ATAULLAH SAJJAD, J.-The appellant Salehon was tried along with his to sons, namely, Yara and Mulazim and his sister's son Khan, for the murder of Shahadat his co-villager. Salehon was convicted under section 302 of the Pakistan Penal Code and was sentenced to transportation for life while his co-accused were acquitted.
2. The occurrence took place some the after the night--fall on 14th of December 1964 in Kot Samail, Police Station Chiniot in the District of Jhang. The evidence is that the deceased and Theraj (P. W. 6) had developed friendship while both of them were employed with Syed Said Ahmed Shah of Rajoa.
They left the service of Said Ahmad Shah after some the. Theraj came back home while Shahadat took service with Mehdi Husain (P. W. 11). During the period the deceased and Theraj were working with Said Ahmad Shah, the former. Developed love with Mst. Phapho, a niece of the appellant and sister of Khan his co-accused. Theraj used to carry the messages 'of the lovers to each other.
3. At about peshiwela prior to the night of the incident Shahadat deceased came on a mushki mare to Theraj P. W. In Tibbi Kamoka and asked him to convey his message to Mst. Phapho to meet him at the rajbah just after the sunset. The deceased said that he would light a fire in the reeds nearby and this would be the signal to the woman-to come. The deceased was at that "the wearing dohar Exh. P.
4. He gave rupees twenty to Theraj for the performance of this commission.
Theraj conveyed the message to Mst. Phapho, but soon after he got frightened, lest he may be involved in an abduction case. He, therefore, parted the whole information to Salehon appellant.
Next day, it was learnt that Shahadat had been murdered rear the rajbah where he was to meet Mst. Phapho. Theraj narrated these facts to Bagga (P. W. 7) six or seven days after the murder.
4. The information regarding the death of Shahadat was given by Salehon appellant himself to the police vide F. I. R. Exh. P. K. According to the F. I. R. The deceased and another person had come to commit theft when they were overtaken and the deceased died as a result of the injuries given to him by his pursuers. His companion made good his escape. The investigation, however, revealed that Salehon and his co-accused had committed the offence.
5. Dr. Fazal Ahmad (P. W. 1) Medical Officer, Civil Hospital Chiniot, performed the post-mortem examination on the dead body of the deceased and found twenty-four injuries on his person. They had all been caused by blunt weapon. Two injuries, one of which was on the back of the right little finger and had resulted in the fracture of the phalan--geal bone, and the other which had resulted in the fracture of the metacarpal bone, were found to be grievous. In the opinion of the doctor the deceased was suffocated to death as his mouth and nose were closed by exercising violence which caused death.
6. During the investigation, the Sub-Inspector recovered the mare on 'which the deceased was said to have been riding, from one Ahman. The appellant also led to the recovery of dohar P. 4, kathi P. 5 and an old khes P. 6 which was used as a tahru, from his residential kotha on 22 December 1964, vide memo. Exh. P: B. The dohar was identified by Sukha (P. W. 8) and kathi P. 5 by Mehdi Hussain (P.W.11).
7. At the trial, evidence was led to show that Salehon appellant had complained to Bagga (P. W. 7) about the liaison which the deceased had developed with Mst. Phaphan and that this witness had asked the deceased to desist from his amorous pursuits, and had further t6ld his brother Bahadur P. W. 9 to forbid Shahadat from his nefarious activities. This witness also claimed that about four or five days after the occurrence he went to Tibbi Kamoka where Theraj bad narrated to him the whole incident as to how he was given Rs. 20 for conveying the message to Mst. Phaphan and how he conveyed the same information to Salebon appellant. Mehdi Husain (P. W. 11) stated that the deceased had taken up his service about a fortnight before his murder, and on a 13th of December 1964, the deceased had gone with him to village Dhamraya wherefrom they returned the next day.
The deceased was on a mare which belonged, to Ahmi Khokhar and was wearing dohar P. 4 of red colour which was identified by this witness in Court. He had stated before the police that they had to village Dhamraya on 14th of December 1964, and had retuned on the same day. One Mammi' was, also examined as a witness by the police and had also made a statement under section 164 Cr. P. C. Before a Magistrate. He claimed to have seen the appellant and his three co-accused, armed with dang and injuring the deceased. This witness was not examined at the trial but his statement under section 164, Cr. P. C. Was relied upon by the learned trial Court as a part of the prosecution evidence.
8. We, do not think that there is any evidence worth the name to justify the conviction of the appellant. The F. I. R. Exh. P. K. Lodged by the appellant himself is inadmissible in evidence as it amount to a confession. The evidence of motive is belied by the statement of Bahadur the brother of the deceased who belied Bagga (P. W. 7) by saying that he did not know anything about the illicit liaison between the deceased and Mst. Phaphan. Mehdi Husain P. W, was not consistent in his statement as to whether he had gone with the deceased to village Dhamraya on the 14th of December 1964, or a day earlier. It is, therefore, doubtful whether the deceased parted company with Mehdi Husain on the day preceding the night of the Occurrence. The evidence of Theraj is, admittedly, not reliable for reasons more than one: He did not take anybody into confidence soon after the death of the deceased although lie admits to have been going to the house of the deceased for condolence. Bagga P. W. Stated that he did not go to the house of Shahadat to condole his death on the day of the occurrence because according to him he was ailing and was not able to go to the house of the deceased. He in this, is contradicted by Theraj who stated that after learning about the murder of the deceased in the morning he went to the place of occur--nd of rence accompanied by Bagga and Bahadur, the brother of the deceased. He did not impart any information about the background of the murder to anybody and took live days to decide to take Bagga P. W. Into confidence. He had stated before the committing Magistrate that he 'cultivated the land of Sardar Ghulam Abbas of Rajoa arid was one of his party--men. He had admitted that the accused persons were the party men of Sardar Nasar Ali Shah of Rajoa. He was con--fronted with his statement made before the committing Magistrate to the effect' that Sardar Ghulam Abbas and Sardar Nasar Ali Shah were at daggers drawn and were litigating against each other for the last to or three years. There, appears to be force in the argument advanced at the bar that this witness was made to appear in support of the prosecution story as the to parties were the tenants of to different zamindars who were inimical towards each other. We believe the learned counsel when he asserts that the story that the deceased and this witness were in the service of Syed Said'
Ahmad `Shah was invented only to show that there was inti--macy between the to. It is also in the statement of Bahadur the brother of the deceased that Theraj remained in the custody of, the police for interrogation for a number of days in connection with this case. There are, therefore, clear indications that Theraj had become a witness on- account of pressure from his landlord and the police.
9. We are surprised to find that the learned Additional Sessions Judge treated the statement of Mammi made under section 164, Cr. P. C. Before a Magistrate as substantive evidence. Although the witness had never appeared at the trial. The procedure adopted by the learned trial Judge has resulted in 13 material prejudice to the accused and was entirely unwarranted in law. A statement under section 164, Cr. P. C. Is a previous statement with which a witness, when he appears in the witness-box, can be confronted for purposes of cross-examina--tion. It cannot be treated as substantive evidence.
10. The recoveries, apart from being doubtful, are of not any avail to the prosecution. Dohar P. 4 recovered is, of an ordinary type and so is the kuthi P. 5 and tahru P.
6. The to witnesses of recovery do not agree as to the manner of the recovery. Jiwan Shah (P. W. 10) stated that the kathi and the dohar had been tied in tahru P. 6 but could not state wherefrom this bundle wag taken out. This witness is related to Ghulam Muhammad Shah whose land Shahadat deceased cultivated. Mehdi Husain (P. W. 11) stated that the articles were not bound in a bundle and they were taken out from, an earthen bin. He did not go inside but peeped inside.
11. As a result of the above discussion, we find that the prosecution has totally failed in bringing home the offence to the appellant. We accept his appeal and set aside his conviction and sentence. He is already on bail. His bail bond shall stand discharged.