ASLAM RIAZ HUSSAIN- ACTG. C. J.-This judgment shall dispose Criminal Appeal No. 179 7~ filed by Kushi Muhammad Dogar a Criminal Appeal No. 180;78, filed by Altaf Hussain Baluch, against dismissal of their appeals by the Lahore High Court in a case un section 302, P.P.C., vide separate judgments dated 5th April 1978 leading judgment being in Criminal Appeal No. 606/76 filed by Ku Muhammad Dogar) and confirming their death sentence.
The two appellants were tried alongwith (1) Taj Pehlwan, (2) Muhammad Aslam, (3) Muhammad Akbar. (4) Hafiz Abdul Samad, (5) Shabbir, (6) Muhammad Arif, (7) Hanif Nazim, (8) Amanat A.I and Muhammad Ishaq by the Additional Sessions Judge, Lahore inter alia, for the murder of Abdur Rahman.
2. The learned trial Judge after considering the evidence on the record convicted Altaf Baluch and Khushi Muhammad Dogar, appellants, only and acquitted the remaining accused by his judgment dated 8th May, 1976. The convicted accused were sentenced to death under section 302. P. P. C. A fine of Rs. 2,000 was also imposed on each of them and in default of payment thereof they were ordered to undergo one year further R. I. Each. The fine if recovered was ordered to be paid to the heirs of Abdur Rahman (deceased).
Kushi Muhammad Dogar and Altaf Baluch filed separate Appeals (Nos. 606/76 and 1144/76 respectively) before the Lahore High Court against their conviction and sentence. But the same were dismissed by a Division Bench of the High Court on 5th April, 1978. Their convic--petition was maintained and death sentences were confirmed under section 374, Cr. P. C. As stated earlier the leading judgment was recorded in the appeal of Khushi Muhammad Dogar.
Feeling aggrieved, both of them filed separate petitions before this Court and Leave was granted to them for re-appraisal of evidence, on 19th June, 1978.
3. The prosecution case, according to the F. I. R. Is that on 30th April, 1974 Abdur Rahman (deceased), President of the Mazdoor Markaz, alongwith Abdul Ghafoor complainant (P.W. 12), Joint Secretary of the Packages Ltd. Workers' Union, Kundan Lal, Jawad Shami, P.Ws. And some others had to appear before the National Industrial Relations Commission (hereinafter called N.I.R.C. For brevity), at the Chamba House, Lahore, in the case titled Altaf Baluch and others v. Abdur Rahman and others'. The case was instituted on a complaint filed by Altaf Baluch appellant. Both the parties.
Therefore, appeared before the N.I.R.C. At Chamba House and after the hearing, at about 12-15 p.m.
Abdur Rahman and three of his companions started back for Packages Ltd. Factory on motor cycles. Suzuki Motorcycle No. LEH 6604 was driven by Master Bashir Ahmad P.W. And Abdur Rahman (deceased) was sitting on his back seat, while Abdul Ghafoor complainant followed them on his own motorcycle (LEH 6676), with Kundan Lal P.W on the rear seat. At the same time the accus--ed persons, who had also come to the N.I.R.C. In connection with the aforementioned case, prepared to leave Chamba House. Seven of the accused persons namely, Altaf Baluch, Khushi Muhammad.
Muhammad Aslam, Taj Pehlwan, Abdul Samad, Akbar and Muhammad Ishaq sat in a jeep while Shabbir, Arif, Hanif Nazim and Amanat co-accused boarded a taxi, and followed the deceased party. At about 12-30/12-40 p.m. They over--took the above said Abdul Ghafoor etc., who were going to Packages Ltd. On motorcycles via Ferozepur Road, near the Gulab Devi Hospital the driver of the jeep struck its side against the Suzuki of Master Bashir Ahmad P. W., on which Abdur Rahman (deceased) was also sitting. As a result the motorcycle as well as the two above-named passengers fell down on the left side of the road. Abdur Rahman ran towards the Gulab Devi Hospital while Master Bashir Ahmad P. W. Ran across the road, towards the opposite side, in order to save their lives. In the meanwhile the jeep had stopped, and the 7 accused named above who were sitting in it, came out raising lalkaras and firing at the deceased. The taxi also stopped and the accused sitting therein (named-above) also came out and joined the other accused. Most of the accused were armed. Altar Hussain Baluch and Khushi Muhammad Dogar, Ishaq, Shabbir and Amanat were carrying pistols, Akbar and Hafiz Abdul Samad had guns, while Taj Pehlwan was armed with a datar and Aslam accused had a Khanjar but Arif and Hanif, Nazim accused were empty-handed and were raising lalkaras.
On hearing the report or the fire-arms Abdul Ghafoor also stopped his motorcycle near the northern gate of Gulab Devi Hospital. He as well as Kundan Lai, who was sitting on the rear seat of that motorcycle, also rushed and followed assailants into the hospital compound and witnessed the incident from behind some tree near the building of the hospital. Abdur Rahman, deceased, crossed the compound of the hospital and entered its verandah. He then went to the Reception Room and tried to bolt its door from inside. The accused persons, how--ever, broke open the door, four of them entered the reception room and chased him into the dispensary and where they attacked him and fired a number of shots at Abdur Rahman (deceased) and also caused him inju- -ries with Khunjar and datar carried by two of them. After injuring him they came out and fled away in their jeep and taxi, which were standing on the roadside. Besides Abdul Ghafoor and Kundan Lai P.Ws. The occurrence was also witnessed by Feroze Masih P. W. And some other per--sons in the hospital. After the accused had left, Abdul Ghafoor and Kundan Lai P. Ws. Entered the dispensary of the hospital and found Abdur Rahman lying in a pool of blood. He told them, in sinking voice, that Altar Baltich and his companions had injured him. In the meanwhile some other employees of the hospital also came there and tried to give first-aid to Abdur Rahman but he succumbed to the injuries.
4. The motive for the offence is stated to be that Abdur Rahman as well as Altar Hussain Baluch were Labour Union leaders, They contested the referendum held in the Packages Ltd. Factory. The Union led by Altar Baluch was defeated. Earlier, on a report made by the complainant party, Khushi Muhammad Dogar appellant and his companies had been arres--ted for an offence under section 307, P. P. C. For having made a murder--ous assault on the companions of Abdur Rahman (deceased). It is alleged that being apprehensive of the popularity of Abdur Rahman and considering him to be a stumbling block in their way, the accused persons wanted to remove him from the scene and as such murdered him in pur--suance of the pre-conceived plan.
4-A. Some one informed the police at Police Station Ichhra on telephone that a murder had been committed at the Gulab Devi Hos--pital. Maqbool Hussain Muharrir, A.S.I., P. S. Ichhra, recorded the report in the daily diary at 1 p.m. At Serial No. 20, Exh. PF 1, 2, 3) about the information received by him and handed it over to Muhammad Tufail A.S.I. The latter at once proceeded to the Gulab Devi Hospital where he met Abdul Ghafoor complainant outside the hospital premises. By that time thousands of factory labourers were milling around in the premises of the hospital. Abdul Ghafoor gave a written complaint (Exh. P J) to the A. S. 1. Incorporating the facts which have been mentioned above. The latter recorded his own report at the foot of the written com--plaint and sent it back to the police station, ichbra, for registration of the formal F. I. R. Exh. P. G. Which was recorded at 2-30 p.m. Soon thereafter Abdul Hayee, S. 1, also reached, the spot and took over the investigation from Muhammad Tufail. A. S. 1. He prepared the injury and inquest reports and under the directions of the D. S. P. Ichhra, sent the dead body to Gujrat for post-mortem examination.
Abdul Hayee, S.I., then inspected the spot, recovered Suzuki motorcycle (LEH 6604) belonging to Master Bashir Ahmad P.W. And 3 empty cartridges from the com--pound of the hospital and took them into possession.
The post-mortem report revealed the following injuries on the person of the dead body of the deceased :-
(1) A fire-arm entry wound ----- x 1/4" directed backwards, with blacken--ing and inversion of edges, situated on outer aspect of left upper arm.
(2) A fire-arm entry wound 1/4" x 1/4"x directed into the chest cavity, situated on front of right chest, 3' medical to the right nipple. The edges showed blackening.
(3) A fire-arm entry wound 1/2" x 1/2" directed into the chest, cavity situated in front of right side chest, 2 -- " below the- right nipple. Edge showed burning.
(4) A fire-arm entry wound measuring 1/4" x 2/3" directed into the abdomi--nal cavity, situated in the left lines fossa (left lower abdomen), 3 -- ' to left of umbilicus.
(5) A fire-arm entry wound 1/4" x 1/4" burnt edges, situated on the outer aspect of the right buttock.
(6) A fire-arm entry wound ----- x ----- with burnt edges, situated on the back of the right shoulder blade.
(7) A fire-arm entry wound 1/4" x 1/4" with burnt edges situated on the back of left side waist just above left buttock.
(8) A fire-arm entry wound measuring 1/4" x 1/4" situated on the medical side of left thigh in its upper part.
(9) A fire-arm entry wound 1/2" x 1/2" with overted edges situated on the outer aspect of right chest.
(10) A fire-arm exit wound 1/4" x 1/4 with overted lacerated edges situated on back of right side chest, 2 -- below right shoulder blade.
(11) A fire-arm exit wound"1/8 x -- with overted lacerated edges situated on the right buttock.
(12) A fire-arm exit wound 1/2" x 1/2" with overted lacerated edges on back of left thigh.
(13) A fire-arm exit wound ----- x ----- on the back of left upper arm.
(14) An incised wound 3" x 3/4" brain depth on back of right side head. The underlying right parietal and occipital bones were cut clean and brain matter was visible through the wound.
(l5) An incised wound 2 ----- x 1/2" brain depth on right side back of head -- behind injury No. 14.
The occipital bone was cut clean.
(16) An incised wound 4" x 1/2" x bone deep on right side back of head.
(17) An incised wound 1-1/2" x ----- x muscle deep on the back of head, 1--- behind injury No, 16.
(18) An incised wound l --" x ----- x bone deep on right side head, 3--- above the pinna of right ear,
(19) An incised wound 1" x 1/2" muscle deep on the back of left hand across the inter-digital web between ring and middle fingers.
It may be mentioned that simultaneously with the local police (of P.S.I. Ichhra), the C.I.A. Also took up the investigation of the case under Gul Muhammad Inspector Police. He proceeded to Sahiwal in order to arrest Khushi Muhammad Dogar appellant and alongwith him he also arrested 5 other persons namely Abdur Rahman, Liaqat, Fateh Muhammad, Sharif and Abdul Majid who were sitting with him in a car in Chak No. 60/4-R in District Sabiwal. It would be recalled that the names of the accused persons arrested from Sahiwal, other than Khushi Muhammad Dogar, appellant, are not mentioned in the F. I. R. Lodged by Abdul Ghafoor P.W. On searching them he recovered a gun and some live cartridges from Khushi Muhammad Dogar; a knife from Abdur Rahman and a licensed revolver from Fateh Muhammad. He took into possession these weapons brought all the above- mentioned persons had submitted a separate report under section 173, Cr. P. C. Against them in connection with murder of Abdur Rahman (deceased). The accused mentioned in F. I. R. I e. Altaf Baluch etc. Were also arrested on various dates in May, 1974. Two of them led to the recovery of a revolver and a datar, respectively. After the investigation all the accused mentioned in the F. I. R. As also the 4 persons who were arrested by Gul Muhammad S. 1. From Sahiwal atongwith Khushi Muhammaa Dogar appellant were sent up for trial before the Additioual Session Judge, Lahore.
5. At the trial the prosecution gave up the five accused (other than Khushi Muhammad Dogar) mentioned in the report submitted by Gul Muhammad Inspector and prosecuted the case only against the accused mentioned in the F. I. R.
6. The learned trial Court felt that the prosecution had successfully brought home the charge of murder to Altaf Hussain Baluch and Khushi Muhammad Dogar, appellants and, therefore, convicted them for the murder of Abdur Rahman and sentenced them for the same, as mention-- ed in Paragraph No. I above, while it acquitted the remaining accused persons.
As already mentioned the appeals of the aforementioned two con--victs before the High Court failed and their death sentences were confirmed, Hence the present Appeals by leave of this Court, for re-appraisal of the evidence.
7. We have heard the learned counsel for the appellants; the learned State counsel and the counsel for the complainant at considerable length and have also gone through the entire evidence on the record with their help.
The two learned defence counsel, appearing for each of the appellants respectively, raised a number of contentions, the main out of which are , that the F. I. R. Was recorded belatedly and is suspicious in character inasmuch as Abdul Ghafoor complainant (P. W. 12) was unable to say as to who had written it and from where had the sheets of paper which appear to have been torn out of a register maintained by the Labour Union, and on which the report was written has been obtained ; that no evidence has been produced to show as the Suzuki of Bashir Ahmad had been damaged or that Bashir Ahmad P.W. And Abdur Rahman who were alleged to have fallen down from the Suzuki after it had been hit by the jeep, had received any injuries ; that it was not open to the prosecution to have given up the eyewit--nesses pertaining to a different set of accused sent up for trial on the final report submitted by Gul Muhammad, Inspector Police ; that instead of getting the post-mortem examination on the body of the deceased conducted at Lahore, the same was taken to Gujrat for that purpose and that this casts serious suspicion on the conduct of the investigation that at the trial Abdul Ghafoor complainant had changed the version relating to the chasing of the deceased by the accused persons and instead of deposing, as stated by him in the F. I. R. Which was that all the accus--ed-persons had chased Abdur Rahman into the hospital. But he stated at the trial that three of the accused persons, namely, Hanif Nazim, Arif and Hafiz Abdul Samad kept standing, near the vehicles, on Ferozepur Road, while the remaining 7 accused followed Abdur Rahman into the hospital, and again, only 4 out of those seven namely ; Khushi Muhammad Dogar, Aitaf Baluch, Taj Pehlwan and Aslam, had entered into the hospital building after breaking open the door of the reception room and killed Abdul Rahman in the dispensary, it was submitted fur--their that since the other two eye-witnesses namely Kundan Lal and Master Bashir Ahmad had supported this new version introduced by Abdul Ghafoor (P.W. 12), they too are unreliable ; that at the trial Abdul Ghafoor P. W. Has omitted to mention that the deceased had uttered a few words in a shinking voice before he died naming Altaf Baluch and his companions as the assailants ; that the names of Farooq and Shah Badar P. Ws. Were not mentioned by Abdul Ghafoor P.W. In the F. I. R. Because they were not present in the hospital at the relevant time ; that in their statements under section 161, Cr. P. C. And before the C. M. Feroze Masih, Farooq and Shah Badar, P. Ws., have not mention--ed the names of Ghafoor and Kundan Lal P.Ws. As being present in the hospital and that as such their testimony at the trial should not have been believed and relied upon as providing corroboration of the testimony of the said eye-witnesses, namely, Ghafoor and Kundan Lal; that the statements of Kundan Lai and some other P.Ws. Under sec-- petition 161, Cr. P. C. Was recorded belatedly on 2nd May, 1976, which casts doubt on their testimony ; that names of the accused did not appear in the Press till S/6 days after the occurrence, which shows that the names of the accused were not known till then and that the F. I. R. Was recorded subsequently, after due deliberations ; that Ghafoor and Kundan Lai P. Ws. Have stated that they had seen the occurrence from behind the trees in the compound of the Gulab Devi hospital from which it is argued that they were unable to see as to what had happened inside the reception room ; that it is in evidence that entries in the register (Exh. P J) maintained at the gate of the Packages Ltd. Show that the motorcycles of Ghafoor and Bashir Ahmad. P. Ws., were parked within the factory premises at the time of the incident which showed that 3 of the eye-witnesses, namely, Ghafoor, Kundan Lai and Bashir Ahmad were present in the premises of the said factory at the time of the occurrence and had gone to the spot after hearing about the incident and ; that Altaf Baluch had told the police during the investigation that from the N. I. R. C. He had gone to the D. I.-G. With whom he was sitting at the time of occurrence, but the investigating officer made no effort to verify this fact supporting the plea of alibi taken by Altaf Baluch appellant ; that Abdul Ghafoor P. W. Has not mentioned in his statement at the trial that on entering the dispensary, he and Kundan Lai found Abdur Rahman lying in a pool of blood and he whispered the names of his assailants in sinking voice ; that the statement of Kundan Lai (P. W. 21) made at the trial shall not be relied upon as he was not produced as a witness before the Committing Magistrate.
The learned counsel for the State and the complainant controverted all the above-mentioned contentions and gave their reasons for the same.
8. Before we proceed to take up each of the above-mentioned con--tentions one by one, for consideration, we may mention that for a proper understanding of the facts of this case and in order to properly appreci--ate and evaluate the evidence on the record it would be useful to recapitu--late and keep in mind the conditions and the atmosphere prevailing in the factories and industrial concerns at the time when the murder of Abdur Rahman (deceased) took place. It was the middle of 1974 when labour agitation was at its height. Labour leaders wielded vast power over their followers whose number ran into tens of thousands. Their large following gave the labour leaders considerable leverage with the factory owners and the management as well as with the Government of the day. To be office holder of Labour Unions, therefore, assumed great importance and consequently labour leaders, relentlessly jokeyed for position and offices through election in Labour Unions. Each group was trying to out do and defeat the other and, as is usual in our country, at all levels, strong party factions had developed. The conflict of interests, and tussle for power between the labour leaders, as also tension created during the Union elections generated hostility between the various factions and their leaders which gave rise to strong and bitter animosities. It is also in evidence in this case that similar hostilities existed between the complainant party led by Abdur Rahman (deceased) and the accused party led by Altaf Baluch appellant which had resulted, inter alia, from the latter's recent defeat at the hands of Abdur Rahman (deceased), in the referendum which took place in the Packages Ltd., sometime prior to the occurrence.
8-A. It is also evident from the prosecution version that the manner in which the murder was committed in the present case is different from that usually adopted in this country. It was a daring operation, wherein a gang belonging to one faction attacked the leader of another in broad -- daylight, on one of the main thoroughfares of the city, totally unmindful of the fact that dozens of persons may be watching them. The assailants in the present case chased their quarry from the Chamba House and, on catching up with him, struck their heavier vehicle against the motor--cycle on which he (Abdur Rahman) was going and felled him down. When he ran into the premises of the Gulab Devi Hospital in a desperate effort to save himself, the accused who were armed with dangerous wea--pons including fire-arms, chased Abdur Rahman in the presence of a large number of persons, fully determined to finish him. When he managed to enter the hospital building and closed the door from inside, they broke it open and blazed away at him with their fire-arms.
Having finished the gruesome job the four accused calmly came out of the hospital ; boarded their vehicles and rode away.
9. It cannot be denied even by the defence that the murder in this case was witnessed by a number of persons. The question, however, is to determine who committed it. This can, of course, be established only through evidence, including that of the eye-witnesses.
It must however, be borne in mind that in cases like the pre--sent one the witnesses would be under tremendous pressure and most of the persons who witnessed the occurrence would not be willing to come forward and depose as to what they had seen, for fear of their own lives. It is in this background that the evidence in this case has to be appreciated. , 9-A. The fact- that the complainant and the accused parties belong to opposing factions of labour in the Packages Ltd. Is accepted. It is also on record that Altaf Baluch (appellant) and his companions had filed a complaint before the N.I.R.C. Against Abdur Rahman (deceased) and his companions including Jawad Shami, Abdul Ghafoor and Kundan Lai, P. Ws. It is also on the record through Muhammad Ibal (P. W. 6), the Secretary of the N.I.R.C., that the parties were required to appear before the Commission on 30th of April, 1974, and that they appeared before it, on the 2nd call at 11.30 a. m. Which fact is supported by Exh. P.G.
4. It was also natural for the parties to return to the factory (Packages Ltd.), after the proceedings were over. It is also not denied that the murder was committed in the dispensary of the hospital at about 12-30 p. m. On that day. The question as observed earlier. Is as to whether it was the appel--lants and their companions who had committed the murder and also whether they had done so in the manner described by the eye- witnesses.
10. The case of the defence, broadly, is that the appellants had no hand in .The matter and that the murder had been committed by some other persons or agency. It is further contended by the defence that none of the eye-witnesses, specially, Abdul Ghafoor (P. W. 12) and Kundan Lai (P. W.
21) were present at the spot and that they (i.e. Ghafoor and Kundan Lai, P. Ws.) were, in fact, sitting in the canteen of Packages Ltd. At the relevant time.
11. The first attack made by the learned defence counsel is against the F.I.R. Itself i.e. The starting point of the case. It was urged by the learned counsel that the F. I. R, was recorded belatedly after due deliberation be--cause the names of the assailants were not known to any one, till they appeared for the first time in the newspapers on the 5th/6th of June, 1974. It was contended that the names of the assailants were not even mentioned in the inquest report, from which it was sought to be inferred that the investigation officer did not know names of the accused persons when he prepared the said document.
The learned counsel submitted further that Abdul Ghafoor com--plainant, who had handed' over a written report about the incident to the police covering 3 foolscap lined pages, could not explain from where he had obtained those papers. Nor could he say as to who was the scribe of the report and whether he was a police officer or a civilian. From these facts he wanted us to infer that the report was not submitted by Abdul Ghafoor P. W. But was written by some one else belatedly, after the story had been concocted.
11-A. We are not inclined to agree with these contentions. It is in evidence that the Police at Police Station Ichhra was informed about the incident on phone soon after the occurrence ; that one entry to that effect was made in the relevant register ; that Muhammad Tufail, A. S. I. Reached at the spot within 1 /2 hour and that the report i.e. F. I. R. Was lodged at Police Station Ichhra at 2.30 p. m. On the same day. The report contained not only the description of the manner in which the incident took place but also mentioned the names of all the accused persons in--cluding that of the two appellants ; and that the names of the accused appeared in some of the daily newspapers of 3rd May, 1974 (published after the `May Day', as no newspaper was published on 2nd of May, 1974, due to holiday). As already mentioned, it was the most sensational murder of that period and it is in evidence that on hearing the news of the death of their leader thousands of workers had reached Gulab Devi Hospital even before the police arrived there and the entire traffic on Ferozepur Road near the scene of occurrence was blocked. It is not difficult to imagine the state of confusion and pandemonium that must have prevailed at the Gulab Devi Hospital at that time. Considering the desperate and violent nature of the attack in which Abdul Ghafoor P. W. Could himself have been easily done to death and the sight of his deceased comrade, riddled with injuries, must have stunned and shocked him to an extent that one cannot expect him to have remained in full control of his faculties, specially when thousands of labourers and workers were swirl--ing around in a state of extreme excitement and pushing forward in order to see their deceased leader. It is not difficult to believe that under these extraordinary circumstances he might not have paid much attention as to who had brought him the papers to write on and who was the person -who actually took down the report as narrated by him, specially after a lapse of so much time, during which his mind must have been engaged with many other problems in connection with the murder in question as well as other matters pertaining to workers and Union politics. The sheets of papers on which the report was written appear to have been torn from a register which, 'as suggested by the defence counsel, may have been maintained at the office of one of the Unions and it is certainly possible, as suggested by the learned Assistant Advocate-General, that such a re--gister might have been brought by Abdul Ghafoor or one of his com--panions with them while attending ,the Court of N.I.R.C. As already observed, it is in evidence that the report was handed over to Muhammad Tufail, A. S. 1, within an hour of the incident and the F. I. R. Containing names of the accused was registered at Police Station lchhra at 2-30 p. m. On the same day. It cannot, therefore, be said that names of the assailants were not known at that time. The fact that they were not mentioned ;re the inquest report can also be explained by the conditions prevailing at the spot under which the investigating officer prepared that document.
12. The learned defence counsel then argued that the story about' tae accused having hit the Suzuki of Bashir Ahmad P. W. With the side of as Jeep as a result of which Abdul Rahman (deceased) and Bashir Ahmad, P.Ws., fell down, is incorrect, firstly because there is no evidence.
That Bashir Ahmad P.W. And Abdur Rahman had received any injuries as a result of the said fall and secondly because nothing, has been brought on the record to show that the Suzuki in question had been damaged.
We are afraid this contention is not correct because as far as the Suzuki is concerned the recovery memo (Exh. P B) itself shows that when it was taken into possession the motorcycle was found to be damaged. Moreover Muhammad Tufail A. S. 1. (P. W. 22) has also stated about its being found in a damaged- state at the time of its recovery. As for injuries on the persons of Abdur Rahman, deceased, and Bashir Ahmad P. W., it may be mentioned that the medico-legal report of Bashir Ahmad P. W. Showing the injuries sustained by him (and thus showing his presence at the spot) is on the file, but we cannot take notice of it as the Public Prosecutor failed to prove it due to his negligence. As far as Abdur Rahman is concerned, in view of the large number of fire-arm and serious incised injuries on his person, it is no wonder that the doctor omitted to mention some scratches or bruises that might have been caused due to his fail from the motorcycle after having been hit by the jeep.
13. The learned counsel also laid stress on the fact that although Gul Muhammad Inspector Police had introduced a new and different version of the same case through his report under section 173, Cr. P. C., against 6 persons, five of whom are not mentioned as accused in the F,. I. R., yet the prosecution did not produce and examine the witnesses cited in support thereof. This contention overlooks the fact that it is well established that it is not incumbent upon the prosecution to produce each and every witness in the calendar of witnesses and it can drop or not examine any witness that it does not consider necessary.
14. The learned defence counsel also criticised that the post-mortem of the deceased was not got conducted at Lahore and, instead, the body of Abdur Rahman was carried to Gujrat for that purpose.
It is indeed correct that the dead body was taken to Gujrat and the post-mortem was conducted there but the reason for the same has been brought on the record through the testimony of Muhammad Hanif (P. W. 15) and Abdul Ghafoor (P. W. 12). The Labour in the Kot Lakhpat as well as in other areas of Lahore were already in a high state of excitement. The Labour Day (Ist of May), fell on the next day and the Labourers had declared their intention to carry the dead body of Abdur Rehman in the form of a procession through the city. This was certain to create a grave law and order situation. The Administration, therefore, acted wisely in taking over possession of the dead body ; taking it out of Lahore and carrying it to Gujrat; which happened to be the home town of Abdul Rehman, The fact that autopsy had been got conducted at Gujrat cannot, therefore, be put forward as a fact casting doubt on the conduct of the investigation or the truth of the prosecution case, specially, when the learned defence counsel has not alleged that any of the injuries mentioned in the post-mortem report had been manufactured subsequently or that they had been wrongly described, in the said report,
15. The main contention urged by the learned counsel for the appel--lants was .That Abdul Ghafoor (P. W. 12) complainant had changed the version given by him in the F. I. R. Relating to the chasing of the deceased by the accused persons. In the F. I. R. He stated that after getting down from the jeep and the taxi all the accused persons chased Abdur Rehman (deceased) into the hospital. The actual words used in the F. I. R., are: But at the trial he stated that when Abdur Rehman ran into the Gulab Devi Hospital to save his life, three accused namely, Hanif Nazim, Arif Billa and Hafiz Abdul Samad, remained outside near the jeep and the taxi, while 7 of them, namely, Altaf Baluch, Khushi Muhammad Dogar, Taj Pehiwan, Aslam, Amanat, Shabbir and Ishaq, accused, chased him into the hospital. He (i. e. Abdul Ghafoor) and Kundan Lai, P. Ws. Who had also followed them into the hospital compound, were watching this from behind some tree in, the lawn near the hospital building. Abdul Ghafoor P. W. Has stated further that after entering the reception room Abdur Rehman bolted the door from inside but the accused broke it open and three of them namely Altaf Baluch, Khushi Muhammad Dogar and Taj Pehlwan entered the room while the remaining accused Shabbir, Aslam, Amanat and Ishaq, remained standing outside.
The learned defence counsel vehemently urged that this amounted to a radical change in the version as given by Abdul Ghafoor P. W. In the F. I. R. As such he is an unreliable witness whose testimony should not be relied upon.
We are afraid we are not persuaded to agree with this contention because it overlooks the fact that an F. I. R. Is never intended of considered to be a document describing the minor or incidental details of the incident in question. In the F. I. R. Abdul Ghafoor state4 that "the f accused" chased Abdur Rahman when the latter rushed into the premises of the Gulab Devi Hospital and broke open the door of the reception room. At the trial he simply elaborated' the description of this part of the incident giving further details, which cannot in any way be dubbed as change of version.
16. The learned defence counsel also urged that Farooq and Shah Badar were not present in the hospital at the spot, because their names bad not been mentioned in the F. I. R. In the first place, in the rush of things Abdul Ghafoor may not have noticed them and secondly, in view of the circumstances prevailing, as noted above, the omission to mention their names cannot cast any serious doubt on the authenticity of the F. I. R. Or the presence of the aforementioned two witnesses in the hospital at the relevant time.
17. It was contended further that in the statements made by Feroze Masih, Farooq and Shah Badar, P, Vas. Under soceion 161, Cr, P. C. And before the Committing Magistrate, the names of Abdul Ghafoor and Kundan Lai, P. Ws., were not mentioned as being present at the hospital at the relevant time. This, according to the learned defence counsel showed that these P. Ws. i.e. Abdul Ghafoor and Kundan Lai, were not present at the spot.
We are not inclined to agree with this contention, because this omission on the part of sFeroze Masih, Farooq and Shah Badar is also explainable by the conditions prevailing in the hospital at that tune. The fact that these witnesses had not noticed or mentioned the presence of Ghafoor and Kundan Lai, P. Ws., does not adversely affect the prosecution case, as the same is based on two sets of witnesses, the first consists of Ghafoor, Kundan Lai and Bashir Ahmad, P.Ws., who saw the four persons including the two appellants chasing the deceased into the reception room of the hospital after breaking open its door, while the second set of witnesses consists of Feroze Masih and Shah Badar who were employees of the hospital, and Farooq P.W., who was a patient in the said hospital. They saw four persons entering the hospital in pursuit of the deceased, entered into the dispensary ; they heard the report of fire-arms used by some of the assailants and on entering the dispensary shortly afterwards they saw the body of Abdur Rahman riddled with fire-arm and stab injuries, lying in a pool of blood. What the last mentioned set of witnesses saw was later part of the incident while the set of first mentioned three witnesses has deposed as to the identity of the four accused who had chased Abdur Rahman into the Hospital building. It is possible in the circumstances of this case for each set of witnesses to have seen relevant part of the incident without noticing each other and even in that case they would be corroborating each, other's testimony on a very material aspect.
18. The learned defence counsel criticised the fact that statements of Kundan Lai and some other 1'.
Ws. Under section 161, Cr. P. C., were recorded belatedly on the third day i. e., 2nd May, 1974. This omission is not very material in the circumstances of this particular case. Considering the obvious threat that the murder posed to the state of law and order in the town, the police and the administration was materially more concerned at that time in taking necessary steps to prevent any serious disturbances and, under the circumstances, recording of state--ments of witnesses mentioned in the F. I. R. Was considered of secondary importance, as it could be safely postponed till after the critical period, i. e. 1st of May, 1974 (May Day) had passed. This is exactly what the police did and it cannot therefore be said that the omission to record the S. 161 statements forthwith, indicates any mala fides on the part of the investigation. Nor does it lead to the conclusion that the names of these witnesses were not known till then, for these are mentioned in the F. I. R. Itself which was lodged on the same day. . .
19. Moreover, it would be noticed that the learned defence counsel is not correct in saying that the names of the accused were bushed in the newspaper after 5/6 days 1st of May, 1974, i.e. 'Labour Day' being a holiday no newspaper had come out. On the second of 4ay, 1974. But on the next day i.e. 3rd May, 1974, some of the newspapers carried full facts of the case, including the names of all the assailants mentioned in the F. I. R.
20. The learned defence counsel for the appellants submitted further that since they were standing behind the trees, Abdul, Ghafoor and Kundan Lai, P. Ws. Could not have seen the occurrence. This view is not correct because it is in evidence that the trees are so placed in the compound that a person standing behind them can see the verandah and the entrance of the reception clearly as there is no wall or other obstruction in-between.
The three witnesses who were present inside the hospital, namely, Feroze Masih, Farooq and Shah Badar, are absolutely independent witnesses having no hostility with the appellants and are natural witnesses. They have clearly deposed that they saw four persons entering the dispensary armed with fire-arms Khanjar and datar and kept firing at and stabbing Abdur Rehman inside the room. Soon after the assailants left the place of occurrence these witnesses went into the dispensary and saw Abdur Rehman badly injured and lying in a pool of blood. Naturally they did not know the names of the assailants but as already observed, the assailants were identified by Abdul Ghafoor and Kundan Lai, P. Ws. Who had seen them entering into the reception room after breaking the door.
Benefit of doubt has been given by the Courts below to Aslam, Taj Pehlwan, because in the first instance Abdul Ghafoor omitted to mention the name of Aslam as one of the persons who had entered the room though he mentioned his name a little later in the same state--ment. Taj Pehlwan was given the benefit of doubt because Abdul Ghafoor P. W. Stated at one stage during the cross-examination that he was not sure that Taj Pehlwan accused was one of those who had entered the reception room of the hospital. But with regard to the two appellants, there is no such discrepancy in his statement.
21. It was further contended by the defence counsel that the entries made in the gate register maintained by the Factory shows that the motorcycles belonging to Abdul Ghafoor and Kundan Lai, P. Ws. Had entered the premises of Packages Ltd., but there is no entry regarding their having left the factory premises. As such the pro--secution version is false. We, however, notice that as deposed by Muhammad Rafiq (P. W. 17) Personnel Officer of ,the Packages Ltd., that the law and order situation in the factory was not normal and that apprehension of mischief could not be ruled out, which is quite understandable in view of the conditions prevailing in the country with respect to factory-workers in those days. It has been brought in evidence that the labour used to make its attendance at the time of entering the factory premises but freely went out without seeking any permission or even informing their superiors. It is in evidence that there was an understanding between the Management and the workers in the Packages Ltd., that they could go to attend the con--cerned officials. The mere fact, therefore, that the entry about taking out of the motor-cycles of Bashir Ahmad and Abdul Ghafoor P. Ws. Was not made in the relevant register does not show that they were necessarily present there.
22. Learned counsel for Altaf Baluch contended that he had told the Police, during the investigation, that from the N. I. R. C, he bad gone to the D. I.-G. Lahore with whom he was sitting at the time of occurrence. But the Investigating Officer made no effort to verify this fact which if ascertained would have supported his plea of alibi, by Altaf Baluch appellant. No doubt he took up this plea in his Statement t;nagr section 342, Cr. P. C., but he cannot blame the prosecution for failing to prove his plea of alibi for him because it is a settled principle of law that one who raises a special plea must discharge the burden of proving it. If his assertion was correct he would have certainly produced the D. I.-G., as a defence witness, specially when it has not been suggested that that officer was in any way reluctant to appear and depose the truth.
23. It was vehemently contended that although in the F. I. R. Abdul Ghafoor P. W. Had stated that before his death Abdur Rehman had uttered the name of Altaf Baloch etc. As his assailants in sinking voice. But he has not mentioned so in his statement made at the trial. It was urged that he had omitted to do so because the medical evidence revealed that Abdur Rehman could not have uttered even a single word after having been caused so many injuries.
24. We have carefully examined the number, nature and location of the injuries on the deceased as described by the doctor in the post-- mortem report and are of the view that it was not wholly impossible for a person to have uttered a few words before his death after having received Wee injuries suffered by Abdur Rehman (deceased).
25. It was contended that the testimony of P.W. 21, Kundan Lai shout he discarded as he had not been produced as a witness before the Committing Magistrate. Reliance in support of this contention was placed on Muhammad A.I -v. The State (1973P Cr. L J 63) wherein it has been held that evidence of a witness who was given up at the commitment stage was not very reliable. In that case one of the eye-witness cited by the prosecution in the calendar of witnesses was given up before the Committing Magistrate as having been won over, but was produced and examined at the trial. In the present case Kunda Lai P. W. 21, was not given up and his name remained on the calendar of prosecution witnesses. As such the accused had full notice that he would be produced at the trial. Therefore, the accused cannot be said to have been taken by surprise. The credibility o statement of Kundan Lai, P. W. 21, is therefore, not diminished by his non-production as a prosecution witness before the Committing Magistrate. As held in S. H. Jhabwala and others v.
Emperor (AIR 1933 All. 690) it was not necessary for the prosecution to produce all the witnesses on the same point at the commitment stage and the Committing Magistrate can send up an accused for trial to the Court of Session when a prima facie case is made out against him, without examining further prosecution witnesses, who may be examined at the trial, provided their names are present on the calendar of witnesses.
As a result of the above discussion we feel that the prosecution has successfully proved the charges against the two appellants beyond reasonable doubt ; that the trial Court rightly convicted them under section 302/34, P. P. C. And the High Court was also justified in maintaining their convictions and confirming the death sentences. We therefore, do not think it a case for interference in the judgment of the Courts below. The two appeals (Nos. 179 and 180 of 1978) consequently dismissed.