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 convict-
respondent 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 rejected.  
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 law: 
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  
