' MUHAMMAD RAFIQ TARAR, J.--According to the F.I.R. the case of the prosecution is that Abdul Ghafoor complainant was employed in the Packages Limited, Lahore, and was holding the office of the Joint Secretary of the Packages Workers Union. On 30th April 1974 he alongwith Abdul Rehman deceased, Jawad Shami, Kundan Lal and others appeared before the National Industrial Relations Commission, at Chamba House, Lahore, in case Altaf Baluch and others v. Abdul Rehman and otheRs, After the hearing, at about 12-15 p.m. Abdul Rehman deceased started back for the Packages Factory on Suzuki Motor Cycle No, LEH-6604 driven by Master Bashir P.W. Abdul Ghafoor complainant followed them on his own Motor Cycle No, LEH-6876 with Kundan Lal P.W. on the rear seat. At the same time, the appellants, acquitted accused Muhammad Akbar, Muhammad Aslam, Taj Pehlwan, Muhammad Ishaque and Hafiz Abdul Samad got into a jeep and their companions Shabbir Ahmad, Arif Billa, Hanif Nazim and Amanat boarded a taxi and left Chamba House. At about 12-30 or 12-45 p.m. when Abdul Ghafoor complainant reached near Nasirabad, Ferozepur Road, the Jeep and the taxi speedily passed by him. The Suzuki carrying Master Bashir P.W. and Abdul Rehman deceased was ahead of the Jeep and the taxi and when they reached near I.T.I. the jeep struck their motor cycle as a result of which both of them fell to the left side of the road.
' Muhammad Ishaq then stopped the jeep and Altaf Baluch, Khushi Dogar, Akbar, Aslam, Taj Pahlwan, Muhammad Ishaq and Hafiz Abdul Samad came out of it raising Lalkaras and firing at the deceased. On hearing the fire reports., Abdul Ghafoor P.W. stopped his motor-cycle just ahead of the northern gate of Gulab Devi Hospital. In the meantime, the taxi had also stopped a few yards ahead of jeep. The occupants of the Taxi also came out while firing and raising Lalkaras. Altaf Baluch, Khushi Dogar (appellants) and Ishaq were armed with pistols, Akbar and Hafiz Abdul Samad had guns, Taj Pehlwan had a Datar and Aslam had a Khunjar. Out of the remaining accused, Shabbir and Amanat were armed with pistols while, 'Arif Bala and Hanif Nazim 'were raising Lalkaras. Abdul Rehman deceased rushed to the Gulab Devi Hospital for his life but all the accused persons chased him and entered the hospital premises. Meanwhile Master Bashir had run away to the opposite side of the Gulab Devi Hospital to save his life. Abdul Ghafoor complainant and Kundan Lal entered the hospital premises from its northern gate and from behind the trees saw the accused persons chasing Abdul Rehman deceased while firing. After crossing the compound of the hospital, Abdul Rehman entered the verandah, got into the reception and tried to bolt the door from inside. The accused persons broke open the glasses of the door, fired at the deceased hitting his chest and got into the room. The firing continued inside the room and after some time the accused persons came out and fled away in the jeep and taxi. Abdul Ghafoor and Kundan Lal kept on seeing the occurrence from behind the tree. Besides them, the occurrence was also witnessed by Feroze Masih and .other employees of the hospital. After the departure of the accused, Abdul Ghafoor and Kundan Lal entered the dispensary and found Abdul Rehman deceased lying in a pool of blood. In a sinking voice he told them that Altaf Baluch and his companions had injured him. Meanwhile, the employees of the hospital also returned back and tried to give medical aid to Abdul Rehman but he expired.
' The motive for the offence was that in the referendum held in the Packages the Union of Altaf Baluch was defeated by the Union of Abdul Rehman deceased and some time prior to the occurrence Khushi Dogar appellant and his companions were arrested for making a murderous assault on the companions of Abdul Rehman deceased. It is alleged that being apprehensive of the popularity of Abdul Rehman and considering him a stumbling block in their way the accused persons committed his murder in pursuance of a pre-arranged plan.
2. After the occurrence Muhammad Sawar, Head Constable, Emergency Centre, informed Police Station Ichhra on telephone that a person had been shot dead in Gulab Devi Hospital, upon which Maqbool Hussain, Muharrir A.S.I. recorded Report No, 20 in the. Daily Diary at 1 p.m. and handed it over to Muhammad Tufail A.S.I. who proceeded to Gulab Devi Hospital. Abdul Ghafoor complainant met him outside the hospital premises and delivered him written complaint Exh.P.J., incorporating the facts contained in para. 1 above. The A.S.I. made his own report at the foot of the written complaint and sent it to Police Station Ichhra for the registration of the case where formal F.I.R.
Exh.P.G. was recorded at 2-30 p.m. Meanwhile Abdul Hayee Sub-Inspector reached the spot and the A.S.I. handed over the investigation to him. On 1-5-1974 the aforesaid Sub-Inspector prepared the Injury statement Exh.P.W. and Inquest report Exh. P.X of the dead body of Abdul Rehman deceased, and under the direction of D.S.P. Ichhra, despatched it to Gujrat for post-mortem examination through Muhammad Tufail A.S.I. Then he inspected the spot and rook into his possession Suzuki Motor-cycle No, LEH 6604 and a pair of shoes vide Memo Exh.P.V. He also secured three .12 bore empties (Exh.P.18/1-3) from the lawn of Gulab Devi Hospital and made the'm into a sealed parcel vide Memo Exh.P.V/1. He also secured Chadar (Exh.P.19) from the spot vide memo.
Exh.P.W.2. On the same day Muhammad Tufail A.S.I. handed over the last worn clothes of the deceased and a phial containing three pellets before him vide memos. Exh.P.K and Exh.P.L. respectively. Side by side Gul Muhammad, Inspector C.I.A. also started the investigation of this case. On 3-5-1974 when he was present in Chak No, 61/4-R, Police Station Nur Shah, District Sahiwal, in connection with the investigation of this case, he received information that Khushi Muhammad appellant and some other accused were present at Dera Sawalla in the area of Chak No,18/4-R upon which he raided the aforesaid Dera and found Khushi Muhammad appellant sitting in a car.
Abdul Rehman, Fateh Muhammad, Muhammad Sharif and Abdul Majid (not named in the F.I.R. as accused person) were also sitting in the same car. He arrested all of them. He searched the person of Khushi Muhammad appellant and recovered a .12 bore carbine Exh.P.2, and four live cartridges from his Dab and made them into a sealed parcel vide memo. Exh.P.D. Then he searched the person of Abdul Rehman and recovered knife (Exh.P.13) which was made into a sealed parcel vide memo. Exh. P.E. On the personal search of Fateh Muhammad he recovered revolver (Exh.P .1) alongwith four live cartridges and made them into a sealed parcel vide memo. Exh.P.A. Fateh Muhammad produced his licence for the revolver which was secured vide memo Exh.P.C. The Inspector also took Car MY-1105 into his possession alongwith driving licence and insurance certificate vide memo Exh.P.B. He produced the above-mentioned six accused before the Assistant Commissioner, Okara, and got them transferred to Lahore in connection with this case. On coming back to Lahore arrested Hafiz Abdul Samad on the same day. Abdul Hayee Niazi, Sub-Inspector arrested Altaf, Aslam, Amanat Ali, Shabbir and Arif accused on 4-5-1974 and Akbar accused on 5- 5-1974. Hanif Nazim, Taj Din and Ishaq accused were arrested by Gul Muhammad Inspector on 6- 5-1974, 8-5-1974 and 9-5-1974, respectively. On 17-5-1974 Sharif and Liaquat accused, while in custody made a disclosure before Gul Muhammad Inspector that they could lead to the recovery of a revolver and a Datar respectively, upon which he deputed Muhammad Tufail A.S.I. for the recovery of the aforesaid weapons. Sharif accused, while in custody, led to the recovery of .32 bore revolver (Exh.P.9) from the back side of Corporation Bungalows on Ferozepur Road which was sealed into a parcel vide memo Exh.P.M. Liaquat accused, while in custody got recovered Datar (Exh.P.10) from the same place which was sealed into a parcel vide memo Exh.P.O. In the report under section 173, Cr.P.C. (portion A to A) submitted under the signatures of Cul Muhammad Inspector C.I.A., it is stated that during the investigation it transpired that on 30-3-1973 a case was registered against Khushi Muhammad, Taj Pehlwan, Abdul Rehman and Arif accused under sections 148 and 307/149, P.P.C. at the instance of Muhammad Tufail and that the party of Abdur Rehman deceased had also given severe beating to Khusi Muhammad and Arif, therefore, by way of revenge Khushi Muhammad, Muhammad Ishaq, Fateh Muhammad, Liaquat Ali, Abdur Rehman, Abdul. Majid and Muhammad Sharif had committed this murder and the occurrence was witnessed by Ghulam Rasul, Fazal Muhammad, Ch. Faiz Muhammad, Nazar Muhammad and Khushi Muhammad. In the report it is further stated that in the circumstances none of the accused could be ignored and each of them should be left to the decision of the Court. Consequently, all the accused named in the F.I.R. (eleven in number) as also Fateh Muhammad, Liaquat Ali, Abdul Rehman, Abdul Majid, and Muhammad Sharif were sent up under sections 147, 307/149 and 302/149) P.P.C. They were tried by the learned Additional Sessions Judge, Lahore, who by his judgment, dated 8-5-1976, convicted Altaf Baluch and Khushi Muhammad under section 302,P.P.C. and sentenced each to them to death subject to confirmation by this Court and a fine of Rs,2,000 each or in default to undergo R.I. for one year each. Out of the fine a sum of Rs,2,000 was ordered to be paid to the heirs of Abdul Rehman deceased as compensation. All other accused were, however, acquitted of all the charges. The convicts have appealed and the case is also before us on reference for confirmation of the death sentence awarded to them. The appeals and the reference shall be disposed of by this judgment.
3. On 1st May, 1974 Dr. Selman F. Elahi, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat, conducted the autopsy on the dead body of Abdur Rehman deceased and found the following injuries on it:--
(1) A firearm entry wound 1" x 1" directed backwards with blacken ing and inversion of edges situated on outer aspect of left upper arm.
(2) A firearm entry wound 1" x 1" directed into the chest cavity situated on front of right chest, 3" medial to the right nipple. The edges showed blackening.
(3) A firearm entry wound 1" x 1" directed into the chest cavity situated in front of right side chest, 21" below the right nipple. Edges showed burning.
(4) A firearm entry wound measuring 1" x 1" directed into the abdominal cavity, situated in the left lines fosse (left lower abdomen), 31" to left of umbilicus.
(5) A firearm entry wound 1" x 1" burnt edges, situated on the outer aspect of the right buttock.
(6) A firearm entry wound 1" x 1" with burnt edges, situated on the back of the right shoulder blade.
(7) A firearm entry wound 1" x 1" with burnt edges situated on the back of left side waist just above left buttock.
(8) A firearm entry wound measuring 1" x 1" situated on the medial side of left thigh in its upper part.
(9) A firearm exit wound 1" x 1" with averted edges situated on the outer aspect of right chest.
(10) A firearm exit 11" x 1" with averted lacerated edges situated on back of right side chest, 21" below right shoulder blade.
(11) A firearm exit wound 1" x 1" with averted lacerated edges situated on the right buttock.
(12) A firearm exit wound 4" x 4" with averted lacerated edges on back of left thigh.
(13) A firearm exit wound 1" x 1" 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.
(15) An incised wound 24" x 4" brain depth on right side back of head 4" behind injury No 14. The occipital bone was cut clean.
(16) An incised wound 4" x I" x bone deep on right side back of head.
(17) An incised wound 14" x 4" muscle deep on the back of head, 1" behind injury No, 16.
(18) An incised wound 14" x i" bone deep on right side head, 3" above the pinna of right ear.
(19) An incised wound 1" x 1" bone deep on the back of right middle ring and little finger. The proximal phalanx of right ring finger was fractured.
(20) Incised wound 14" x 1-" muscle deep on the back of left hand across the inter-digital web between ring and middle fingeRs, ' In the opinion of the doctor, death was due to shock ensuing from massive hemorrhage and injury to vital organs like lung, liver, brain and large blood vessels. Injuries Nos. 1 to 13 were caused by firearm and the rest with sharp-edged weapon. All the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.
4. In support of its case the prosecution examined six eye-witnesses, namely, Abdul Ghafoor, Master Bashir, Kundan Lal, Feroze Masih, Farooq Masih and Shah Badar P.Ws. It also relied on the motive and the recoveries.
5. The appellants pleaded not guilty to the charge. In the committing Court Altaf Baluch admitted that Abdul Hellman deceased had banned his entry as also of his companions to the premises of Packages Factory but added that the same was restored by the N.I.R.C. before the present occurrence. When asked to explain why he was implicated in this case, he made the following statement:-- "Since I was President of different Unions, I was involved in this case so that the Unions may be occupied. Tariq Latif a man of Abdur Rehman's group, wanted to remove me from the scene and he is now President."
At the trial he admitted that he was member of the Working Committee of the Union which suffered defeat in the referendum. When asked whether he along with his companions had attended the proceeding before the N.I.R.C. at Chamba House on the day of occurrence, he made the following statement:-- "I did attend the Court of the Commission along with Akbar, Hanif Nazim, Aslam, Amanat but I was free from the Court after five or six minutes attendance and later on I left the Court of N.I.R.C. at 11- 40 and went to see D.I.G. Police who had called me a day earlier in connection with May Day procession. I left N.1.R.C. along with a special messenger in the police jeep and went to D.I.G.'s Office where I remained there till 2.30 p.m."
' When asked to explain as to why he was involved in this case, he stated as under:-- "Tariq Latif, Abdul Ghafoor, Javed Shami and Kundan Lal rival trade union leaders hatched a conspiracy to remove me from the labour and political fields. They have falsely involved me in this case. I have nothing to do with the murder of Abdur Rehman deceased."
' He also filed a written statement in Court alleging that the bureaucracy, the capitalists, the C.I.A. agents and other anti-labor elements had falsely implicated him and his companions to undo the unity brought about by him among the various labor organizations. In the committing Court Khushi Dogar appellant stated that he was falsely implicated due to his brother who was a member of the Union of Altaf Baluch and for the same reason Abdur Rehman deceased got the case under section 307, P.P.C. registered against him. At the trial he stated that he had nothing to do with the murder of Abdur Rehman deceased and Tariq Latif, Abdul Ghafoor, Kundan Lal and Jawad Shami had implicated him due to enmity. No evidence was led in defence.
6. Relying on the prosecution evidence, the learned trial Judge convicted and sentenced the appellants as mentioned above. He however acquitted Hafiz Abdul Samad accused for want of evidence and Muhammad Aslam, Taj Pehlwan, Arif, Hanif, Ishaque, Shabbir, Amanat and Akbar accused on the benefit of doubt. As regards Abdur Rehman, Fateh Muhammad, Shari!, Liaquat and Abdul Majid, the learned trial Judge observed that they were falsely implicated in this case by the police "for reasons better known to them".
7. Before embarking upon evidence, we may mention that both the parties have complained that the conduct of the investigating agency was unfair throughout and the entire investigation is tainted with dishonesty. The learned counsel for the appellants contended the post mortem facilities were available at Lahore and also at Gujranwala and Sheikhupura, but the dead body was intentionally taken to Gujrat so that a post-mortem report of the choice of the prosecution could be obtained from Gujrat hospital. It was further submitted that there is no order of any police officer or other authority on the record directing the dead body to be taken to Gujrat. It was suggested to Muhammad Tufail A.S.I. that he had taken the dead body to Gujrat of his own accord but he came up with the explanation he had taken it there under the verbal orders of the D.S.P. Ichhra. Abdul Hayee Sub- ' Inspector (P.W.23) also gave a similar explanation. The evidence on the record shows that if the dead body had not been taken away from Lahore, a serious law and order situation was likely to arise. Moulvi Muhammad Hanif (P.W.15), a relative of the deceased, who reached the spot at about 2-30 or 3-00 p.m., stated that thousands of laborers and other persons were present in the compound of the hospital as well as on Ferozepur Road when he reached the spot and traffic stood jammed at that time. According to him, the laborers refused to hand over the dead body for post- mortem examination as they wanted it for May Day procession upon which he approached the then Chief Minister with a written request for making over the dead body to him. The Chief Minister provided two police vans with police force for removing the dead body but the laborers showed resistance to the police force and then more police force was called and the dead body could be removed at about 3 a.m. on the following day. Kundan Lal P.W. 21 in his cross-examination at page 279 also admitted that they had planned to carry the dead body in a procession to be taken out on 1st May 1974 and for that reason they did not allow the police to take it away from the Gulab Devi Hospital but it was forcibly taken away by the police at 2-30 or 3 a.m. on Ist May 1974. It thus becomes clear that if the dead body had been allowed to remain at Lahore it would have led to serious law and order situation. In the circumstances, there was nothing wrong in taking the dead body to Civil Hospital, Gujrat, for the purpose of post-mortem examination. It may be mentioned that the native village of Abdur Rehman deceased where his last ceremonies were to be performed, was in Gujrat district and that seems to be the reason for not taking the dead body to any other district for the purpose of post-mortem examination. The learned counsel for the appellants were unable to show that the accused were in any way prejudiced because of the post- mortem examination having been conducted at Gujrat.
8. It was next contended that Abdul Ghafoor complainant could not specify as to who had scribed his statement Exh.P.J. and the substance of the F.I.R. was not entered either in the Roznamcha or in the Inquest Report, therefore, it can safely be presumed that it was recorded on the next day after the Inquest Report. In cross-examination (Page 190) Abdul Ghafur complainant firstly, stated that he did not remember as to who wrote his statement Exh.P.J., then he admitted that it was recorded by Muhammad Tufail A .S.I. (Page 191). Then again at page 211 he stated that he did not know as to who had scribed it. He further stated that the person who wrote his statement (Exh.P.J.) was in civilian dress but he did not know whether he was a police official. It is in evidence that after the occurrence twenty thousand to forty thousand labourers who had gathered at the spot, were raising slogans and protesting against the cruelty meted out to Abdur Rehman deceased. In view of the atmosphere then prevailing at the spot and the confusion and commotion which followed this murder, the complainant might not have taken care to know the particulars of the person who scribed his statement, therefore, this omission can be ignored.
' Report No, 21 made at 2-30 p.m. in the Roznamcha is to the effect that on receipt of statement of Abdul Ghafoor the processing of case No, 165 was commenced. Report No, 22 made at 2-45 p.m. is also about this case and both the reports do not contain the substance of the statement Exh.PL.
However, in the brief facts of the inquest report a summary of the statement Exh.P.J does find mention but the names of all the accused are not there and they have been described as "Altaf Baluch etc." These omissions can also be ignored because of the fact that the number of the case and the date of its registration (30-4-1974) are clearly mentioned in the inquest report. If the F.I.R. had been recorded after the inquest report, its number and date could not have found their way in the said report. Moreover, soon after the occurrence the District Magistrate and the senior officers including the S.S.P. and the D.I.G. had reached the spot and it was not possible to withhold the F.I.R. for a long time. Even otherwise we are reluctant to believe that it could be withheld till after 3 a.m. on the next day at a busy Police Station like Ichhra.
9. Abdul Ghafoor complainant in cross-examination (Page 198) narrated the formalities which have to be observed by a worker for entering his Department. According to him the worker puts his signature in the relevant column of the attendance Register at the time of entry and for going out of the Factory during working hours he is required to submit an application to his In charge upon which a gate pass is issued. The absence or leave of a worker is entered in the attendance Register on the next day while the presence is marked on the same day. The number and particulars of a vehicle which is taken inside the Factory are also noted by the Gate-keeper in the relevant register.
Referring to entries (Exh.DH/1, DH/2 and DG/1) Contained in Registers DH and DG it was contended that on the day of occurrence Abdul Ghafoor P.W. and his Suzuki Motor-cycle No, 6876 (on which he and Kundan Lal P.W. were allegedly coming towards Kotlakhpat) as also Motor-cycle No, 6329 belonging to Kundan Lal are shown to have entered that Factory and their being no entry about their exit and Abdul Ghafur having admitted that he received wages for 30th April, 1974, it should be presumed that both of them were present in the Factory and had not seen the occurrence. Abdul Ghafoor P.W. explained that there was an agreement between the worker and the management that on the dates of hearing before the N.I.R.C. the workers would be paid wages for the said dates, so he was paid. Such agreement between the workers and the management are .not uncommon.
It is a matter of common knowledge that from 1972 onward the Labour class had an upper hand in the industrial and commercial establishment and all effective checks to make them amenable to discipline had been either removed or diluted. To quote a concrete example we may refer to the complaint which Altaf Baluch and others had made against Abdul Rehman deceased, Abdul Ghafoor complainant, Kundan Lal P.W. and others before the N.I.R.C. (Exh.PP/F). In this complaint it was alleged that when any of the complainant tried to enter the premises of the Mills he was stopped at the gate, either by the Management staff and if he managed to enter the premises the accused in the complainant (the deceased and his companions) tried to attack him and thus they were forced to leave the premises. The order, dated 30-4-1974 passed by the learned Chairman of the N.I.R.C. on the said complaint shows that Ch.Rafiq Ahmed, Personnel Manager, was asked about the conditions prevailing in the factory and he stated that normal relations had not by then been restored between the parties (the complainants and the respondents) and the apprehension that mischief might be committed by either party could not be ruled out Abdur Rehman deceased was the President of the Union which was elected as the Collective Bargaining Agent in December, 1973.
The Collective Bargaining Agency or any member of a Labour Union has no authority at all to restrain a worker from entering the Mills premises for his duty. The statement of the Personnel Officer shows the utter helplessness of the Management in restoring normal conditions in the Mills.
As it appears from the record, Abdur Rehman deceased was not an ordinary workman. He was President of the Mazdoor Markaz to which a large number of Labour Unions had affiliated. In the circumstances, it was not at all a problem for him and his association to come out of the factory without the prior permission of the Management. This apart, we have unimpeachable documentary and oral evidence on the record in support of the presence of Abdur Rehman. Abdul Ghafoor, Jawed Shami and Kundan Lal P.Ws before the N.I.R.C. at Chamba House, Lahore. In the complaint brought by Altaf Baluch and others against the deceased and his associate five persons, namely, Abdur Rehman, Abdul Ghafoor, Kundan Lal, Jawad Shami and Muhammad Hanif were summoned by the Commission by order, dated 19-4-1974 under section 53 of the Industrial Relations Ordinance, 1969, to face the charge of unfair labour practice. There being a criminal charge against them, the Court shall presume that they were required to appear in person unless it is shown that the personal attendance had been dispensed with by the Court. The order, dated 30- 4-1974 recorded at 11-30 a.m. shows the presence of "Abdul Rehman and other respondents with his legal representative Mr. Tariq Latif". Similarly Altai Baluch and 9 other complainants are also marked present in the proceedings, dated 30-4-1974. We have therefore, no doubts in our mind that Abdur Rehman deceased, Abdul Ghafoor, Jawed Shami, Kundan Lal P.Ws. and the accused party did attend the Court on 30-4-1974 at 11.30 a.m. There is abundance of evidence on record to show that Master Bashir P.W. was also present in the Chamba House alongwith the deceased and his companions. He was a former employee of Samad Rubber Works and prior to the occurrence his services had been terminated. He was the President of Sarnad Rubber Workers Union which was affiliated with Mazdoor Markaz Kot Lakhpat headed by Abdul Rehman deceased. That apart, Abdul Rehman deceased was also the Secretary of the aforesaid Samad Rubber Workers Union. The witness explained that since he was jobless he used to see Abdur Rehman daily in connection with his reinstatement and he had also met him on 30-4-1974. It was contended that since he had seen Abdul Rehman deceased a day prior to the occurrence there should be no occasion for him for again coming to the deceased on the morning of the day of occurrence. The witness has explained this aspect saying that on 29-4-1974 Abdur Rehman deceased had informed him that he would do something for him on 30-4-1974 and had asked him to see him again and in that connection he had gone to him. The recovery of his motor-cycle (Memo. Exh.P.V) from the spot, in damaged condition, is another factor in support of his presence with Abdul Rehman deceased. The use of this Motor-cycle by the deceased on the day of occurrence is not seriously disputed by the defence. It need be mentioned that a suggestion was put to Abdul Ghafoor P.W. that on the day of, occurrence Abdul Rehman deceased had borrowed this Motor-cycle from him and was driving it alone. We are satisfied that Master Bashir P.W. was present with the deceased at Chamba House, Lahore, and had accompanied him towards Kot Lakhpat after the proceedings before the N.I.R.C. were over.
Abdul Ghafoor, Jawad Shami, Master Bashir and Kundan Lal are consistent that Khushi Dogar appellant was also present at Chamba House and we see no reason to disbelieve them on this point. After the hearing, the parties were normally expected to go back to the Packages Factory so as to inform their partymen about the progress of the proceedings before the N.I.R.C. and to make arrangement for the May Day procession to be taken out on the next day. The damaged condition of the aforesaid motor-cycle lends substantial support to the prosecution story that it was knocked down by the jeep as stated by Abdul Ghafoor, Master Bashir and Kundan Lal, P.Ws.
10. At this stage it may be mentioned that all the eye-witnesses and Waj-Takkar witnesses against the five accused who are not named in the F.I.R. were given up by the prosecution as having been won over, therefore, to the extent of these accused it is a case of no evidence. The motive behind their implication in this case and the other circumstances connected therewith will be discussed in the later portion of this judgment. As against the eleven accused including the appellants, who are named in the F . I . R., there are two sets of eye witnesses, first comprising Abdul Ghafoor, Master Bashir and Kundan Lal, and the second comprising Feroze Masih, Shah Badar and Farooq Masih.
Abdul Ghafoor and Kundan Lal are Joint Secretary and Vice, President of Labour Union headed by Abdul Rehman deceased. Master Bashir is the President of Samad Rubber Workers Union and the deceased was the General Secretary of this Union. Feroze Masih and Farooq Masih are the employees of Gulab Devi Hospital where the occurrence took place and Shah Badar was admitted there as a patient. At the trial Abdul Ghafoor, P.W. made deviation from the F.I.R. in certain aspects.
For the convenience of reference his statement in examination in-chief is reproduced below:-- ' On 30-4-1974, I accompanied by Abdul Rehman deceased Kundan Lal, and Master Bashir went to Chamba House, Lahore, to attend the Court of National Industrial Relations Commission. Altaf Baloch, Khushi Dogar, Aslart, Hanif Nizam, Arif Billa, Taj Pehlwan and Shabbir attended that Court as the opposite party. At about 9-30 a.m. we reached the premises of that Court and remained there upto 12-15. We then left for Packages Factory. I was carrying Kundan Lal on my Suzuki and Abdur Rehman deceased was sitting on the Suzuki driven by Master Bashir. Altaf Baloch, Khushi Dogar, Taj Pehlwan, Aslam Ishaque, Akbar and Hafiz Samad boarded a Jeep which was already standing outside the Court. Shabbir, Amanat, Hanif, Nizam and Arif Billa left the Court premises by a taxi-car.
When we reached Nasirabad, the said Jeep and car driven by Ishaq and Shabbir respectively passed by us. When we came near the Technical Institute (I.T.I) Abdur Rehman's Suzuki was ahead of my Suzuki. When the Suzuki driven by Master Bashir reached the Southern gate of Gulab Devi Hospital, the jeep driven by Ishaq accused struck the Suzuki of Master Bashir on one side. Both Master Bashir and Abdul Rehman fell down, near the southern gate of Gulab Devi Hospital. The jeep driven by Ishaq stopped there and then. The car driven by Shabbir also stopped there. Then came out of the jeep, Ishaque armed with a pistol, Altaf Baloach equipped with a pistol, Khushi Dogar carrying a pistol, Akbar armed with a gun, Taj Pehlwan having a Datar, Aslam was armed with a dagger and Hafiz Samad was empty handed. The occupants of the car also came out. Shabbir and Amanat were carrying pistols, Hanif Nizam and Arif Billa were empty handed and were raising Lalkaras saying that Abdur Rehman should not be spared that day. All the above-mentioned persons then started firing with their respective weapons. I and Kundan Lal P.W. were near the nothern gate of Gulab Devi Hospital and witnessed those persons firing. In order to save his life, Abdul Rehman deceased rushed towards the main building of the hospital through a small gate.
Hanif Nazim, Arif Bib and Hafiz Samad remained outside near the jeep and car while Altaf Baluch, Khushi Dogar, Taj Pehlwan, Aslam and Amanat, Shabbir and Ishaq accused entered the said hospital while they were firing at Abdul Rehman deceased.
' Q. Whom they were following?
' Ans. They were following Abdur Rehman.
' I and Kundan Lal then entered the northern gate of the said hospital. We continued witnessing the occurrence from behind the trees where we had concealed ourselves. (The witness has said 'darokhton ki orb se'). We saw Al iur Rehman in injured condition and entering the Verandah of the hospital. Then he entered the reception of the hospital. He tried to bolt the door from inside. Then Khushi Dogar, Altai Baloch and Taj Pehlwan broke the glasses of the main door of the reception and entered that room. Shabbir, Akbar, Amanat and!shag accused remained standing in the ground and continued firing. For two or three minutes we heard report of firing from within that room. The persons who had entered the reception left the reception from back door and joined Shabbir, etc. who were standing outside in the ground. Then they went towards the jeep and the car. From there they proceeded towards Kot Lakh pat by jeep and the car. Then I and Kundan Lal went towards the reception where we found Abdur Rehman lying with his head inside the dispensary and the legs out of the entrance of the dispensary. He was lying in a pool of blood and had expired. Some persons from the hospital came to the scene of occurrence. Farooq and Feroze Masih were among them whom I know previously. They tried to give first-aid to Abdur Rehman but he was already dead.
' The persons named by me above are present in the Court room, today. (Volunteered) Hafiz Samad named by me is not present among these accused persons and I had deposed in similar terms before the Committing Magistrate.
' Sometime before the occurrence, a referendum was held in the Packages between two Unions one headed by Altaf Batech and the other by Abdur Rehman. Altaf Baloch and his party were defeated in the referendum while the party of Abdur Rehman was declare(.1 successful. Sometime after the referendum Khushi Muhammad accused and his companions had attacked the companions of Abdul Rehman and a case was registered against Khushi Dogar and others in connection with that attack. Being jealous of the popularity of Abdur Rehman deceased, Altaf Baloch and Khushi accused, etc. joined hands to finish Abdur Reiman for ever.
' About half an hour after the occurrence police arrived at the place of occurrence. I have seen the statement Exh.P.J recorded by the police on my dictation. The contents of the statement were read over to me and I signed it in token of its correctness. My signatures are Exh.P.J/4.
' A comparison of the F.I.R. and the above statement would show that Abdulafoor omitted the dying declaration which according to his F.I.R. /rsion was made by Abdul Rehman deceased in a sinking voice before him and the other eye-witnesses. He also introduced the division of the accused into three groups saying that one group comprising Hanif Nazim, Arif Billa and Hafiz Samad remained outside near the jeep and car while Altaf Baloch, Khushi Dogar, Taj Pehlwan, Aslam, Amanat, Shabbir and Ishaq entered the hospital chasing Abdur Rehman deceased and when he entered the reception and tried to bolt the door from inside, Khushi Dogar, Altaf Baloch and Taj Pehlwan broke the glasses of the door and entered the room while Shabbir, Akbar, Amanat and !shag remained standing in the ground and kept on firing. In cross-examination he stated that he had also named Aslam accused as one of those who had entered the reception. Kundan Lal P.W. also omitted the dying declaration in his statement at the trial and introduced the division of the accused into three groups. According to him, the accused who entered the reception and caused injuries to the deceased were Altaf Baloch, Khushi Dogar, Taj Pehlwan and Muhammad Aslam.
Master Bashir P.W. stated that after falling from the motor-cycle he ran towards the opposite side of Gulab Devi Hospital and stopped under the trees from where he saw Arif Billa, Hanif Nizam and another person standing near jeep and car and the other accused (eight in number) entering the hospital chasing Abdul Rehman deceased while firing and shortly after that he noticed the aforesaid eight accused coming out of the hospital who along with three others who were standing outside, boarded the car and jeep and fled away, who after he -went inside the dispensary and found the dead body of Abdul Rehman deceased lying in a pool of blood. His evidence shows that he had not witnessed that part of the occurrence which took place inside the hospital but had only seen the eight accused entering the hospital chasing Abdur Rehman deceased while firing. The learned counsel for the appellants contended that Abdul Ghafoor, Master Bashir and Kundan Lal have introduced a new story at the trial saying that the assailants had divided themselves into different groups and have also omitted to make mention of the dying declaration with a view to bring their statements in line with the medical evidence, therefore, their evidetice should be rejected in to. After going through the evidence, we however, feel that their evidence cannot be rejected on that score because their presence at the spot, particularly of Abdul Ghafoor and Kundan Lal stands fully established by the unimpeachable evidence of Feroze Masih, Muhammad Farooq and Shah titular P.Ws, who have also corroborated them in material particulaRs, Feroze Masih and Muhammad Farooq P.Ws are employees of the Gulab Devi Hospital and Shah Badar P.W. was admitted there as a patient. The gist of their evidence is that they saw 7/8 persons chasing the deceased who entered the Reception and bolted door from inside. Four out of those persons who were armed--two with pistols, one with Datar and the fourth with dagger, also got into the room (Reception) by breaking open the door. Feroze Masih and Muhammad Farooq further stated that they continued to hear fire reports from inside the room and as soon as the assailants left the room from the backside Kundan Lal and Abdul Ghafoor also came there. Shah Badar P.W. stated that after the assailants had left, he saw Feroze Masih, Abdul Ghafoor, Kundan Lal and Master Bashir at the place of occurrence and Abdul Rehman deceased lying dead inside the room. It is true that they did not name any of those four persons but their evidence lends substantial corroboration to the evidence of Abdul Ghafoor and Kundan Lal P.Ws, so far as the manner of occurrence the place of occurrence, the number of actual assailants and the weapons of offence are concerned. The firearm and incised wounds on the dead body leave no room for doubt that the assailants were armed with firearms and sharp-edged weapons. It is thus fully established that out of the accused four had entered the Reception by breaking open the door, the firing continued so long as they remained inside the room and as soon as they left the room of occurrence the deceased was found there lying dead. In the circumstances, the evidence of Abdul Ghafur and Kundan Lal P.Ws that the appellants were amongst those who entered the room can safely be accepted as it is not possible to believe that the real assailants were let off and the appellants were substituted for them.
11. It was contended that the evidence of Feroze Masih, Muhammad Farooq and Shah Bader P.Ws about the presence of Abdul Ghafur, Master Bashir and Kundan Lal was not entitled to any credit because in their earlier statements they did not make any mention of their presence at the spot.
We are pained to say that during the investigation of this case serious irregularities were committed and the investigating agency, as it appears from the record, deliberately tried to damage this case in order to save the real culprits from having their due. Soon after the occurrence Muhammad Tufail, A.S.I. reached the spot and later on Abdul Hayee Sub-Inspector also joined him but no attempt was made by them to secure the crime empties and Suzuki Motor-cycle No, LEH 6604 which was lying at the spot in damaged condition. The recovery of these articles was delayed till the next day. Similarly, the examination of the eye-witnesses under section 161, Cr.P.C. was deferred till 2nd May 1974. It is a case in which five innocent persons were roped in by Gul Muhammad Inspector C.I.A. staff with an ulterior motive to put the investigation on wrong lines. He took over the investigation on 2nd May, 1974 and started for Sahiwal District under the directions of the D.S.P. in order to effect the arrest of Khushi Dogar appellant. He admitted that before going to Sahiwal he did not bother to acquaint himself with the investigation conducted by the local police from 30-4-1974 to 2-5-1974 nor the D.S.P. had disclosed to him the names of the other accused that were required to be arrested in this case. On 3-5-1974,he raided Dera Sawalla in Chak No, 60/4-R in Sahiwal district and saw Khushi Muhammad appellant sitting in a car along with Abdur Rehman, Liaquat, Fateh Muhammad, Sherif and Abdul Majid and he arrested all of them in this case. Except Khushi Muhammad, the other accused mentioned above are not named in the F.I.R.
The Inspector admitted that while starting from Lahore for affecting the arrest of Khushi Muhammad appellant, he had only a copy of the F.I.R. with him and no other paper. He further admitted that before arresting the above-mentioned five accused he was not in possession of any evidence regarding their involvement in the case and he arrested them just because they were sitting in the same car with Khushi Dogar appellant. Strangely enough, on reaching Lahore after arresting the aforesaid accused he found as many as five eye-witnesses namely, Ghulam Rasul, Fazal Muhammad, Faiz Muhammad, Khushi Muhammad and Nazar Muhammad and three Waj Takkar namely, Altaf, Khair Din and Iqbal, readily available to implicate these five accused in this case. Later on all these so-called eye-witnesses and Waj Takkar witnesses were given up as having been won over by the accused. The illicit coordination of the investigation and prosecution agencies seems to have continued up to the commitment stage. We have it in the evidence of Kundan Lal P.W. that two or three months after the occurrence the police came to his house to force him to make a statement of their choice but he refused to oblige them. Feroze Masih and Muhammad Farooq asserted that they did state before the police that Kundan Lal and Abdul Ghafoor were present at the spot. Similarly, Shah Bader P.W. insisted that he had stated before the police that Abdul Ghafoor, Kundan Lal and Master Bashir were present at the place of occurrence and we see no reason to disbelieve them on this point because they are independent and natural witnesses having absolutely no motive to offer themselves as false witnesses of the occurrence. If they had any motive for false implication, they would have straightaway named the accused as the assailants of the deceased. In the circumstances, we do not attach any importance to the said omission in their earlier statements.
12. It was next contended that the eye-witnesses were examined on the third day of the occurrence and their late appearance before the police was fatal to the prosecution. We have already observed that the conduct of the investigating agency was highly unfair and every effort was made to put the investigation on wrong lines for the benefit of the accused named in the F.I.R. In cross-examination Kundan Lal P.W. stated that two or three hours after the occurrence he informed Abdul Hayee Niazi Sub-Inspector that he had witnessed the occurrence and narrated the whole occurrence to him but he did not record his statement at that time. This may be true because shortly after the occurrence thousands of laborers had gathered in the Gulab Devi Hospital and a law and order situation had arisen. On the next day Muhammad Tufail A.S.I. had gone to Gujrat along with the dead body while Abdul Hayee Niazi Sub-Inspector was busy in connection with the May Day procession, so there could be no contact between the investigating officers and the eye- witnesses. In the circumstances this contention too has no force.
13. The learned counsel for Altaf Baloch appellant contended that the seats of the injuries on the dead body show that the assailants were all around the deceased but none of the eye-witnesses had stated that the deceased was surrounded by the assailants. He further submitted that in the room of occurrence space was too small to accommodate the assailants all around, therefore, the occurrence does not seem to have taken place in the manner alleged by the prosecution. He further submitted that out of the eight firearm injuries five had blackening and burning but the three were without it which shows that some shots were fired from a close range and the others from some distance. It is true that the eye-witnesses did not state that the assailants had surrounded the deceased but they also did not state that the deceased was not surrounded, obviously for the reason that the occurrence took place inside the room and they had not seen the position of the assailants vis-a-vis the victim. The objection that the space was too small to accommodate the assailants all around also does not deserve any consideration. After all, it was a room and not a cave. The presence of blackening and burning on some of the wounds and its absence on the other rather lends support to the ocular account. It is in evidence that the assailants were firing at the deceased while chasing him and the firing continued when they went inside the room after him. The subsume of burning and blackening on some of the injuries shows that the deceased sustained those injuries while running from the shots fired from some distance and the presence of blackening on the others is indicative of the fact that those were caused inside the room from a close range. The firearm and sharp weapon injuries on the dead body lend further support to the ocular account that the assailants who entered the room of occurrence were armed with firearm and sharp-edged weapons.
14. It was further contended that Muhammad Aslam and Taj Pehiwan were acquitted on the same evidence, therefore, in the absence of any confirmatory circumstances that very evidence should not have been relied upon to convict the appellants. The learned trial Judge observed that the cases of Taj Pehiwan and Aslam accused were distinguishable because the complainant did not name Aslam as having entered the reception and he also admitted in cross-examination that he was not certain whether Taj Pehlawan had also entered the room after Abdur Rehman deceased. It appears that since a large number of accused were involved in the case, the complainant, in examination-in-chief, committees to name Aslam as having entered the Reception through inadvertence. However, in cross-examination he asserted that he had named Aslam in that connection. The learned Sessions Judge, however, took no notice of this fact and also ignored the statement of Kundan Lal P.W. regarding the participation of these two accused in the actual assault. We have already observed that the statements of Abdul Gilafoor and Kundan Lal find corroboration from the evidence of Feroze Masih, Muhammad Parooq and Shah Badar P.Ws, regarding the number of the actual assailants and the weapons with which they were armed. In the circumstances, it is doubtful if the acquittal of Aslam and Taj Pahlwan was justified. The State has not challenged their acquittal and on account of peculiar state of affairs including possible changes and pressures in labor politics, we feel that no useful purpose will be served by ordering their retrial on revision side at this stage.
15. The learned counsel for Khushi Dogar appellant contended that soon after the occurrence thousands of workers had thronged into the compound of the hospital and different versions were being forwarded, therefore, the possibility of the complainant and his companions including Tariq Latif having exploited the situation to their own advantage's and the police having implicated the accused persons to ease the situation cannot be excluded. It was further submitted that one labour leadet (Abdur Rehman) has been murdered and they (complainant and his companions including Tariq Latif) wanted the other (Altaf Baluch) to be hanged so as to clear their own way to the leadership in the labour field. The learned counsel for Altaf Baluch appellant went to the extent of saying that in fact this murder was committed by Abdul Ghafur, Tariq Latif, Kundan Lal and otheRs, Moulvi Muhammad Hanif P.W.15 a relative of the deceased who reached the spot at 2- 30/3-00 p.m. and remained there till 3 a.m. on the following morning, admitted in cross- examination that different versions were being forwarded about the assailants. According to him, some persons were saying that the capitalists were responsible for the murder, others were blaming the Government and some were saying that the opponents of Abdul Rehman had committed his murder. There is nothing on the record to show as to who those persons were, when they reached the spot. At the trial Altaf Baluch appellant stated that after the hearing before the was over, he left Chamba House at 11-45 a.m. and went to see the D.I.G. Police who had called him a day earlier in connection with the May Day procession and remained in his office till 2-30 p.m. No such plea was raised by him in the Commiting Court nor any evidence was produced at the trial to substantiate this plea. Had he been confident of the genuineness of his plea he would not have omitted to produce the D.I.G. in his defence. There could be no apprehension to him that a responsible officer like the D.I.G. if produced in defence, would not narrate the true facts before the Court, particularly when the police had in fact favoured him during the investigation.
16. In para. 11 (supra) we have observed that in the investigation of the case serious irregularities were deliberately committed by the investigation agency. Soon after the occurrence Muhammad Tufail A.S.I. reached the 'spot and later on Abdul Hayee Sub-Inspector also joined him but they did not bother' to secure the crime empties and the Suzuki Motor cycle No, LEH 6604 which was lying there in a damaged condition. The learned trial Judge discarded the recovery of these articles on the ground that there was no explanation as to wAly the same were not taken into possession immediately after the occurrence. He further observed that it was not possible to believe that these articles remained lying on the road side intact till the following day. After going through the evidence we feel that the learned trial Judge was not justified in discarding these recoveries on that score. On 3rd May 1974 Gul Muhammad Inspector recovered an unlicensed carbine from Khushi Dogar appellant alongwith four live cartridges vide memo. Exh.P.D. attested by Farid, Yunus and Ghulam Muhammad Sub-Inspector. Farid and Yunus were given up as having been won over and Ghulam Muhammad Sub-Inspedtor was also not examined. It is not clear from the evidence as to when this carbine was deposited in the Malkhana. The evidence of Muhammad Ali, Head Constable (P.W.5), gives the impression that he delivered this carbine to Abdur Rashid F.C. on 30-5- 1974 for onward transmission to the Forensic Science Laboratory. Abdur Rashid, however, states that it was given to him on 20-5-1974. The three .12 bore crime empties recovered from the spot on 1-5-1974 were deposited in the Malkhana on 2-5-1974. According to the report of the firearms expert Exh. P.EE, one of these empties had been fired from the carbine. Maqbool Hussain, Head, Cohstable (P.W.8), stated that he gave these empties to Maqbool Ahmad F.C. on 11-5-1974 for onward transmission to the Forensic Science Laboratory. Maqbool Ahmad P.W. was a material witness but strangely enough he was given up by the prosecution as being unnecessary (page 297). In the circumstances, we do not consider it necessary to make any further comment on these recoveries. It may, however, be mentioned that in this case the conduct of the investigation and prosecuting agencies was not above board. We may also point out that the observation of the learned trial. Judge that the carbine allegedly recovered from Altaf Baloch appellant was not produced in Court is uncalled for because no carbine is alleged to have been recovered from the aforesaid appellant.
17. An additional circumstance against the appellants is that each of them had a very strong motive to kill the deceased. According to the F.I.R., the motive for the offence was that in the referendum held between the Unions headed by Abdur Rehman deceased and Altaf Baloch the Union of the latter was defeated and he harbored grudge against the deceased on that score. It is further stated that some time prior to the occurrence Khushi Dogar was hauled up for making murderous assault on the associates of Abdur Rehman and both the appellants were apprehensive of his popularity and considered him a stumbling block in their way, therefore, they committed his murder in pursuance of a prearranged plan. As the record shows, the differences between Abdur Rehman deceased and Altaf Baloch related back to the year 1972. In cross- examination Abdul Ghafur and Kundan Lal P.Ws admitted that Abdur Rehman deceased was elected as the President of the Packages Workers Union in 1972 and that Altaf Baloch appellant was also a candidate for the same office but he did not actually contest the election. It was suggested to them that he had withdrawn his candidature as a protest against the high handedness of Abdur Rehman deceased but they denied the suggestion. Kundan Lal, however, admitted that Altaf Baloch appellant had requested the authorities for providing police force for the conduct of the elections and the said elections were held under the supervision of the police. Abdul Ghafoor P.W. stated that after the elections of 1972 Altaf Baloch appellant formed a rival Union. Abdul Ghafoor and Kundan Lal P.Ws. further admitted that two or three months after the elections of 1972 Altaf Baloch appellant formed a rival Union. Abdul Ghafur and Kundan Lal P.Ws. further admitted that two or three months after the said elections, Altaf Baloch brought a case under section 397, P.P.C. against them, the deceased and some other persons. According to Abdul Ghafoor P.W. the accusation against them in that case was that they had attacked the office and residence of Altaf Baloch appellant. Further, it is an admitted fact that in the referendum held in December, 1973 the Union of Altaf Baloch appellant was defeated and the one headed by Abdur Rehman deceased was declared the Collective Bargaining Agent. Thereafter, the deceased and his co-workers in the factory premises. It is admitted on all hands that Altaf Baloch and his companions had to approach the N.I.R.C. against the high handedness of the deceased and his associates. The proceedings before the N.I.R.C. show that till the day of occurrence the situation in the Packages Factory was abnormal. These facts and circumstances clearly indicate that Altaf Baloch appellant remained victim of the high handedness of Abdur Rehman deceased all along since 1972 therefore, he had a strong motive to do away with him. As regards Khushi Dogar appellant the allegation is that he made a murderous assault on the companions of Abdur Rehman some time prior to the occurrence and a case under section 307, P.P.C. was registered against him vide F.I.R. No, 96, dated 30-3-1974 (copy Exh.P.H.). Abdul Ghafur complainant is named as an eye-witness in this F.I.R. but the name of Abdur Rehman does not find mention therein in any context. It was contended that Abdur Rehman deceased was neither a complainant nor a witness in that case, therefore Khushi Dogar appellant had no motive to cause any harm to him on that score. It is further submitted that Abdul Ghafur complainant is mentioned as an eye witness in the F.I.R. therefore, if Khushi Dogar appellant had any grievance on account of the registration of that case, he would not have spared Abdul Ghafur because, according to the prosecution, he was very much available at the spot. In the committing Court Khushi Muhammad Dogar appellant admitted that he was falsely implicated due to his brother who was an active member of the Union of Altaf Baloch and for the same reason Abdur Rehman deceased got the aforesaid case registered against him. Rightly or wrongly he labored under the feeling that Abdur Rehmarti deceased was responsible for the registration of the case under section 307, P.P.C., therefore, he too had a strong motive to kill complainant and eye- witness of that case was not attacked by the appellants does, not present any difficulty. The question why Abdur Rehman deceased was the source of all their miseries and when he was available the might not have considered it worthwhile to focus their attention on small fry like Abdul Ghafur complainant and probably double murde was not in the plan,
18. After giving our careful consideration to the evidence and the arguments addressed by the learned counsel for the parties, we are satisfied that the prosecution has successfully brought home the charge to both the appellants and they were rightly convicted for the murder of Abdur Rehman deceased. Accordingly, we maintain their conviction. There are no extenuating circumstances on the record to withhold the normal penalty of death provided for the offence of murder. We, therefore, dismiss the appeals and confirm the death sentence of both the appellants.
Death .