This is a petition under section 561-A, Cr. P. C. for quash- ment of proceedings in two criminal cases, namely, State v. Muhammad Akhtar Mir etc. Under section 148/149, P. P. C. and State v.
Muhammad Akhtar Mir under section 13 of Arms Ordinance No. XX of 1965.
2. The facts alleged in the F. I. R. which is the basis of both the cases and was lodged by one Zegham Saeed are as follows :-- On 23-3-1970 at about 11-35 a.m. the complainant informed the Emergency Police Centre that the petitioners who were armed with deadly weapons were beating a boy named Ashiq. The com - plainant claimed to have seen the occurrence from a window. The accused are said to have thrown at him some bricks. The cause of the incident is stated to be some previous enmity based on the complainant's allegation against Akhtar Mir petitioner that he was responsible for gambling in the locality and that previously some reports were made at the police station. An earlier case between the parties under section 307, P. P. C. was stated to have been compromised. The complainant further stated that he saw Akhtar Mir petitioner firing his pistol twice. Khaliq son of ShSh Zaman a servant of the complainant was also mentioned as an eye-witness. At the end, the complainant stated that as the occurrence took place in front of his house and he was extremely worried, therefore, in order to save his own life he was constrained to report the matter to the Police, and that after the Police arrived at the spot he made the statement to the police. Haji Khalid Saeed a brother of the complainant was also stated to have reached the spot and had seen the occurrence. It was alleged that a brick bat had struck his (Haji Khalid Saeed's) arm. At the end of the F. I. R., in the Police proceedings, it is mentioned that the scribe of the F. I. R., i.e. Nazir Ahmad, Sub-Inspector was present in Police Station when Khakan Saeed came to the Police Station in a perturbed state of mind and toid that a light was in progress. The Sub-Inspector proceded to the place of occurrence where the emergency staff had already reached, and that thereafter, S. Niaz Haider Shah, Inspector also reached the spot. It was in these circumstances that on arrival of the Sub-Inpector, Zegham Saeed the complainant is stated to have made the report noted above. On the basis of this report, case under section 307/148/149, P. P. C. was registered at the police station.
A counter version of the same incident, according to the petitioners, is contained in a written statement (of Safdar Munir petitioner No. 2) which was submitted to the Police a copy of which has been placed on record as Annexute P.
3. According to this version, on the day and time of occurrence noted above, Safdar Muoir was making some purchases at the shop of Sh. Iqbal in Street No. 21, MuhallahDara Shakoh that Ashiq Bhangar, Anwar Saeed Bibra and Akram Kangi, armed with deadly weapons came raising lalkaras. Anwar Saeed Bibra and Ashiq Bhangar asked from Safdar Munir the complainant : Where is Akhtar Mir (presumably petitioner No. 1) who is in habit of supplying intelligence to C. I. A. against us. We have come to finish him today. "On this, Muhammad Ismail (presumably petitioner No. 5) came out of the shop of a doctor and over powered Ashiq Bhangar and Safdar Munir snatched the revolver from him. On this the other two i.e. Anwar Saeed Bibra and Akram Kangi ran away. After sometime the police reached the spot. Akhtar Mir, after having taken the revolver from Safdar Munir, produced it before the police and stated that it had been snatched from Ashiq Bhangar who along with Anwar Saeed and Akram Kangi had come to murder him (Akhtar Mir). The Police took the pistol along with six live cartridges in possession. Ashiq Bhangar, according to Safdar Munir's report had admitted the entire allegations against him and stated that he had acted on the instigation of his companions and that he would not do so in future. The police made some inquiries at the spot and when wanted to hand cuff Ashiq Bhangar he stretched towards Akhtar Mir whereupon the police beat him and thereafter took him to the police station in hand cuffs. Safdar Munir and his party was also taken to the police station. They were made to sit in a barrack. The statement further proceeds that the brother of Anwar Saeed along with 5/6 persons went in the room of Sub-Inspector who in the meanwhile had received some telephone calls. After a considerable time they (Safdar Munir and his companions) were called in and after taking down their statements they were allowed to go. They on the second day however learnt that instead of rewarding them the police had falsely implicated them in this case. [5] [6] local police by another police agency (D. S. P., Ichhra) and the C. I. A. Police. The opinion of the local police and that of C. I. A. is against the petitioners while that of D. S. P., Ichhra is according to the learned counsel in favour of the petitioners. In these circumstances it is not proper for the Court while acting under section 561-A, Cr. P. C. to accept the opinion of one officer in preference to the other. Learned counsel requested that I should send for the entire police record and should come to my own conclusion as to which opinion should be accepted as true. This procedure is hardly justified. It is not necessary to do so because as observed above at this stage it is not proper to decide a criminal case on the opinion of a police officer. In any case I have taken note of the observations made by my learned brother Shaukat Ali, J. in the other connected matter which are as follows :-- "The local police investigated the case and found that the version of Zaigham Saeed was correct.
The accused were not satisfied with the investigation of the case and made petitions to the higher authorities and they entrusted the investigation to the Deputy Superintendent of Police, Ichhra, Lahore. Before him, the complainant repeated his version while the version of the accused was that.................... (I have already reproduced a version in the opening part of this order).......................... The Deputy Superintendent of Police, who investigated this case has doubted the version of Zaigham Saeed in material particulars. In his report he has criticised the complainant's version."
The learned counsel for the petitioners stated that according to instructions received by him the D.
S. P. Ichhra, in spite of his above-noted opinion recommended that the case should be further investigated by the C. I. A. Police, and that the C. I. A. Police after investigation, supported the version of Zaigham Saeed and challaned the petitioners. In this behalf he brought to my notice a complaint made by the petitioners to the Inspector-General of Police that some of his orders have been flouted. As to what happened on that complaint is not known but the fact remains that the final report of the Police on the basis of which the petitioners are being prosecuted, is against them.
It is true that on the basis of a report made by the police under section 173, Cr. P. C. which is favourable to an accused person, some benefit can be given to him under section 497 (2), Cr. P. C. and full benefit in that behalf has been given to the petitioners in the bail matter, but to contend that such an opinion of the police officer is sufficient for disbelieving the entire prosecution version in a criminal case without trial before a competent Court, cannot be accepted at correct proposition of law. The Court is to act upon the evidence produced before it and not upon the opinion expressed by the police and cases are not wanting where in spite of the opinion of the police as to innocence of one or more accused in a particular case, the Court after recording the evidence differed and found the same accused guilty. I, therefore, find no force in the first contention raised by the learned counsel.
5. With regard to the second contention suffices it to say that it relates to the details of prosecution case as disclosed in the F. I. R. Even if thg two circumstances pointed out by the learned counsel in respect of this contention are found to be correct, no finding can be given in these proceedings on that basis without examination of the first informant and without giving him an opportunity of explanation in cross-examination. It may, however, be noticed that, according to the report of the D. S. P., C. I. A., dated the 7th of June 1970, a copy of which is on the record, Ashiq Bhangar the main victim of alleged attack is stated to have suffered 23 injuries. It was also contended by the learned counsel for the State that one Khalid Saeed had sustained a brick-bat injury and that he was medically examined. The second circumstance pointed out by the learned counsel which, according to him, goes against the version in F. I. R. is that the pistol is not alleged to have been used, is not based on the correct reading of the F. I. R. in fact it is mentioned therein that Akhtar Mir petitioner fired his pistol twice. Whether it is a true or false allegation and what is its effect has to be seen by the learned Magistrate. No further comment is necessary in this behalf.
6. With regard to the third contention of the learned counsel, it is an admitted fact that the statement of Ashiq who is the injured person in the case (relied upon by the learned counsel) is contained only in an affidavit and it was not in his statement made under section 164, Cr. P. C., nor was it recorded in any regular proceedings. To place reliance on such an affidvait at this stage in preference to the statement of aforesaid Ashiq which he may make in the Court as a prosecution witness or as a Court witness or as a defence witness, would amount to circumventing the procedure for a trial laid down in the Criminal Procedure Code. Without examining of such a person on oath in presence of parties concerned and without cross-examination, if this Court acts upon such an affidavit, it will amount to creating a dangerous precedent.
1. The last contention of the learned counsel with regard to the earlier false implication of the petitioners at the instance of the complainant party, if based on true facts, may be of some use to the petitioners but it is not possible to decide this petition on the basis of this circumstance.
Moreover, I have noticed from the document placed on the file (Exh. P. 2) that the earlier case also consisted of cross-versions between these parties both of which were found to be false. I, therefore, will not comment any further on this argument.
8. After carefully going through the documents relied upon by the learned counsel and after hearing him, I have come to the conclusion that it is not a lit case in which the criminal proceedings can be quashed. It is not covered by section 561-A, Cr. P. C.
It needs to be noticed that learned counsel for the petitioner cited Hukmat Khan v. The State (1) to support his contentions. It is not necessary to examine that case in any detail because facts [7] are clearly distinguishable. While considering the present cases, I have throughout kept in view the observations made and guide lines given by their Lordships of the Supreme Court in the two well known cases of M. S. Khwaja v. The State (1) and Ghulam Muhammad v. Muzammal Khan and others (2).
In the light of the above dicussion, this petition is dismissed. .
(1) PLD 1965 SC 287 (2) PLD 1967 SC 317