' MUHAMMAD SARWAR, J.-Ghulam Hussain (45), Ghulam Hassan (40) and Allah Ditta (30) sons of Muhammad Bakhsh were tried along with Arif, Mansha, lnayat and Ahmad (acquitted co-accused) by the learned Additional Sessions Judge, Sheikhupura, who, by his judgment dated 1-3.78 convicted and sentenced the three appellants as follows :- (0 Death each under section 302/34, P.P.C., for the murder of Khaira, and a fine of Rs, 3,000 each and in case of default to undergo further six months' R.I.
(ii) Death each under section 302/34, P.P.C., for the murder of Manzoor, and a fine of Rs, 3,000 each and in case of default to undergo further six months' R.I.
(Ifi) Five years' R.I. Each under section 307/34, P.P.C. For murderous assault on Shah Muhammad (P.
W. 11) and a fine of Rs, 1,000 each and in default of payment of fine, further two months' R. I.
1. If the amount of fine is realized, the same has been ordeted to be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of Khaira and Manzoor deceased respectively at the rate of Rs, 6,000 each. The convicts have filed Criminal Appeal No, 217 of 1978 and Murder Reference No, 77 of 1978 is before us for confirmation of sentences of death. The complainant has also filed Criminal Revision No, 147 of 1979 against the acquittal of Arif, Mansha, Ahmad and Inayat. All these matters shall be disposed of together by this judgment.
2. The occurrence in this case took place on 10-2-75 at sunset within the area of village Malianwali, Chak No, 537/G.B., at a distance of nine miles from Police Station Chuharkana. A case under section 302/307/34, P.P.C. Was registered at the police station on the statement of Muhammad (P.W 9) the same day at 10-30 p.m., vide F.I.R. (Exh. PA) recorded by Muhammad Sadiq, S.I. (P. W. 13).
3. The brief facts, according to the F.I.R., are that on the day of occurrence after sunset, Muhammad (P. W. 9) alongwith his real brother Khaira deceased, cousin Manzoor son of Khaira deceased and Shah Muhammad (P.W. 11) were coming to their house from their dera in the fields. When they reached near the house of Allah Ditta Lambardar, Abdullah (P. W. 10) also joined them. On reaching near the north-western corner of the house of Allah Ditta Lambardar in the common street, they saw Ghulam Hussain and Allah Ditta armed with 12 bore guns, Ghulam Hassan appellant armed with a 12 bore pistol, Arif armed with a sota, Mansha, Ahmad and Inayat also armed with sotas, sitting in ambush under the shed (tup) belonging to Ghulam Hussain appellant. As soon as they saw the complainant and his companions, all the accused persons came out of the shed. Ghulam Hussain and Allah Ditta appellants raised a lalkara that Khaira, etc. Should not be spared on that day. As the complainant and Abdullah PW were at a distance of 3/4 karams behind Khaira, etc., they ran and took shelter against the shed of one Umar Hayat son of Bahawal and within the view of the complainant and others. Ghulam Hussain appellant fired a gunshot which hit Khaira on his face and chest. Who fell down. Allah Ditta appellant fired a shot from his gun hitting Manzoor on his chest and neck, who also fell down. Ghulam Hassan appellant fired a pistol shot at Shah Muhammad (P. W. 11) which hit him on his face and chest. Thereafter, the accused armed with fire- arms started firing indiscriminately at Khaira, etc. And again injured Shah Muhammad (P.W. 11), Khaira and Manzoor deceased. Shah Muhammad P W. Took cover of the haveli of Allah Ditta Lambardar. Arif, Mansha, Ahmad and Inayat (acquitted co-accused) were waving their sofas and were raising lalkaras that they would do away with Khaira, etc. In order to take their revenge and whoever would come near them would also be likewise killed. In the meantime, on hearing the fire- shots and the noise of the complainant party, many people gathered from the village at the spot and the accused persons took to their heals while firing in the air. Khaira and Manzoor died at the spot because of the injuries sustained by them.
' The motive for the murders was that on 10.2-75 at 9/10 a.m., Allah Ditta appellant quarrelled with Manzoor deceased and Bashir son of the complainant at the well of the mosque. The cause of quarrel was the turn of bath. Meanwhile, Khaira deceased also reached the spot. He tried to separate them but Allah Ditta appellant continued abusing him and in consequence of that Khaira deceased also, while calling bad names, gave 2/3 slaps to Allah Ditta. Allah Ditta went away saying that he would take revenge of his insult.
4. Nine empties (P9/1 to 9) were taken into possession from the spot by the Investigating Officer on 11-2-75 vide memo. Exh. PL which was attested by Bahu (P.W. 8) uterine brother of Khaira deceased, Bahawal Khan (not produced) and Muhammad Sadiq, S.I. (P. W. 13). Ghulam Hassan appellant was arrested on 20-2-75 and 12 bore pistol (P7) was got recovered by him and was taken into possession vide memo. Exh. PE which was attested by Muhammad son of Amir (P. W. 6), maternal uncle of Manzoor deceased, Raj (not produced) and Muhammad Khan, A.S.I. (P.W. 5). Allah Ditta appellant had been arrested on 16-2-75 and he produced his licensed gun (P10) alongwith licence (P11) which were taken into possession vide memo. Exh. PM, attested by Bahu (P. W. 8), Bahawal Khan (not produced) and Muhammad Sadiq, S.I. (P. W. 13). Gun (P10), pistol (P7) and empties (P9/1- 9) were sent together to the Forensic Science Laboratory on 2-4-75 and according to the opinion of the Fire-arms Expert (Exh. PUU), empties (P9/1-6) were found to have been fired from gun (P10) and empties (P9/7-8) were fired from pistol (P7). One empty marked as C9 bore multiple hits, therefore, no opinion could be given as to whether or not the said empty had been fired from any of the above-mentioned weapons.
5. Dr. Anwar Mohy-ud-Din Chaudhry (P.W. 14) performed the autopsy on the dead body of Khaira deceased on 11-2-75 at 1-30 p.m. And found the following injuries :-
(1) A fire-arm wound 1/4" x 1/4" x penetrating into the face, circular in shape situated on the left side of face at the upper and outer part. There was no blackening or burning present around the wound.
Underlying left mandible was fractured and there was fracture of the base of the skull at the left side in the middle. Membranes and brain matter at the lower part was punctured by a pellet and a pellet was lying in the brain matter at the left side, pellet was extracted out, cranial cavity was full of blood at the lower surface.
(2) A fire-arm wound 1/4" x 1/4" x 1" circular in shape situated on the upper lip at the left side outer part. Underlying left upper tooth was fractured. There was no blackening or burning around the wound.
(3) A fire-arm wound of entrance 1/4" X 1/4" x penetrating into the chest cavity, circular in shape.
There was no blackening or burning around the wound. Wound was situated on the right clavicle at the medial side. Underlying right lung was punctured through and through at the upper part. Right chest cavity was full of blood. Underlying left third rib at the back was fractured and a pellet was felt on the back of chest at the left side, upper part. A cut was made and a pellet was removed.
(4) A fire-arm wound 1" x 1/4" x 1/4" oblique in direction situated at the posterior fold of right axilla, at the middle. There was no burning or blackening around the wound.
(5)
A fire-arm wound r x 1/4" x 1/4" oblique in direction situated on the outer surface of right upper arm at the middle. There was no blackening or burning around the wound.
(6) A fire-arm wound 1/4" x 1/4" x 1/2" circular in shape situated on the front of left shoulder-joint at the middle. There was no blackening or burning around the wound.
' All the injuries were ante-mortem and were caused by a fire-arm. In the opinion of the doctor, injuiles Nos. 1 and 3 were sufficient to cause death in the ordinary course of life, individually as well as collectively. Death had been caused by severe intracranial and intra-thorax haemorrhage and shock. The probable time between injuries and death was immediate and between death and post-mortem about 20 to 21 hours.
' On the same day at 3 p.m., this witness also conducted the post-mortem examination on the dead body of Manzoor deceased and found the following injuries :-
(1) A fire-arm wound of entrance 1/4" x 1/4" x penetrating into the chest cavity situated on the left clavicle at the medial part. There was no blackening or burning around the wound, it was rounded in shape and the underlying left clavicle was fractured. Left lung at the upper.Part was ptutctured through and through. Left chest cavity was full of blood and a left third rib was fractured at the back and a wound of exit 1/2" x 1/2" on the back of chest at the left side upper part in the middle.
(2) A fire-arm wound 1/4" x 1/4" x ill" on the front of neck at the lower part in the middle. There was no blackening or burning around the wound which was rounded in shape. Underlying trachea and oesophagus were punctured through and through and a pellet was lying on the front of vertebrae which was extracted and sealed.
(3) A fire-arm wound of entrance 1/4" x 1/4" x penetrating into chest cavity. Wound was rounded in shape and there was no blackening or burning around the wonnd. It was situated on the front of chest at, the lower and medial part penetrating into the chest between the 7th-and 8th rib.
Underlying right lung was punctured through and through from the front to the outer surface, and a wound of exit 112" x 1/2" on the right side of chest at the outer surface slightly at a higher level than the wound of entrance penetrating between the right 6th and 7th rib. Right chest cavity was full of blood.
(4) An abrasion 1" x 1/2" on the front of right knee-joint at the lower part.
(5) Air abrasion 1/2" x 1/4" on the middle of both eye-brows.
' All - the injuries were ante-mortem. According to the witness, injuries Nos. 1 to 3 which were caused by a fire-arm were sufficient to cause death in the ordinary course of life, individually as well as collectively. Death had been caused by severe intra-thorax hemorrhage and shock. The probable time between injuries and death was immediate and between death and post-mortem about 20 to 21 hours.
' Shah Muhammad (P. W. 11) was medically examined by Dr. Anwar Mohyuddin Chaudhry (P. W. 14) on the same day at 4 p. m. And the following injuries were found on his person :--- (1)
A bruise 2" x 2" all around the left eye and there was sub-conjunctival haemorrhage on the outer part of left eye. There was bleeding in the interior chamber of left eye. Pupil was constricted and eyesight was poor since the injury and a small wound was present in the centre of left eye outer part.
(2) A very small fire-arm wound of entrance 1/8"x 1/8" x 1/2" circular in shape situated on the front of neck at the left side lower part. A pellet was felt under the injury.
(3) A very small fire-arm wound of entrance 1/8" X 1/8" x 1/4" circular in shape situated on the front of chest, at the right side upper and outer part.
(4) A very small fire-arm wound of entrance 1/8" x 1/8" x 1/4" circular in shape situated on the back of right hand at the middle on metacarpophy laugeal joint of middle finger.
(5) A very small fire-arm wound of entrance 1/8" x 1/8" x 1/4" circular in shape situated on the back of right ring finger at the proximal part. All the injuries were caused by a fire-arm within 24 hours of the examination.
6. The appellants denied having caused the death of Khaira and Manzoor deceased and having committed murderous assault on Shah Muhammad (P.W 11). They attributed their false implication in the case because of the enmity of prosecution witnesses and party-faction in the village.
7. The prosecution produced three eye-witnesses, namely, Muhammad (P. W. 9), Abdullah (P. W. 10) and Shah Muhammad injured witness (P.W. 11) in support of its case. Shah Muhammad (P. W. 11) did not support the.' prosecution version at the trial. He was declared hostile and the State Counsel was allowed to cross-examine bim. His statement made before the committing Magistrate was transferred under section 265-J, Cr. P. C. And was treated as substantive evidence by the learned Additional Sessions Judge. The effect of the transfer of statement of this witness before the committing Magistrate and the determination of its probative value will be discussed later.
Muhammad (P. W. 9) is real brother of Khaira deceased and real uncle of Manzoor deceased.
Abdullah (P. W. 10) is also related to the deceased and the relationship is admitted by him at page 34 of the paper-book.
8. Learned counsel for the appellants has challenged the convictions and sentences on the grounds : that Muhammad (P. W 9) and Abdullah (P. W. 10) eye-witnesses are close relations of the two deceased and no reliance can be placed on their testimony ; the presence of Muhammad (P.
W. 9) was not possible in view of the circumstances of the case because his house in the village situated at north-eastern side and the dera from where he was coming did not fall on the way to the place of occurrence, therefore, there was no occasion for him to come to the place of occurrence ; the presence of Abdullah (P.W. 10) is also challenged by the learned counsel. About the recoveries, learned counsel mainly urged that crime empties were sent with undue delay without explanation and, according to him, the recoveries of weapons were planted on the appellants.
9. We have gone through the entire evidence and heard both the sides. We find that the case of the prosecution is entirely doubtful and no reliance can be placed on the evidence of eye-witnesses, recoveries and motive.
10. Muhammad (P. W. 9) is real brother of Khaira deceased and paternal uncle of Manzoor deceased. His presence at the spot is not certain because his house lies towards east of the village and the dera from where he was going to his house is situated on the north-eastern side of the village corner. He has admitted in his statement (at pages 29-30 of the paper-book) that "the spot of occurrence does not'fall on the way" from his dera to his house. It has also been admitted by this witness that his destination from his dera was his own house. In these circumstances, there was no occasion for this witness.To,be present at the place of occurrence which, in fact, does not fall on the way from his dera to his house. This witness in his statement before the Court of Session tried to improve upon his earlier statement (at page 30 of the paper-book) by volunteering that, he wanted to know about the health of Waryam maternal uncle of Manzoor deceased because he was ill. This improvement had been purposely made by this witness in order to show his presence at the place of occurrence. The fact that he was going to inquire about the health of Waryam had not been stated by him in the F. I. R. On the other hand, as shown earlier, he was definitely going from his dera to his house. In'the circumstances, no implicit reliance can be placed on the statement Of this witness. Similarly, the statement of Abdullah (P.W. 10) about his presence at the place of occurrence is not worthy of any credence. As earlier observed, this witness is also admittedly a relation of the two ,deceased. According to this witness, he went to the house of Allah Ditta Lambardar to pay the land revenue and since the Lambardar was not present, his son Muhammad Yousaf along with one Umar Hayat was, present at his dera. He stayed with them for some time and on his way back to his house, he joined the complainant party and saw the occurrence. In view of the relationship of this witness with the two deceased and the fact that two independent witnesses, namely, Muhammad Yousaf and Umar Hayat, who were present at the dera of Allah Ditta La.Mbardar in front of which the occurrence took place, have not been produced, an adverse inference in the circumstances has to be drawn against the prosecution that if produced they might not have supported the prosecution case. Thus, the presence of Abdullah (P.
W. 10) at the time of the occurrence is also doubtful and no reliance can be placed on his testimony.
11. We also find that the motive, as set up in the F. I. R. Has not been proved. According to Muhammad (P. W. 9), earlier dispute on the day of occurrence took place between Manzoor deceased and the son of complainant on the one hand and Allah Ditta appellant on the other.
Khaira deceased is alleged to have given 2/3 slaps to Allah Ditta and, according to him, the murder had taken place to avenge the insult of Allah Ditta. The knowledge of Muhammad (P.W. 9) was from the deceased as, according to him, Khaira deceased while in the field had told him about that but the best and the direct evidence of this motive could be had from Bashir son of this witness, who has not been produced. Not only that the original motive as stated in the F. I. R. Has not been legally proved but the prosecution, particularly Muhammad (P.W. 9) also tried to set up a new motive in his statement at the trial (at page 29 of the paper-book) where he said that Saadullah is his sister's son. Ali Ahmad alias Babu had a shop in front of Saadullah's house. Bad characters used to sit at the shop in front of the house of Saadullah P. W. Arif (acquitted co-accused) and. Allah Ditta appellant also used to sit at that shop. Saadullah asked Babu not to permit such persons to sit at his shop. Because of this, Allah Ditta appellant demolished the tup of Babu's shopand got involved Saadullah in that case. But that motive too has notbeen proved because Saadullah has not been produced, although he was cited as a witness. This improvement by Muhammad (P.W. 9) will tendto cast serious doubt relating to the motive set up by the prosecution and in view of such circumstances, motive in this case cannot be treated as a corroborative piece of evidence.
12. As regards the point of delay in sending the crime empties and the weapons of offence to the Ballistic Expert, we are of the opinion that no reliance can be placed on the recoveries and the matching of the empties with gun (P 10) produced by Allah Ditta appellant and pistol (P 7) recovered from Ghulam Hassan appellant. We find that empties (P 9/1-9) were recovered from the spot on 11-2 75, gun (P 10) was produced by Allah Ditta appellant on 16-2-75, and pistol (P 7) was got recovered by Ghulam Hassan appellant on 26-2-75, six days after his arrest on 20-2-75.
According to Ibrahim F. C. (P.W. 2), the parcelt of these articles were handed over to him by the Muharrir of the police station on 2-4-75 and he delivered the same at the Forensic Science Laboratory on 3-4-1975. Thus, there was a delay of more than a month in sending the crime empties and the weapons. Of offence to the Ballistic Expert, for which there is no explanation forthcoming. Sending of crime empties and the weapons of offence together after a long delay will cast a serious doubt and will be of no legal value. Reliance in this behalf is placed on Allahando v.
The State (1); Muhammad Shafi and another v. The State (2) ; Beekho alias Imam Bux and 2 others v. The State (3) ; Bacho and others v. The State (4). It also cannot be lost sight that both the recovery witnesses are close relations of the deceased persons. Babu (P.W. 8) is uterine brother of Khaira deceased and Muhammad son of Amir (P.W. 6) is the brother of Khaira's wife and maternal uncle of
(1) 1969 SCMR 714 (2) PLD 1968 Lah. 869
(3) _1973 P Cr. L J 896 (4) PLD 1963 Kar. 891 ' Manzoor deceased. In View of the above circumstances, we disbelieve the recoveries in this case.
13. After excluding the evidence of the two eye-witnesses, namely, Muhammad (P.W. 9) and Abdullah (P. W. 10) and disbelieving the recoveries of empties and the weapons of offence and their matching with each other, we are now left with the statement of Shah Muhammad injured witness (P. W. 11). Shah Muhammad was examined by the learned trial Judge on 19-2-78. He did not support the prosecution version in his examination-in-chief. The Additional District Attorney requested to .Declare his own witness as hostile and prayed for cross-examination which was allowed by the' learned Additional Sessions Judge. Earlier, this witness was examined by the committing Magistrate during the course of committal proceedings on 16-9-75. The learned Additional Sessions Judge transferred the statement of this witness before the committing Magistrate to the Sessions file under section 2654, Cr. P. C., and treated it as a substantive evidence. The statement of this witness made before the committing Magistrate is at page 40-41 of the paper-book. While delivering judgment, the learned Additional Sessions Judge has relied upon the statement of Shah Muhammad made before the committing Magistrate on 16-9-75, and ohserved as follows :- "On the 16th of September, 1975, Shah Muhammad appeared before the Inquiry Magistrate as P. W. 1 and made statement, on oath. Learned Inquiry Magistiate had afforded the accused an opportunity to cross-examine the witness. They, however, chose not to cross-examine him. This statement of Shah Muhammad was read over to him by the Inquiry Magistrate, and the statement bears an endorsement to this effect. Shah Muhammad had admitted the correctness of that statement before the learned Inquiry Magistrate. With the passage of time, Shah Muhammad P. W.
Happened to be disloyal to the prosecution. He crossed the floor and joined hands with the accused persons and when, on 19-2-78, he was put in the witness-box, then he gave a confused account of the situation quite deliberately. He says that the assailants had mu ed up their faces. He deviated from his earlier statement which he had happened to make before the Inquiry Magistrate, on 16-9-75. He was confronted extensively with his earlier statement. He tried to explain by saying that the police had pressurized him. That is a made-up explanation. His plea that he made the statement before the Inquiry Magistrate under the undue influence of the police is simply a brazen- faced lie. He wanted to grant concessions to the accused. He tried his level best to exonerate them.
The earlier statement dated 16-9-75 made by Shah Muhammad P. W. On oath 'before the Inquiry Magistrate is valid piece of evidence. I read that earlier statement of Shah Muhammad as evidence in the case, under section 265-J of the Code of Criminal Procedure. I have every reason to rely upon the earlier statement of Shah Muhammad which he made before the Inquiry Magistrate. Shah Muhammad was won over. He had shame-facedly resiled from his earlier statement and turned his face from facts. Thus, there is abundant evidence on record in the form of ocular evidence which shows it beyond a shadow of reasonable doubt that Allah Ditta, Ghulam Hasan and Ghulam Hussain accused were responsible for doing Khaira and Manzoor to death and also for causing fire-arm injuries to Shah Muhammad P. W. In furtherance of their common intention."
14. The question that falls for determination, in the circumstances of the present case, is whether the statement made by Shah Muhammad (P.W. 11) during the committal proceedings on 16-9-75 can be transferred to the Sessions file and be treated as substantive evidence. By Law Reforms Ordinance XII of 1972, certain provisions of the Code ot. Criminal Procedure were amended. Chapter XXIII relating to the trials before High Court and the Courts of Session was omitted and a new Chapter XXII-A was instead substituted. The relevant section existing on the unamended Code of Criminal Procedure was section 288 which provided:- "288. The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 "
' The general rule is that all evidence must be direct unless the case falls within section 33 of the Evidence Act. Section 288 of the Code of Criminal Procedure was an exception to the abovesaid general rule. The evidence of a witness recorded under Chapter XVIII of the Code of Criminal Procedure (during the commitment proceedings) could be transferred to the file of Session and be treated as substantive evidence for all purposes subject of course to the provisions of the Law of Evidence. Chapter XVIII relating to the commitment proceedings was also repealed. Law Reforms Ordinance, 1972 relating to the Criminal Procedure Code was enforced by the Government of Punjab with effect from 26th of December, 1975. A saving clause was introduced in the Law Reforms Ordinance by the Amending Ordinance VIII of 1976 and the Amending Ordinance was further repealed by the Law Reforms Act XXI of 1976. Section 5 of the said Act is a saving provision, under clause (b) whereof it is provided that "any inquiry into a case triable by the Court of Session or the High Court in which charge was framed, or in which the accused was committed for trial by the Court of Session or the High Court before 21st December, 1975 shall be proceeded with and completed as if the provisions of the Schedule to this Ordinance relating to amendment in the Code of Criminal Procedure had not come into force". In the present case, neither the charge was framed nor the accused were committed to the Court of Session before 21-12-1975. Therefore, saving clause (b) of section 5 is not applicable to the facts of the instant case. In fact, the learned trial Judge has transferred the statement of Shah Muhammad B (P. W. 11) recorded on 16-9-75 before the committing Magistrate to the file of Session under section 265-J, Cr. P. C., on 19-2-78 and treated the same as substantive evidence. We have carefully gone through the provisions of section 265-J. The learned Judge clearly fell in error both in transferring the statement of Shah Muhammad before the committing Magistrate to his own file and in treating the same as substantive evidence. Section 265-J, Cr. P. C. Provides :- "265-J. The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (II of 1872)."
Under this section, statement of a witness duly recorded under section 164, Cr. P. C., only can be transferred to the Court of Session and treated as substantive evidence. There is a marked difference between the provisions of omitted section 288 and section 265-J, Cr. P. C. Section 288 specifically provided for treating the statement of a witness recorded during the commitment proceedings under Chapter XVIII as evidence in the case whereas section 265-J has not provided for the transfer of such statement already made during the committal proceedings to the Court of Session or to treat the same as substantive evidence. On the other hand, section 2&5-J confines itself to the statement of a witness recorded under section 164, Cr. P. C.
15: It is to be determined whether a statement recorded under Chapter XVIII during the commitment proceedings can be treated as a statement under section 164, Cr. P. C. For that matter, we shall have to refer to section 164, Cr. P. C., subsection (1) whereof provides :- "164 -(1) Any Magistrate of the First Class and Magistrate of the Second Class specially empowered I nthis behalf by the Provincial Government may. If he is not a police officer, record any statement or confession made to him in the course of an investigation under. This Chapter or at any time afterwards before the commencement of the inquiry or trial."
The provisions of section 164 are manifestly clear and provide for al statement recorded by the Magistrate during the course of an investigation under Chapter XIV (which is meant for information to the police and their power to investigation) or a statement recorded at any time afterwards but before the commencement of the inquiry or trial. This section has provided certain limitations : first, that the statement recorded should be during the course of investigation under Chapter XIV ; and second, it should be definitely before the commencement of the inquiry or trial. In the light of the above discussion, the statement recorded during the commitment proceedings under omitted Chapter XVIII of the Criminal Procedure Code cannot be treated as a statement under section 164, Cr. P. C. Therefore, the statement of Shah Muhammad (P.W.11) recorded during the commitment proceedings could not be legally transferred to the Sessions file under section 265-J, Cr. P. C. And be treated as substant tive evidence. The treatment by the learned Additional Sessions Judge to the statement of Shah Muhammad P.W. Recorded during the commitment prcceedings is not permitted by the provisions of section 265-J, Cr. P. C. Of course, it is not denied that a previous deposition of a witness could be used under sections 145, 155(3) and 157 of the Evidence Act for purposes of contradicting the witness, impeaching the credit of a witness and for corroboration, etc. But that is not the position in the instant case, In view of the above, we hold that the statement of Shah Muhammad (p. W. 11) before the committing Magistrate could not be transferred to the Sessions file and used as substantive evidence. We have already observed that this witness did not support the prosecution case at the trial. Therefore, his evidence could not be of any avail to the prosecution. Rather it supported the case of the appellants. Now, we are left with no evidence worth the name on the file to connect the appellants with the commission of the crime.
16. In the light of the above discussion, we ,accept the appeal, set aside the convictions and sentences of the appellants and direct their release forthwith if they are not required in any other case. Criminal Revision No, 147 of 1979 also fails and is dismissed. The sentences of death are not confirmed.