Z. A. CHANNA, J.-Appellants Abdul Karim and A.I Akbar, who are related inter se, were tried by the learned Additional Sessions Judge, Nawab--shah, in respect of an offence under section 302/34, P.
P. C., for allegedly committing the murder of a young boy by name Dad Karim, and both of them have been sentenced for the said offence to death by a judgment delivered by the learned Additional Sessions Judge on 26th November 1973. Both of them have appealed against their conviction and sentence and also their case has been referred by the learned Additional Sessions Judge to this Court for confirmation of the capital sentence awarded to them. This judgment will dispose of both the appeals of the appellants and the reference by the Additional Sessions Judge.
2. The deceased Dad Karim, his father Muhammad Usman as well as both the appellants were residing at the material time in village Mirza Abid Hussain, which is located in Deh Nasrat 102, Nawabshah Taluka. Com--plainant Muhammad Usman and his brother Qutbuddin were cultivating separate plots of land with sugarcane at a distance of about one mile from their village.
Near their sugarcane plots the two appellants had been cultivating some land with cotton. The prosecution case is that some 15 days prior to his murder, the deceased bad cut grass from the field of the two appellants who had caught the deceased in the act and had snatched away his sickle and chadar from him. The deceased thereupon reported the matter to his father, Muhammad Usman, who approached the two appellants and the latter returned the chadar and sickle to the complainant, but warned him that if in future the deceased again came to cut grass from their lands, he would be murdered. It is the prosecution case that on 28-10-1972, at about 1 p.m., the deceased again went with a sickle and chadar to cut grass, but failed to return. A search for him was made but no trace of him could be found on that day. On the following day, in the morning, the complainant's party found the boy Dad Karim lying dead in the sugarcane field of complainant's brother, Qutbuddin. Dad Karim's neck was found practically severed from the rest of his body and there was a pool of blood under the body. A blood-stained sickle was lying close to the body. Complainant Muhammad Usman thereupon reported the matter at the Nawabshah Taluka Police Station, which was recorded by S. H. O. Dost Muhammad at 2 p.m. The S. H. O.
Accompanied the complainant to the scene of offence, which is at a distance of nine miles-from the Police Station. He secured a blood-stained sickle, which was lying by the side of the dead body, and after preparing an inquest report sent the dead body to Nawabshah Hospital for post-mortem examination. According to the S. H. O., he arrested both the appellants, who here produced before him by one Ghulam Ahmad, on 31-10-1972. At the time of their arrest, appel--lant Abdul Karim was wearing blood-stained shirt and bunyan, which the S. H. O. Seized under mashirnama, Exh. 14.
Appellant Abdul Karim, also at the time of his arrest, was wearing a skirt, loincloth and bunyan, which were blood-stained, and the same were seized by the S. H. O. Under mashir--nama, Exh. 11.
On interrogation, appellant A.I Akbar is said to have taken the S H. O. And the mashirs to the scene of offence and pointed out a sickle lying in the sugarcane field at a distance of about 50 paces from the place where the dead body of Dad Karim had been discovered. This sickle was blood- stained and the same was seized by the S. H. O. In the presence of mashirs, vide mashirnama, Exh.
12.
3. On 1-11-1972, both the appellants were produced before Mr. Jamil Ahmad, S. D. M., Naushero Feroze, who recorded their judicial confession on the same day. The confession of appellant Abdul Karim is said to have been recorded by the learned Magistrate at 4-45 p.m. While that of appellant A.I Akbar was recorded by him at 6-30 p.m.
4. Both the appellants, when called upon to enter their defence, denied having any hand in the murder of Dad Karim, Their case is that they have been falsely implicated at the instance of P. W.
Ghulam Ahmad, who bad a grudge against them on account of land and tenancy rights. Both of them admitted having made a judicial confession before the learned S. D. M. Bat retracted from the same and alleged that it was extorted from them by the police, who not only had beaten them but had also threatened to maltreat and disgrace their womenfolk.
5. The main evidence against the appellants is their judicial confession front which they retracted bout in the committal proceedings as well as at their trial in the Sessions Court. The confessions are sought to be corro--borated by the prosecution, firstly, by evidence of recovery of blood- stained clothes from the persons of the two appellants and the report of the Chemical anyalyser that the blood on the clothes is of human origin, secondly, by the evidence of recovery of a sickle at the instance of appellant A.I Akbar, on which also human blood was found by the Chemical Analyser, thirdly, by the medical evidence, and fourthly, by evidence tending to show that the appellants had a motive for doing away with the deceased.
6. We have carefully analysed the confessions of the two appellant recorded by the learned S. D. M.
And are of the opinion that they are neither true nor voluntary and that further they are not corroborated either with regard to the identity of the culprits of the murder weapon or even as to the manner in which the deceased was murdered. The Courts in this country generally view with suspicion confessions made by persons who have been in police custody for a number of days, specially if such custody is partly or wholly unauthorised. Although S. H. O. Dost Muhammad has deposed that he had arrested both the appellants on 31-1-1972 and on the following he had produced them before the S. D. M. For confession, we are of the opinion that he has clearly made a false statement as to the time of the arrest or detention of the appellants. Since the names of the appellants were mentioned in the F. I. R., and there is no suggestion that the appellants were absconding or unavailable, the S. H. O. Would be expected to have sent for them immediately. That this is so is borne out by the testimony of complainant Muhammad Usman himself, who has deposed that the S.H.O. Had sent for both the appellants at the scene of offence on the very evening of the lodging of the F. I. R. By him. Furthermore, it appears from the confession of appellant Abdul Karim that he was arrested some three days prior to his production before the learned S. D.
M. Since the S. H. O. Has not only made a false statement as to the time and date when he arrested the appellants, but had also failed to obtain remand of the appellants by the Magistrate within 24 hours of their arrest, as required by law, his own testimony and the investigation conducted by the police in this case have to be viewed with caution and suspicion, if not with mistrust.
7. So far as the medical evidence is concerned, far from its, supporting the confessions of the appellants, it tends to show that they are not true. The medical evidence is to the effect that an incised wound, 6' x 4' x cutting all the structures underlying the front of the neck with the neck hanging with a tag of skin from the back, was found on the deceased. This injury, according to Dr. Muhammad Sharif, was a clean wound and was caused with a sharp-cutting weapon, like a hatchet. He has unambiguously stated that this injury could not have been caused with a sickle, though he has conceded that the latter is a sharp-cutting weapon. According to Modi's "Medical Jurisprudence and Toxicology" twelfth edition, a curved weapon such as a scythe or sickle, first produces a stab or puncture and then an incised wound and sometimes the intervening skin may be left intact. In the instant case, no such sign was noticed by the doctor, and as stated, it was a clean wound. Furthermore, the width of the wound, which was 4', also seems to suggest a heavier weapon than a sickle.
8. The mashirnama of the scene of offence, Exh. 9, shows that a piece of sugar-cane was found in the mouth of the deceased when the police inspected the wardat. This suggests that the deceased had voluntarily gone to the sugar-cane cultivation shortly before his death and this circumstance appears to us to be inconsistent with the prosecution version that the deceased had gone to the cotton cultivation-of the appellants and from there he was forcibly taken to the sugar-cane cultivation of his uncle and there done to death. No explanation has been furnished by the prosecution as to how the piece of sugar-cane came to be found in the mouth of the deceased.
9. We are also not impressed with the evidence to the effect that at the time of their arrest the appellants were found to be wearing blood--stained clothes. Since the murder is alleged to have been committed some--time at mid-day on 28-10-1972, while the clothes are sand to have been recovered on 31-10-1972, there would be an Interval of 3 to 4 days id between and we are reluctant to believe that the appellants would be openly wearing their blood-stained clothes for all these days despite having adequate opportunity of either discarding them or at least removing the blood stains. We may also mention here that mashir Dadan Khan has not supported the prosecution as regards the sickle having been recovered at the instance or pointation of any appellant.
10. Another intriguing and suspicious circumstance is that though according to the confession of appellant A.I Akbar the deceased was killed with his own sickle, which sickle according to the mashirnama of the scene of offence, was found lying near the body of the deceased, it was not this sickle which was sent to the Chemical Analyser, but another sickle, which is said to have been recovered from the vicinity of the scene of offence at the instance of appellant A.I Akbar. We are at a loss to understand why this second sickle was sent to the Chemical Examiner and how human blood came to be found on it. In any case there is no evidence to indicate that this sickle in fact was the murder weapon.
11. The motive for the murder is said to have been the fact that on an earlier occasion the deceased had been detected by the appellants cutting grass from their field and that they had warned his father that if the deceased again committed the same act, they would kill, him. We do not think that the deceased, in spite of such a serious warning, would have been so unwise as to have ventured again to cut grass from the field of the appellants, or that even if he did so, the appellants would have gone to the extent of butchering a small boy. We are inclined to the view that the deceased was possibly enticed into the sugar-cane cultivation of his uncle for soave other purpose and that there was very likely an altogether different kind of motive for his killing. We may also refer to the confession of appellant Abdul Karim who has stated that although appellant A.I Akbar had told him that he wanted to kill the deceased, he did not communicate to him the reason why he desired to do so. Apart from the fact that this is inconsistent with the prosecution version that both the appellants had on a previous occasion threatened to kill the deceased if he again attempted to cut grass from their field, this would suggest that the deceased was not cutting grass in the appellants' field at the time of the offence. Further--more, this would also throw some suspicion on the confession itself, as it is unreasonable to expect that a person would participate in murdering an innocent boy without knowing the reason for doing so or having an adequate motive.
12. The circumstance that, in contravention of the criminal circulars, the two confessions were recorded by the learned S. D. M. After Court hours is an additional factor tending to erode confidence in the confessions.
13. For the reasons discussed above, we are of the opinion that not only the confessions of the appellants cannot be relied upon, but even the evidence relating to the recoveries and of motive is un-reliable and cannot be made the basis of the conviction of the appellants for a capital offence.
We would accordingly give the benefit of doubt to both the appellants, accept their appeal and direct that they should be released forthwith, if not required in any other case. The reference for the confirmation of the death sentence also stands rejected.