NASIM HASAN SHAH, J.--This appeal by Ata Muhammad son of Mutalli by leave of this Court is directed against the Judgment of a Division Bench of the Lahore High Court dated 16-1-1979, dismissing his appeal in a murder case.
2. Ata Muhammad appellant, along with 6 others, was accused, inter-- alia, of the murder of Salehoon son of Raja.
The occurrence took place at about Peshiwela on 4-1-1974 in the lane of Chak No.202/J.B., District Jhang.
3. The motive for the murder was stated to be that many years prior to the present occurrence Walia, the father of Ata (one of the accused) was murdered. Manak, a brother of Salehoon (deceased in the present case), and Shaman, a son of the said Manak, were convicted for that murder and were sentenced to suffer imprisonment for life. The accused in the present case harboured a grade against Manak and Salehoon etc., for the aforesaid murder. About 1--years before the present occurrence Allah Yar a friend of Shera son of Mutalli (acquitted co-accused) and Shera son of Jallah (acquitted co-accused) was murdered. Manak and Shaman aforesaid were also suspected for his murder.
4. Manak himself was done to death on 30-12-1974, for which Ata son of Mutalli (appellant) was accused alongwith some others. Five days, later, on 4-1-1974, Salehoon was also murdered and Ata appellant was accused of this murder along with 6 others.
The prosecution version of the murder of Salehoon is that on the day and the of occurrence Shah Beg P.W.9 (nephew of the deceased), Fazil P.W.11 (brother of the complainant and nephew of the deceased) and Salehoon deceased were coming from the fields to their village (Chak No.202/J.B).
Salehoon (deceased) was ahead of them. When he reached in front of the baithak of Bhai Khan (acquitted co---accused) all the 7 accused in the case turned up and surrounded him. Four of them, namely, Ata son of Mutalli (appellant herein), Allah Ditta, Ata son of Walia and Bhai Khan all armed with guns, came from the back side of Salehoon (deceased), whereas the remaining 3 co- accused namely, Akbar, Shera son of Mutalli and Shera son of Jallah appeared on the front side of the deceased. They to were armed with guns. Allah Ditta co-accused raised a Lalkara that Salehoon should not be allowed to go alive, whereupon all the accused fired at the deceased. On receiving the injuries Salehoon (deceased) fell down. His niece Mst. Bibi Rani P.W.10 (wife of Ata appellant) came out of the nearby house of her father, Manak (deceased in the previous case), and fell upon Salehoon in order to save him. She was warned by Bhai Khan co-accused but she did not get up, whereupon he fired at her, as a result of which she to was injured. The accused then left the place of occurrence along with their weapons. Mst. Bibi Rani was lifted by the prosecution witnesses who had gathered there and was taken to the house of her father which was nearby. She was later sent for treatment to the Civil Hospital, Bhowana.
Shah Beg P.W.9 (nephew of the deceased) lodged the F.I.R. Under sections 148 and 307/ 149, P. P.C., as Salehoon had not yet expired. It was recorded by Muhammad Aslam S.I. (P.W.16). After recording the F.I.R. The Sub-Inspector proceeded to the spot. Salehoon had died by that the. The Sub- Inspector, therefore, prepared the inquest report and other necessary documents and sent the dead body of the deceased to the mortuary for post-mortem examination. The F.I.R. Was also amended and section 302/149, P.P.C. Was also added thereto.
Amir Umar Niazi, Inspector Police (P.W.15) S.H.O. Bhowana Police Station, received the information about this occurrence in the illaqa and he also went to the spot, where Muhammad Aslam, Sub--- Inspector was already present. The S.H.O. Inspected the spot, collected some blood-stained earth from the place of occurrence and also recovered an empty .12 bore cartridge (P.6) lying nearby and took it into possession.
Ata son of Mutalli could not be found and was arrested a few days later, on 18-1-1974, at Manguana Bridge. At that the he was carrying an unlicensed gun (Exh.P.7) which was taken into possession vide recovery memo. Exh. P.R. This gun was found subsequently-by the Forensic Expert to match with the empty cartridge (P.6) found from the spot where Salehoon was murdered on 4-1-1974.
Sarfraz co- --accused produced a licensed gun (P.4) of his father Allah Ditta, which, to, was taken into possession by the police.
5. Atopsy revealed as many as 11 fire-arm injuries on the dead body of Salehoon. Some of these were on the front while others on the back side.
Dr. Hafiz-ur-Rahman(P.W.2) who had medically examined Mst. Bibi Rani (P.W.10) found 5 fire-arm simple injuries on her person.
6. At the trial the prosecution relied on the ocular testimony of Shah Beg complainant, P.W.9 (a nephew of the deceased), Fazil P.W.11 (also a nephew of the deceased and brother of the complainant) and Mst. Bibi Rani P.W.10, (wife of Ata son of Mutalli, appellant herein). It also relied on the evidence' of recovery of gun (P.7) from the appellant (which, as mentioned above, matched with the empty cartridge Exh.P.6, found from the spot); the evidence of motive and the medical evidence.
7. The accused pleaded innocence. For reasons which are not necessary to be mentioned here, the learned trial Court acquitted 5 of the accused and convicted only 2 persons, namely Ata son of Mutalli (appellant) under sections 302/34, P.P.C., and Bhai Khan under sections 302/34, P.P.C. And 307, P.P.C.
The appellant was sentenced to death and a fine of Rs.5,000 or in default of payment of fine to suffer further one year's R.I., while Bhai Khan was sentenced to imprisonment for life under section 302/34, P.P,C. And fine of Rs.5,000 or one year's R.I., for default of payment of fine. He was also sentenced to 5 years' R.I. Under section 307, P.P.C. And a fine of Rs.500 or in default of payment of fine to suffer further R.I. For six months.
8. The to convicted accused filed an appeal before the High Court which, vide the impugned judgment dated 16-1-1979, acquitted Bhai Khan co-accused because of absence of any evidence corroborating the ocular testimony qua him, but dismissed the appeal with regard to Ata appellant and confirmed his sentence of death.
Feeling aggrieved Ata son of Mutalli filed a petition for leave to appeal before this Court. It was urged on his behalf that the prosecution evidence, which was disbelieved with regard to the 6 co- accused should also have been disbelieved against him. It was urged further that his case is at par with the remaining 6 co-accused except for the fact that in his case the testimony of the eye- witnesses was corroborated by the recovery of gun (P.7) from him, which was later found to match with the empty cartridge (P.6) recovered from the spot. But he urged that this recovery could not be used against him because the recovery of this very gun from him was not relied upon by the Additional Sessions Judge, Jhang, in his judgment dated 14-10-1976 in the trial relating to the murder of Manak in which Ata son of Mutalli was also one of the accused.
He argued that the finding in the above said judgment with respect to the recovery of the gun from Ata appellant became final on the subject and a different conclusion could not be reached on the same matter in the subsequent case relating to murder of Salehoon.
Leave was, therefore, granted to him on 23-4-1980 to consider the effect of the finding given by the Additional Sessions Judge, Jhang, regarding the recovery of the same gun from Ata appellant vide Memo. Exh.P.R. In his trial for the murder of Manak, on the evidence relating to the same recovery in his (appellant's) subsequent trial for the murder of Salehoon (deceased).
9. We have heard the learned counsel for the appellant as well as the learned State counsel and have also gone through the judgments of the to Courts below, as also the evidence on the record.
As is clear from what has been observed above while narrating the facts, all the 6 co-accused of Ata son of Mutalli (appellant) were acquitted, as there was no evidence to corroborate the testimony of the eye-witnesses with respect to them. The appellant's conviction was, however, maintained because of the recovery of gun P.7 from his possession at the the of his arrest and the fact that this gun was subsequently found by the Forensic Expert to match with the empty cartridge P.6 found from the spot soon after the occurrence.
10. As already mentioned Ata appellant was also tried for the murder of Manak where he was alleged to have fired at Manak with the same gun which was later recovered from him vide Memo.
Exh.P.R. At the Manguana Bridge (and exhibited as P.9 in that case).
The learned Additional Sessions Judge trying that case did not place reliance on the alleged recovery of the said gun for the reasons recorded by him in para. No. 22 of his judgment dated 14- 10-1976, which reads as follows:- "Now to see if the guns alleged to have been recovered at the instance of Hazoora son of Nawab (since dead), Hazoora son of Sarishta and from Atta accused, advance the case of the prosecu-- tion or can be used as a corroborative piece of evidence in this case. The answer is no, I do not have to go into lengthy details to come to this conclusion because there is no evidence on record if the guns Exh.P.7, Exh.P.10 and Exh..P.11 recovered at the instance of Hazoora son of Sarishta, were ever deposited in the police Malkhana or those were retained by the M.H.C. There or any of these guns was ever sent to the office of the Forensic Science Laboratory, Lahore, to see if the alleged crime empty Exh.P.9 found from Ahata of the baithak of Manak deceased, was wedded to any of these guns. The learned A.P.P. Made a verbal request to summon the Fire-arm Expert as a witness in this case, when the trial in this case had been in progress for four days, but there is no report of the Fire-arch Expert on the record of this case. Hence, the prayer was rejected. It may be mentioned here that according to Amir Umar Khan, the then S.I., S.H.O. Police Station Bhowana (P.W.14) who allegedly took the gun Exh.P.1 from the possession of Atta accused on 18th January.
1974, has stated that this gun was taken into possession vide Memo. Exh.P.R. Connection with another murder case, the subject-matter of P.I.R. No.1 of 1974. Hence, obviously gun of Atta accused is not sought to be produced as a corroborative piece of evidence in this case to show if crime empty Exh.P.9 had been fired from this gun. It is also to be found in the statement of Muhammad Aslam S.I. (P.W.15) who recovered cartridge empty Exh.P.9 from the Ahata of the baithak of the deceased on 30th December, 1973 but he did not deposit the same in the police Malkhana till 16th January, 1974. When asked by the learned defence counsel as to why he delayed the depositing of this crime empty for 18 days and why the S.I. Had chosen to carry it alongwith him, to this 1.0: had no answer. Even from this subject of the matter that the cartridge empty was deposited in the Malkhana with the inordinate delay of 18 days, the corroborative value of the guns recovered adds upto nothing at all. I, therefore, hold that the guns allegedly recovered at the instance of the accused do not provide any corroboration to the prosecution case."
10-A. The learned counsel for the appellant sought to press into service the above-noted finding relating to the recovery of the gun from Ata (appellant herein) recorded by the learned Additional Sessions Judge, Jhang, in his judgment in the case relating to the murder of Manak, and to argue that since it was held therein that the said recovery "did not provide any corroboration of the prosecution case" against the accused (including Ata son of Mutalli, appellant in the present case), therefore, the recovery of the gun in question should also be discarded in the present cases as having no corroborative value.
11. As such, the question that arises for consideration is as to whether or not reliance can be placed, in a criminal case, on a subsidiary finding of fact (i.e. Not a finding of guilt or innocence of the accused), in the judgment recorded in a previous case, involving, inter alia, the same accused person, specially when the finding in question is based on the testimony of the same witnesses, who have deposed regarding the same recovery in the subsequent trial.
12. A similar question had arisen before this Court in Muhammad Khurshid's case PLD 1963 SC 157 in which leave was granted. for considering the question as to whether evidence which had been disbelieved in the other case should be accepted for the purpose of conviction under the Arms Act when the witnesses examined in the case were the same and gave identical evidence."
In that case, after considering all the relevant case-law Mr. Justice Hamoodur Rahman, who recorded the judgment, held that:- "Evidence Act does not make findings arrived at on the evidence before the Court in one case, evidence of that fact in another case, each case has to be dealt with upon its own facts established by the evidence led therein."
13. The provisions of law relating to the relevancy of prior judgments of Courts, in other cases, is contained in sections 40 to 43 of the Evidence Act, 1872. The most relevant section for this purpose is section 43 which reads as follows:- Section 43 Judgment etc., other than those mentioned in sections 40 to 42, when relevant--.
Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or-decree is a fact in issue, or is relevant under some other provision of this Act."
(Note: Underlining is ours).
A reading of this section shows that the basic principle is that in a trial, judgments, orders and decrees etc. Recorded in other cases are wholly irrelevant. Sections 40 to 42, however, provide exceptions to this general rile and indicate circumstances in which judgments. Orders and decrees etc., in other cases shall be relevant, for example: when, they bar a subsequent trial on the, principle of res judicata, or the principle of autre fois acquit and autre fois convict, or where they relate to matters of public nature e.g. The existence of a right of way, or general Custom or Usage.
The latter portion of section 43 of the Evidence Act also (after laying down the general principle), mentions further exceptions thereto and provides that prior judgments or orders etc., shall be irrelevant unless:
(i) the existence of such a judgment is a 'fact in issue'; or
(ii) (its existence) is relevant under some other provision of the Evidence Act.
14. It was not argued by the learned counsel for the appellant that the judgment in the previous case was covered by sections 40, 41 or 42 of the said Act. It is also evident that existence of the previous judgment relating to the murder of Manak was not a 'fact in issue' in the appellant's trial for the murder of Salehoon.
As observed earlier, the second proviso contained in the latter portion of section 43 provides that a previous judgment could be admissible "if it is relevant under some other provision of the Evidence Act." In criminal cases previous judgments could be relevant, inter alia, under the provisions of sections 7, 8, 9, 10 and 11 etc. Of the Evidence Act. But the learned counsel for the appellant did not even endeavour to show that the judgment in the case relating to the murder of Manak, was relevant under any of these provisions. However, even if it could be said that it was relevant under any of these sections, of is relevant as a judgment inter partes (the State and Ata son ox Mutalli being arrayed as parties against each other in both the cases), the finding in the earlier judgment, on a subsidiary fact in issue, i.e. Whether or not the gun in question was recovered from Ata son of Mutalli, would not be conclusive as far as the subsequent trial is concerned. All that it would show is the existence of a finding on that particular fact, but it would not show that the finding is necessarily correct, because as held in Berode Hel Chakora Varty v. Secretary of State AIR 1931 Cal.
239, "the existence of a judgment may be relevant, but the truth of it, by which is understood, the decision of the judge and the opinion expressed by him, is not relevant".
The judgments contemplated as relevant by section 43 are not those where the prior judgment bars subsequent suit or trial on the principle of res judicata or autre fois acquite or autre fois convict, which are binding on an opponent by reason of adjudication. Judgments of this kind are dealt within one of the preceding sections i.e. Section 40 of the Evidence Act. The prior judgments contemplated by section 43 on the other hand are such the existence whereof is itself, in issue, in the subsequent case or where it is relevant under some provisions of the Evidence Act. The best examples of these are contained in Illustrations (d), (e) and (f) to section 43 itself, e.g. When the fact of the existence of any particular judgment having been recorded is itself a matter to be proved in the subsequent case. As for instance, if A sues B for slander, in saying that he had been convicted of forgery, and B justifies it upon the ground that the alleged slander was true, the conviction of A for forgery, would be a fact to be proved by B, like any other fact in the case, and this would be so irrespective of whether A had been actually guilty of the forgery or not.
Similarly, if a person is charged with theft and is also liable to enhanced sentence under section 75, P.P.C. By reason of having been convicted previously, the judgment of previous conviction would become a fact in issue and would, therefore, be admissible under section 43.
Illustration(f) to section 43 also gives the example of a prior judgment being relevant under another provision of the Evidence Act, i.e. Where A is tried for the murder of B, the fact that B prosecuted A for libel and that A was convicted and sentenced for the same would be a relevant fact under section 8, as showing the motive for the fact in issue.
15. But as already observed, in such cases all that would be shown --by the proof of the previous judgment is the 'existence' of the judgment itself or of the fact that a particular finding, relevant to the fact ii, issue, was decided in a certain manner. But it would be no proof or the fact that the decision given therein was correct. Therefore, in such cases the only purpose for which the previous judgment could used is to treat the existence of such a judgment or finding as are additional piece of evidence to be considered like any other piece of, evidence, to determine the truth or otherwise of a fact in issue or the relevant fact in the subsequent case.
16. In the present case, a reading of paragraph 22 of the judgment recorded in the previous case (relating to the murder of Manak), would show that the learned trial Judge had refused to 'rely' on the recovery of the gun (the fact of 'recovery' of gun not having been disputed), because there was no evidence on the record to show whether the gun recovered from Ata son of Mutalli, as well as the guns recovered from his co-accused in that case, were ever deposited in the police Malkhana or were retained by the Muharrir Head Constable or that any of these guns was ever sent to the office of the Forensic Expert, Lahore or whether they matched with the empty cartridges found at the spot. Another reason was that the relevant empty cartridge found from the spot was also not deposited by the Investigating Officer in the Malkhana for about 18 days after its alleged recovery, for which no satisfactory explanation was put forward by the prosecution.
In other words there was complete absence of evidence as to whether the guns allegedly recovered from the accused were ever deposited in the Malkhana; that they were never sent to the Forensic Expert, and if so, whether they matched with the empty cartridges found at the spot. It appears, as observed by the learned Additional Sessions Judge, Jhang, himself, that the prosecution did not at all, intend to rely on the recovery of the gun recovered from Ata son of Mutalli in the case relating to the murder of Manak, and reserved it for use in the trial of the case regarding the murder of Salehoon.
17. The mere fact that the learned trial Court in the case of trial relating to murder of Manak refused to rely on the recovery of the gun from Ata son of Mutalli (appellant before us) as a corroborator piece of evidence, because of total absence of evidence to connect with the crime in question, did not in any way bar the learned trial Judge, trying the case of Salehoon's murder, from relying on the said recovery when before him all the evidence required to connect the gun with the appellant, as also with the commission of the crime by him, was duly produced by the prosecution. Nor was he bound to at of the finding in the previous judgment, which, as explained before, had been recorded due to utter lack of evidence on the relevant issue. We, therefore, repel this contention as having no force.
18. We, however, find some force in the contention that there is n evidence to show that it was the shot fired by the appellant which) caused the death of Salehoon and that, therefore, he deserves to be awarded the lesser penalty under section 302, P.P.C.
19. The net result of the above discussion is that we dismiss the appeal, maintain the conviction of the appellant under section-302, P.P.C. But reduce his sentence from death to imprisonment for life with benefit of section 382-B, Cr.P.C. The sentence of fine is, however, enhanced to Rs.10,000 or in default to suffer further three years' R.I. The fine, if realised, shall be paid to the heirs of the deceased.
M.Z.M. Appeal dismissed.