set aside the convictions and sentences of Gulzar appellant, and acquit him. He should be released forthwith if not required in any other case. K.B. A. Appeal accepted.