P L D 1963 Supreme Court 157 (PLP)

The question as to whether the said judgments could be used for impeaching the credit of the witnesses under clause (a) of section 155 of the Evidence Act was also answered in the negative by the High Court. On merits too the High Court found no ground for interference with the conviction of the appellant. It is against this judgment that the appellant obtained leave from this Court for the consideration of the question as to whether the evidence which had been disbelieved in the other cases could be accepted for the purposes of conviction under the Arms Act when the witnesses examined in the cases were the same and gave identical evidence. Learned counsel appearing in support of the appeal has contended before us that the High Court fell into error in taking the view that the judgments of the learned Sessions Judge in the cases under section 4 of the Pakistan (Control of Entry) Act were not relevant in this case at all. It is urged that the finding recorded therein with regard to the motive of the Border Police in launching upon these prosecutions was a relevant fact even in this case, for, at any rate it would have materially affected the credibility of the said witnesses. In support of this contention reliance is sought to be placed on illustration (f) of section 43 which is as follows: ‑ "A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8, as showing the motive for the fact in issue." Certain observations contained at page 333 of the Fourth Edition of Mr. Justice Munir's Commentary on the Indian Evidence Act under section 43 thereof are also sought to be utilised for substantiating the contention that findings in a judgment may in certain circumstances also be referred to in subsequent litigation. We are, however, unable to agree that any of these observations support the learned counsel, for, on the same page the learned author of the commentary has very clearly pointed out that "in all such cases the existence of the judgment is either a fact in issue or relevant under some other section of the Act, and again at page 334 that "a remark in the judgment in a previous criminal case against the accused is inadmissible in a subsequent case against him." It is no doubt true that the extreme view was taken by a majority of the learned Judges constituting the Full Bench that decided the case of Gujju Lal v. Fatteh Lall (ILR6Cal. 171) that "a former judgment which is not a judgment in rem, nor one relating to matters of a public nature, is not admissible in evidence m a subsequent suit, either as a res judicata or as proof of the parti cular point which it decides unless between the same parties or those claiming under them." As pointed out by the learned counsel appearing for the appellant himself in the case of Ram Ranjan Chuckerbutty v. Ram Narain Singh and others (LR22IA60), the Privy Council itself admitted a former judgment, which was not inter prates, to show ancient possession and assertion of title many years ago. Again, in the case of Dinomoni Chowdhurani v. Brajo Mohini Chowdhurani (29 I A 24), the Judicial Committee admitted into evidence under section 13 of the Evidence Act previous orders made under section 145 of the Criminal Procedure Code in a subsequent suit for deciding the title to the lands forming the subject‑matter thereof, to show the following facts, namely, "who the parties to the dispute were; what the land in dispute was and who was declared entitled to retain possession." But none of these cases goes to the extent of making such judgments 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. As Mr. Justice Munir has observed in his commentaries, at page 334, "a judgment, not inter partes, is not evidence of the point decided by it; all that it can be used to show is that the right asserted by a party in the litigation which resulted in the judgment was recognised or denied by the Court." The Judicial Committee itself observed in the case of Gobinda Narayan Singh and others v. Sham Lal Singh and others (58 I A 125), where an attempt was made to prove in a subsequent suit a previous judgment and certain depositions of witnesses in the previous case in order to establish a partition which was in issue in the second suit, that "the reasons upon which the judgment is found are no part of the transaction and cannot be regarded, nor can any finding of fact there come to, other than the transaction itself, be relevant in the present case." The, admissibility of such previous judgments is governed by section 43 of the Evidence Act. These judgments which are not judgments in rem or judgments relating to matters of a public nature or judgments which are admissible in support of a plea of res judicata or autrefois acquit or autrefois convict, are admissible only if the existence of such judgment, order, or decree is in fact in issue or is relevant under some other provision of the Evidence Act. Under, section 13 of the Evidence Act a previous judgment is admissible', because it is the evidence or integration of a litigation or a judicial proceeding and thus a transaction within the meaning of the said section. Similarly such judgments may be admissible under other sections of the Evidence Act also. In the High Court the argument advanced .vas that the Judgments in the cases of the companions of the appellant were admissible under section 11 of the Evidence Act. Section 1I runs thus: ‑ "Facts not otherwise relevant are relevant‑‑ (1) if they are inconsistent with any fact in issue or relevant fact ; (2) if by themselves or in connection with other facts they make the existence or non‑existence of any fact in issue or relevant fact highly probable or improbable." The High Court pointed out that the judgments sought to be relied upon did not deal with any fact which had any bearing upon any question of fact in issue in the case against the appellant under section 19(f) of the Arms Act or upon any fact which made the existence or non‑existence of those facts in issue either probable or improbable. We are in entire agreement with the High Court that the fact in issue in this particular case was as to whether the appellant was found in possession of the arms and ammunition said to have been recovered from him, which were not covered by a proper license issued for their possession. In the cases under section 4 of the Pakistan (Control of Entry) Act none of these facts were relevant or in issue. Hence it is difficult to appreciate how any assistance could be derived from those previous judgments to show that the existence of these facts was improbable, if those judgments are admissible only for the purposes of proving as to who were the persons being prosecuted in those cases; what were the charges against them and what were held. Before us it has been argued that those judgments should have been held to be relevant under section 8 of the Evidence Act. Section 8 is as follows: ‑ "

8. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the object of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto." Again, we fail to appreciate as to how the said judgment can be made relevant to establish any motive or preparation for any fact in issue or relevant fact in the latter case or to show the conduct of any party or any agent to any party in such prosecution. The persons whose conduct and motive are relevant under this section are a party, the agent of a party and a person an offence against whom is the subject of any proceeding. This does not make the motive or conduct of a witness in the case relevant. The conduct of a witness may be relevant for impeaching his credibility but that is not under this section but under section 155 of the Evidence Act. The latter section does not, however, make a judgment in another case in which the witness was disbelieved relevant for impeaching his credit. For the reasons given above we are in agreement with the High Court that the judgments were inadmissible either to prove the opinion of the learned Sessions Judge concerning the conduct of the Border Police or for impeaching their credit. The 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 is to be judged upon its own facts established by the evidence led therein. Examining the evidence in the case out of which the present appeal arises we are constrained to observe that the appellant's defense was not properly conducted in the trial Court. The statements of the witnesses examined on behalf of the prosecution with regard to the possession of the unlicensed arms were hardly challenged in cross‑examination, although on the record there did exist materials, which could have been utilised for such cross‑examination. In the circumstances, we are not surprised that the learned Sessions Judge found himself unable to accept the appeal of the appellant against his conviction under the Arms Act, notwithstanding the rather sympathetic remarks, which he had made in the other appeal against the appellant's conviction under section 4 of the Pakistan (Control of Entry) Act. It cannot, therefore, be said that the view taken by the Courts below of the evidence against the appellant was either unreasonable or opposed to any principle or rule governing the appreciation of evidence. There is no sufficient reason, therefore, for this Court to enter upon a re‑appraisal of that evidence. It is not for this Court to say as to whether a witness should or should not be believed. For the reasons given above this appeal must fail and is, accordingly, dismissed. The appellant must now surrender and serve out his sentence. A. H. Appeal dismissed.