2023 S C M R 139
JAVED IQBAL Versus The STATE
Criminal Appeal No. 139 of 2022
S. 164--- Judicial confession--- Principles laid by Supreme Court of Pakistan relating to judicial confession after analysing almost all of the Judgements of the apex Court on this subject .
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 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.
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.
In the light of forgoing discussion, following principles emerged from the above case law:
(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 it up, 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(sic.) 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.
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