' This is a petition under section 561-A, Cr.P.C. for quashment of the proceedings as against the petitioners pending in the Court of Magistrate 1st Class, Faisalabad (Lyallpur) under section 304, P.P.C. since 1967. It is submitted that the petitioners were shown in column No,2 in the final, police report in connection with the enquiry for the offence charged as against them i.e, under section 304, P.P.C. The background is that on the night between 16/17 of March, 1967 one Sarfraz Dhirana armed with Lathi alongwith six others, of whom two were armed with guns and two with pistols entered the courtyard of the house of three other persons, namely, Farid, Nawaz and Muhammad Khan, petitioner No,2 and thereafter when they had stolen away their goat and were about to leave the place, Farid, Nawaz and Muhammad Khan petitioner woke up, raised alarm and chased the culprits with the help of other villageRs, The culprits fired shots in order to scare away the persons but the complainant party alongwith the other villagers overpowered the three culprits while the others managed to run away. Out of these three culprits who had suffered injuries, two who had also received injuries escape'd. However, Sarfraz Dhirana was given severe beating and had received some serious injuries with hatchet and Lathi at the hands of the complainant side and the villagers and as a result he died. On the same night at 5-00 a.m. Lambardar of the Chak lodged the report with the police and a case under section 382/307, P.P.C. was registered against the culprit party. The matter was investigated by the police. But on 21-3-1967, one Rajab Ali a relative of the aforesaid Sarfraz Dhirana deceased concocted a story and presented an application before the Superintendent of Police, Faisalabad (Lyallpur) stating therein that the occurrence had taken place in a different manner. His version was that the deceased alongwith said Rajab Ali and another were returning to their Chak and while they passed through the Chak of the complainant party, they were attacked by Muhammad Anwar, Member of the Basic Democracies, Muhantmad Khan petitioner, Farid and Siddique. They felled the deceased down by giving him Lathi and hatchet blows for the reason that the deceased etc. had abused them in the past elections. Thereafter they bound the hands and feet of the deceased and eventually murdered him with the help of others, who are petitioners other than Muhammad Khan petitioner, in the instant case. Thereafter they got a false case of theft of goat registered against the deceased and otheRs, On this belated version the police submitted an incomplete challan charging 8 persons including the present petitioners for an offence under section 302, P.P.C. for the murder of said Sarfraz Dhirana deceased. At this stage it may be noted that the matter was reinvestigated as against the present petitioners by the D.S.P. who eventually. submitted another report to the effect that the case against the petitioners would not be considered as under section 302, P.P.C. but as under section 304, P.P.C. and the petitioners were shown in column No,2 of the subsequent report of the police in which there was a recommendation that the case be considered as under section 304, P.P.C. It is submitted th'at although the enquiry of the District Magistrate on the said report had not been finalized, the Magistrate mixed up both the cases calling both sets of accused under section 302, P.P.C. as well as under section 304, P.P.C. It was further submitted that the two versions in the instant case were mutually excessive and, therefore, it was not a case of joint enquiry or even a simultaneous trial. It was in this background that this petition for quashment was moved.
2. The main argument of the learned counsel is that according to the final report of the police the petitioners were not challaned and they had been found innocent in the course of investigation of the case got registered against them at the instance of Rajab Ali and were placed in column No,2.
Learned counsel argued that it is a fit case for quashment not only for the reason that it is a very old matter but even' otherwise joint enquiry against two different sets of accused in the same case with two different sets of witnesses was illegal and not permissible under the law. He has placed reliance on Nur Elahi v. State PLD 1966 SC 708, Muhammad Ashraf v. Zafar Mahmood PLD 1967 Lah. 1045 as well as Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361 in support of his arguments.
3. Since this is an old matter and besides that in the peculiar circumstances of this case the petitioners had been placed in column No,2 as they were found innocent in the course of subsequent investigation the case is made out for quashment. I, therefore, order that the proceedings against the petitioners pending in the Court of Magistrate 1st Class, Faisalabad (Lyallpur) should be quashed. This petition is disposed of.