' AFTAB AHMED GORAR, J.---Complainant Khursheed Alam lodged F.I.R. No,329 of 2009 at P.S. New Karachi on 24-11-2009 alleging therein that on 24-11-2009 he was present at hi: cabin and received information from his house that his grandson Muhammad Hassan aged 5 years had gone outside for playing at 3-00 p.m. But did not return. On receiving such information the complainant rushed to his house. He started searching for his grandson, Muhammad Hassan and meanwhile he received telephone call on his mobile phone No,0344-3770536 from mobile phone No,0314- 2302033 and caller disclosed that the grandson was kidnapped by them and he directed the complainant to come all alone to Surjani Town, Sector 7-A, near Dil Pasand Hotel with Rs,50,00,000 where they would meet him. However the caller threatened that in case of any mishap the child would be murdered and his dead body would be thrown away. Thereafter the call was disconnected. Consequently, the complainant worried and returned to home and after arranging Rs,50,000 he reached at the place directed by the culprits where he received another call directing him to come along with money near Ibrahim Masjid on Lyari Expressway and thereafter the call was again disconnected. The complainant suspected that he had already heard voice of the caller and felt that it was voice of Muhammad Arif who used to run a mobile shop near his cabin. He came back to his house and got recorded the conversation of culprits in his mobile phone and he played the same before his son Jamshed who also confirmed that the voice was of Muhammad Arif. Thereafter he went to police station and lodged the F.I.R. That Muhammad Aril and his accomplices had kidnapped his grandson Hassan for the purpose of ransom and if he would not pay the ransom the culprits had threatened that they would kill his grandson.
' At the trial prosecution examined P.W.1 Mst. Kaniz Fatima Zulfiqar, Civil Judge and Judicial Magistrate, Karachi Central (Exb.6), P.W.2 Khursheed Alam (Exb.7), P.W.3 Amanat Ali (Exb.8), P.W.4 Nasir Shah (Exb.9) and P.W.5 Syed Naveed Nasir, I.O. Of the case (Exb.10). Thereafter statements of the appellant were recorded under section 342, Cr.P.C. And consequently vide Judgment dated 31- 3-2010 the appellants were convicted under section 365-A/34, P.P.C. Read with section 7(e), A.T.A., 1997 and were sentenced to undergo life imprisonment; forfeiture of their entire properties was also ordered.
' Learned counsel for the appellants submitted that if at all any offence was committed, the same falls under section 365, P.P.C. And not under section 365-A, P.P.C. The alleged recovery of the child was effected in presence of the complainant only and no other independent witness has been cited by the I.O. Even name of the owner of the building from where the child was allegedly recovered has not been mentioned, nor any statement of the owner of the building was got recorded by the I.O. So far as identification of the voice of appellant, Muhammad Arif is concerned, no proof was produced by the complainant before the trial Court and the C.D. Containing voice was produced by the complainant before the I.O. After a delay of 13 days Even father of the abductee has not been cited as a witness, in the case and confessional statement of the appellant was recorded after ten days of arrest. Mobile on which call of the culprit was allegedly received by the complainant was not seized by the I.O. It was also contended that after recording confessional statement the learned Civil Judge and Judicial Magistrate handed over custody of the accused to the same I.O. And he did not remand the accused to judicial custody. Learned counsel for appellant Tarique relied upon the judgments reported in PLD 2000 Karachi 128, 1996 PCr.LJ 358 and 528; PLD 2006 Karachi 178, PLD 2007 Quetta 12; 2007 PCr.LJ 359; 1995 SCMR 1345; PLD 2006 Karachi 206, 2008 PCr.LJ 87 and PLD 2006 SC 538.
' Conversely, Mr. Abrar Khichi learned A.P.G. Supported the impugned judgment and submitted that after recording confessional statements, the I.O. Produced the appellants before the Administrative Judge of this Court who remanded the accused to judicial custody. He further submitted that the child was recovered from the appellants and that the trial Court has extensively analyzed the evidence and has rightly passed the impugned judgment.
' We have considered the submissions made by the learned counsel for the appellants as well as learned A.P.G. And have also gone through the material available on the record.
1. P.W.1 Civil Judge and Judicial Magistrate has admitted in her cross-examination that after recording the confessional statement of the appellants, she immediately handed oven their custody to the I.O. She has also admitted that she has not mentioned that confessional statement of appellant Zeeshan was recorded or not. She has also admitted that on the application of the I.O.
For recording the confessional statement of the appellants, she has not given chance to the appellants to engage their counsel. No question was put by the Civil Judge to the appellants in the confessional statement as to whether family members of any of the appellants were detained in order to pressurize the appellants to make the confession.
2. In the case reported as Muhammad Ibrahim v. The State (PLD 2000 Karachi 128) the Magistrate who recorded confessional statement of accused had admitted that after recording confession he sent the accused to judicial custody through the same police official who had brought the accused to him for confession and it was held that the act handing over accused to same police official had detracted from sanctity of the judicial confession, as such voluntariness of judicial confession which is an essential prerequisite had become doubtful. In another case reported as Murtaza and 2 others v. The State and another (1996 PCr.LJ 358) Honourable Peshawar High Court observed that the Magistrate is duty bound to remove all signs of feat from mind of the accused before recording his confessional statement and to ensure it the law requires that the accused be apprised of the fact that whether or not he makes a statement before the Magistrate, he would not be handed over to police and instead would be remanded to judicial custody.
3. In the case of Tooh v. The State (1975 PCr.LJ 440 it was observed by this Court that the confession recorded on third day of arrest of accused would be ruled out of consideration, as the delay of over 24 hours would normally be fatal to acceptance of a judicial confession.
4. In the present case the confessional statement of the appellants was recorded after a delay of 10 days. In the case reported as The State v. Asmatullah and others PLD 2007 Quetta 12) a Division Bench of Balochistan High Court held that the delay by police in producing accused for recording his judicial confession would suggest that confessional statement was tutored one and was result of torture. Such judicial confession would have no evidentiary value when it has been retracted by the accused. In the case of Minhon and another reported in 1996 PCr.LJ 528 it was held that retracted confession should not be acted upon and made the basis for conviction unless it is corroborated in material particulars.
5. Adverting to the identification of the voice of the culprit on the mobile phone, while dealing with similar situation a Division Bench of this Court in the case reported as Irshad Ali alias ISHOO and 2 others v. The State (PLD 2006 Karachi 178) held that identification of accused through voice on telephone by the complainant was an afterthought, which by itself was a weak piece of evidence.
Though CD was available but it was never played and appellants were never confronted with such recording.
6. In the present case F.I.R. Was lodged at 0220 hours whereas P.W.4 admitted in his deposition that he had received information at 0300 hours that abductee was confined in captivity of accused in House No,L-137; Sector 7-A, Surjani Town, Karachi at about 3-30 a.m. How it is possible that the F.I.R.
Was lodged at 0220 hours and within such a short span of time specific information was conveyed to him that the abductee is confined at a particular house. No independent witness has been cited by the prosecution, there is delay of 10 days in the recording of confessional statement of the appellants; the learned Civil Judge and Judicial Magistrate who recorded the confessional statement handed over the custody of the accused to the same police official who had brought them; police neither recorded the statement of the owner of the building or any neighbour from where the child was allegedly recovered nor even name of the owner has been mentioned in the memo of recovery. All these facts create doubts benefit whereof must go to the accused. In the case reported as Tariq Pervez v. The State (1995 SCMR 1345) honourable Supreme Court held as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
Result of above discussion is that we have come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt against the appellants. Consequently, these appeals are allowed, judgment dated 31-3-2010 is set aside and the appellants are acquitted. They are ordered to be released forthwith if not required in any other case.