Khuda Bakhsh, the sister's husband of Niaz Ahmad complainant of the present case, was murdered by Shabbir etc. 11 persons and they were challaned to the Court. Shabbir made good his escape from police custody and was at large on the night of 21-11-1990 when the present occurrence took place.
2. According to the F.I.R. Lodged by Niaz Ahmad on the above-mentioned date at 10-30 a.m. When the family were present at the house, from the nearby uninhabited Choubara the two petitioners armed with Klashnikov and rifle and the said Shabbir also with a Klashnikov and three unknown persons, started firing. Even hand-grenades were thrown by Rehm Din petitioner and Shabbir co--- accused. Then the house was ransacked and Baithak set on fire. Thereafter the culprits entered the cattle haveli and there as well set a room on fire. Fring continued for about one hour.
2-A. The contentions raised are that the petitioners had been found innocent by the Deputy Superintendent of Police. Case Diary No.23 dated 15-4-1991 had been recorded in this behalf, due to previous civil litigation the petitioners had been falsely involved, Rehm Din was not present in the village while Walayat petitioner's mother had died on the very night and affidavits had been produced before the police in support of innocence.
3. I have looked into the case diaries. Strange to note that without even the arrest of a single accused, the police started recording the plea of innocence and evidence in support thereof. The partisan attitude is more than clear. Not only this but the very fact that the case diary number and its date declaring the petitioners innocent is known to them shows the mala fides of the police and their complicity with the petitioner party. Case diary is a document which should only be known either to the police or the Court when produced and to none other. This practice which has crept into the system must be curbed with strong hand not only by the higher police officers but by the Courts as well, as it undermines the very foundation of the system of administration of criminal justice.
4. Right in the beginning when the two parties with their supporters confronted each other in presence of the investigator, four/five respectables were chosen on whose oath the innocence or otherwise of the petitioners was agreed to be settled and they having taken the oath, the petitioners were arrested. After this usual mode of investigation there was no further reason to enter upon the plea of the petitioners by the Deputy Superintendent of Police. The complicity of the police is clear. Another very strange practice has developed, that of filing/obtaining of affidavits during investigation. The police have started conducting the investigations as if they are sitting on judgment and holding trials. This practice must stop forthwith. It is the function only of Courts to record evidence or appraise the same. The police should not try to appropriate the function of the Courts.
5. The police on reaching the spot recovered as many as 90 crime empties of klashnikovs and rifle and 20 pieces of hand-grenades. Hence the version given by the eye-witnesses seems to be correct that on a large scale firing was resorted to and the family tried to be subdued, so that they may not pursue the case of murder of Khuda Bakhsh. No ground for bail. The petition is dismissed.