ABDUL GANI Vs. STATE

JUDGEMENT

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

(2.) 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 22/6/2018, 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 22/6/2018 itself but reached police station 23/6/2018 in the morning hours, wherein the respondent no.1 referred them for medical treatment on 24/6/2018 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 Sec. 325/323 RPC on 11/7/2018 without justifying that why the FIR was not registered on 23/6/2018 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 22/6/2018 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.

(3.) A status report on behalf of respondent No.1 has been filed wherein it has been stated that on 22/6/2018 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 22/6/2018 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 Ss. 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 Ss. 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.