' An occurrence took place 'on 24-8-1995 at 4-00 p.m. Within the area of Police Station Khuna, Khanewal wherein Muhammad Yar alias Muhammad Balchsh lost his life. The motive for the occurrence is the previous litigation with respect to the agricultural land. Talib Hussain complainant got recorded F.I.R. No,186, dated 24-8-1995 under section 302/148/149, P.P.C. At Police Station Khuna, Khanewal wherein he expressed that on the previous night to 24-8-1995 he along with Muhammad Yar, Riaz, Iqbal and Manzoor slept in the Bheni of Muhammad Yar. At morning Namaz Wela Allah Ditta and Riaz each armed with .7 mm rifle, Muhammad Nawaz and Zulfiqar each armed with .12 bore carbine, Iqbal armed with .30 bore pistol, Yousaf armed with rifle and Altaf armed with .30 bore pistol formed an unlawful assembly who were standing to obtain the possession of the disputed landed property. All the accused rioted. Riaz and Zulfiqar started firing.
They (complainant party) went inside the Bheni. Allah Ditta fired with his .7 mm rifle which hit Muhammad Yar on the left side of his head. They (complainant party) also fired to save themselves and to pressurize the accused persons to run away. Accidentally one fire hit Muhammad Nawaz. The police started the investigation. The Investigating Officer recorded the statements of the P.Ws. The spot inspection note was prepared. The autopsy on the dead body was got conducted. The investigation lingered on. Thereafter the investigation was transferred to Habib Ahmad Ghuman, D.S.P., Sadar Khanewal. On 24-10-1995 .The accused party through Ghulam Hussain filed a writ petition before Multan Bench of the Lahore High Court with the assertion that their version was not being recorded by the police which was to the effect that on 24-8-1995 at 3- 00 a.m. Muhammad Yousaf, Zulfiqar Ali, Muhammad Iqbal, Allah Ditta, Muhammad Aslam, Muhammad Nawaz and Muhammad Yaqoob were sloughing the land by a tractor. There arrived Talib Hussain armed with .7 mm rifle as well as Muhammad Riaz, Haq Nawaz, Muhammad Iqbal, Muhammad Akram and Muhammad Bakhsh alias Muhammad Yar (deceased of the case) all armed with lethal weapons. They raised the Lalkara that Muhammad Yousaf and Muhammad Nawaz shall not go unescaped. Talib Hussain fired. They left the tractor. The firing effected by Talib Hussain hit Muhammad Nawaz son of Ahmad Yar on his right leg. Muhammad Nawaz was injured.
On that Talib Hussain etc. Fired at Muhammad Bakhsh alias Muhammad Yar and murdered him.
The Lahore High Court passed the following order on 29-10-1995:-- ' The record does not show that the petitioner has ever moved the concerned authorities for registration of the case. The petitioner is directed to present his application Annexure "A" before the S.P., Khanewal who is directed to act in accordance with law. The petition stands disposed of."
' Thereafter on 3-12-1995 Habib Ahmad Ghuman, D.S.P. Recorded the version of Ghulam Hussain and initiated the investigation under section 324/ 148/149, P.P.C. Against the complainant party of the murder case.
2. Feeling aggrieved the complainant party has filed this criminal miscellaneous for the abashment of the cross-version and the proceedings conducted thereafter. The comments have been received from the Superintendent of Police, Khanewal, Deputy Superintendent of Police Sadar, Khanewal and the Station House Officer Police Station Kuhna, Khanewal who have unanimously expressed that it was at the direction of the Lahore High Court, Multan Bench that the cross-version was recorded and finding the substance there in the investigation was conducted. The present position is that against the accused party of the F.I.R. The challan for their prosecution under section 302/148/149, P.P.C. While against the persons of the complainant party the challan for their prosecution under section 324/148/149, P.P.C. Have been submitted before the learned Judge, Special Court for Suppression of Terrorist Activities (Special Courts) Act, 1975.
3. Regarding the abashment of the proceedings conducted against the complainant party under section 324/148/149, P.P.C. The matter in hand has to be processed with and disposed of.
4. I have heard the learned counsel for the parties as well as the learned Assistant Advocate- General for the State and gone through the record before me.
5. The main contention of the learned counsel for the petitioner is that the cross-version has not been recorded by the police during the initial investigation and it was on 24-10-1995 that the writ petition in the matter was filed which was disposed of on 29-10-1995. According to him the delayed writ petition in the / matter is just like the delayed F.I.R., the recitals of which were the outcome of deliberations which cannot be given the weight. He added that the cross-version does not mean that a separate challah should have been submitted and that taking of the cross-version is to project before the Investigating Officer that the same is not an afterthought, if the relevant plea is taken during the trial. According to him in the instant matter the police did not proceed according to the proviso to subsection 1(b) of section 173, Criminal Procedure Code according to which the investigation is to be completed within a period of fourteen days from the date of recording of F.I.R.
Under section 154, Cr.P.C. And in case of failure in the matter within the next three days of the expiration of such period the interim report shall be forwarded to the Area Magistrate through the Public Prosecutor and that it would be the choice of the Court to commence the trial on the basis of such interim report unless for reasons to be recorded the trial should not so commence. He maintained that after the transfer of the investigation the D.S.P. Sadar, Khanewal connived with the accused persons against whom the initial F.I.R. Was got recorded and coined the method in favor of the accused persons by recording their cross-version on 3-12-1995 and submitting the separate challan on the ground that the complainant party formed an unlawful assembly, rioted and made the murderous assault upon Muhammad Nawaz. He continued that initially the contention of the accused persons was that after Muhammad Nawaz was injured Muhammad Bakhsh alias Muhammad Yar was fired at and murdered by the complainant party, but the Police Officer has not agreed with the accused party in this regard as about the murder of Muhammad Bakhsh alias Muhammad Yar the Chillan has been submitting against the accused party concerned/respondents and not against the complainant party. He laid the emphasis that the introduction of the cross-version in this manner would destruct the texture of criminal administration of justice. On the contrary learned Assistant Advocate-General and the learned counsel for the respondents/accused unanimously canvassed that on the basis of the order, dated 29-10-1995 passed by the High Court the D.S.P. Sadar, Khanewal had no option but to record the version of accused persons of the murder case who recorded the same and thereafter proceeded in accordance with law. They added that the reinvestigation of the case/occurrence can be conducted and that it is not a case of an abuse of process of law. According to me the matter brought before this Court is quite ticklish and subtle. I am, however, of the view that the reasoning adopted by the learned counsel for Talib Hussain petitioner must prevail. In the order dated 29-10- 1995 passed by the High Court while disposing of the writ petition filed by the accused/respondents, it is specifically mentioned that "the record does not show that the petitioner has ever moved the concerned authorities for registration of the case". A perusal of the police file has made out that the cross-version was not taken up during the initial investigation and all the accused persons interrogated by the police during the investigation took up the only plea of their innocence. After the registration of the case the investigation has to be conducted in accordance with law and the relevant law in the matter cannot be ignored. Even the F.I.R. Can be got cancelled, if the sufficient material is not available. My view is that the recording of cross- version does not mean that a separate challan has necessarily to be submitted in every case. It is simply to establish that the version was projected before the Investigating Officer at the initial time and was not an afterthought affair being taken up during the trial of the original case. In this view of the matter the recording of the cross-version on 3-12-1995 would not justify the submission of the separate challan as required and desired by the respondents/accused persons of murder case especially when the injury on the person of Muhammad Nawaz has not been suppressed by the complainant party in the aforesaid F.I.R. In the cross-version recorded on 3-12-1995 it is narrated that after Muhammad Nawaz was injured by Talib Hussain petitioner the complainant party itself fired at their person Muhammad Bakhsh alias Muhammad Yar who expired and the false case was got registered. This aspect of the matter could not be established by the accused persons during the investigation as it is the admitted position that against the complainant party the separate/cross-challan for their trial only under section 324/148/149, P.P.C. Has been submitted which has been questioned through the filing of this writ petition. I have to express that the Investigating Officer/D.S.P. Sadar, Khanewal simply helped the accused persons by submitting the separate challan for the trial of the persons of the complainant party for the alleged commission of the offences under section 324/148/149, P.P.C. And his working cannot be approved. At this stage I am tempted to express that to avoid such a belated situation the amendment was effected through the incorporation of the proviso to subsection 1(b) of section 173, Cr.P,C. Through Ordinance No,XXV made operative w,e,f, 12-12-1992. According to this proviso of law after the lapse of a period of fourteen days from the date of recording of the First Information Report, in case the investigation is not completed, within a period of next three days the interim challan has to be submitted by the police before the Area Magistrate who has to decide whether or not to start the trial. The investigation was continued by the concerned police without any justification in violation of the aforesaid mandatory provisions of law. A perusal of the inspection note initially prepared by the Investigating Officer on his first visit to the place of occurrence has made out that the version of the complainant party stands projected. The wisdom behind the introduction/incorporation of proviso to subsection 1(b) of section 173, Cr.P.C. Is the creation of a sort of check/restrain upon the police working as the protracted investigation (especially through transfer of investigation) and non- submission of the challan as required by the law is one of the reasons whereby the law and order situation is worsening in the Province. It is also lowering the authority and prestige of the concerned Station House Officer(s) of the police station(s) visa-a-visa the accused person(s). It is a matter of common sense that after the transfer of the investigation, as according to law a case can be reinvestigated, the different view is generally expressed by the new Investigating Officer about the facts of the occurrence and fate of the same. In the instant matter there are the eye-witnesses who saw the occurrence. The investigation of this case could be completed within 14 days and at least within the next three days the interim challan could be submitted. Ho ever, the police file is silent as to why the provisions of proviso to subsecti6n 1(b) of section 173, Cr.P.C. Were ignored by the Police Officer. Had he proceeded in accordance with law there would have been no occasion for recording the cross-version of the accused party and the separate challan could not have been prepared and submitted for the prosecution of the persons of the complainant party under section 324/148/149, P.P.C. No doubt an accused is a favorite child of law, but the complainant has also to be given the due weight keeping in view the shape of scale of justice. According to me the view which is for the betterment of the society at the present time, when the law and order situation is worsening, must be given the weight and followed. That is why that the accused persons(s) should not be given the aforesaid type of concession even if there is violation of provisions of proviso to subsection 1(b) of section 173, Cr.P.C. To. The detriment of the complainant party. If the police working w,e,f, 3-12-1995 onwards is approved then there would be administrative chaos resulting in judicial anarchy as the police is intentionally and generally not following the aforesaid provisions of law. Thus, opening of impugned type of front is devoid of legal considerations. The superior Police Officers should give weight to the aforesaid mandatory provisions of law lest the matter(s) may not go out of their control as such type of investigations at belated stage with the transfer/change of the Investigating Officer shall become order of the day based upon conjectural hypothesis. The Police Officer/Investigating Officer cannot be allowed to submit the separate challan for the prosecution of the persons of the complainant party in this case as his such a working is simply an abuse of process of law. This is nothing but putting the pressure upon the complainant party of the murder case against whom allegation of murder of Muhammad Yar alias Muhammad Bakhsh was also made, but has not been considered. And proved in the fresh investigation. Without prejudice it can be expressed that the injury on the person of Muhammad Nawaz accused which fact has not been suppressed in the F.I.R. May be an ingredient in favour of the prosecution case. If during the trial the cross-version is brought before the Court the same can be dissected, analysed, considered, appreciated and disposed of either way in accordance with law. However, it would be proper to repeat that the Investigating Officer cannot be allowed to go beyond his limits in the matter at the belated stage to grant wrongful gain to the accused persons on the basis of the figment of his brain.
6. For what has been said above, I accept this writ petition and quash the proceedings of the challan submitted under section 173, Cr.P.C. Under section 324/148/149, P.P.C. For the trial of some persons from the complainant party. Thus, the relevant challan under section 324/148/149, P.P.C.
Stands eclipsed from the file of the learned Judge, Special Court Suppression of Terrorist Activities (Special Courts) Act, 1975. However, it is made clear that during the trial of the murder case the cross-version may be taken up by the accused party as defense plea and that aspect of the matter shall be considered in accordance with law by the learned trial Court as expressed supra.