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Petitioner: KHUSHI MUHAMMAD DOGAR and another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Rafique Tarar, Muhammad Afzal Zullah Title: KHUSHI MUHAMMAD DOGAR and another vs THE STATE Case No.: Criminal Appeal No, 606 of 1976 and Murder Reference No, 14 of 1977 Date of Judgment:1984-04-04 Reported As: 1984 MLD 1337 Result: sentences confirmed
JUDGMENT
JUDGMENT ' 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
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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
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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.
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(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."
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' 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
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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
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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…
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