406 ppc

 Under section 406, P.P.C., essential redients for the offence of criminal breach of trust are as follows: 

a) Entrustment.  

b) Dishonest misappropriation or conversion to his own use by the person in whom the confidence reposed. 

c) Dishonest use or dispo sal of property in violation of any direction of law. 

d) Dishonest use or disposal of property in violation of any legal contract. 

Writ Petition No.1413-Q of 2022  

Malik Zulfiqar Ahmed Versus The State and 02 others

27-10-2022

VVVI. MUST READ JUDGEMENT.

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 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.  

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.  

 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 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. 

(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

(h) 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. 

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. 

Crl.A.139/2022 

Javed Iqbal v. The State thr. A.G. Khyber Pakhtunkhwa 

Mr. Justice Sardar Tariq Masood 

25-10-2022