AGHA ALI HYDER, ACTG. C. J.--On the 10th of June, 1971, at about 11-00 a.m. Azam, since deceased, accompanied by his brothers Abdur Rehman and Haji Aiban, was returning to his house by the canal path, when three persons appeared on the scene, namely, the present appellant, his father Jogi and uncle, Haji Chakar. These persons had opened fire, hitting Azam. He was taken to Karim Bux Police Station on a jeep, where an entry was made in the 'Roznamcha' by the Head Constable, and he was referred to the Civil Hospital at Jacobabad. As the condition of Azam was precarious, the Investigating Officer had sent for the Mukhtiarkar and First Class Magistrate, Jacobabad, to record his dying declaration, which was done at about 8-30 p.m. It might as well be mentioned here that the entry, which had been made in the `Roznamcha' at Karim Bukhsh Police Station was not signed by Abdur Rehman, who had supplied the information in regard to the injury and the incident, and no F. I. R. Was recorded at all. In the absence of the signature, or thumb-impression of the informant, even the entry in the "Roznamcha" cannot be so treated. The matters remained such till the 16th of June 1971, when the dying declaration was transcribed as F. I. R. By A. S. I. Atta Muhammad, and the accused came to be arrested. The appellant, it might as well be mentioned, came to be arrested some time in the month of August. It is not necessary to give particulars of the investigation, or, further details, as it is hardly necessary in the circumstances of the case. Actually Mr. Junejo was not called upon to address, challenging the conviction and sentence for offences under sections 302, P. P. C. And others.
2. The appellant in his statement at the trial denied the various allegations made against him, and stated that he had been run down, because he was suspected to be in toe with the daughter-in- law of Haji Abdur Rehman.
3. It is to be mentioned here that the dying declaration mentioned the presence of Haji Abdur Rehman and Haji Aiban with the deceased at the time of the incident. It appears that they were examined at the Court of Enquiry, and did not support the prosecution case, with the result that they were given up at the trial by the learned A. P. P. An application is on the record. There are, therefore, no eye-witnesses in the case. There is no production of any incriminating article, or, any corroborating circumstances, and all we are left with, therefore, is the dying declaration. It is rather strange to see that the police authorities did not bother even about recording of any F. I. R. In the case till the 16tb, though Azam was taken to Karim Bukhsh Police Station, and a man is alleged to have gone to Thul Police Station also. It is also to be seen that the declarant had mentioned three persons having opened fire simultaneously, and it is not known as to who had actually hit Azam.
Jogi had died during the pendency of the trial, but Haji Chakar had been tried, and he had been acquitted. If Haji Chakar had earned acquittal, there is hardly any material for a different approach in regard to the present appellant. What is still more surprising is that there is nothing on the record to show as to what was the cause of this trouble and deliberate murder, because fire had been opened without any exchange of words at all. It is true that motive need not necessarily be present to drive guilt home against any accused, but it is normal to look for one unless it is a case of maniac. True that a dying declaration by itself is, sufficient to act upon, and a conviction can be based on the same, but; in the circumstances of the case, this cannot be the sole basis for the same specially when the two persons named in the F. I. R. Have not chosen to support the prosecution, and even the brothers did not choose to lodge even the F. I. R.
4. After dud consideration, we are of the opinion that, under the circumstances, it would not be safe to sustain the conviction. The appellant is entitled to benefit of doubt, not as a matter of grace, but as of right. We will, therefore, not accept the reference, and set aside the conviction, and allow the appeal. The appellant is in custody, and will be released forthwith, unless wanted in connection with some other case. The fine, if realised, will be refunded.