' This is an appeal by Mumtaz Khan son of Saaz Gul, resident of Ambar Mohmand Agency who was convicted by learned Sessions Judge, Swabi under Article 4 of the Prohibition Order for possession 63 kilograms of opium that was recovered from three different bags apparently filled with charcoal. He was sentenced to rigorous imprisonment for two years whipping numbering ten stripes and a fine of Rs,10,000 in default of payment of which he was to undergo consecutive imprisonment for one year.
2. Salar Khan A.S.I., Police Post, Khalabat had a prior information that near a brick-kiln within the limits of village Kotha and on the roadside three bags full of narcotics were lying apparently filled with charcoal. In the company of other staff he reached the spot where the reported bags were lying and a person was also present near such bags, who, after seeing the police party, started towards the brick-kiln but was apprehended. He disclosed his name to be the present Mumtaz Khan appellant. He also claimed the ownership of the bags which, when brought to the Police Post, three bags of opium weighing 63 kilograms were recovered hidden within the charcoal.
3. When brought to trial the accused-appellant pleaded not guilty. The trial Court relied upon the statement of Salar Khan A.S.I., and Iftikhar F.C. Who were the eye-witnesses and signatory to the recovery memo, in addition to the confessional statement Exh.PD, of Mumtaz Khan which was recorded by Anwar Zeb, Magistrate 1st Class, Swabi on 13-1-1992, i,e, four days after the occurrence.
4. The statement of Salar Khan A.S.I. And Iftikhar F.C. Requires a thorough consideration in addition to the alleged confessional statement, Ex.P.D. Coming to the confessional statement one can brush it aside without a dint of hesitation because it is no confession at all. The accused has neither claimed the ownership of the bags nor has admitted the knowledge that those contained contraband opium. It is not a clean breast confession of the guilt involved and hence cannot be used against the accused. The important question that falls for determination, is, if such exculpatory statement taken out of consideration although not used as confession, can be used as a simple statement providing certain narration of facts which are subsequently contradicted by the same accused when examined under section 342, Cr.P.C.
5. Having heard the learned counsel on either side and having given my. Considered thought to the notion in hand, I am of the firm view that such narration of facts given by the accused can also be not used against him when once it is rejected as confession. The accused, in their capacity as such, are produced before the magistrate not to give statement as witnesses but as accused who have specially confessed before the police. The statement is to be taken altogether out of consideration and cannot be used against the accused even for the purposes of contradictions qua the statement recorded under section 342, Cr.P.C. The prosecution, therefore, cannot rely upon the so-called confessional statement of Mumtaz Khan.
6. After eliminating the confession, if one reverts to the only two witnesses examined in the instant case, one confronts other material discrepancies that totally shatter the prosecution version. The very F.I.R. (murasila) goes to suggest that Salar Khan A.S.I. Had received the information that only three bags were lying on the roadside on the spot and there was no reference of any other person attending the bags. According to him he started along with the police party in a Datsun Pick-up at 8-30 a.m. After receiving the information and reached there at 9-00 hours when the report was lodged at 10-30 hours meaning thereby that it was morning time whereas F.C. Iftikhar has materially contradicted him by saying that he had not seen any Datsun, that they had not gone in a Datsun Pick-up and that they had left the Police Post, Khalabat at about 6 p.m. For formal patrol duty on foot and that they had reached the spot at 9-00 p.m. This means that the recovery was done at dark of night which in the month of January becomes quite a late hour for the area around. Such material contradiction goes to prove on the one hand that the two witnesses were never together that the recovery was extremely doubtful and on the other hand, it lends support to the story put-forth by the accused in his statement under section 342, Cr.P.C. That he was implicated for merely being around the spot after when he was going to the brick-kiln having offered his prayers. It is but a settled principle of law that whenever an occurrence is capable of two different versions, the one suited to the accused it to be preferred. Here, the glaring contradictions between the statements of the only prosecution witnesses insist one to believe that the occurrence has not taken place in the manner in which it is put-forth by the prosecution and that the version given by the accused better fits in with the contradictions brought about by the prosecution witnesses. Thus the prosecution has failed to prove the case beyond any shadow of reasonable doubt by not linking the accused with such recovery about which the information was that three bags were lying on the roadside unattended.
7. Consequently the appeal is accepted, the impugned conviction recorded and the sentence imposed by the learned Sessions Judge, Swabi are set aside. Accused Mumtaz Khan being given the benefit of doubt is hereby acquitted of the charge under section 4 of the Prohibition Order, 1979.
He is to be released forthwith. The case property be destroyed in accordance with rules after the prescribed period of appeal or revision, if any.