Abdul Gani And Ors vs State & Anr

In the instant petition filed under Section 561-A Cr.P.C., the petitioners inter alia seek quashment of FIR No.124/2018, registered with Police Station, Surankote under Sections 307, 382, 452, 147, 148, 323, 34 RPC.

Brief facts of the case are that the petitioners as well as respondent no.2 and his co-sharers are in possession of their respective Dhoks from times immemorial without any interference by each other; that the revenue record also depicts that the parties are in physical possession of their respective Dhoks; that the ancestors of the parties does not have any dispute at all with regard to the Dhoks; since petitioners party is not economically sound as compared to respondent no.2 and his co-sharers, respondent no.2 being also politically influential person, having access to the District Administration, started encroaching the Dhok of the petitioners which was being resisted by the petitioners. It is also an admitted case of the parties that on 22.06.2018, petitioners no.1 to 7, 11 were busy in grazing their cattle, the respondent no.2 along with 11 persons again started encroaching the land of the petitioners and in this process, the respondent no.2 and 11 persons demolished the Kacha Kothas of the petitioners and pounced upon the petitioners no.1 to 7 and 11 and caused multiple injuries to them, while as petitioners no.1 to 7 and 11 could not retaliate because of sudden attack; that respondent no.2 and 11 persons attacked petitioners party under a well planned manner and immediately after causing multiple injuries to the petitioners party, rushed to police station and got the FIR registered against the petitioners/victims. It is an admitted case of the parties that the distance between the police station and Tarkana is more than 30 kilometer, out of which more than 10 kilometers is on foot. The petitioners were injured, could not reach police station on 22.06.2018 itself but reached police station 23.06.2018 in the morning hours, wherein the respondent no.1 referred them for medical treatment on 24.06.2018 without registering FIR against the respondent no.2 and 11 persons. The respondent no.2 for mala fide extraneous considerations appears to have influenced the Additional SP also, who also never sought any action against the respondent no.2 and 11 persons and it was only under the order of learned CJM, Poonch, the respondent no.1 registered FIR No.144/2018 under Section 325/323 RPC on 11.07.2018 without justifying that why the FIR was not registered on 23.06.2018 itself. This shows the biased approach of the respondent no.1 and this also shows that the investigation has not been conducted fairly by respondent no.1. It is further stated that respondent no.1 deliberately and intentionally caused delay in registering FIR against the respondent no.2 and 11 persons. Once the application of the petitioners have shown the name of 12 persons who attacked them with lathis and axes, have not been arrayed as accused for ulterior motives. It is further submitted that petitioner nos.8, 14 and 16 were not present at all on 22.06.2018 at the time of occurrence though other petitioners from 8 to 16 except petitioner no.11, were also not present on spot but all have been arrayed as accused without any material on record.

A status report on behalf of respondent No.1 has been filed wherein it has been stated that on 22.06.2018 complainant namely Ghulam Mohd S/o Mir Mohd caste Gujjar R/o Marhote, Tehsil Surankote appeared in Police Station, Surankote and produced a written application/complaint against 1. Abdul Gani S/o Shah Mir, 2. Mohd Sadiq, 3. Muneer Hussain, sons of Lala, 4. Mohd Rashid, 5. Mohd Shabir, 6. Mir Hussain, 7. Mohd Sharief, 8. Noor Hussain, all sons of Mir Mohd, 9. Liaqet Ali S/o Muneer Hussain, 10. Mohd Rafiq S/o Bhag Hussain, 11.Mohd Farooq S/o Lal Hussain, 12. Fazal Hussain S/o Nazir Hussain, 13. Lal Hussain S/o Mir Mohd, 14. Mohd Younis S/o Mohd Sharief, 15 Mohd Bashir S/o Lal Din, 16. Gulzar Hussain S/o Muneer Hussain caste Gujjar all resident of village Marhote Tehsil Surankote. In his application, he stated that he is a resident of village Marhote, Tehsil Surankote and all the accused persons are also residents of village Marhote Tehsil Surankote. They are neighbours; the accused persons from years ago have an enmity with the complainant on a dispute of a hamlet (DHOK) situated at Tarkanna; the complainant along with his family and cattle's had gone to that hamlet and resides there. On 22.06.2018 at about 14.30 hours the accused persons with common and criminal intention after preparation for taking forcibly possession of his hamlet (Dhok) entered in the cattle shed of the complainant and for killing his family attacked with axes and sticks and beaten the brother of the complainant namely Mohd Aslam and son Ghulam Hussain who got critically injured. All the goods and household present in the cattle shed was destroyed by them. On raising hue and cry some persons came on spot and saved them from the clutches of the accused persons, rather they had killed them. It is further stated that on the application of the complainant, a case under FIR No.124/2018 under Sections 307,382,452,147,323, 34 RPC was registered and investigation of the case was taken up by the then SHO-Sh.Anzir Mir. During course of investigation I.O visited on spot prepared the site plan and recorded the statements of the witnesses u/s 161 CrPC. The I.O. also seized the weapon of offence which was produced by the complainant in the instant case and also prepared the seizure memo and also seized the stained clothes of the injured persons in the case. The statements of both the injured persons were got recorded before the judicial Magistrate. The I.O also obtained the medical report of the injured persons. On medical report, the I.O added offence 324/326 RPC. During course of investigation I.O proved offences under Sections 307, 326, 324, 147, 323 RPC against all the 16 accused persons, offence u/s 452, 382, 34 RPC were not made out and deleted from the case.

I have heard counsel for the parties and perused the file.

Learned counsel for the petitioners during the course of arguments has reiterated all the grounds taken in the memo of petition, whereas the learned counsel for the respondents have argued that the instant petition is not maintainable and the same deserves to be dismissed. The law with regard to quashment of FIR/complaint/criminal proceedings is now well settled. These can only be quashed at initial stage only in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression 'ends of justice' and 'to prevent abuse of process of any court' are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made out or not. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge then High court shall not exercise power under section 561-A Cr.p.c.

In present case, petitioners have been booked under section 307, 326, 324, 147, 323 RPC. Section 307 is heinous; as per FIR petitioners after forming unlawful assembly on 22.06.2018 at about 14.30 hours and with criminal intention after preparation for taking forcibly possession of his hamlet (Dhok) entered in the cattle shed of the complainant and for killing his family attacked with axes and sticks and beaten the brother of the complainant namely Mohd Aslam and son Ghulam Hussain who got critically injured. All the goods and household present in the cattle shed were destroyed by them. On raising hue and cry some persons came on spot and saved them from the clutches of the accused persons, rather they had killed them; all these allegations are required to be investigated by investigating officer, because cognizable offences have been made out. In cognizable offence police has statutory duty to investigate the matter.

All the pleas taken in the petition and those argued may be relevant for discharge of accused, but not for quashing the FIR at initial stage, because all the pleas are pertaining to appreciation of facts. It is not case of petitioner that there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution of FIR and continuance of the investigation into the matter.

In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. However, petitioners are at liberty to take all pleas of facts or law before court below at the time of framing of charge.