Law:

Section:

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.   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.   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 Ist Class, Swabi on 13-1-1992, i.e., four days after the occurrence.   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…