P L D 1958 Supreme Court (Pak (PLP)

SHAHABUDDIN, A. C. J: ‑The appellant Rafiq ‑Ahmad was tried with one Ramzan on the charges that they along with Ejaz Ahmad, the approver, committed the offences of murder and robbery in furtherance of their common intention by causing the death of Abdul Khalique driver of taxi No. P. J. L. 6241, and taking possession of the said taxi. They were charged also with the offence punishable under S. 201 P. P. C., in respect of the disposal of the body of the deceased. Another accused named Akhtar who was tried at the same trial on the charge under S. 120 B that he conspired with the approver and appellant to hire a taxi, murder its driver and take possession of the taxi was acquitted. But the appellant and Ramzan were convicted of all the offences they were charged with and while the appellant was sentenced to death for the offence of murder, Ramzan was awarded the lesser penalty in view of his age which was about 17 years. They were sentenced to different terms of imprison ment for the other offences. Their appeal was dismissed by the High Court of West Pakistan, Lahore, .in respect of their convictions and sentences for murder and robbery, but their convictions and sentences under S. 201 were set aside. This is an appeal by special leave presented by Rafiq Ahmad. Ramzan did not apply for special leave to appeal. The case for the prosecution was to the following effect. The appellant, the approver and Akhtar were friends while Ramzan was running a vulcanizing shop close to the petrol pump of the approver. Some time about the end of August 1954 Akhtar sent for the approver through the appellant and when they all met he suggested that they should hire a taxi, murder the driver and then after changing its colour and plates sell the taxi either in Karachi or Sargodha. The appellant and the approver approved of the scheme and, Akhtar demonstrated with a wire how the driver could be strangulated and he also explained that an air tank could be made to have the stolen car spray painted. His further suggestion was that the entries in the Registration Book of the car to be secured should be erased and substituted by other entries, but on the appellant pointing out that this could not be done it was decided to get a blank book for fabrication with reference to the book of the particular car. Thereafter wire and other materials were purchased and a blank registration book was secured. While arrangements were thus in progress on a trivial quarrel between the appellant and himself over some sweets, Akhtar dropped out of the conspiracy. Then at the suggestion of the approver, Ramzan was taken into the party to carry out the scheme. Thereafter, new number plates were got ready and P. B. S. 2475 was selected as the number to be put on the taxi in place of its original number. Rubber stamps bearing the words "Transport", "Authority" and "Lahore" were ordered from Shamas Din (P. W. 96) at Lahore. Then taxi No. P. J. L. 6241 of which the deceased was the driver was selected on the 5th October. Next day the taxi company was asked on the telephone for the particular taxi to be sent on hire for seven days from the 7th October for a marriage party at Lyallpur. The same day i.e., 6th October to raise money to meet the initial expenses the approver and the appellant sold their respective cycles. On the 7th morning the order for the taxi was confirmed and the company was asked to send it at 6 p.m., to the Lahore Hotel where the approver, the appellant and Ramzan were to meet. The taxi came there at that hour driven by Abdul Khalique and the party boarded it and drove on along Sheikhupura‑ Lyallpur Road, after having purchased Nan, Kabab and wine which they ate when they had still six miles to reach Sheikhupura. They resumed the journey and when they had gone ten mild beyond Sheikhupura at a sign made by the appellant, the approver asked the driver to stop saying that he wanted to ease himself', and when the car slowed down, the appellant slipped the noose made of wire on to the neck of the driver, and tightened it with wooden handles attached to either end. The immediate result was that the driver's foot pressed the brake and his hand fell on the horn when the appellant took charge of the wheel pushing aside the driver who had become unconscious. Then after going about 15 or 20 miles the taxi was taken along a side road where the number plates were changed and the body of the driver, who was taken to be dead, was then put into the boot of the car which is referred to as "dicky" in the evidence. Thereafter they drove towards the petrol pump of the approver and on the way the inscription "taxi" on the windscreen was wiped out with the thinning liquid. The rate list was scratched partially. On reaching the petrol pump they took from there a kahi and they proceeded along the road from the Cantonment leading to the road to Kasur and after going a couple of furlongs from the junction of those roads they stopped tile car and took out the body to bury it, when on hearing from inside its stomach a rumbling noise the appellant said that the driver was still alive. The approver asked the appellant to deal the driver knife blows, but lie asked the approver to do so. Ultimately under threats Ramzan dealt stabs with a knife in the neck and the abdomen and then they buried the body and went back to the petrol pump. Taking petrol from there they proceeded to Karachi reaching it on the night of the 8th October. In the morning of the 8th at the Islam Headworks the appellant made an entry in the register there under the assumed name of Ghulam Sarwar. He had suggested that he would pose as Ghulam Sarwar while the approver and Ramzan should assume the names of Muhammad Hanif and Ali Muhammad respectively. On the way they took petrol and drove on without making payment and before the dealer could demand money with the cash bill. Reaching Karachi the appellant again signed in the register of Taj Hotel under the name of Ghulam Sarwar. Then with the rubber stamps already secured at Lahore and with reference to the registration book of the stolen car a bogus registration book was fabricated by the appellant. Thereafter steps were taken for the sale of the car which ultimately was purchased by Akbar Ali (P. W. 37) from the appellant who posed as its owner. He first received Rs. 1,000 and thereafter the balance of the sale price which was fixed at Rs. 13,000 and he gave receipts for these amounts under the assumed name of Ghulam Sarwar. After this sale, the approver, the appellant and Ramzan left Karachi and returned to Lahore and Ramzan then proceeded to Rawalpindi. Thereafter a dispute arose between the approver and the appellant with regard to the division of the amount realised by the sale of the taxi. The approver wanted it to be divided into three equal shares amongst the appellant, the approver and Ramzan, but the appellant, Akhtar and witness Riaz Muhammad insisted that two‑thirds of the amount should be paid to them and when the approver declined to do so, they threatened to kill hire. Alarmed at this, the approver approached his friend one, Nizam Din, an army contractor (P. W. 139) who suggested that he should mention the matter to their common friend Ghulam Rabbani A. S. 1. (P. W. 140) who was then working at Chunian in the C. I. A. On the 13th October when the last mentioned witness happened to come to the Argentina at Lahore he met the approver and Nizam Din and the latter mentioned to him what the approver had said about the murder and sale of the taxi; but this officer treated it is a joke, as soon after narrating the story Nizam Din and the approver started laughing and the witness knew that the approver used to brag about murdering people. On the 7th November Ghulam Rabbani took over at C.

1. A. Lahore and later in the month when a theft of motor cycle was reported in Gowalmandi Police Station, he received information that the appellant and accused Akhtar were concerned in it. In that connection he questioned the approver who then revealed what had actually happened. The information thus received was given by Ghulam Rabbani to his Inspector Nisar Ahmad (P. W. 115) who with a party including Ghulam Rabbani arrested the approver and the accused persons. This was on the 23rd November 1954. In the meantime on the 16th October 1954 the corpse of the unfortunate taxi driver was recovered and its photograph and the clothes that were on the body were identified by his widow as his. The owner of the taxi on finding that the driver was murdered wrote to his friends in Multan and other places to be on the look out for the stolen car and one of his friends of Multan who was then at Karachi noticing a likeness in a car stationed outside Metropole Hotel with the one stolen examined its engine on the pretext of being interested to buy it. He found that the engine bore the number given to him by the owners of the stolen taxi and informed them of the fact; and they went to Karachi and identified the car as theirs. Investigation was then pursued and the purchaser of the car was traced. Direct evidence regarding the conspiracy, murder of the driver and robbery and sale of the car and the events that took place after the return of the approver, appellant and Ramzan to Lahore till their arrest was given by the approver. Evidence adduced to corroborate the version of the approver as far as the appellant was concerned consisted of (1) the evidence of P. W. 43 Riaz Ahmad, that the appellant, the approver and Akhtar revealed to him their conspiracy to murder the driver and sell the taxi, (2) the evidence that the appellant assisted in the purchase of the wire used in strangulating the unfortunate driver, (3) the evidence that Shamsuddin (P. W 96) was given the order by the appellant to prepare the rubber stamps; (4) the evidence of George Malik (P. W. 110) and Nazir Ahmad (P. W. 114) to whom the appellant and the approver sold their cycles respectively on the 6th October just a day before the occurrence ; (5) the evidence of the handwriting expert that the signature in any entry relating to the car in question in the register at Islam Headworks under the name of Ghulam Sarwar on the morning of 8th October 1954, and the signature in the Tai Hotel Karachi under the same name were in the hand writing of the appellant ; (6) the evidence of witnesses to the transaction of the sale of the car at Karachi where the appellant posed as the owner as well as the receipts he passed for the advance and the balance of the sale price exhibits P. E. and P. F. and (7) evidence of the Expert that the fabricated registration book Ex. P. A. was also in the handwriting of the appellant. The medical evidence disclosed that at the time of the post mortem examination a wire with a handle attached to each end was found on the body and that there were two incised wounds at Adam's apple upper part cutting into larynx, four incised wounds skin deep on the right front of neck, same number of similar wounds skin deep on the left front of neck and three incised wounds in the abdomen. In the opinion of the doctor death was due to suffocation, as a result of aspiration of blood into the respiratory channel due to injury to the Adam's apple, and the shock resulting from the incised injuries in the abdomen. After their arrests Ejaz Ahmad the approver, the appellant, accused Akhtar and Ramzan were kept in different Police Stations in the city. Ramzari expressed his desire to make a confession to the Magistrate and on the 30th November 1954 he was produced before P. W. 138, a First Class Magistrate, who after the usual precautions to ensure that this accused was making a statement voluntarily recorded his confession which substantially was to the sane effect as the evidence of the approver regarding the events from the 7th October onwards. On the 9th December Raja Hamid Mukhtar, Additional District Magistrate, received a letter from Ejaz Ahmad offering to give a true statement about the occurrence if he was assured that pardon would be tendered to him. On a report called from the police the Additional Distrit Magistrate granted Ejaz Ahmad pardon on the 11th December. Accused Akhtar also made a confession, but it was mainly exculpatory in nature and no reliance was placed on it. His version in the confession was that the appellant and the approver purchased the wire, the two wooden handles to be attached to it and several other articles with his assistance, but did not tell him what for those articles were required till he insisted on their giving him the information and when they revealed to him that their scheme was to order a taxi, kill the driver with the wire noose and sell it, he thought he should dissociate himself from them and was waiting for an opportunity to do so. Therefore when a trivial incident with regard to the distribution of sweetmeats occurred he took advantage of it and dropped out. He also said that a few days later the approver met him by chance and told him that they had performed the work which they had decided upon, but he did not take any interest in it and when the approver mentioned that the money had not been divided he said "decide it between yourself and Rafiq". He wanted to lodge a report to the police, but before he could consult his brother in the matter he was arrested. His version under S. 342 Cr. P. C., was to the effect that he was innocent, and 1958 was falsely implicated in this case because of certain differences between himself and the approver with regard to a certain sum of money which was not in fact due from him. As regards his confession, he said that it was the result of torture and police pressure. Ramzan in his statement under S. 342, Cr. P. C., admitted having gone in the stolen taxi to Karachi, but denied all knowledge of murder. His story was that he was induced to travel in the taxi on the approver's false representation that he would be taken to Rawalpindi. Soon after getting into the taxi he fell asleep and on waking up he found himself on the way to Karachi. According to him, it was after the sale of the car that he learnt from the appellant that the car was a stolen taxi and the approver had involved him and the appellant into trouble. As regards the confession he stated that he made it to the police because he was tortured and was given hopes that pardon would be tendered to him. The appellant denied participation in the conspiracy to murder the taxi driver or his actual murder. His version as to why and when and where he joined the approver, as stated at the trial, was as follows I give the correct version and it is that on that night, at about midnight Ejaz Ahmad came in this Chevrvlet Car, which is now said to be the stolen property, to my house. He was all alone in this car. He woke me up and told me that he had wasted lot of his petrol pump money anti his parents were terribly angry with him and that they had turned him out of the house and had told him to produce the money, and that for these reasons he could not stay any further in Lahore and was, therefore, going to Karachi. He asked me to accompany him. He further promised to help me in getting some job in Karachi through his influential uncle there. I was jobless in those days. I went in to ask permission of my elder brother Bashir. He refused to give m% permission. I came out and told Ejaz that I could not go because my elder brother was not agreeable. Ejaz Ahmad approver however, insisted. I then went to my mother inside the house and on my beseeching her, she allowed me to a company Ejaz Ahmad. My mother gave me Rs. 50 by way of expenses: I then got hold (of) my bag with few pairs of clothes in it. I got into the car with him and went with him to R. A. Bazar Cantt. Leaving me in the car Ejaz went away and brought back Ramzan accused with him and all the three of us then started for Karachi. He denied having made entries which have been proved to be in his handwriting or having fabricated the Registration Book, which also according to the Expert was in the appellant's handwriting, admitted having posed as an owner under the name of Ghulam Sarwar as the approver told him that the car was of his friend of that name. According to him it was only when after mone3 was realised by the sale of the taxi the approver asked him to purchase tickets to return to Lahore and he protested that nothing was done to get him a job, that he was told that the car which was sold was stolen property and that therefore they should leave at once. He then quarrelled with the approver and along with Ramzan went to the railway station where the approve joined them and during the journey he kept on admonishing the approver for what he had done. He further added that when he was in the District Jail Lahore, a letter (Ex. DFF) was brought to him by one of the prisoners of that jail named Ahsan (he was examined as D. W. 2). This letter which purports to have been written by the approver was to the effect that he was feeling sorry for having given false evidence against the appellant and Ramzan and that he hoped that they would forgive him. The letter contained a request to the appellant to lend the approver a shirt which he promised to return. The appellant stated that this letter bore the signature of the approver, but he was not certain whether it was in his handwriting. Seven witnesses were examined for the defence, one of whom was the mother of Ramzan, while two of them D. W. 2 and D. W. 4 were examined by the appellant. D. W. 2 proved the letter Exh. DFF while D. W. 4 the brother of the appellant supported his version of having been taken by the approver at midnight. D. W. 3 was the Handwriting Expert examined to prove that Exh. DFF was in the handwriting of the approver. Three other witnesses were officials; and the Superintendent of Jail who was examined as a Court witness stated in cross- examination that after it was known to him that D.. W. 2 gave evidence about having passed DFF to the appellant he asked the witness to speak the truth about it and that the witness then admitted to him that he himself had forged that letter in conspiracy with the appellant. The Sessions Judge acquitted accused Akhtar as the approver's version with regard to his participation in the conspiracy was not corroborated, but as regards the appellant and Ramzan he appears to have accepted all the evidence adduced by the prosecution in corroboration of the approver's testimony. The learned Judges of the High Court, however, did not accept the evidence of Riaz Muhammad about the conspiracy to murder having been revealed to him by the appellant and the approver, or the evidence with regard to the appellant having assisted the approver in the purchase of the wire and his ordering the rubber stamps. They however did not notice one of the items of the corroborative evidence which has been stated above, namely, that the appellant sold a cycle on the 6th of October the day on which the approver also sold his cycle. The learned Judges mentioned this in the statement of facts, but did not discuss it. The judgment proceeded on the basis that the rest of the corroborative evidence about the appellant mentioned above supported the story of the approver which implicated the appellant in the entire transaction. Mr. Nazir Ahmad Khan, the learned advocate for the appellant, contended that the evidence of the approver should not have been believed because of the following reasons. (a) He was of a depraved character given to inventing of stories and had himself in Exh. DFF a letter written by him to the appellant admitted that the evidence given by him was false. (b) He ascribed the main parts in the occurrence to the accused and none to himself and his evidence was in conflict with the medical evidence. (c) The A. D. M. who tendered pardon to the approver did not record his reasons for doing so and S. 337‑A of the Criminal Procedure, Code was therefore infringed. Ejaz Ahmad was taken as an approver not on a disinterested considera tion of the facts of the case but because the A. D. M. who tendered him pardon was a friend of his father who was a Deputy Secretary to the West Pakistan Government. In this connection reference was made to the fact that Ghulam Rabbani who was a great friend of the approver did not take any action till the 23rd November though even on the 13th of the October the approver had told him about the occurrence. It was said that this showed that Police helped Ejaz Ahmad to obtain the pardon. The learned advocate took us through certain portions of the evidence with reference to these contentions; but we are unable to accept any one of them. As regards the depravity of character, that is the characteristic of every approver who having taken part in the offence betrays his former associates just to save himself. That is the reason why though legally his evidence may be sufficient, illustration B to S. 114 embodies a rule of prudence that an approver is unworthy of credit unless he is corroborated in material particulars. Exhibit DFF on which Mr. Nazir Ahmad strongly relied no doubt says that the evidence given by the approver was false; but even if the evidence of the Expert (D.W. 3) that this letter contains the peculiar characteristics of the handwriting of the approver is taken as establishing that it was written by him, that does not in any way establish that what is written in it is true. On the other hand, its contents make it very clear that the approver, if he wrote it, did so in order to appease the appellant. The request for a loan of a shirt appears to be a desperate attempt to resume the old friendship. It is difficult to believe that he was really in need of a shirt and had to borrow it from the appellant. However this letter cannot be put on the same footing as a statement made on oath to the effect that the evidence given earlier was not true. After this letter was exhibited the approver was recalled and questioned about it. While denying that it was in his handwriting or bore his signature the approver explained that while he was in jail he had received several threats for having given evidence against the accused persons and he was afraid that they might arrange to poison the food which used to come for him from outside, that he was pressed by the under trial prisoners and the convicts to give something in writing favourable to the accused and this pressure was being applied to him whenever he was taken out of the jail to attend Court. It may be that on account of such pressure he wrote this letter just to satisfy those who were troubling him, or it is quite possible that the letter was forged by D. W. 2 in conspiracy with the appellant. The mere fact that the writing therein contained all the peculiarities of the handwriting of the approver does not by itself exclude the possibility of a person knowing the approver's B handwriting and being clever at forging documents having forged his writing. However even if it is assumed that the letter was really written by the approver that does not help the appellant. In any case, the approver's version has to be corroborated and the mere fact that while giving evidence he satisfied those who were pressing him to give something in writing on which the accused could construct a case does not take away the value of his evidence. As stated already, it does not amount to his having deposed that the evidence he gave earlier was false. It is not correct to say that the approver ascribed all the main acts regarding murder to others. He asked the driver to stop just before the appellant put the noose round the driver's neck and he participated in putting the body in the boot and when the appellant said that the driver was still alive it was the approver who suggested that stabs with a knife should be dealt. It is true that the approver did not deal those stabs or pull the noose but the part which he admitted to have played was not in any way minor or unimportant. As for the medical evidence we do not find any conflict between it and the approver's version, as to. how the deceased was killed. In this connection reliance was placed by the learned advocate on the last sentence of the deposition of the doctor which is "I am sure there were no marks of strangulation round the neck of the deceased, consistent with the use of the wire". The argument was that this sentence showed that the doctor did not notice round the neck any marks indicating the use of the wire, but "marks of strangulation" mean indications of asphyxia having been caused by the wire being tightened. In the earlier part of his evidence just at the close of the examination‑in‑chief the witness had stated that if the wire found with the body was tied rightly round the neck, the victim was liable to become unconscious; and it is in his evidence, as indicated already, that one of the causes of death was asphyxia due to suffocation resulting from the incised wounds at Adam's apple. It is therefore clear that the driver became unconscious when the noose of the wire was tightened round his neck and that he died when he was stabbed before he was buried. It is no doubt true that there was friendship between Ghulam Rabbani A. S. I. and the approver, but there is hardly any justification for the theory advanced by the defence that Rabbani himself was concerned in the murder and he made the approver falsely implicate the appellant and Ramzan. There is the evidence of Murtaza Hussain, P. W. 147, that according to his investigation he did not even suspect that Rabbani or Nizamuddin were Ejaz Ahmad's fellow conspirators, but that he suspected on 24th November that Rabbani was mixed up with the appellant and Akhtar and this suspicion was con firmed during the investigation, and therefore he had Rabbani transferred in December. As regards Rabbani's non‑action from the 13th October to 23rd November, even if it is considered that he did not arrest the approver because he was his friend, it was not explained how Rabbani was instrumental in Ejaz Ahmad being taken as an approver. It is true that the Additional District Magistrate did not record his reasons for tendering pardon to Ejaz Ahmad and it was admitted that there was friendship between the father of Ejaz Ahmad and the A. D. M., but that does not justify the criticism that pardon was tendered to him because of extraneous considerations and not on a consideration of the facts of the case. On the other hand the following statement of Inspector Murtaza Hussain (P. W. 147) shows that in the circumstances of the case there was justification for taking Ejaz Ahmad as an approver. " We rather supported the idea of having an approver. I did not think of making Ramzan as an approver, because according to my investigation, Ramzan was not present in the preliminary con spiracy in this case and also because Ramzan had actually taken active part in the killing of the deceased driver while Ejaz Ahmad did not inflict any injury". It was not the case of the defence that the appellant ever offered to become an approver. Akhtar was concerned only in the conspiracy and not in the execution of it and his statement was exculpatory. As for the omission to record reasons for tendering pardon as required under section 337 (1) (a) of the Code of Criminal Procedure, this Court held in Fazl Dad v. Crown (P L D 1955 F C 152) that it was only a curable) irregularity which, unless there are circumstances tending to show that miscarriage of justice has resulted, cannot affect the admissibility of the evidence of the approver. Having regard tc/ the evidence of Inspector Murtaza Hussain extracted above it is clear that there was no failure of justice owing to this omission. The next contention of Mr. Nazir Ahmad Khan was that the evidence of the approver implicating the appellant in the conspiracy and in the murder cannot be said to have been corroborated as all the items of corroborative evidence accepted by the High Court as established relate only to the stage after the murder. This argument overlooks the evidence that the appellant sold a cycle on the same day as the approver i.e., on the 6th October which supports the version of the approver that the appellant did this to raise money for initial expenses. The learned Judges mentioned this while stating facts but did not discuss it and our attention was drawn to this evidence by the learned Advocate‑General. It was argued by the learned advocate for the appellant that this incident was an isolated one and could not be said to establish any connection between the appellant and the murder; and the statement of the appellant made when he was examined regarding this sale before the Committing Magistrate was that the cycle he sold belonged to his brother Bashir, that he sold it because Bashir asked him to sell it as it was old: But Bashir when examined as D. W. 4 did not refer to this cycle, and P. W. 110 George Malik to whom the appellant sold the cycle stated that he became acquainted with the appellant through the approver, that the sale was effected at the approver's petrol pump and that the approver attested the receipt which the appellant gave the witness for the amount he paid. This tends to support the approver's evidence that the appellant sold the cycle for raising money for initial expenses as there was independent evidence that the approver himself sold his cycle on the 6th of October and the rest of the corroborative evidence establishes that the appellant played a prominent part in going to Karachi in the taxi making it appear that it was a private car belonging to one Ghulam Sarwar and then selling it as such, himself posing as its owner. There is evidence of the Handwriting Expert which supports the evidence of the approver that the appellant fabricated the false registra tion book. The evidence of the same expert is that the entry in the register of the Check Post at Islam Headworks made on the morning of the 8th under the name of Ghulam Sarwar is in the handwriting of the appellant. It is difficult to accept the contention of his learned advocate that these circumstances were not inconsistent with the appellant's innocence. On the other hand, taking the nature of the crime into consideration, the independent evidence which established that the appellant played a prominent part in the disposal of the car by itself renders the approver's version that the appellant was with him from the outset, probable, and when the fact of the sale of the cycle on the 6th m the circumstances stated above is taken into considera tion this probability becomes stronger. As for his explanation that he was called at midnight, it is inherently improbable that the approver would have after committing the murder gone about to ask persons unconnected with the crime to join him at that late hour when it was imperative for him to get away with the car from Lahore as the company from whom it was hired was of Lahore. A refusal to join the approver at that stage would have completely ruined the chances of achieving his main object which was selling the taxi. Murder was committed as that was the only way of taking possession of it. Further, it is difficult to believe that the appellant if he was innocent would have gone with the approver hoping that he would get him a job at Karachi when, the approver himself told him that he had been turned out of the house by his parents as he had wasted a lot of money of the petrol pump and that as they had asked him to get back the money he could not stay in Lahore. If he had gone with the approver innocently then it is not possible to understand the part he played on the way to Karachi and at Karachi. The facts proved against the appellant by the corroborative evidence may by themselves be not sufficient to establish his participation in the offence of murder, but the corroboration required in respect of an approver's evidence is not independent evidence that the accused committed the offence, for if that were so, there would be no need for accomplice testimony. What is required is, as stated in The King v. Baskerville ((1916) 2 KB 658) (the leading English decision on the question of corroboration required in respect of the approver's testimony which has been followed by Courts in the Sub‑continent as well as by this Court) independent testimony either direct or circumstantial which affects the accused by connecting or tending to connect him with the crime'. That evidence must confirm in some material particular not only the evidence that the crime has been committed but also that the accused committed it. Considering from this standpoint the independent evidence against the appellant referred to above have no doubt that the conclusion of the learned Judges, that the items of corroborative evidence which they considered as a sufficient corroboration of the approver's evidence regarding the participation of the appellant in the entire transaction, was justified. The evidence of corroboration, however, does not end with the circumstances discussed so far. There is another piece of evidence which strongly and directly supports the approver's statement that the appellant participated in the murder, and that is the confession of the co‑accused Ramzan. The fact that this confession was retracted does not take away its value as the reasons given for retraction are obviously untrue. There is in the first place the evidence of the Magistrate that he gave Ramzan an hour to reflect as to whether he should make a confession and that he after administering the usual warning was satisfied that Ramzan was making a voluntary statement. Secondly, reasons given by Ramzan for retracting that confession were regarded by the Courts below as unacceptable and in the circumstances we have no hesitation in agreeing with that con clusion. He said that he was tortured and that he was given the hope of being taken as an approver, but in the record of con fession it is stated that Ramzan told the Magistrate that he was in police custody for 6 or 7 days preceding the day on which he made the confession and that during that period the police had not used any violence on him in order to make him confess. In cross‑examination the Magistrate who recorded the confession (P. W. 138) deposed "when I put him the question if he was under police pressure Ramzan said that he was not and I am satisfied that' there was no pressure". Reference however was not made by the learned Judges of the High Court to this con fession as far as the appellant was concerned, apparently under the impression that a confession of an accomplice does not in any circumstances furnish sufficient corroboration; and this was exactly the reaction of the learned advocate for the appellant when his ‑attention was drawn to the confession of Ramzan by this Court. But this view overlooks the provision in section 114 of the Evidence Act that which presuming that an accomplice is unworthy of credit unless he is corroborated in material particulars the Court shall have regard to such facts as are found in the following illustration in considering whether the above maxim does or does not apply to the particular case before it. Illustration A crime is committed by several persons. A, B and C, three of the criminals are captured on the spot and kept apart from each other. Each gives an account of the crime implicating and the accounts corroborate each other in such a manner as to render previous concert highly improbable . From this it follows that there are cases in which an account of crime given by an accused person implicating his co‑accused can be taken into consideration as corroborating the approver. In Bhuboni Sahu v. The King (761 A147: PLD 1949 PC90) where the question was whether the evidence of the approver was sufficiently corroborated to sustain conviction of the appellant, the prosecution relied on recovery of a cloth identified as belonging to the deceased as well as an instrument for cutting grass which was recovered from the appellant and the confession of a co‑accused, one Trinath It was held by their Lordships of the Privy Council that neither of the above articles could be said to connect the appellant with the crime as the cloth and the instrument were ordinary articles likely to be found in the house of every agri culturist. As for the confession of the co‑accused recorded under section 164 which implicated both himself and the appellant in the murder, it was contended for the Crown that that confession was sufficient corroboration. In support of this contention reliance was piaced on a Full Beach decision of the Madras. High Court in In re. B. K. Rajagopal (1 L R 1944 Mad. 308), where it was held that the approver's testimony corroborated by a confession of a co -accused could sustain a conviction. Reference was also made to the illustration to section 114 extracted above. Their Lordships did not summarily dismiss this contention either by observing that the decision of the Madras High Court was incorrect or by laying down the proposition that under no circumstances could the confession of a co‑accused be a sufficient corroboration of the approver's testimony. On the other hand, as is clear from the following observations occurring in their judgment they con sidered the facts of the case before them and found that those facts did not justify the conclusion that previous concert between the approver and the co‑accused was highly improbable. Their Lordships will assume that the confession of Trinath was not weakened by its retraction. Even so, the approver and Trinath were, according to both their statements, working together on the day of the murder when they were summoned by the appellant to take part in the crime; they were arrested on the following day, so they had had a day, in which they must have appreciated that they were under suspicion in which to arrange their story. After their arrest they were for some two days in police custody before they were sent up together, and with other accused, to the Magistrate to have their con fessions recorded, and there is no evidence that they were kept apart during this period. In that state of the evidence it is impossible to say that the approver and Trinath were kept apart from each other, and that their previous concert was highly improbable. Sir Valentine Haomes has relied strongly on In re B. K. Rajagopal, in which the Court founded a conviction on the evidence of an accomplice supported only by the confession of a co‑accused. Their Lordships, whilst not doubting that such a conviction is justified in law under S. 133 of the Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co‑accused all implicating the particular accused, given independently, and without an opportunity of previous concert, might be entitled to great weight would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence implicating the particular accused* * * * * * * * * * * * * * * In the present case their Lordships are in complete agreement with the Judges of the High Court in declining to act on the evidence of the approver supported only by the confession of Trinath. These two persons appear to have been nothing but hired assassins. They had ample opportunity of preparing their statements in concert, and, in addition, the approver has sworn to two contradictory stories, and Trinath has denied that his confession was true. It is true that no motive is shown for their falsely implicating the appellant, but motive is often a matter of conjecture. It may be that these two men thought it advisable to say falsely that they were acting on the instiga tion of another rather than on their own initiative, or they may have had reasons of their own for wishing to conceal the name of the real instigator. These observations no doubt warn the Courts that they should be very careful in making use of the confession of the co‑accused as corroboration of an approver's testimony, an that the probability of the confession having resulted from previous concert should be excluded before it can be used for corroborating the approver. As regards a confession which is retracted reasons given for retracting it must be found to be false before it can be acted upon. But where it is found that previous concert was highly improbable and the reasons for retracting the confession are untrue there can be no justification for declining to rely on it for purposes of corroboration. In our opinion it is highly improbable that Ramzan's confession was the result of a previous concert between him and the approver. We have already held that reasons given by Ramzan for retracting it are untrue. The Courts below have convicted him acting on that confession and the fact that he did not apply for leave to appeal is not without significance. The learned Advocate for the appellant strenuously argued that Ramzan and the approver must have met often after the occurrence and before their arrest and that the approver asked a restaurant keeper to feed Ramzan at his, the approver's expense and paid the rent due to Ramzan's landlord. It was also pointed out that the approver had mentioned the occurrence to Rabbani A. S. 1. even on the 13th October and from then till the 23rd of November the approver and Ramzan must have conferred as they must have apprehended trouble. It is true that contact between Ramzan and the approver before their arrest cannot be excluded but it is highly improbable that the approver would have conferred with Ramzan, a boy of about 17 years, when he had a friend in Sub‑Inspector Rabbani. Considering the fact that Rabbani did not take any action though on the 13th of October Nizamuddin told him that the approver had admitted having committed the murder, it was most unlikely that the approver apprehended trouble. He may have paid the rent due from Ramzan to his landlord as Ramzan was more his retainer than a friend of equal status. Inspector Nisar Ahmad, P. W. 115, deposed that after their arrest the accused and the approver were kept in different Police Stations. This was not controverted but it was argued that when they were taken to Courts for remand, they would have conferred with each other directly or through Rabbani. There is no force in this contention as it is seen from the evidence that when these accused were taken out for remand on the 24th November by Rabbani, Inspector urtaza ~ussain was also with them, and it was not shown that they were taken out for remand again before the 30th November when Ramzan's confession was recorded. On the other hand, Exhibit P. W. 147‑G shows that on the 24th all the accused persons which at that stage included approver were remanded by the Magistrate till the 3rd of December. Further, if there was concert between Ramzan and the approver, the approver must have given Ramzan hopes that he would receive pardon if he made a confession, in which case, Ramzan, when disillusioned, would have stated before the committing Magistrate and at the trial that the approver made him make a false statement giving him hopes of being pardoned. But he did not do so. On the other hand he gave the usual explanation of torture and promise by the Police. Then again, if the confession was a result of previous concert Ramzan would have ascribed the act of killing to the appellant. In the circumstances of this case, therefore, it appears to us that the confession of this co‑accused can safely be taken in corrobora tion of the evidence of the approver, which, as already pointed out, stands corroborated by other independent testimony. We, therefore, dismiss the appeal. A.H. Appeal dismissed.