' SH. RIAZ AHMAD, C.J.,---Leave to appeal is sought against the judgment dated 5-11-2001 whereby a learned -Single Judge of the Lahore High Court accepted the appeal of the respondents- convicts, set aside their conviction and sentences and acquitted them of the charges under sections 302(b)/34, Pakistan Penal Code for the murder of Mumtaz deceased.
2. In pursuance of case F.I.R. No,615, dated 25th of October,1994 lodged with Police Station Bhawana on charges under sections 302/452/148/149, Pakistan Penal Code, respondents Saif Ullah and Said Ahmad were tried alongwith five others by an Additional Sessions Judge at Chiniot for having committed the murder of Mumtaz deceased. At the conclusion of the trial, the learned trial Judge convicted both the respondents under section 458/34, Pakistan Penal Code and sentenced them to seven years R.I. Each and to pay fine of Rs,10,000 each, or in default thereof, to suffer further R.I.
For six months each. On the capital charge, both of them were sentenced to suffer lifeimprisonment each, and to pay fine of Rs,50,000 each, which if recovered had to be paid to the legal heirs of deceased in terms of section 544-A, Cr.P.C. In case of default of the payment of compensation, both the respondents were directed to undergo R.I. For six months each. All sentences were ordered to run concurrently. Benefit as contemplated by section 382-B, Criminal Procedure Code was also extended to then.. It may be stated that Muhammad Saleem son of Nausher whom fatal shot was attributed was murdered during the trial and had to be awarded the capital punishment, therefore, the learned trial Judge proceeded to award lesser penalty to both the respondents namely Saif Ullah and Said Ahmad. As regards co-accused namely Muhammad Saleem, Nausher son of Shahadat, Muhammad Akram and Umer Hayat, they were acquitted of the charge by extending benefit of doubt by the learned trial Judge vide his judgment dated 23-2- 2000, which was assailed in appeal as well as revision in the Lahore High Court, and as stated earlier, a learned Single Judge accepted the appeal of both the respondents, set aside their conviction and sentences and acquitted them of the charge while Criminal Revision of the petitioner was dismissed by means of a consolidated judgment sought to be impugned herein.
3. Occurrence resulting into the death of deceased Mumtaz took place during the intervening night of 24th and 25th of October, 1994 in the house of the deceased in Chak No,221 situated at a distance of 9 miles from Police Station Bhawana.
4. Muhammad Nawaz the firstinformant had disclosed in the F.I.R. That on the fateful day he alongwith Mumtaz and Mst. Moondan wife of Akbar were sleeping in the courtyard of residential house of Muhammad Akbar, when both the respondents with their co-accused variously armed with lethal weapons had entered the house after scaling over the wall which awoke the complainant who had noticed that Saleem fired a shot with his .12 bore gun on the mouth of Mumtaz followed by a rifle shot by respondent Said Ahmed on the right hand of deceased. It is alleged that both Mst. Moondan and Muhammad Nawaz also awoke on account of reports of firing who were also attracted to the spot. It was further stated that it was a moonlit night and an electric bulb was also on at the spot which had enabled them to identify the assailants. It is alleged that after fully identifying the respondents and their co-accused, the inmates had raised hue and cry and also tried to apprehend them, but on account of indiscriminate firing by the accused persons, they could do nothing. It is stated that Sher son of Hasta also arrived at the spot and had identified the accused persons who were seven in number.
' The alleged motive behind the occurrence was that Ijaz (brother of Mumtaz) had committed the murder of Pervez (brother of Saidrespondent), thus the respondents with their acquitted co- accused, named above, in furtherance of their common object, had launched the murderous assault on deceased Mumtaz.
' To substantiate its case at the trial, the prosecution has produced ten witnesses. In their statements recorded under section 342, Criminal Procedure Code, the respondents has denied the charge and produced copies of various F.I.Rs,, copy of plaint in a declaratory suit and a Nikah Nama in rebuttal of prosecution case.
With the assistance of Malik Abdul Wahid, Advocate Supreme Court we have gone through the judgment impugned and have heard him at length. Admittedly., occurrence in this case had taken place during the intervening night of 24th and 25th of October, 1994 and the matter was reported at the Police Station at 5-10 p.m. Situated at a distance of 9 miles whereas the hospital also fell on the same way just a distance of 1 K.m. Thus, the learned Single Judge of the High Court held the inordinate delay fatal, and rightly so, because there exists no plausible explanation to account for the same. Equally important is the factum of non-mentioning of the names of male eye-witness in the relevant column of the M.L.R. And injuries sustained by deceased clearly indicated that there was no blackening or burning despite the fact that firing was made at a distance of 8 to 9 inches.
As regards Injury No,2, the doctor had categorically opined that the same could be a grazing wound having been caused by the same fire on the mouth of the deceased. We have further taken note of the fact that no electric bulb was shown either in the F.1.R. Or in the site-plan; that not a single empty was taken into possession from the spot and there is no report of the Fire-arm Expert.
On the strength of above omissions and lacunas in the prosecution case, the learned Single Judge of the High Court was absolutely competent and justified to set aside the conviction of the respondents because the prosecution had miserably failed to establish the case on capital charge against the respondents, therefore, they were rightly acquitted of the charge. It is now well settled that merely another view on the basis of evidence can be formed hardly constitutes a valid ground to interfere with the acquittal which is based on sound footing. No material illegality and irregularity could be highlighted by the learned counsel calling for interference by this Court, therefore, this