Abubakar Dan Shalla V The State (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The appellant, Abubakar Dan Shalla, was the fifth of six accused persons who were brought before the High Court of Kebbi State, Birnin Kebbi on a three-count charge of criminal conspiracy, abatement and culpable homicide contrary to sections 97, 85 and 221 (a) of the Penal Code respectively. On 18/1/2000, each of the appellant and the five other accused persons charged with him pleaded not guilty to each of the three counts. Hearing of the case opened on 19/1/2000. The prosecution called eight witnesses. The appellant elected not to testify or call a witness.

The trial Judge, Ambursa, J. on 24-02-2000, in his judgment found the appellant and the five other accused persons charged with him guilty of the offence of culpable homicide and each was sentenced to death under section 221 (a) of the Penal Code. The appellant brought an appeal against the judgment of the trial court before the Court of Appeal Kaduna (hereinafter referred to as ‘the court below’). The court below, on 10-12-03 in its judgment dismissed the appeal and affirmed the judgment of the trial court. The appellant has come before this court on a final appeal. The appellant raised three grounds of appeal out of which two issues were formulated for determination. The said issues are:

1. Whether the learned Justices of the Court of Appeal ought to confirm the conviction, and sentence of the appellant by the trial court. This issue is distilled from grounds 1 and 2 of the grounds of appeal.
2. Whether the learned Justices of the Court of Appeal were right in raising the issue of defences of justification and provocation without affording the parties the right to be heard on the said issue raised suo motu. (This issue is distilled from ground 3 of the grounds of appeal).”

The respondent in its brief adopted the issues for determination as formulated by the appellant’s counsel in the appellant’s brief.

Let me start by examining the case of the prosecution against the appellant as put before the trial court. It was alleged that a group of persons of whom the appellant was one, had stated that one Abdullahi Alhaji Umaru (now deceased) made certain remarks which were insulting to Prophet Mohammed (S.A.W.) and that the deceased ought to be killed as prescribed in the Holy Quran for making the alleged remarks. They went in search of the deceased, laid their hands on him and slaughtered him with a knife. The incident was reported to the police on 14-7-99. The appellant and five other persons were arrested for killing the deceased. The evidence of PW5 as to the manner in which Abdullahi Alhaji Umaru was killed is particularly eye-opening. At page 51 of the record, he testified thus:

“What I know is that on 14-7-99, I was at my sleeping place at Kardi when one Mr. Bello Dan Nana woke me up and asked me whether I was aware of what was happening and I told him that I didn’t know. He told me that somebody was accused of insulting the Prophet Mohammed (SAW) and asked whether I will go to the place where he was being held. I took my catapult and started going to the scene along with Bello at Shiyar Riyoji where the person who was accused of insulting the Prophet (SAW) was arrested. On my arrival, I found that it was Abdullahi Alh. Umaru of Randali Village who was being held by the 6th accused Suleiman and the 3rd accused Muhammadu Sanni. These accused persons pulled Abdullahi Alh. Umaru towards the road leading to Randali on the outskirt of Karcli near a burial ground. As Abdullahi was being held there in our presence, the 1st accused Mallam Musa just appeared and said whoever abused the Prophet shall be killed. He read a verse but I can’t bring it as read. On hearing this, Muhammadu Sanni (3rd accused) used a matchet which was with him on Abdullahi Alh. Umaru on the head and Abdullah fell down. Then Abubakar Dan Shalla (5th accused) slaughtered Abdullahi with a knife on the neck just like a goat. I saw the knife used by the 5th accused in slaughtering Abdullahi but I can’t describe it as he went away with it. When they were sure that Abdullahi died, they all dispersed and ran away. We too left the corpse and went home.”

As I observed earlier, the appellant elected not to testify at the trial. He called no witness but his statement under caution to the police was tendered in evidence as exhibits G and G 1. The statement of the appellant exhibit G1 read thus:

“On Wednesday 14/7/99 at about 2000hrs after Isha’I prayers, I sat down at the frontage of Mosque at Faransi Area of Kardi then one Musa Yaro of Kardi came and met me with an information that, someone abused Prophet Mohammed at Randali Village which he is not sure, but he will try to find out at Randali. On hearing that, I stood up and went inside my house and carried knife along with me, and I moved to Randali. On reaching there, I went straight to one Shugaban Samari for confirmation about the abusing of Prophet Mohammed and he assured me that, the issue is true, and that there were witnesses to testify but he did not tell me the kind of abuse. And from there, I heard someone saying, that Abdullahi Alh. Umaru who abused the Prophet had been arrested at Kardi, then I quickly went back and met Abdullahi who was together with Adamu Aljani, Kalli Odita and others whom I was not able to know then. Then we later sent the following:

Musa Yaro, Usman Kaza and Abdullahi Ada to the Village Head of Kardi to know what is happening in his village. As they returned back from the Village Head’s house, Musa Yaro made some quotation in Risalah which means that. whoever abused Prophet Mohammed shall be killed, then people started beating Abdullahi Alh. Umaru, and Mohammed Sani matcheted him and he fell down, then I removed the knife that was in my possession with my right hand and slaughtered him “deceased” just along Randali-Kardi Road near a burial ground of Kardi. And we all dispersed. When I reached home, I fetched some water and washed the knife and part of my cloth that was stained, the cloth is light blue in colour. That’s all my statement.”

It is apparent that the evidence of PW5 as to how the deceased was killed and in particular as to the fact that it was the appellant who actually slaughtered the deceased was unchallenged. More than that however, the appellant in exhibit G1 narrated how the deceased was apprehended, his alleged offence and the manner the appellant himself killed the deceased.

The case against the appellant boils down to this: The appellant and the 5 accused persons charged along with him had heard from some sources that the deceased had somewhere in their village made some remarks which were considered insulting to Prophet Mohammed (SAW). The of the remarks or the exact words employed by the deceased were not given in evidence. The 1st accused had read to the other accused persons including the appellant a passage in the Holy Quran where it was said to be prescribed that anyone who insulted Prophet Mohammed (SAW) in the manner the deceased was said to have done deserved to be killed. As adherents to the teaching in the Holy Quran, the appellant and the other accused persons accepted that they had a duty to kill the deceased in effectuating the contents of the Holy Quran. They accordingly slaughtered the deceased by slicing his throat. In the manner the appellant and the other accused persons behaved during their trial by not calling evidence to deny the allegations against them, and by in fact admitting that they killed the deceased, there is no doubt that they laboured under a notion that they had a duty under Islamic injunction to kill the deceased.

At pages 74-76 of the record of proceedings, the trial Judge in his judgment said inter alia:

“It is worthy to note that the backbone of this case is the testimony of PWs 2, 3, 5 and 6. Exhibit D and the confessional and voluntary statements of the accused persons in exhibits E, F,G, H, J and K. Each one of the accused persons admitted taking part and remaining at the scene where Abdullahi Alh. Umaru was killed in a brutal manner. Each of them narrated fully the role he played. The 3rd accused admitted striking the deceased with a matchet on the neck, the 5th accused admitted slaughtering the deceased with a knife, the 6th accused admitted holding and pulling the deceased to the last destination, the 1st accused admitted giving the authority to kill the deceased while the 2nd and 4th accused admitted going up and down to ensure that the deceased was punished. I have carefully examined these statements and found that they are at all material times in corroboration of the evidence of the prosecution witnesses on the account of the death of Abdullahi Alh. Umaru. I noted that the statements were duly endorsed by a Superior Police Officer and were tendered without objection. I found the statement of each of the accused persons positive, direct, voluntary and consistent. From the evidence adduced, the accused persons had every opportunity to commit the offence. In Kanu v. The King (1952) 14 WACA 30,32 Coussey, J. A. said:

A voluntary confession of guilt, if it be fully consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone.