TUFAIL ALI A. REHMAN, C. J.--At the conclusion of the hearing of this case we announced judgment setting aside the conviction and tire sentence imposed upon the appellant and I am now recording my reasons for follow--ing this course.
2. The appellant was tried alongwith four others, three being his brothers, namely Ghulam Kadir, Shahroo and Khathar while the fourth was his cousin named Karim Bux. Two of the three eye- witnesses in this case, namely Talib and Abdul Ghani, were brothers of the deceased Kaman while the third was a cousin of theirs named Tagio. At the material time that is September 1971 according to the prosecution case 'Talib and Abdul Ghani lived at Machi in Sadiqabad which is about 20 or 25 miles away from the place where the incident which has given rise to this case occurred and which is no more than about half a mile from the house of the deceased Kaman which is in Taluka Ubauro about three miles away from the Dehrki Police Station. Tagio is said to have been living at the relevant time in Deh Janbar which is nearer to the scene of offence and probably about half or three quarters of a mile away from the house of the deceased. Now while these three witnesses and the deceased were closely related between each other and the accused persons including the appellant were similarly related inter se they were also collaterals of each other and this is an admitted position though when the prosecution allege that a sister of the appellant was married to Abdul Ghani this is denied. Curiously, however, the motive for the crime is alleged to stem from the fact that a sister of Razakdino named Mst. Umari was at one time married to one Ghulam Kadir and had been declared kari with the witness Muhammad A.I who is a nephew of the deceased and of course also of Talib and Abdul Ghani. This is not denied and it would seem, though it is not clear, that this cannot be the sister who is married to Abdul Ghani if indeed a sister is married to Abdul Ghani at all. The question, however, whether, there is another sister married to Abdul Ghani and if so, it is the same sister is not important in this case and the matter need not be pursued.
3. After this declaration of Kari the lady came and lived with her brothers, her husband having disowned her, and the accused party demanded compensation and both sides agreed that the matter should be settled by a faisla and accordingly a date for the faisla was fixed which was attended by the eye-witnesses and the deceased on the one side and the accused on the other but had to be adjourned on account of the unavailability of the Sardar who was to decide the matter. While both the parties were coming back, it is claimed that there was a quarrel between the two and as a result of this quarrel proceedings under section 107, Criminal Procedure Code were instituted by the police and a hearing was to take place upon the 7th September 1971 which is the date of the incident in this case. According to the prosecution on the night before the 7th all the three witnesses came to the house of the deceased and spent the night in his house and in tire morning they left early in order to attend the hearing at Ubauro. They had only proceeded about half a mile from their house when the five accused persons of whom the present appellant was armed with a gun, Ghulam Kadir and Shahroo with lathis and kahthar and Karim Bux with hatchets suddenly emerged and Razikdino having given a shout shot at the deceased who was struck and tried to run away but was fired at again twice as a result of which he collapsed. It is then said that the witness Tagio took the deceased to the Ubauro Police Station which is stated to be two or three miles away and there the statement of the deceased himself was record--ed as a first information report and has now of course been treated as a dying declaration. The other two witnesses, Talib and Abdul Ghani, in the meantime went to the Court of the Magistrate at Ubauro. According to the Assistant Sub-Inspector Muhammad Nawaz, who recorded the First Information Report, he sent the deceased to the hospital and proceeded to the scene where he recovered two crime empties and the next day arrested the appellant Razikdino and also secured his licensed gun. The remaining investigation was conducted by the S. H. O. Muhammad Hussain, who, however, could not be examined because he has retired since and his whereabouts are not known; nothing important however, transpires in the rest of the investigation. In due course, all the five accused persons were sent up for trial and the learned Judge convicted the appellant of the offence of murder and sentenced him to death while he acquitted the remaining four accused persons.
4. Besides the three eye-witnesses the prosecution examined the ballistics expert who has given evidence to the effect that in his opinion the gun which was secured from Razikdino was the one which was used in firing the crime empties. They examined also, Muhammad A.I, the person who was said to be on terms of illicit intimacy with the sister of Razikdino but he has not supported the case at all claiming that the entire allegation was false and not even admitting that this false suspicion had led to any demand for compensation and that that was the reason why the deceased was murdered. The learned Judge's casual reference to his evidence to the effect that he has said that this was the reason is apparently an error but not of a serious character. The remaining evidence was more or less formal, though of course the mashir with regard to the recovery of the gun was examined. The Magistrate, before whom the section 107, Criminal Procedure Code proceedings were pending, Mr. Imdad A.I was examined as a Court witness in circumstances which I shall hereinafter state. The case against the accused persons, therefore, rested primarily upon the evidence of the eye--witnesses Talib, Abdul Ghani and Tagio, the dying declaration made by the deceased and, so far as the appellant is concerned, the evidence of the recovery of the gun and the opinion of the ballistics expert.
5. Now for a number of reasons which, in my view were cogent, the learned Judge rejected the presence of any of the eye-witnesses though he did hold that Tagio came to the scene immediately after the occurrence as he lives close by and he took the deceased to the Police Station where the First Information Report was recorded. In the first place the learned Judge points out that it was entirely improbable that Talib and Abdul Ghani living as they were some 25 miles away should come the previous night to the deceased's house in order to accompany him to the Court at Ubauro and the more natural conduct on their part would have been to come by train straight to Ubauro. As to Tagio the allegation that he too spent the previous night in the house of the deceased was disbelieved on the ground that the police statements made no such allegation whatever. These were matters of probability but, by far the more important thing, was the fact that admittedly Talib and Abdul Ghani did appear before the Magistrate at Ubauro in connection with the proceedings under section 107 on that day. And they allege that after the case was adjourned on account of the absence of the deceased and Tagio on the one side and one of the opponents in the counter case, namely one Brohi, the accused Shahroo came up and they also allege that they told the Magistrate that they were late in Court because of this crime and that they pointed out Shahroo to the Magistrate but the Magistrate took no notice of the allegation of murder or the presence of Shahroo. They go on to allege that the Police Officer then brought the deceased and Tagio to the Court and it was in these circumstances that the learned Judge thought it right to summon the Magis--trate as a Court witness. Now the presence of Talib and Abdul Ghani in the Court and the absence of Tagio and the deceased Kaman is borne out by the certified copies of the proceedings which were produced by the appellant in the course of his statement under section 342, Criminal Pro--cedure Code but the Magistrate also not from memory, but from the record testified to the same facts. He, however, said that these two witnesses could not have told him about the murder and that Shahroo could not have been present and been pointed out to him because he felt sure that if that had been so, he would have taken some steps in the matter. I think, this is very probable and it does seem unlikely indeed that the Magistrate would take no notice of such serious matters, if they had been stated before him. It is also grossly improbable that Talib and Abdul Ghani would leave their brother in that precarious condition and be more worried about their attendance before the Magistrate at Ubauro leaving their brother in the care of their cousin Tagio. The evidence that the deceased was actually brought to the Court is not only not supported by the Magistrate but is in direct contradiction of the evidence of the Police Officer who says that he sent the deceased to the hospital. The evidence of the Police Officer is not only more independent but is in itself inherently more probable and I think, therefore, the learned Judge was quite right in rejecting this version given by Talib and Abdul Ghani. His conclusion, therefore, that none of three alleged eye-witnesses was present at the scene, is one with which I am in entire agreement.
6. That Tagio, although not actually present at the crime, came up soon thereafter also does appear to be correct. In the first place his house is very near and in the second, quite obviously the deceased himself could not alone have come to the Police Station and somebody must have assisted him, and I see no reason to doubt that that somebody was Tagio. If, the deceased then told Tagio what had occurred, I would be quite prepared to believe Tagio's statement to that effect, though I am not quite sure, what the learned Judge means by saying that Tagio was a witness of res jestae.
7. The learned Judge, therefore, bases the conviction of Razikdino upon the dying declaration as made to Tagio and as recorded in the First Information Report coupled with the recovery of the gun from Razikdino. He goes on to hold that in any case it appears to him that the number of culprits has been grossly exaggerated; it is to be remembered that according to the eye-witnesses and according to the dying declaration also the other four were not armed with a gun but with hatchets and lathis and admittedly there is no injury of a hatchet or lathi upon the deceased. In all pro-- bability, therefore, I think that, whether or not Razikdino be guilty, the allegation that there were as many as five persons who were concerned in the crime is exaggerated. The question then arises whether the learned Judge was right Fn accepting the dying declaration against Razikdino at all.
8. As he himself says there can be no doubt that the dying declaration is one which contains many exaggerations and falsehoods, for it gives pre--cisely the same version as the witnesses do: Now the learned Judge has held that it is not merely that these three eye-witnesses are not reliable but they were not present and that the allegation that there were as many as five per--sons present is improbable and incredible. Obviously, therefore, the dying dec--laration at-least to the extent that it mentions the presence of the eye-witness is false. Even as to the presence of more than one person it is in all pro--bability false. It must therefore, either had been concocted by the deceased and Tagio together or Tagio might be speaking the truth and the deceased gave him a completely false account to start with: it does not matter which for in either event the dying declaration cannot really be believed. Dying declarations are in any case a weak kind of evidence being untested by cross-examination and the only good reason for accepting them usually is the feeling that persons in immediate danger of death are unlikely to speak a falsehood. In the present case it has been demonstrated that the deceased had spoken a falsehood. Even, if Tagio be merely stating truthfully what the deceased told him that does not strengthen the value of the dying dec-- laration and in any case Tagio is obviously lying when he says that he and deceased were brought by the Police Officer to the Court of the Magistrate at Ubauro. In these circumstances I am quite unable to see how the learned Judge thought it right to accept the dying declaration.
9. There remains then the evidence with regard to the use of the appellant's licensed gun and of course I have no reason whatever to reject either the recovery of the gun or the honesty of the opinion of the ballistics expert. Now if this has been a case, where it was possible to hold that eye- witnesses had in fact witnessed the crime but that for some reason their evidence should not be accepted against an individual accused person without corroboration, I would agree that this was good enough corroboration against the appellant. Such however, is not the case: the eye- witnesses have been rejected, and, I think, quite rightly, as not being present at all and Tagio is no exception for his presence has been accepted only to the extent that he came to the scene of the offence imme--diately after it was over. By itself the evidence of the recovery of the gun which has been used in the crime is hardly sufficient for coming to the conclusion that the licensed owner of the gun must be the person who e actually fired it. Somebody else, possibly one of his relations might have access to it. The learned Judge thinks that the case against the appellant is strengthened by the fact that it was Kaman who was instrumental in blocking the payment of compensation and that therefore Razikdino had a strong motive. Now in the first place there is no evidence that it was Kaman who was instrumental in blocking the payment of compensation, on the contrary the evidence is that there was a faisla still pending but, assuming that it was Kaman who was selected for being murdered on this account and there is no doubt that it was Kaman who was murdered, this hardly distinguishes the case of the appellant from the others since three of the others were his own brothers and the lady was therefore as much their sister as his. In any case evidence of motive can never be regarded as sufficient to take the place of actual evidence of participation in a crime and, if the latter is absent, one cannot rely upon the motive for holding that a particular person is guilty of the crime.
10. In these circumstances, I am of the opinion that this conviction cannot be sustained.