NABI BUX Versus THE STATE

1. MUHAMMAD Gul., J. ‑Nabu alias Nabi Bux, Shah Nawaz. Sher Muham mad and Ahmad, the four appellants herein, were tried and convicted under section 302/34 for the murders of two brothers Nawab and Nooro and under section 307/34, P. P. C. for attempt on the life of Sain Bux P. W. 11, son of Nawab deceased. Nabu was sentenced to death on two counts and rigorous imprisonment for 5 years under section 307/34 which, however, was to take effect if his death sentence was not confirmed by the High Court. The other three appellants were sentenced to imprisonment for life each under section 302/34 on two counts and five years' rigorous imprisonment under section 307/34, P. P. C. Both sentences were made concurrent. On a joint appeal and reference, the appellants' convictions aid sentences as aforesaid were confirmed by the High Court.

2. The incident took place after day‑break at about 8‑30 a.m. on 27‑5.1970 in the field of Rais Ghulam Mustafa Jatoi in Deh Sadhoja, District Nawab Shah, at a distance of about 8 miles from P. S. Moro. The two deceased were haris of Rais Ghulam Mustafa Jatoi. The prosecution case briefly is that Nawab deceased and his brother Allah Jurio (P. W. 1.), son Sair, Bux (P. W. 11) and nephew Sain Dad (P. W. 2) were winnoving wheat crop at their deras. Nawab deceased carried a load of chaff tied in cloth and was going to the village when the four appellants appeared on the scene and challenged him. Of them, Nabu was armed with a pistol and the other three had a hatchet each. Apprehending danger Nawab threw the bundle of chaff on the ground and tried to escape towards the village but Nabu fired at him with the pistol. Nawab was hit and fell on the ground. As the lay on the ground Ahmad appellant gave him repeated hatchet blow on the neck completely severing his head from the trunk. Allah Jurio, lain Dad and Sain Bux P. Ws. raised alarm and as they ran in a bid to save Nawab, Nabu fired twice at Sain Bux hitting his left eye and left shoulder. On the cries of witnesses, Nooro another brother of Nawab who was grazing his cattle also came running, but Shah Nawaz and Sher Muhammad appellants attacked him with their hatchets almost severing his head from the trunk. As the appellant retreated from the scene of incident Ahmad appellant carried away the heady of Nawab deceased with him.

3. Leaving Sain Dad and Sain Bux with the dead bodies, Allah Jurio went to inform Haji Muhammad Rahim, a Kamdar of Rais Ghulam Mustafa Jatoi of the incident but who having heard the commotion was himself coming towards the scene of incident.

4. Allah Jurio narrated the incident to him and he directed him to lodge the report. Allah lurio then lodged F. I. R. at Moro P. S. at 9‑30 a.m. The motive for the crime was that about 3 months prior to the incident Fateh Muhammad uncle of Shah Nawaz, appellant, was alleged to have been murdered by Ghulam Muhammad, Khanan, Ghulam Haider and Uris, the informant's ester's sons at the instance of one Fakir Khair Muhammad Hisbani. The complainant's party had also brought a number of theft cases, against the appellants.

5. At the wardat the dead bodies of Nawab and Nooro lay at a distance of about 180 paces from each other. The head of Nawab deceased was missing while that of Nooro was also almost severed but for a small connecting patch of skin on the left side of the neck. Sain Bux P. W. I1 on medical examina tion was also found to have suffered two gun shots injuries one of which had injured his left eye. The S. I. P. recovered two empties near the dead body of Nawab.

6. Nabu and Shah Nawaz were arrested on 27‑5‑1970. At the time of his, arrest blood‑stained shirt and loin cloth Exh. 15 were recovered from the person of Shah Nawaz appellant. These were found by the Serologist to be stained with blood of human origin. He also led to the discovery of blood stained hatchet which lay concealed in the sar bushes. This too was found stained with blood of human origin. Nabu appellant led the Investigating Officer to the discovery of country‑made pistol which lay concealed in sar bushes near the bank of Dad Wah. One of the empties earlier recovered at the spot, on a test by the Ballistic Expert, was found to have been fired from the pistol recovered at the instance of Nabu. The other two appellants Sher Muhammad and Ahmad were arrested three days later on 30‑5‑1970 but no incriminating article was recovered from them or at their instance.

7. The appellants denied the commission of offence by them and attributed the case due to enmity. In their statement they referred to some cases of theft earlier lodged by the complainant's relatives of all of which they were acquitted.

8. The trial Court and the High Court found the ocular testimony furnish ed by Allah Jurio, his son Sain Dad P. W. and Sain Bux P. W. 11, trust worthy which though interested was corroborated by the recovery of pistol, the matching evidence relating to one of the crime empties and the recovery of blood‑stained shirt and loincloth from Shah Nawaz appellants.

9. Leave was granted to consider whether consistently with safe dispensation of criminal justice the conviction of the appellants could be maintained not withstanding the partisan character of ocular evidence and the acquittal at a separate trial of Nabu appellant on a charge of possessing an unlicensed pistol.

10. Mr. Muhammad Hayat Junejo, learned counsel for the appellants argued that the conviction of the four appellants rested on ocular evidence of three witnesses, who are closely related to the deceased persons and therefore are highly interested and the conviction of the appellants cannot be maintained. In support of this argument, learned counsel cited Habib Ullah v. The State ((1962) 2 P S C R 49). The three eye‑witnesses have been believed fully both by the trial Court and the High Court. It is true that they are closely related to the deceased, they have been found to be natural witnesses. There is the further fact that A, among them Sain Bux P. W. 11 has two gunshot injuries. This is a positive indication of his having witnessed the crime. Then Haji Muhammad Ibrahim P. W., Kamdar of Rais Ghulam Mustafa Jatoi, furnishes a strong corrobora tive evidence of the statement of Allah Jurio P. W. when the latter reported the incident to the former immediately after the occurrence naming all the four appellants. The evidence of this witness furnishes a strong corroboration of the evidence of Allah Jurio under section 157 of the Evidence Act, 1872. With reference to this section it was observed by the Federal Court in Muhammad Sarfraz v. The Crown (P L D 1953 F C 317) that the intention of the law is that when the previous statement is made before a person not being in authority and is to be used for corroboration it must satisfy that the statement is made in relation to the fact which is so fresh in the mind of the narrator, that he must be assumed to be speaking "under pressure of the recollection alone un-diverted by, any personal motive." This requirement is amply satisfied in the instant case. Nothing has been brought in the cross‑examination of Haji Muhammad Rahim P. W. to shake his credibility or otherwise to induce him to falsely implicate the four appellants particularly when Sher Muhammad appellant is also a hari of Rais Ghulam Mustafa Jatoi. Then there is also the corroborative evidence of the recovery of pistol with which one of the empties, recovered from the wardat also matched and of blood‑stained hatchet, shirt and loin cloth from the person of Shah Nawaz which were found to be stained with blood of human origin:

11. The facts in Habib Ullah's case were materially different. In that case the conviction of the accused rested on the evidence of a single eye‑witness who was not on good terms with the accused. Prosecution evidence had also prevaricated on the question of motive. This Court observed in that case that when the alleged motive is either found to be absent or untrue, the Court should be very much on their guard to accept the prosecution story of which the motive was an important constituent and which depended for its accept ance on the statement of a single witness who supported that story including the motive. The facts of the precedent case were therefore materially different and the dictum in that case would not apply to this case.

12. Learned counsel for the appellants next argued that eye‑witnesses were contradicted by the medical evidence which discovered curd and particles of food in the stomachs of the two deceased. Therefore, it was sought to be argued that the incident had probably taken place during the night after the two deceased had taken their evening meals. Therefore, learned counsel suggested that the incident had not taken place at 8‑30 a.m. as alleged by the prosecution. The argument overlooks the fact that the two deceased had gone out to their deras for winnowing the wheat crop. It is quite consistent with the probability of the case that they had gone to the deras after break fast with bread and curd. Curd is usually taken by cultivators in the morning and not with the evening meals.

13. It appears that Nabu appellant was separately tried on a charge under section 19 of the W. P. Arms Ordinance, 1965 for being in possession of an unlicensed pistol. He was, however, acquitted in that case by the same learned Additional Sessions Judge, who tried the instant case. Both the judgments are dated 25‑2‑1972. On the basis of these facts Mr. Muhammad Hayat Junejo argued that the acquittal of Nabu for the alleged offence of being in possession of unlicensed pistol not having been challenged in appeal has attained finality and has cast a serious doubt on the entire prosecution version in the instant case. Learned counsel stressed that Nabu's acquittal in the other case related to an incident which was integral part of the same transaction, and therefore, must be given full logical effect. It was therefore stressed that the prosecution version in the instant case is affected by a general doubt.

14. From the copy of the judgment of the learned Additional Sessions Judge it appears that in the case under the Arms Ordinance Nabu was given benefit of doubt because of the two mashirs who attested the recovery memo only Allah Dine was examined, but he did not support the prosecution case which rested on the solitary statement of A. S. I. P. Dost Muhammad. This the trial Judge found as insufficient to bring home the charge against Nabu. Learned counsel for the appellant did not refer to any section of the Evidence Act under which the judgment of acquittal in the other case in which Nabu appellant alone was the accused is relevant much less conclusive in this case. Section 40 or 44 of the Evidence Act bear on the relevancy of judgments in other L cases. Section 40 makes any previous judgment relevant which operates as res judicata in a civil case or supports the plea of autre foil acquit or autre jois convict in a criminal case. In any such case the second suit or secone trial as the case may be, is barred under sections 11, C. P. C. and 503, Cr. P. C. This section obviously has no application. Section 41 refers to judgments of a competent Court in exercise of probate, matrimonial, admirally or insol vency jurisdiction, which are called judgments in rein in that either they confer or take away a legal character or declare a person to be entitled to a legal character or a specific thing not against a specified person but "absolutely." This section has therefore no application either. Section`42 makes judgment relevant "if they relate to matters of public nature relevant to the enquiry." Section 43 makes a judgment other than falling under sections 40 to 42 relevant, if "the existence of such judgment‑is a fact in issue or is relevant under any other provision of this Act."

15. In the instant case, the judgment acquitting Nabu appellant of the offence under the Arms Ordinance, cannot be relevant under any of sections 40 to 42. Therefore, the question would be, whether it could be relevant under any other section of the Evidence Act? Learned counsel has failed to point to any such section. Furthermore, it is important to observe, that even if the judgment in the other case could be treated as relevant under section 43, it can be admitted only for the purpose of proving "its existence and not for proving its correctness." See Gujja Lal v. Fateh Lall (I L R 6 Cal. 171), State v. Fateh Lal (A I R 1921 Mad. 248) and Collector of Gorakhpur v. Palakdhari (I L R12 All). Therefore, it would be perfectly open to the Court, to decide the fact concerning the recovery of pistol aliunde of the judgment in the other case, on the basis of the assessment of evidence produced in the instant case. In the instant case, the learned Additional Sessions Judge .had, not only before him the evidence of S. I. P. but also the evidence relating to matching one of the empties recovered from the spot. Secondly, the recovery of pistol at the instance of Nabu appellant is not a fact in issue per se but is collaterally relevant to the main issue namely whether the four appellants killed Nawab and Nooro in the manner alleged by the prosecution. And one of the elements in the prosecution version is that Nabu fired with his pistol hitting Nawab deceased and Sain Bux P. W. Besides the evidence of three eye‑witnesses whose evidence has been believed throughout there is also confirmatory evidence of the medical officer. Therefore, having regard to the totality of the prosecution case there is ample evidence to prove the part attributed to Nabu appellant, his acquittal in the other case concerning a collateral fact, notwithstanding.

16. The last section in the series is section 44 of Evidence Act which are obtained by fraud or collusion, making it permissible for the person against whom any such judgment is produced to show that it was so obtained. No such question arises in the instant case. Therefore, we hold that the judgment acquitting Nabu on a charge of possessing unlicensed pistol is not, relevant to this case. Much less it is conclusive, and therefore it cannot be read as affecting the conclusions reached in the instant case.

17. Lastly, Mr. Muhammad Hayat Junejo argued that the four appellants on the prosecution evidence are equally guilty and the case of appellant Nabu who has been condemned to death is scarcely distinguishable from that of the three appellants, on any rational hypothesis. Accordingly, on the basis of dictum of this Court in Sahib Ali v. The State (1971 P S C R 81), it was submitted that death sentence of Nabu appellant should also be commuted to that of imprisonment for life to ensure equality of justice to all the four appellants. The precedent case was of three real brothers who were convicted and sentenced to death by the trial Court. The High Court maintained the sentence of one of them namely the appellant in this Court and commuted the sentence of the other two accused to transportation for life. It appears that while interfering on the point of propriety of sentence the High Court was swayed by the reason "that the Courts have always been reluctant to sentence more than one person to death for killing one person." The High Court also took the view that if the condemned appellant had not given the first blow with his dagger in the belly of the deceased, the other two accused might not have moved action. The above tenuous distinction made by the High Court was not approved by this Court. It was observed that when guilt of several accuser persons concerned in a murder crime is proved to be equal and undistinguish able, it would be wholly illogical to pick just one person out of lot to pay by his life for the murder of the deceased and to secure the others. Sajjad Ahmad Jan, J. with whom the other learned Judges agreed, observed towards the end of his judgment:

18. "Speaking frankly, I have been put to a considerable strain in making up my mind in this case. The question that has tossed my mind is: shall I uphold the sentence of the appellant or shall I scale it down to that of the co‑accused? If I uphold it, do I not approve of the mistake of the High Court in creating an adverse distinction in the case of the appellant from that of the others, although in point of fact no such distinction exists? If I alter the sentence, shall I not be committing the same mistake which has been committed by the High Court in withholding the normal penalty of death for what has been found to be wanton and heartless murder.

19. In this wavered state of mind, I have thought it better to err in favour of the condemned appellant rather than against him, and for the additional reason that he has now been under the agony of a death sentence for a little less than two years. It is also obvious that in the commission of this crime, he has not acted singly on his own, but has acted under the active influence and with the collaboration of his other two brothers, one of whom is elder and the other younger to him and both of whom have got away in this crime with a lesser punishment."

20. Thus it will be seen that the case of Sahib Ali proceeded on its own peculiar facts and was not intended to lay down any rule of general application in any event, it may be, that on the general principles, the case of Nabu, cannot properly be distinguished from the other three appellants merely on the ground that they were armed with hatchets but they wielded equally effectively and therefore eminently deserved capital sentence. But the mere fact that no appeal or revision has been filed for the redress of miscarriage of justice on that account, in our opinion is not valid reason for reducing the sentence of Nabu appellant. The two murders were committed in utter barbarous manner and to award lesser sentence to Nabu would in our opinion ‑amount to a miscarriage of justice. However, that may be, in the absence of any mitigating circumstances, We do not see any reason to interfere in the judgment of the High Court on the question of sentence in the case of Nabu appellant.

21. Appeal is accordingly dismissed.

22. K. B. A. Appeal dismissed.