' SARDAR MUHAMMAD RAZA KHAN, J.--Muhammad Zaman Mangat Advocate, the son of Ghulam Rasool, the original complainant, has filed this petition for leave to appeal against the judgment dated 21-11-2001 rendered by an Honourable Single Judge of Lahore High Court in Criminal Appeal No,1032 of 2000, whereby Muhammad Akhtar and Sikandar Hayat, the respondents were acquitted of charges under sections 302/324/34, P.P.C. Concerning the murder of Muhammad Abbas Zia, Advocate and effective attempt at the lives of Nasir Masood, P.W.4 and Shahid, the abandoned witness.
2. Ghulam Rasool complainant, the father of deceased Muhammad Abbas Zia, Advocate was resident of village Mangat, located 7/8 miles away from Mandi Bhahuddin. He needed certain goods/accessories for the tube-well which were to be purchased from Mandi Bahauddin. On the day of occurrence (2-7-1994) he, alongwith one Sarfraz and another Muhammad Azam, came to Mandi Bahauddin to purchase such articles. The shopkeeper concerned was not available and so after waiting for him for quite some time, they went to the house of Muhammad Abbas Zia, Advocate, the son of Ghulam Rasool. The house of Muhammad Abbas Zia, Advocate was near Ghausia Mosque but he too, was not present in the house. The complainant was informed that his son had gone to a shop at Sessions Court Road. The complainant and his companions went to see his son who was sitting at a tailor's shop.
3. They were sitting in the shop when at 7-00 p.m. Muhammad Akhtar, Muhammad Ashraf, Allah Yar, Sikandar Hayat, Tariq, Ijaz andMukhtar armed with pistols and one with a .222 rifle appeared on the scene. Akhtar and Sikandar Hayat shouted that they had come to avenge the murder of Safdar Iqbal. Different accused named in the F.I.R. Opened fire at Muhammad Abbas Zia with which he got hit alongwith Shahid and Nasir Masood. Complainant and his companions escaped injuries due to having taken shelter in the shop. All the three injured were removed to District Headquarter Hospital, Mandi Bahauddin. Muhammad Abbas Zia was referred to C.M.H. Kharian but he died on the way thereto while Masood and Shahid were admitted in Civil Hospital Mandi Bahauddin.
4. Motive for the occurrence furnished by the complainant was to the effect that one Safdar Iqbal brother of Muhammad Akhtar accused was murdered in August, 1989 for which the complainant, his son Ehsan and ten others were charged but acquitted. The instant occurrence was said to have had taken place in order to avenge the murder of Safdar Iqbal.
5. After the completion of investigation, as many as seven accused were indicted. Muhammad Akhtar and Sikandar Hayat were convicted under sections 302/324/34, P.P.C. And sentenced to imprisonment for life etc. While the remaining were acquitted. The convicts filed an appeal before the High Court where they too, were acquitted and hence this petition.
6. At the very outset it may be mentioned that the occurrence had taken place at 7-00 p.m. At a place which was only 1540 yards (7 furlongs) away from the police station, still the F.I.R. Was lodged at 9-30 p.m. With a delay of 2-1/2 hours. This delay appears to be material one. Though a delay in lodging a criminal case is not always material yet the circumstances of the present case would reveal that it was with a design to make concoctions and deliberations. We hold that in the instant case the delay had resulted into concoctions and deliberations.
7. The complainant as well as his companions Sarfraz and Muhammad Azam belonged to and were residents of village Mangat. Prima facie their presence on the spot appears to be a matter of chance. It is to be ascertained from the circumstances as to how far their presence was justified. A father had come to city to make certain purchases and thus he straightaway went to the shop concerned. For quite long he waited for the shopkeeper but when disappointed he started for the house of the complainant's son. The complainant explained that he had gone there to tell his son to send the desired goods to the, village the next day. If this was the only purpose of going to his son's house, he alongwith the guests should have waited for the son at his house. His coming out in search of his son alongwith the companions seemed to be quite unreasonable. This story is tailored in order to show their presenceat tailor's shop. The needful could have been done in the house of the deceased where they could have waited for the deceased to return, which they did not. The story seems to be concocted and the defence version in this behalf is quite plausible to the effect that the occurrence was not witnessed by the complainant and his companions and after quite a long time the attendance of complainant was procured from the village and it was only then that the F.I.R. Was registered at 9-30 p.m., if at all.
8. Another unavoidable circumstance is indicative of the fact that the F.I.R. Was not even lodged at 9-30 p.m. But actually was much belated. The first case diaries do indicate against the normal routine that no details of occurrence were written therein. Even names of the accused were not given in the first case diary which was bound to open after the registration of F.I.R. This brings one to the inescapable conclusion that till the writing of initial case diaries the details of occurrence and even the names of the accused were not available to the Investigating Agency. The F.I.R., therefore, seems to be much more belated than 9-30 p.m. This was only to concoct the story after deliberations and after the procurement of the father of the deceased from his village. Had Ghulam Rasool been present on the spot, he would have immediately lodged the report within 15 minutes either at the police station or at the Civil Hospital. Nothing of the sort happened in the case.
9. It appears from record that the injured were taken to the hospital by the police and medico- legal report was also handed over to the police. Had the complainant and his companions been present on the spot, they would most certainly have themselves taken the injured to the hospital.
Their absence before the Medical Officer indicates abundantly of their absence from the spot.
9. The perusal of the site-plan would indicate that the occurrence had taken place in a small shop measuring 8 x 12 feet. In this small shop numerous persons were present and were alleged to have been attacked by as many as seven persons who all opened fire. Had it been true, the complainant and his companions would never had escaped unhurt under any circumstances.
10. The motive is the previous murder of one Safdar Iqbal. The F.I.R. Of that case indicates that Ghulam Rasool complainant and his companion, Muhammad Azam were the nominated accused for the murder of Safdar Iqbal. Had they been present on the spot, they wouldhave been the first target of the assailants. This is a strong circumstantial evidence which seriously points to the absence of complainant and his companions from the spot.
11. The first statement of Nasir Masood, P.W.4 recorded under section 161, Cr.P.C. Is indicative of the fact that the witness was unableto identify the assailants who were two or three in number. When such contradiction with his previous statement was noticed, the defence desired to confront the witness with his previous statement under section 161, Cr.P.C. Which admittedly was on record. It is amazing to note that the trial Court disallowed such confrontation against the known principles of law. Though this illegality required the remand of the case but the High Court declined to do so and rightly so, in order to avoid unnecessary delay because numerous other circumstances were available independent of the aforesaid illegality to acquit the accused. We are convinced that the defence had been denied the right to confront the witness Nasir Masood with his previous statement under section 161, Cr.P.C. Available on record. That had it been done so, it would have shattered the veracity of Nasir Masood who had failed, according to his own statement, to identify the assailants who were only two or three in number.
12.In the circumstances mentioned above, the High Court has rightly recorded the acquittal of Muhammad Akhtar and Sikandar Hayat. We find no reason at all to interfere with the findings arrived at. There being no merit in the petition, it is hereby dismissed and leave to appeal is refused.