 |
| safe custody of narcotics was not established by prosecution, accused is Acquitted by supreme Court |
Supreme court of Pakistan set aside the orders of the High court and released the accused on the ground of safe custody.
9c CNSA Case Laws
Supreme court of Pakistan declared on safe custody
the safe custody and safe
transmission of the sample parcels was not established by the
prosecution and this defect on the part of the prosecution by itself is
sufficient to extend benefit of doubt to the appellant. It is to be noted that
in the cases of 9(c) of CNSA, it is duty of the prosecution to establish
each and every step from the stage of recovery, making of sample parcels,
safe custody of sample parcels and safe transmission of the sample
parcels to the concerned laboratory. This chain has to be established by
the prosecution and if any link is missing in such like offences the
benefit must have been extended to the accused.
If you have any question plz call or Whatsapp+92-324-4010279
Judgement
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Sardar Tariq Masood
Mr. Justice Amin-ud-Din Khan
Mr. Justice Muhammad Ali Mazhar
CRIMINAL APPEAL NO.139 OF 2022
(On appeal against the judgment dated 30.10.2018 passed Peshawar
High Court, Peshawar, in Crl. Appeal No.335-P of 2018)
Javed Iqbal
…
…
Appellant
Versus
The State
…
…
Respondent
For the appellant
:
Mr. Arshad Hussain Shah, ASC
Syed Rifaqat Hussain Shah, AOR
For the State
:
Mian Shafaqat Jan, Addl. AG KP.
Date of hearing
:
25.10.2022
JUDGMENT
SARDAR TARIQ MASOOD, J.-
Crl. Misc. Application No.2231 of 2018 For reasons set out in the
application for condonation of delay, the same is allowed and the delay of
five days in filing of the petition is condoned.
2.
Crl. Appeal No.139/2022. Through this appeal by leave of the
Court, appellant Javed Iqbal has impugned the judgment dated
30.10.2018 of the Peshawar High Court, Peshawar, whereby his appeal
was dismissed and his sentence of imprisonment for life under section
9(c) of the Control of Narcotics Substances Act, 1997 (‘the CNSA’) was
maintained.
3.
Precise facts of the case are that the appellant was indicted in
case FIR No.676 dated 18.12.2013, registered at Police Station Sardheri,
Charsadda, under section 9(c) of the CNSA. After a full-flagged trial vide
judgment dated 20.03.2018, the petitioner was convicted under the
section 9(c) of the CNSA for recovery of 25 kilograms charas pukhta and
sentenced to imprisonment for life with fine of Rs.1,00,000/- or in
default there of to further suffer S.I., for six months. Benefit of section
382-B of the Code of Criminal Procedure 1898 (‘the Code’) was also
Crl.A.139/2022 etc
2
extended to him. Hence, this appeal by leave of the Court granted on
03.03.2022.
4.
We have heard he learned counsel for the appellant, learned Addl.
AG KP, perused the record and observed that in this case, the recovery
was effected on 18.12.2013 and the sample parcels were received in the
office of chemical examiner on 20.12.2013 by one FC No.1007 but the
said constable was never produced before the Court. Even the Moharrar
of the Malkhana was also not produced even to say that he kept the
sample parcels in the Malkhana in safe custody from 18.12.2013 to
20.12.2013. It is also shrouded in mystery as to where and in whose
custody the sample parcel remained. So the safe custody and safe
transmission of the sample parcels was not established by the
prosecution and this defect on the part of the prosecution by itself is
sufficient to extend benefit of doubt to the appellant. It is to be noted that
in the cases of 9(c) of CNSA, it is duty of the prosecution to establish
each and every step from the stage of recovery, making of sample parcels,
safe custody of sample parcels and safe transmission of the sample
parcels to the concerned laboratory. This chain has to be established by
the prosecution and if any link is missing in such like offences the
benefit must have been extended to the accused. Reliance in this behalf
can be made upon the cases of Qaiser Khan Vs. The State through
Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363),
Mst. Razia Sultana vs. The State and another (2019 SCMR 1300), The
State through Regional Director ANF Vs. Imam Bakhsh and others
(2018 SCMR 2039), Ikramullah and others Vs. The State (2015 SCMR
1002) and Amjad Ali Vs. the State (2012 SCMR 577) wherein it was
held that in a case containing the above mentioned defects on the part of
the prosecution it cannot be held with any degree of certainty that the
prosecution had succeeded in establishing its case against an accused
person beyond any reasonable doubt. So the prosecution has failed to
prove the case against the petitioner and his conviction is not
sustainable in view of the above mentioned defects.
5.
Both the Courts below have relied upon the judicial confession of
the appellant recorded by the Judicial Magistrate (PW-5) and even
learned Addl. AG KP appearing in Court also tried to pursued us to rely
upon such confession but we observed that the appellant in the said
judicial confession stated that he was sent by one Imran son of Sultan to
Peshawar for bringing luggage from one ‘Haji Sahib’ and gave him some
money; that in pursuance of that direction he went there where said Haji
Sahib put luggage in the diggi of the vehicle and when he was returning
he was stopped by the police and narcotics was recovered from the said
Crl.A.139/2022 etc
3
luggage. He categorically stated that he was not aware of presence of said
narcotics in the said luggage. Even the Judicial Magistrate (PW-5)
admitted that:
“….Imran shown by the accused in his confessional
statement has not disclosed to him that what kind of
luggage that Haji Saib hand over to him near
Motorway
Interchange,
Peshawar.
The
accused
expressed that he was not in the knowledge that what
sought of luggage was put in the Diggi of the Motor
car.”
The above statement indicates that even before the Judicial Magistrate
his claim was that he was not aware of the narcotics concealed in the
luggage which was put by one, Haji Sahib in the said vehicle. Learned
Addl. AG KP tried to persuade us that as he has taken an amount from
Imran S/o Sultan for bringing the luggage from Haji Sahib, hence it can
easily be presumed that he was aware that he was trafficking the
narcotics. It is to be noted that the criminal cases cannot be decided on
presumptions when there is no direct evidence available on record to
indicate the exclusive knowledge of presence of narcotics in the luggage
lying in the diggi of vehicle. We have already found the prosecution story
doubtful and in that eventuality, the judicial confession of the petitioner
is to be taken as a whole and not in parts. It is settled by now by this
Court that any confession cannot be taken into consideration in pieces.
The argument of the learned Addl. AG KP is that some part of the judicial
confession can be taken into consideration but we have already observed
in number of cases that any confession made by an accused, whether
judicial or extra-judicial, should be taken into consideration in toto and
could not be split into pieces, nor any part of the same can be taken to
favour the prosecution. There is no doubt that any such confession may
be taken into consideration but the court cannot select out of the
statement, the passage, which goes against the accused. Such confession
must be accepted or rejected as a whole. No scrutiny is required by this
Court of such a confession.
6.
The proper and the legal way of dealing with a criminal case is
that the Court should first discuss the prosecution case and evidence in
order to come to an independent finding with regard to the reliability of
the prosecution witnesses, particularly the eye-witnesses and the
probability of the story told by them, and then examine the version of the
accused whether in the shape of confession, judicial or extra judicial, or
statement recorded under section 342 or 340(2) of the Code (hereinafter
Crl.A.139/2022 etc
4
called ‘the statement’). If the Court disbelieves or rejects or excludes
from consideration the prosecution evidence, then the Court must accept
‘the statement’ of the accused as a whole without scrutiny. If ‘the
statement’ is exculpatory, then he must be acquitted. If ‘the statement’
when believed as a whole, constitutes some offence punishable under the
law, then the accused should be convicted for that offence only.
7.
In the present case we have already excluded the prosecution
story being doubtful and there remained only exculpatory confession of
the petitioner, which if taken into consideration as a whole, no case is
made out against him because according to his confession, he was not
having any knowledge of presence of narcotics in the luggage placed in
the vehicle by one Haji Sahib on the asking of one Imran. The
confessional statement in this case being the only material left on which
the petitioner was convicted, had to be either accepted as a whole by the
Court or rejected as a whole. It is not open to accept only a part of the
confessional statement of the petitioner and reject the other part while
maintaining his conviction. It is a well recognised principle that
confession has to be read as a whole and not by relying only on the
inculpatory part of the confession/the statement.
8.
It is further to be noted that the prosecution must prove its case
against the accused beyond reasonable doubt irrespective of any plea
raised by the accused in his defence. Failure of prosecution to prove the
case against the accused, entitles the accused to an acquittal. The
prosecution cannot fall back on the plea of an accused to prove its case.
Where the prosecution succeeds in establishing its case against the
accused
beyond
reasonable
doubt,
then
the
stage
arrives
for
consideration of the plea of accused in defence and the question of
burden of proof becomes relevant. Before, the case is established against
the accused by prosecution, the question of burden of proof on the
accused to establish his plea in defence does not arise. However, if the
Court decides to convict the accused on the basis of his confessional
statement or his plea under section 342, Cr.P.C. then it is not open to
the Court to accept a part of the statement of the accused and reject
another part for the purpose of convicting him for the offence.
9.
It is the prosecution who has to prove the case against an accused
beyond any doubt and accused is not required to establish his plea
(stated in his confessional statement or in his statement recorded under
section 342 or 340(2) of the Code) and it is the duty of the Court to
examine as to whether such plea was reasonably possible and the benefit
of doubt arising out of such plea/ confession must be extended to the
Crl.A.139/2022 etc
5
accused. The confession especially exculpatory of an accused person
with a different version is not a confession of guilt and the Court without
splitting up it is supposed to reject the same, especially, when
prosecution failed to establish the case against the said accused.
Reliance can be made upon the case of Sultan Khan v. Sher Khan and
others (PLD 1991 SC 520) wherein it was held that the statement of an
accused recorded under section 342 of the Code may be taken into
consideration but the Court cannot select out of the statement the
passage which goes against the accused. Such statement must be
accepted or rejected as a whole.
i)
In the case of Ashiq Hussain alia Muhammad Ashraf v. the
State (PLD 1994 SC 879) it was held that while deciding a case, the
Court should first discuss the prosecution evidence in order to come to
an independent finding with regard to the reliability of the prosecution
witnesses, particularly the eye-witnesses and the probability of the story
told by them, and then examine the statement of the accused under
section 342 of the Code, statement under section 340(2) of the Code and
the defence evidence. If the Court disbelieves or rejects or excludes from
consideration the prosecution evidence, then the Court must accept the
statement of the accused as a whole without scrutiny. If the statement
under section 342 of the Code is exculpatory, then he must be acquitted.
If the statement under section 342 of the Code believed as a whole,
constitutes some offence punishable under the Code/law, then the
accused should be convicted for that offence only.
ii)
In the case of Naseer Hussain v. Nawaz and others (1994 SCMR
1504) it was held that where prosecution story was rejected by the Court
and the confessional statement is the only material on which the accused
is convicted, the same has to be either accepted as a whole or rejected as
a whole. It is not open to the Court to accept only some part of the
confessional statement and reject the other part while awarding
conviction.
iii)
In the case of Bahadur Khan v. The State (PLD 1995 SC 336)]
that confession has to be read as a whole and not by relying only on the
inculpatory part of the statement. It was further held that the
corroborative pieces of evidence support the confessional statement
though retracted. However, well recognized principle is that confession
has to be read as a whole and not by relying only on the inculpatory part
of the statement.
iv)
In the case of Shamoon alias Shamma v. the State (1995 SCMR
1377) it was held that the prosecution has to prove its case against the
Crl.A.139/2022 etc
6
accused beyond reasonable doubts irrespective of any plea raised by the
accused in his defence and the prosecution cannot fall back on the plea
of an accused to prove its case. In case prosecution fails to prove its case
against the accused, the accused becomes entitled to an acquittal.
However, where the prosecution succeeds in establishing its case against
the accused beyond reasonable doubts, then the stage arrives for
consideration of the plea of accused in defence and the question of
burden of proof becomes relevant. If the Court decides to convict the
accused on the basis of his confessional statement or his plea under
section 342 of the Code then it is not open to the Court to accept a part
of the statement of the accused and reject another part for the purpose of
convicting him for the offence.
v)
In the case of Faqir Ullah v. Khalil-uz-Zaman and others (1999
SCMR 2203) it was held that the basic principle of Islamic Law is that
the Bayyinah or evidence is a proof whose implications may extend to
others while the confession is a proof whose implications are limited to
the one who makes it. Under this principle the confessional statement of
a person can only inculpate himself and no other person can be
inculpated merely because some other person has made any admission.
Another possibility appears to be that the statement of the convictrespondent recorded under section 342 of the Code confessing his guilt
on the ground of ‘Ghairat’ was taken to be a voluntary and true. Even if it
be so, whether it is not a sine qua non for such a confession to be true
and voluntary because it has to be either accepted as a whole or rejected
in toto.
vi)
In the case of Shera Masih and another v. the State (PLD 2002
SC 643) it was held that the admission of occurrence by the accused with
a different version is not confession of guilt and the Court, without
splitting up it, can reject or accept the same in toto but if the admission
in part or full is of the nature which provides support to prosecution
case, the same can be used for the purposes of corroboration.
vii)
In the case of Ayyaz Ahmed v. Allah Wasaya and others (2004
SCMR 1808) it was held that the solitary judicial confessions, if made the
basis for conviction, it had to be relied upon in toto without any pick and
choose.
viii)
In the case of Mst. Gul Nissa and another v. Muhammad
Yousuf and another (PLD 2006 SC 556) it was held that the confession
or admission made by an accused when made sole basis of conviction
must be considered as a whole and the accused can be convicted on his
own statement, even if the prosecution evidence is rejecte
Crl.A.139/2022 etc
7
ix)
In the case of Allah Nawaz v. The State (2009 SCMR 736) it was
held that a confession is to be rejected or accepted as a whole. however,
when one of the deceased was unarmed and the other deceased was
carrying a Lathi, while the accused was equipped with fire-arm and
inflicted injuries to both the deceased at the vital part of the body, the
accused exceeded his right of self-defence.
x)
In the case of Muhammad Azam and others v. The State (2009
SCMR 1232) it was held that the confessional statement of accused
recorded under section 342 of the Code has to be accepted or rejected as
a whole. However, the accused exceeded in his right of self-defence and
suppressed the real story with regard to injuries caused to injured.
xi)
In the case of Mushtaq and others v. The State (2012 SCMR
109) it was held that the confessional statement of an accused can be
made the basis of his conviction for the crime, however, the confessional
statement of a co-accused can only be taken as circumstance against an
accused, but no conviction can be recorded upon it.
xii)
In the case of Ali Ahmad and another v. the State and others
(PLD 2020 SC 201) it was held that where there is no other evidence to
show affirmatively that any portion of the exculpatory element in the
confession is false, the Court must accept or reject the confession as a
whole and cannot accept only the inculpatory element while rejecting the
exculpatory element as inherently incredible. Once the prosecution
evidence is disbelieved, rejected or excluded from consideration, and the
facts explained by the accused in his statement under section 342 of the
Code are accepted entirely, the court is then to examine the said facts to
give due effect to the statement of the accused, under the law, whether in
favour of or against the accused.
xiii)
In the case of Muhammad Abbas v. the State (PLD 2020 SC
620) it was held that two rules of criminal jurisdiction have been
consistently observed without any attempt to engraft as exception,
firstly, where there is other evidence a portion of the confession may,
in the light of that evidence, be rejected while acting upon the
remainder with the other evidence and secondly, where there is no
other evidence, the Court cannot accept the inculpatory element and
reject the exculpatory element as inherently incredible.
10.
In the light of forgoing discussion, following principles emerged
from the above case la
Crl.A.139/2022 etc
8
(a)
the solitary judicial confession, if made the basis for
conviction, it had to be relied upon in toto without
any pick and choose;
(b)
where there is no other evidence and the
confessional statement is only material on which an
accused is convicted, then it has to be either
accepted as a whole or rejected as a whole;
(c)
the exculpatory portion of a confession cannot be
discarded while proceeding to rely upon the same for
decision of the case;
(d)
a confession has to be read as a whole and not by
relying only on the inculpatory part of the statement;
(e)
the confessional statement of a person can only
inculpate himself and no other person can be
inculpated merely because some other person has
made any admission;
(f)
the admission of occurrence by the accused with a
different version is not a confession of guilt and the
Court, without splitting up it, can reject or accept the
same in toto, but if the admission in parts or full is of
the nature which provides support to prosecution
case which is proved through reliable evidence, thus
of course such statement/confession can be used for
the purpose of corroboration
and
supporting
evidence; and
(g)
where there is other prosecution evidence in field
which is believable then of course a portion of the
confession may, in the light of that evidence, be
rejected while acting upon the remainder with the
other evidence.
11.
The crux of the above analysis is that where the prosecution fails
to prove its case through cogent, reliable and trustworthy evidence, the
court can base the conviction on the confessional statement of the
accused, however, the same has to be considered in toto and the
exculpatory parts of the confession cannot be rejected. In the present
case we have already found the prosecution evidence doubtful and while
considering the confessional statement as a whole, observed that the
Crl.A.139/2022 etc
9
same was exculpatory confession and from the said confession,
conscious knowledge and conscious possession of the narcotics, qua the
appellant, is not established; hence, his conviction on such exculpatory
statement/confession is not sustainable.
12.
For the forgoing, this appeal is allowed. The conviction and
sentence awarded by the trial Court and upheld by the High Court is set
aside. The appellant Javed Iqbal is acquitted of the charge in this case
by extending the benefit of doubt to him. He be released forthwith from
jail if not required to be detained in connection with any other case.
Judge
Judge
Judge
Islamabad
25.10.2022
M.Saeed/*
APPROVED FOR REPORTING
Judge
Popular articles
No comments:
Post a Comment