2023 S C M R 139
[Supreme Court of Pakistan]
Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ
JAVED IQBAL---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 139 of 2022, decided on 25th October, 2022.
(On appeal against the judgment dated 30.10.2018 passed by Peshawar High Court, Peshawar, in Criminal Appeal
No.335-P of 2018)
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic---Reappraisal of evidence---Benefit of doubt---Safe custody and transmission of sample
parcels to the office of Chemical Examiner not established---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 police official but the said official was never
produced before the Court---Moharrar of the Malkhana was also not produced to confirm that he kept the sample parcels in
the Malkhana in safe custody from 18.12.2013 to 20.12.2013---Where and in whose custody the sample parcel remained
during such time remained a mystery---So the safe custody and safe transmission of the sample parcels was not established
by the prosecution and such defect on the part of the prosecution by itself was sufficient to extend benefit of doubt to the
accused---Furthermore, there was no direct evidence available on record to indicate the accused had exclusive knowledge of
presence of narcotics in the luggage lying in the boot of vehicle---Judicial confession of accused was exculpatory confession
and from the said confession, conscious knowledge and conscious possession of the narcotics, qua the accused, was not
established; hence, his conviction on such exculpatory statement/ confession was not sustainable---Appeal was allowed and
accused was acquitted of the charge.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)--- Possession of narcotic --- Safe custody and transmission of sample parcels to the office of Chemical Examiner
not established---In cases under section 9(c) of the Control of Narcotic Substances Act, 1997, 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---Such chain has to be established by the prosecution and if
any link is missing in such like offences the benefit must be extended to the accused---In a case containing the said defect 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.
Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar 2021 SCMR 363; Mst. Razia
Sultana v. The State and another 2019 SCMR 1300; The State through Regional Director ANF v. Imam Bakhsh and others
2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 161 & 164---Judicial and extra-judicial confession---Scope---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---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; 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---Confession has to be read as a whole and not by relying only on the inculpatory part of the confession/the
statement.
