Ibrahim Khaleel & Anor. V. The State (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The appellants in this appeal are brothers of the same parents. They were tried and convicted by Rowland J. (as he then was) of the High Court of Justice of Kano State sitting at Kano, of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code and sentenced to death by hanging in a reserved judgment delivered on 10/4/92. The charge under which the appellants were tried at the lower court reads:”

That you Ibrahim Khaleel and Abubakar Khaleel on 15th August, 1987 at about 03.00 hours at Gamatudu Quarters Kano within the Kano Judicial Division did commit culpable homicide punishable with death by doing an act to wit: pouring petrol on the person of one Dauda Abdullahi (now deceased), his wife and all over his room and thereafter throwing a lit match thereby setting him, his wife and the whole room on fire, whereof the said Dauda Abdullahi died days later in hospital while on admission as a result of the severe fire burns he suffered and that the above acts were done with the knowledge that death would be the probable consequence of your act and you thereby committed an offence under Section 221(b) of the penal code.”

The events that led to this charge of culpable homicide against the appellants as can gathered from the evidence adduced at the trial arose from a fire incident that took place in the room of one Dauda Abdullahi at Gama Tudu Quarters in Kano in the early hours of 15/8/87. On that date, the deceased Dauda Abdullahi who was a casual friend of the 1st appellant and whose wife Sabuwa Dauda was also a former girl friend of the 1st appellant, were sleeping in their room. At about 2 a.m, the appellants came to the open window of the deceased’s room with a container of petrol and emptied its contents on the deceased, his wife and the properties contained in the room before throwing a lit match into the room thereby setting it ablaze. The deceased and his wife who knew the appellants before this date saw and identified them through the window before the room was set on fire which destroyed the properties in the room and also caused severe burns on the deceased and his wife Sabuwa. As the result of the injuries received from the fire incident, the deceased and his wife Sabuwa were admitted at the hospital for treatment. While Sabuwa was lucky to survive from the severe burns which left scars on her body, her husband the deceased was not as lucky as he died on the 40th day of his admission in the hospital from his wounds which became septic.

At the trial which lasted nearly five years between 1987 and 1992, the prosecution called 5 witnesses and tendered the statements of the appellants under caution with the negatives and photographs of the scene of the fire incident, and of the victims in order to prove its case. The appellants who were the accused persons at the trial each testified in his own defence. While the 1st appellant called two other witnesses who testified in support of his own defence, the 2nd appellant called only one other witness his own elder sister who testified in support of his own defence. At the end of the trial, in a considered judgment, the learned trial judge found both appellants guilty of the offence of culpable homicide under S.221(b) of the Penal Code as charged and convicted them accordingly. The appellants were sentenced to death by hanging. Aggrieved by their conviction and sentence by the lower court, the appellants have now appealed to this court each on a notice of appeal containing the omnibus ground. Two additional grounds of appeal were filed on behalf of each of the appellants with the leave of this court by their learned counsel.

Mallam Ibrahim Buba learned counsel for the appellants has in the appellant’s brief of argument submitted the following 3 issues for the determination of the appeal.

1. “Whether there are sufficient legal evidence (whether direct or circumstantial) before the court to sustain the charge of culpable homicide punishable with death against the appellants.
2. What is the effect of the omission by a witness to mention the name or names of person or persons seen committing an offence at the earliest opportunity.
3. Whether having regard to the evidence adduced at the trial there exists a nexus or link between the cause of death and the appellants.”

These issues were also adopted in the respondent’s brief of argument.

Arguing issue No. 1 which arose from the omnibus ground of appeal. Mallam Buba for the appellants had observed that in the course of the trial, the only evidence that pointed to the circumstances surrounding the death of the deceased were those of his wife PW2, his brother PW3 and his mother PW4. He pointed out that the evidence of PW2 relied upon heavily by the learned trial judge in convicting the appellants was to the effect that 1st appellant was her former boy friend who first came to their house on 14th-15th August, 1987 in a Volkswagen car but left. That later that night the appellants came back while the deceased and PW2 were asleep and poured petrol on them in the room through the window before throwing a lit match which resulted in setting the deceased, PW2 and the contents of their room on fire. Learned counsel then referred to the evidence of PW3 who on 15/8/87 was awaken by the fire in the room of the deceased who was shouting that he had been set ablaze. That the witness testified mainly on how the children of other people in the house were rescued from the fire. He also recalled a misunderstanding between the deceased and the 1st appellant in 1986 which was resolved at the Gwagwarwa Police Station. As for the evidence of PW4, learned counsel to the appellants pointed out that she related the story which the deceased told her of having met the 1st appellant at a wedding party where the appellants threatened the deceased with death and that resulted in the deceased returning home early that night. That PW4 also said she saw two persons in a car that night who drove away on seeing her. Later that night she saw fire in the room of the deceased who was also burning and shouting in Hausa that the appellants Ibrahim Khaleel and Abubakar Khaleel had killed him. It is the submission of the learned counsel to the appellants that there is virtually nothing in the evidence of the 3 witnesses PW2, PW3 and PW4 that either directly or circumstantially linked the events, that led to the death of the deceased to the act of the appellants to justify their conviction. On the evidence of PW2 in particular, appellant’s counsel had submitted that PW2 having admitted under cross examination that they were sleeping when the accused persons poured petrol through the window before she woke up, her evidence did not directly link the appellants with the acts of pouring the petrol and setting the room on fire since the witness could not have been asleep and at the same time see the appellants committing the offence. Relying on a number of cases the most recent of which is Nwanze v. The Stare (1996) 2 NWLR (Pt.428) 1 on the quality of circumstantial evidence required to prove an offence, learned counsel argued that in the instant case, the circumstantial evidence relied upon by the lower court in convicting the appellants did not congently, irresistably, positively, unequivocally, unmistakenly and conclusively point to the appellants as the perpetrators of the offence alleged to have been committed to the exclusion of any other person to justify their conviction.

On the need for prosecution to prove the offence against the appellants beyond reasonable doubt, learned counsel referred to the evidence of PW2, PW3 & PW4 and observed that their evidence has raised serious doubt as to the guilt of the appellants. Citing the cases of Amusa v. The State (1986) 3 NWLR (Pt. 30) 536 and Musa v. The State (1996) 8 NWLR (Pt.468) 610 at 618-619, the appellants’ counsel urged this court to resolve the doubt in the present case in favour of the appellants whose identification by ‘PW2 in the circumstances described by that witness is doubtful according to counsel who also observed that there were material contradictions in the evidence of the star witness PW2 in her evidence in-chief, under cross examination and at the locus in quo on the identification of the appellants. Citing and relying on the decision of this court in Ajilare v. The State (1993) 4 NWLR (Pt.289) 572, the appellants’ counsel concluded that since the conviction of the appellants was based on the evidence of PW2 on the visual identification of the appellants at the locus in quo and whose identity was in dispute and that as the evidence of PW2 was not corroborated in material particular implicating the appellants, their appeal should be allowed and their conviction and sentence set aside.

Mallam M.L. Ibrahim, learned Director of Public Prosecution Kano State leading two other counsel for the respondent had contended that the prosecution at the lower court had discharged the onus placed on it in proving its case against the two appellants beyond reasonable doubt as required by law. Learned counsel argued that there was direct and circumstantial evidence linking the appellants with the unlawful acts that led to the death of the deceased to justify their conviction. He stressed that the evidence of PW2 on the identification of the appellants as being responsible for the acts that led to the death of the deceased particularly at the visit to the locus in quo which was accepted and relied upon by the lower court in convicting the appellants was in fact direct evidence. That the evidence of PW2 was also corroborated by the evidence of PW1, PW3, PW4 and PW5. Dismissing the wrong notion held by the appellants’ counsel that they were convicted only on circumstantial evidence, learned counsel to respondent pointed out that there was also direct evidence of PW2 supporting the conviction of the appellants apart from the circumstantial evidence which he also said was enough to sustain the conviction of the appellants having regard to the case of Kim v. The State (1991) 2 NWLR (Pt. 175) 622. Concluding his submissions on this issue, the learned DPP referred to the cases of Eze v. The State (1976) 1 SC 125 and Sugh v. The State (1988) 2 NWLR (Pt.77) 475 and urged this court not to disturb the findings of the lower court based on the credibility of the witnesses who testified at the lower court.

In a charge of murder or culpable homicide punishable with death, the burden is always on the prosecution to prove that:-

(a) the deceased had died;

(b) the death of the deceased Was caused by the accused; and

(c) the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous badly hurt was its probable consequence.