1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Briefly the facts of the case are that on 8th August, 1995, appellant Sabir committed murder of minor Abdul Latif, while bringing him from his house at Koto Nadai. Report of the incident was lodged by P.W. Hassan Jan, wherein he disclosed that a decomposed dead body is lying in a Nadi, vide F.I.R. (Exh.P.A.). On the registration of case, Abdul Karim, Tehsildar/Investigating Officer proceeded to the place of incident, but before his reaching there, the people of area, had already buried the dead body. He prepared the site plan. During course of investigation, he collected information (without' disclosing the name of informant) that accused Sabir was accompanying a boy and they had came from Turbat and thereafter accused was found alone and that boy was not seen with him. Since the boy was not being traced, therefore, he arrested the accused under suspicion. He was kept in custody for about more than 22 days and during interrogation, he disclosed that in his childhood he was working in the house of that boy namely Abdul Latif at Mand Tump. Later on he left the service and before this incident, Abdul Latif met him at Turbat and he (appellant) enticed him to go to Karachi and when (they) reached Awaran, they started for Jaho through Tanker and then on foots, and when they reached Awaran, they started for Jaho through Tanker and then on foots, and when they reached at the place of incident, he attempted to commit unnatural offence with Abdul Latif and on his refusal he committed his murder and then he set at fire, the face of dead body. On receiving these details, the Investigating Officer called the father of deceased and produced before him the clothes of deceased, which they correctly identified. The Investigating Officer on 7th September, 1995, produced the appellant before P.W. Muhammad Asif, Naib-Tehsildar, before whom, the appellant got recorded his confessional statement (Exh.P.4/A). On completion of investigation, challan was submitted before the Sessions Judge, Khuzdar.
2. ' As appellant did not plead guilty to the charge, therefore, prosecution in order to substantiate the allegations, examined; ' P.W.1 Muhammad Hassan. He produced F.I.R. As Exh.P.1/A.
3. ' P.W.2 Wahid Bakhsh. Uncle of deceased. According to him Abdul Latif who was living with him, has gone with Sabir to Gawadar, but he did not return, as such, he went in his 'search, but he came back and thereafter received information that a person has been killed at Jaho and dead body of the same could not be identified. On this, he went there where he was told by Naib-Tehsildar that a boy has been killed and he showed him the clothes of deceased, which he identified. Before his arrival, the dead body of deceased was already burried. According to him, he also associated himself in the investigation with the NaibTehsildar, during course whereof, accused Sabir admitted his guilt. It is to be noted that the clothes of deceased which were statedly identified by this witness, were not shown to him in the Court.
4. ' P.W.3 Noor Muhammad. According to him, two years back, two persons came to his house, name of one of them was Sabir, whereas the name of other person was not known to him. He enquired from both of them, as to from where they came, they told him that they have come from Mashey Cross. They told him that they are going to Khoto. Further stated that he has no knowledge about the incident, as according to him, Khoto is situated at a distance of 40/50 miles from his house.
5. ' P.W.4 Muhammad Asif. Naib-Tehsildar. He recorded the confessional statement of appellant and produced the same as the same as Exh P . 4 /A .
6. ' P.W.5 Abdul Karim, Naib-Tehsildar. He conducted investigation of the case and produced site plan as Exh.P.5/A.
7. ' P.W.6 Naseer Ahmad, Naib-Tehsildar. He finally produced the challan as Exh.P.6/A.
8. ' Appellant in his statement under section 342, Cr.P.C. Denied the prosecution case and also retracted the confessional statement. However, he did not examine himself on oath nor produced anybody in defence.
9. ' On completion of recording evidence, the learned Trial Court vide impugned judgment, dated 15- 11-1997, found the appellant guilty for offence under section 302(b), P.P.C. And sentenced him to life imprisonment with benefit of section 382-B, Cr.P.C.
10. ' Mr. Jan Muhammad Gohar, Advocate appeared for appellant, whereas the State was represented by Malik Sikandar Khan, learned Advocate-General.
11. ' Learned counsel for appellant contended that prosecution case rests on the confessional statement, which has been retracted and there is no corroboration on material points to prove its contents. The confessional statement, even otherwise was not an admissible piece of evidence, as admittedly it was recorded after delay of about 24 days, from the date of custody of appellant.
12. P.W.5 did not comply with the provisions of section 164, Cr.P.C. Inasmuch as, question to test; whether statement is true and being made voluntarily questions, were not put to him, except few questions, which were not sufficient to hold that statement is being made by appellant at his own accord. Prosecution has also relied on extra-judicial confession, allegedly made by appellant, before P.W.2, but it also does not corroborate to the confessional statement nor it is a true statement, therefore, appellant is entitled for acquittal, because the prosecution has failed to prove the charge against him.
13. ' Learned Advocate-General contended that appellant has been rightly found guilty for the commission of offence. The statement was recorded within reasonable time, after his arrest and as there is no judicial lock-up available at Awaran, therefore, he was kept in custody for some time.
14. According to him, in view of special circumstances of the area, where the offence was committed, strict compliance of the relevant provisions of law was impossible, therefore, in the interest of justice, ignoring highly technical objections raised by the counsel of appellant, conviction may be maintained.
15. ' We have heard the parties' counsel and also perused the record of case.
16. ' It is noteworthy that prosecution case rests on extra-judicial and judicial confession of accused.
17. As for as extra-judicial confession before the NaibTehsildar Abdul Karim, made by accused is concerned, that is inadmissible under Article 138 of the Qanun-e-Shahadat Order, 1984. As regard the extrajudicial confession, allegedly made by appellant before P.W. Wahid Bakhsh, that is also not admissible because it does not get independent corroboration from other evidence. Additionally the admission of accused so pointed out by this witness, is contrary to the confessional statement of accused.
18. ' Now coming towards the confession of accused, it is to be seen that admittedly, it was recorded after 20/21 days, as it is indicative from an answer given by accused before P.W. Muhammad Asif.
19. According to section 167, Cr.P.C. The Investigating Agency is allowed to retain the custody of accused for a maximum period of 15 days and beyond the said period, the detention of accused with the Investigating Agency, renders subsequent proceedings illegal including that of recording confessional statement. It has always been insisted by the Superior Courts that prosecution must record the confession of accused within minimum period after his arrest in the interest of justice, but it shall not be in any case more than the authorised period of detention in police/levies custody, as it has been held in PLD 1978 Quetta 1. It is also an admitted position that as for as the confession (Exh.P.4/A) is concerned, it has not been recorded in accordance with the provisions of section 164, Cr.P.C. P.W.5 had not disclosed in the certificate that the statement was recorded by accused without any coercion, inducement or pressure. The certificate has also not been appended with the confessional statement, in accordance with the provisions of section 164(3), Cr.P.C. Under the High Court Rules and Orders, it has been provided that certain questions are required to be put to accused; in order to satisfy the conscience of the Court that the accused is making a true statement voluntarily. No such test was applied in the instant case. It is also an undisputed fact that after recording the confessional statement, appellant remained in levies custody i,e, his custody was not handed over to an independent Agency, for which, explanation has been offered by the learned Advocate-General, but to our mind this explanation is not satisfactory, because it militates against the mandatory provisions of law. Since the accused was charged for a capital offence, therefore, it was the duty of Magistrate, who recorded the statement to make arrangement for shifting the accused in judicial custody. To corroborate the confession, no independent evidence was produced by prosecution. It is an accepted principle that for the safe dispensation of criminal justice, conviction cannot be solely based on a retracted confession, unless the prosecution has not shown some reliable corroborative evidence, regarding material particulars, as it has been held in Muhammad Yousaf v. The State 1995 SCM R 351. At this juncture, we would also like to observe that under the Islamic concept of criminal administration of justice, the extra-judicial confession has been considered as no evidence, for the purpose of awarding punishment to accused, as it has been held in the case of Khubab Ahmad v. The State 1992 SCMR
392. The learned Trial Court has seriously erred in believing the confession, without independent corroboration, because apparently, it was recorded after a considerable delay for which, no plausible explanation was offered by prosecution. It is equally important to note that no evidence has come on record, with regard to the cause of death, if at all Abdul Latif has been murdered by appellant, therefore, in absence of any convincing evidence, it was not free from difficulty for the Trial Court, to conclude, that whether deceased had met with a violent death or otherwise.
20. For the above reasons, we are convinced to hold that prosecution has miserably failed to bring home the guilt against appellant and he has been wrongly convicted and sentenced by the Trial Court, vide impugned judgment. Consequently, the appeal is allowed, impugned judgment, dated 15-11-1997, passed by Sessions Judge, Khuzdar, is set aside and appellant is acquitted of the charge. He be set at liberty, if not required in any other case.
21. ' Hereinabove are the reasons of our short order, dated 26-3-1998.