Find a Lawyer

Criminal Appeals Nos. 51‑K and 52‑K of 1983, decided on 7th Janu ary, 1986.

(On appeal from the judgment of the High Court of Sind, dated 1st November, 1983, in Criminal Appeals Nos. 60 and 61 of 1981).

‑‑ Art 185(3)‑Penal Code (XLV of 1860), S. 307‑West Pakistan Arms Ordnance (XX of 1965), S 13‑D‑Leave to appeal granted to examine question whither evidence recorded in main case (under S. 307, P. P. C.) could be relied upon for upholding conviction of accused under Arms Ordinance.

‑‑ S. 307 ‑Daylight occurrence‑One of eye‑witnesses having been injured and his presence at place of occurrence not denied and his version fully corroborated by medical evidence‑Other eye‑witness being complainant who lodged F. 1. R. promptly and his presence at place of occurrence was not doubtful‑Evidence of motive not challenged‑Nothing was shown to discredit testimony of such witnesses‑Prosecution case resting on ocular testimony of such witnesses, apprehension of accused at spot and evidence of motive No possibility of mistaken identity of accused existing‑Case being a single accused case, no reason shown to believe that real assailant would be substituted‑Trial Court and High Court accepted testi mony of witnesses supporting prosecution case ‑ Held, ocular testimony supported by evidence of motive and medical evidence having sufficiently brought home charge against accused, no excep tion could be made to finding of guilt recorded by Courts below against accused.

-----S. 43‑Penal Code (XLV of 1860), S. 307‑West Pakistan Arms Ordinance (XX of 1965), S. 13‑D‑Evidence recorded in main case (under S. 307, P. P. C.), held. could not be relied upon for uphold ing conviction of accused under Arms Ordinance, 1965‑Each case has to be judged upon its own facts established by evidence led therein‑A judgment was not admissible for purpose of proving reasons for judgment or for using it, findings of facts as evidence of those facts in another case.

Muhammad Khurshid v. The State P L D 1963 S C 157 quoted.

Muhammad Hayat Junejo, Senior Advocate Supreme Court and Muzaffar Hassan, Advocate‑on‑Record for Appellant.

Sattar A. Shaikh, A. A.‑G., Sind and S.M. Abbas, Advocate‑on‑Record for the State.

Date of hearing : 7th January, 1986.

These two appeals arise out of the same set of facts and are accordingly being disposed of by this common judg ment.

2. The occurrence in this case took place on 30th March, 1980, at 8‑15 a.m., in village No. 1, Deh Khairpur near road leading to Dabbar from Punjhatti Shakh, Taluka and District Khairpur, Province of Sind. At that time complainant Muhammad Hanif and his brother Abdul Sattar were confronted by appellant Khush, Muhammad alias Natho, who drew a pistol from under his shirt and fired at Abdul Sattar. The complainant went forward and captured the assailant who was overpowered with the assistance of Ahmad Ali Shah and Bashir Ahmad. Abdul Sattar received multiple pellet injuries on his shoulder. The complainant and witnesses then recovered the crime weapon from the appellant. The injured and the accused were taken to toe police station and F. I. R. was registered. The pistol and cartridges secured from the accused were produced before the police.

3. The motive for the crime as stated in the F. I. R. by the com plainant was that one Mst. Akbari niece of the accused (appellant) was married with Abdul Sattar with the consent of her mother Murdan Bibi, but the accused was annoyed over this marriage. About two months prior to the occurrence the father of Mst. Akbari came to the house of Abdul Sattar and took her away on the pretext of meeting her relations. However, soon thereafter he filed a criminal prosecution against the complainant, Abdul Sattar and their other relations alleging abduction of Mst. Akbari by them and also filed a civil suit at Khanewal. It was on account of these cases that the accused opened fire on Abdul Sattar with intention to kill him. A separate case was registered against the appellant in respect of the recovery of the unlicensed pistol and cartridges secured from him.

4. Upon medical examination the injured Abdul Sattar was found to have received multiple gunshot entrance injuries about 80 in number, 1/4" in diameter, skin deep, muscle deep over upper part of the chest and over shoulder girdle left side. In the opinion of the medical officer all the injuries were simple in nature and appeared to have been caused by the discharge from a fire‑arm.

5. The defence of the appellant was of denial of the prosecution allegations and false implication on account of enmity. According to his statement at the trial he was called for talks to settle the dispute between the parties at the house of the complainant party and he was implicated in this case falsely.

6. The appellant was tried by the learned first Additional Sessions Judge, Khairpur, under section 307. P. P. C. and section 13‑D, Arms Ordinance in separate trials. He was found gulity in both cases and was accordingly convicted under both charges. Under section 307, P. P. C. he was sentenced to R. I. for three years and to pay fine of Rs. 1,000 or in a default to undergo R. I. for six months. Under section 13‑D, Arms Ordi nance, he was awarded a sentence of R. I. for one year.

7. Appellant challenged his conviction and sentences by separate appeals before the Sind High Court. A learned Single Judge of that Court, however, dismissed both appeals by separate judgments, dated 1st November, 1983, upholding the convictions and sentences awarded to the appellant.

8. Leave was mainly and firstly granted in the petition arising out of the judgment of the High Court in the case relating to Arms Ordinance, in order to examine the question whether evidence recorded in the main case (under ‑section 307; P. P. C.) could be relied upon for upholding conviction, of the, appellant under, the Arms Ordnance. Since leave was granted in that case, leave was also granted in the main case under section 307, P. P: C.

9. We have heard Mr. Muhammad Hayat Junejo who has appeared for the appellant. The prosecution case in support of the charge under section 307, P. P. C. rests on the ocular testimony, apprehension of the accused at the spot and evidence of motive. The ocular testimony in furnished by complainant Muhammad Hanif and his brother injured Abdul Sattar They have also supported the motive for the crime. The trial Court and the High Court have accepted their testimony as truthful. This is a daylight occurrence and there is, therefore, no question of mistaken identity. There is also no reason to believe that the real assailant of injured Abdul Sattar would be substituted by the present appellant, particularly when there is, only, a single accused in this case. The injured was promptly taken to the police station alongwith the accused and weapon‑ or offence was produced at the time of the F. I. R.

10. The presence of injured Abdul Sattar (P. W.) at the time of occurrence cannot be denied as his version is fully corroborated by the medical. evidence. Similarly the fact that the F. I. R. was promptly lodged by complainant Muhammad Hanif, his presence at the spot is also free front any doubt. Their evidence with regard to the motive also seems to have gone unchallenged. The grievance seems to be on the side of the accused who bad resented the abduction or marriage of his niece with injured Abdul Sattar. Learned counsel did not point out anything in the evidence of these two eye‑witnesses which in any way discredits their testimony. The fact that other witnesses who assisted the complainant in overpowering the accused and capturing him were not examined has been properly dealt with by the learned Judge in the High Court and we find no reason to disagree with his assessment of the evidence. We are, there fore, in agreement with the learned Judge in the High Court that the ocular testimony‑supported by the evidence of motive and medical evidence sufficiently bring home the charge against the appellant and no exception can be made to the finding of guilt recorded against hint under section 307, P. P. C.

11. The position as regards the conviction of the appellant under section 13‑D; Arms Ordinance 'is, however, different. It was alleged by the prosecution that on 30th March, 1980, the appellant was apprehended while in possession of an unlicensed pistol alongwith three live cartridges by the complainant Abdul Sattar and two witnesses, namely, Ahmad Ali Shah and Bashir Ahmad. The appellant was produced by these persons before S, H. O. Town Police Station, Khairpur, alongwith incriminating articles‑with two seized by the latter. Nazir Ahmad was examined at the trial in support of the charge but be did not support the prosecution; in that, he stated that when he reached the spot he found the accused already in custody of the police. The learned Judge, in the circumstances came to the following conclusion:

"Consequently there is no material on the record of this case to prove that the pistol and, the cartridges which were produced before the S. H. O. simultaneously with the accused were actually recovered from the accused."

In order, to overcome this difficulty the learned Judge referred to the finding in the connected case (under section 307, P.P.C) ,as to the recovery of unlicensed pistol and cartridges and on that basis came to the conclusion that the possession of the unlicensed pistol and cartridges by the appellant was established. In this connection the observations of the learned Judge may with advantage be reproduced as under :-

"In any case I can in agreement with the learned trial. Judge that the connected case in which accused has been proved guilty inter alit‑: on the basis of recovery of the unlicensed pistol and three live cartridges which form the case property of this case is inseparable from the instant case and therefore the evidence led in the con nected case as to recovery of the unlicensed pistol and cartridges can be read and taken into consideration in this case Consequent ly the findings reached by the learned trial. Judge that the pistol and cartridges that were produced before S. H .O. were recovered from the accused's possession are correct. I see no justification to interfere with this findings. Accordingly the conviction of 'the accused under section 13-D, Arms Ordinance is upheld and the appeal is hereby dismissed.

12. In reaching this conclusion the learned Judge, in our opines has fallen in error Two well‑established principles of law seem to have been violated in holding the appellant guilty of the charge in this case. The first principle is that each case is to be judged upon its own facts established by the evidence led therein. The second principle involves the question of admissibly and relevancy of judgment as evidence in a case. Section 43 of the Evidence Act enacts the general rule that judgment not inter partes is not relevant as proof of the particular pains decided by it. The exceptions to this general rule are given. in sections 41 and 42 of the Evidence Act was considered by this Court in Muhammad Khurshid v. The State. (PLD 1963 SC 157) and it was held that a judgment was not admissible for the purpose of proving the reasons for the judgment or for using its findings of fact as evidence of those facts in another case. It was observed:--

The Evidence Act does not make findings arrived at on the evidence before the Court, in, one ease evidence of that fact in another case. Each case is to be judge upon its own facts established by the evidence led therein."

In the light of these principles and the enunciation of law made by this Court we are unable to uphold the Judgment of the learned Judge which precedes upon the basis of that findings in the connected case. The evidence led therein was not produced in the trial of the appellant in respect of the, charge under section 13‑D Arms Ordinance. In view of his own conclusion that there was no material on the record this case to, prove that the appellants found in possession of unlicensed fire arm and ammuni tion the learned Judge had no Option but to acquit the appellant of the charge for want of legal proof. We, are therefore unable to uphold the judgment of the learned judge and acquit the appellant of the charge and set aside his convict on under section 13-D, Arms Ordinance.

13. The result is that Criminal Appeal No. 51‑K/83 is allowed, whereas Criminal Appeal No. 52 K/83 is dismissed. The conviction aid sentence of the appellant under section 307, P. P.C. are maintained. He is on bail and shall, therefore, be taken into custody to serve out his remaining sentence. However, benefit of section 382‑B, Cr. P. C. shall be granted to the appellant while computing his sentence.

M. B. A. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.