' SAKEEL AHMED BALOCH, J.---This judgment disposes of Criminal Appeal No,95 of 2012 filed by the appellant Imran son of Rab Nawaz against the judgment dated 14th April 2012 (hereinafter as, "the impugned judgment") passed be the learned Sessions Judge Khuzdar (hereinafter referred as "the trial Court"), whereby the appellant was convicted under sections 302, 34, P.P.C. And sentenced to undergo imprisonment for life on two counts with fine of Rs, 200,000 and Rs, 200,000 each and in default thereof to further suffer R.I. For six (6) months each. In case of recovery of fine amount the same was directed to be paid to the legal heirs of both the deceased. Benefit of section 382-B was also extended in his favour.
2. It is the case of prosecution that on 3rd September 2010 the complainant Muhammad Karim lodged F.I.R. No,1/2011 at Levies Station Sarona District Khuzdar under sections 302, 34 P.P.C., stating therein that last night unknown persons have committed the murder of a man and woman while they were sleeping at Gopal Nadi situated towards western side of Shah Noorani and they were stoned to death.
3. In pursuance of the above F.I.R. Investigation was conducted by P.W.5, who prepared site map; recorded the statements of witnesses under section 161, Cr.P.C.; arrested the appellant on 6th September, 2011 and subjected him to investigation; recorded his confessional statement; obtained death certificates and on completion of investigation remanded the appellant to judicial custody and submitted the challan before the trial Court.
4. At the trial, after usual proceedings absconding accused were declared as proclaimed offenders. The prosecution produced five witnesses in support of the charge. The appellant was examined under section 342, Cr.P.C. However, the appellant neither recorded his statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced any witness in his defence. After concluding evidence and hearing arguments, the trial Court awarded conviction to the appellant as mentioned above. Whereafter, instant appeal was filed.
5. Learned counsel for the appellant contended that the prosecution has failed to prove the charge against the appellant beyond any shadow of doubt; that there is no direct or indirect evidence against the appellant connecting him with the alleged murder; that the alleged confessional statement of appellant is in violation of section 164(3), Cr.P.C. And even lacking independent corroboration.
6. Learned Special Prosecutor ATA contended that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond any shadow of doubt; that while recording his confessional statement the appellant has confessed his guilt, hence he was rightly convicted by the trial Court.
7. Heard the learned counsel for parties and perused the available record. It is the case of prosecution that on 3rd September, 2010 at midnight in Gokal Naddi Shah Noorani area, the appellant along with absconding accused committed the murder of Mst. Malooka and Azam by stoning. In order to substantiate the allegations the prosecution has produced five witnesses, but none of them- has directly or indirectly involved the appellant with the commission of offence. P.W.1 is the complainant of the case, who received information through general public regarding murder of deceased and conveyed the same to Tehsildar/P.W.5, who arrived at site and took the dead bodies into possession. P.W.2 Aashiq Ali Khan, Constable is witness of the recovery memos of personal search of deceased Exh.P/2-A & B, blood stained stones Exh.P/2-C & D. P.W.3 is the Judicial Magistrate, who recorded the 164, Cr.P.C. Statement of appellant and Mst. Khalida. P.W.4 Dr. Muhammad Hanif, Medical Officer issued the Death Certificates of the deceased Exh.P/4-A and Exh.P/4-B, but admitted that he himself had not examined the dead bodies. P.W.5 is Investigating Officer of the case.
8. Perusal of statements of all the witnesses reveals that none of them is an eye-witness of the occurrence. Their evidence is not incriminating the appellant as they have not stated a single word against the appellant nor have seen the appellant near the dead bodies. Mst. Khalida has not been produced at the trial and no reason has been furnished by the prosecution for her non-production.
The prosecution case hinges upon the retracted confessional statement of the appellant recorded by P.W.3. We are conscious of the fact that even a retracted confessional statement if found true, confidence-inspiring and voluntary can be made a basis for conviction, but the confessional statement of the appellant recorded in the instant case cannot be made a basis for conviction as the Judicial Magistrate/P.W.3, who had recorded the alleged confessional statement has failed to observe and fulfill the requisite formalities under section 164(3)'Cr.P.C., which provides that the memorandum should he made at the foot of the confessional statement to the following effect:-- "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and 1 believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him".
9. In the instant case the Judicial Magistrate i,e, P.W.3 has not complied with the mandatory requirement of section 164(3), Cr.P.C. And has only mentioned that he has personally written/recorded the statement of the appellant under section 164, Cr.P.C. The memorandum at the foot of the confessional statements is not according to the mandatory requirement of section 164(3), Cr.P.C. Due to which the same has lost its evidentiary value and cannot be relied upon to award conviction to the appellant.
10. The alleged confessional statement has not been corroborated by any other evidence. The trial Court has merely based conviction on the basis of the said retracted confessional statement, which is not justified under the facts and circumstances of the case. The conviction cannot be recorded merely on the basis of probabilities as the prosecution has to prove its case beyond any shadow of doubt, which the prosecution has miserably failed to prove in the instant case.
' For the above reasons, the appeal is accepted. The appellant Imran son of Rab Nawaz is acquitted of the charge under sections 302, 34, P.P.C., F.I.R. No,1 of 2011 Police Station Saroona District Khuzdar.
The appellant being in custody, is ordered to be released forthwith, if not required in any other case.
' Above are the reasons of our short order dated 21st July, 2014.