Z. A. CHANNA, J.---Appellants Nawab and Umar, who are cousins inter se, have been sentenced to imprisonment for life and also to pay a fine of Rs. 1,000 each, by the learned Sessions Judge, Sukkur by his judgment delivered on 31-7-1976 for committing the murder of their relation Allahbux. By our short order, dated 14-3-1978, we had allowed the appellants, appeal and we now proceed to give our reasons for the same.
2. The murder of Allahbux is said to have been committed on the night intervening between the 2nd and 3rd of September, 1966, at about Sohmani time, at his house in Deb Khoohi Khanji, at a distance of about 12 miles from Khanpur Police Station. The first report of the murder was lodged by his cousin and father in-law, Alihassan, on 3-9-1966, at 11-00 a. 1n. According to that F. I. R. First informant Alihassan, who was residing in the neighbourhood of deceased Allahbux, woke up from steep at Sohmani time on hearing gunshot reports and cries of ---murder--- ! 'murder' from the house of the deceased, whereupon he ruslied to that house and is said to have seen appellant Nawab and his father Mehar son of Mehran, running towards the East, being respectively armed with a guts and a pistol. The first informant found his cousin Allahbux lying dead on the ground in the courtyard of his house. His wife Mst. Alam Khatoon, who was raising cries, is stated to hove informed the first informant and the latter's brothers, Ali Akbar and Noor Hassan, who had also been attracted on the gunshot reports and the cries, that while she and her husband were sleeping; the bullocks shied, whereupon her husband woke up and went towards the bullocks, whereupon he sustained two gunshots which were fired by Nawab and Mehar Pitafi whom she identified clearly in the moonlight. The motive for the murder, according to the first information report, was a dispute, since 5 to 8 years, over lands between the accused persons and the deceased.
3. A spent cartridge was recovered from near the scene of offence by A. S. I. Inayatullah who had accompanied the first informant to the scene of offence after recording his F. I. R. The A. S. I. Also recovered blood--stained earth from the vardat. Ore t0-9-1966, the A. S. I. Arrested the two appellants. It is alleged that appellant Nawab produced one muzzle loading gun from sand which was at a distance of about 100 paces from his house while appellant Umar produced a country- made pistol, .12 bors, from the Lorha of his house. On 13-9-1966, both the appellants were produced before the Mukhtiarkar and F. C. M., Ghotki, who recorded their judicial confession.
4. The reason for the undue delay in the trial of the appellants was that their case had been sent for disposal to the Jirga under the provisions of the West Pakistan Criminal Law (Amendment) Act, 1963, but on the repeal of the said Act, the case was sent back to the regular Courts where in due course it was committed to the Sessions Court, Sukkur, and as already stated, decided by the learned Sessions Judge, on 31-7-1976.
5. The autopsy, which was conducted by Medical Officer Mohib Shah on 5-9-1966, between 7-30 and 9-00 a. m., revealed the following external injuries on the deceased, all of which had been caused by means of gunshots.
(1)"Punctured gunshot wound ----- in diameter x cavity deep on the upper part of left chest.
Charring was present.
(2)Lacerated wound 6" x 6" x muscles deep on the left inguinal region.
(3)Lacerated wound 4" x 2" x muscles deep near injury No. 2.
(4)Lacerated wound 6" x 4" on the pubic region.
(5)Punctured gunshot wound 4" x 4" x cavity deep on the back tipper part near the spinal column, wound of exit.
(5)Four punctured gunshot wounds each measuring --" in diameter and each 1" on separation on the inner side of right thigh,"
6. The defence of the appellants was that they had been falsely implicated by the P. Ws. Who are related inter se and inimical to them.
7.The evidence against the appellants consists of (a)ocular evidence of Mst. Alam Khatoon ; (b)corroborative evidence of first informant Ali Hassan and P. W. Ali Akbar, brother of the first informant ; (c)Judicial confessions of both the appellants recorded on 13-9-1966; (d)production of an unlicensed gun by appellant Nawab and unlicensed pistol by appellant Umar on 10-9-1977 ; and (e)motive; which was dispute over land.
8. Although Mst. Alam Khatoon must have been present in the house at the time of the incident and consequently must have seen the occurrence we are not satisfied that she had identified or was in a position to identify the culprits. According to her, the culprits were at a distance of about 50 paces from the deceased when they fired at him. Her evidence on this point is on the one hand inconsistent with the medical evidence which shows that charring marks were present at the site of one injury, indicating thereby that the shot was fired at him from a distance of about 4 feet, and on the other hand makes her evidence in regard to the identification of the culprits extremely doubtful.
As according to her she was only one foot away from him when he was fired at, suggesting thereby that she had seen the culprits from a distance of 50 paces. We have looked up the diary of the year 1966, when the incident occurred, and find that the night of the incident was the 17 of Jamadus- Sani. On that night the moon must have arisen at or after Sohmani time. As such, if the incident did occur at Sohmani time, as stated in the F. I. R., there could not have been any moonlight by whichth the witness could have identified the culprits, even if they were previously known to her. It was on this account presumably that the witness tried to show that the incident took place at Asar time, when of course there must have been adequate moonlight. However, the time of the incident given by her in her evidence is clearly in conflict with that given in the F. I. R. And mentioned by the other witnesses. An additional factor which inclines us to doubt her evidence is that there was an interval of over 14 hours in the lodging of the F. I. R. 1t is our experiment that such delay is most uncommon where the culprits have been identified. We accordingly are of the opinion that her evidence as to the identity of the culprits is unreliable and not worthy of credence.
9. As regards the two corroborative witnesses, namely, first infor--mant Alihassan and P. W. Ali Akbar, it may be mentioned that accord--ing to the first informant himself, the latter witness resides at a distance of one mile from the scene of ofTence. 1t is unlikely that the witness could, from such a distance, have heard the gunshots, or even if he did hear them, could have come in time to see the culprits running away, as claimed by him. We, therefore, are of the view that his evidence that he saw and identified the culprits must be wholly excluded. As regards first informant Alihassan, according to the Tapedar, he is residing at a distance of 210 feet from the scene of offence. The witness has admitted that he was asleep when he heard the gunshots. He, therefore, must have taken a few minutes in coming to the scene of offence. According to Mst. Alam Khatoon, the two culprits, immediately after firing at the deceased, started running away. Since they are said to have fired from outside the Lorha of the house of the deceased, the culprits must have disappeared from the scene of offence within a few moments of firing the fatal shots at the deceased. In the circumstances, we consider it unlikely that the first informant could have seen the culprits, or even if he did see them, was in a position to identify them, specially when, at the time of the incident, the moon had not yet arisen or was just on the point of rising. There are two other important circumstances in the case which confirm us in this view. The first is that in the F. I. R. The names of appellant Nawab and his father Mehar are mentioned as the culprits while in his evidence in Court the first informant has exonerated Mehar and instead implicated appellant Umar. The next circumstance is the undue delay in the lodging of the F. I. R. The incident is said to have occurred at Sohmani time, which in the month of September would be between 8- 0 and 9- 00 p m. But the F. I. R. Was not lodged till 11-00 a. m. On the following morning, though the Police Station was at a distance of only 3 miles from the scene of offence. Even if the first informant had started for the Police Station at sunrise on the following morning, he should have reached the Police Station at about 9-30 a. m. The undue delay in the lodging of the F. I. R. Suggests to us that it was on account of the witness not having identified the culprits that time was taken to confer among themselves for finding out who may have committed the offence.
10. We are also not impressed with the judicial confessions of the two appellants. According to the first informant, both the appellants were arrested on the day following the incident, namely on 4-9- 1966. Since the confessions of the appellants were recorded on 13-9-1966, there was an interval of 9 days between the arrest of the appellants and the recording of the judicial confessions, during which entire period, the appellants were not only in police custody but even their remand was not obtained till 12-9-1966. Thus, the appellants were in illegal custody of the police after the expiry of the first 24 hours from the time of their arrest. It may, however, be mentioned that according to the S. H. O., both the appellants were arrested on 10-9-1966. The S. H. O. Has not even alleged that the appellants were absconding or were not available in their houses after the incident. As such, it is difficult to accept his word that the appellants were arrested on 10-9-1966, as claimed by him. Even if we were to accept his word that the appellants were arrested on 10-9-1966, he should have produced them for remand on 11-9-1966, within 24 hours of their arrest. The fact that 11-9-1966 happened to be a Holiday makes no diference, for it is common knowledge that Revenue Magistrates are available for grant of remand even on Sundays and other Holidays. In Hamzo v.
State (PLD 1960 Kar. 817), a person, before his confession was recorded, was detained in police custody for 2 days without remand and without an attempt being made by the prosecution to explain the illegal detention by the police. It was held that the confession had the appearance of having been improperly obtained. Mr. Muhammad Hayat Junejo also relied upon the decision in the case of Nazo v. State (1974 P Cr. L J 313), to which one of us was a party. In that case, the judicial confessions given by the accused were discarded because prior to the recording of the confessions, the accused were in police custody for 2 days, without remand having been obtained, though one of the days was a Sunday. In that case it was observed that the Mukhtiarkar and F. C.
Magistrate were available for grant of remands on Sundays and other Holidays. Another circumstance, which casts doubt on the voluntariness and the truth of the two judicial confessions, is that the confessions were recorded by the Mukhtiarkar an3 F. C. Ghotki, though the offence had been committed in Mirpur Mathelo Taluka and admittedly there was a Mukhtiarkar and F. C. M., as well as other Magistrates at Mirpur Mathelo. The prosecution have given no explanation why the confessions were got recorded from a Magistrate who had no jurisdiction at the place where the offence was committed. It may be pointed out that the learned Magistrate, who had recorded the two confessions, had died before he could be examined in the case and consequently the confessions were produced through his Clerk, Ata Muhammad. He has admitted that the certificates on the confessions, mentioning the grounds why the learned Magistrate believed the confessions to be genuine and voluntary, were typed by him and rat recorded by the learned Magistrate in his own hand and that the learned Magistrate had given him this form of certificate and he invariably used to type such certificates on the confessions recorded by the learned Magistrate. This shows that the learned Magistrate was mechanically appending such certificates to the confessions recorded by him without regard to whether the requirements in the certificate had been complied with or not and whether or not the Magistrate was satisfied about the genuineness of the confession. We cannot but express our deep disapproval of such a practice.
Confessions have to be recorded with due formalities and only where the Magistrate recording them is satisfied that they are true and voluntary. In view of the above circumstances of the case, we are unable to place reliance on the confessions.
11. The last material piece of evidence against the appellants is the production by appellant Nawab of an unlicensed gun and by Umar of an unlicensed pistol. This evidence, however, was discarded by the learned Sessions Judge, as Amir Bux, one of the Mashirs of recovery, had not supported the prosecution at all, and the second Mashir was not examined. The recoveries even otherwise appear to us to be doubtful as they even otherwise appear to us to be doubtful as they are said to have been made on 10-9-1966. If the appellants were arrested on 4-9-1966, as admitted by the first informant, the prosecution have failed to explain why the recoveries were not made earlier. On the other hand if the appellants were arrested on 10-9-1966, as claimed by the S. H. O., it has not been explained why they were not arrested earlier, since there is no allegation that they absconding. In any case, even if the appellants were absconding or were not available, the prosecution have failed to explain why they did not, prior to 10.9-1966, search the house of appellant Umar, from where an unlicensed pistol is said to have been recovered.
12. Although the appellants may have had a dispute over land with the deceased, as alleged by the first informant and Mst. Alam Khatoon, were motive, howsoever strong, cannot provide corroboration, to other pieces of evidence which arc themselves infirm and not worthy of credence.
13. On a careful appraisal of the entire evidence in the case, we are of the opinion that the guilt of the appellants has not been established beyond any reasonable doubt. We would accordingly give them the benefit of doubt. In the result, we would accept their appeal and set aside their convictions and sentence. We have already ordered that the appellants, if not required in any other case, should be forthwith set at liberty.