Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: KHUSHI MUHAMMAD ALTAF HUSSAIN BALUCH VS Respondent: THE STATE THE STATE
Court Name: Supreme Court of Pakistan Judge(s): M.S.H. Quraishi, Nasim Hasan Shah, Aslam Riaz Hussain Title: KHUSHI MUHAMMAD ALTAF HUSSAIN BALUCH vs THE STATE THE STATE Case No.:Cr. Appeal No. 180/78 Criminal Appeal No. 179 of 1978 Criminal Appeal No.
JUDGMENT
Reported As: 1983 SCMR 697 Result: Appeal dismissed Judgment JUDGMENT 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.
---
## Page 2
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
---
## Page 3
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.
---
## Page 4
(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
---
## Page 5
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
---
## Page 6
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.
---
## Page 7
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…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.