' NAZIM HUSSAIN SIDDIQUI, J.---Petitioner Zahid Shah, has impugned judgment, dated 30-5-2000 of a learned Division Bench headed by Chief Justice, High Court of Balochistan, Quetta, whereby Criminal Appeal No,354 of 1999 preferred by the petitioner against judgment, dated 28-10-1999 of a learned Judge for Suppression of Terrorist Activities, Loralai, convicting him under section 302(b), P.P.C. And sentencing him to suffer imprisonment for life with benefit of section 382-B, Cr.P.C., was dismissed.
2. The prosecution case, in brief, is that in the night intervening between 14/15-9-1998 the petitioner entered into the house of Allah Noor deceased, situated at Kachi Peer Dost, Tehsil Muslim Bagh and murdered the latter by causing him firearm injuries. The petitioner was arrested on 15-9-1998 and an automatic rifle was recovered from his house. He confessed his guilt before a First Class Magistrate, and his confessional statement was recorded.
3. On completion of investigation charge-sheet was submitted before trial Court.
4. In support of its case, the prosecution examined 10 witnesses namely, Muhammad Khan, Mst.
Memoona, Abdul Aziz, Amanullah, Dr. Jafar Khan, Khudai Dad, Hafiz Abdul Basit, Noor Shah, Abdul Nabi and Abdul Khaliq P.Ws. The statement of the petitioner was recorded under section 342, Cr.P.C.
He also examined himself as his own defence witness and his statement, as such, was recorded under section 340(2), Cr.P.C.
5. The prosecution case rests upon (1) ocular evidence (2) judicial confession of the petitioner and
(3) medical evidence.
6. Muhammad Khan, complainant is not the eye-witness of occurrence. He was called by the father of the deceased to report the matter to the police, which he did. Mst. Memoona widow of deceased and Abdul Aziz, father of the deceased, have furnished the ocular account. Mst. Memoona P.W.
Stated that the petitioner on the night of occurrence entered into her house and went near the cot of the deceased. He was duly armed with a rifle. The deceased woke up and both grappled.
According to her, the petitioner then killed her husband by firing upon him. Abdul Aziz P.W. Stated that he had seen the deceased lying in a pool of blood in the courtyard of their house. He deposed that Mst. Memoona was also there and weeping. He also stated that, on his enquiry, the deceased had informed him that the petitioner had caused him (deceased) fire-arm injuries and after sometime he expired.
7. High Court, while maintaining the conviction and sentence of the petitioner, observed that credibility of testimony of Mst. Memoona could not be doubted. She was inmate of the house and was a natural witness. She had no motive to falsely implicate the petitioner, nor it is a case of substitution. She was believed by both the Courts below. About certain discrepancies in her statement it was observed that the same did not nullify the main features of her testimony and that it was the petitioner and petitioner alone, who had killed the deceased. The discrepancy in her statement was that when the deceased and the petitioner were grappling they proceeded towards "outside the house in lane" and there the deceased was killed. It is, however, evident from the evidence of the Investigating Officer that the dead body was lying in courtyard of the house of the deceased. Abdul Aziz P.W. Also stated that he had seen the deceased in courtyard profusely bleeding. Both the Courts below believed the version of Mst. Memoona P.W. It appears that just after sustaining injuries the deceased came back to courtyard of his house and conversed with both i.e, his wife and father. Blood-stained earth was also recovered from courtyard. Testimony of Mst.
Memoona and Abdul Aziz was rightly relied upon by two Courts below.
8. Learned counsel for the petitioner contends that confessional statement of the petitioner was neither voluntary nor true, as such, the same could not be relied upon. He also argued that the petitioner, while answering Question No,8 of the confession clearly stated that he was threatened by the Investigating Officer. Next question viz. Question No,9 was if the Investigating Officer would not have threatened then what he would have done. He replied that still he would have admitted his guilt as after some time he was to appear before Allah. Besides answering the questions put to him in confessional statement in the last he stated that about a year back from the date of recording his confession, the deceased in a gathering had abused him and on the night of the incident he had fired upon him, which resulted in his death.
9. It is legal requirement that confession shall be true and voluntary. Close scrutiny of that prosecution evidence on above principle reveals that the confession was both true and voluntary.
Its truthfulness is established by the eye account furnished by the witnesses, by medical evidence, and other corroborative pieces of evidence brought on record. P.Ws. Had no motive whatsoever to falsely implicate him. He also used to resided in the same locality where the deceased resided. It was made voluntarily and so is proved by the statement of Hafiz Abdul Basit, Assistant Commissioner/Magistrate 1st Class, who recorded the confessional statement according to law, having ascertained that it was made by the petitioner without any inducement or coercion.
Indecent or provocative remarks about womenfolk are taken seriously in the tribal society in which the petitioner and the deceased lived. The petitioner in his confessional statement explained himself that the deceased had passed such remarks impliedly against his (petitioner) wife. All these circumstances show that the petitioner was annoyed with the deceased.
10. Learned counsel challenged the testimony of Mst. Memoona and Abdul Aziz P.Ws. Relating to the alleged dying declaration of the deceased before them. He argued that the deceased must have expired on the spot instantaneously, as such, there was no possibility of any dying declaration before them. Medical evidence does not show that after how much time of the incident, the deceased had expired. Learned counsel argued that Dr. Jafar Khan. Who conducted autopsy, did not mention the time elapsed between injuries and death and this he did only to oblige the prosecution. It is true that the doctor did not specifically mention that after how much time of sustaining injuries the deceased had expired. The facts, however, remains that the petitioner did not challenge this aspect seriously and remained satisfied with the statement of the doctor. This was probably for the reason that his case was of total denial. In view of said omission in the statement of the doctor, the statements of above named witnesses, who categorically claimed to have talked the decease before his death, could not be disbelieved. Under the circumstances, the testimony of said witnesses was rightly believed by the Courts below.
11. In the last, learned counsel argued that the provisions of sections 164 and 364, Cr.P.C. Are against the Article 13 of the Constitution and shall be struck down. According to Article 13(a) no person shall be prosecuted or punished for the same offence more than once and that no person shall, when accused of any offence, be compelled to be a witness against himself. Learned counsel contended that second part of the Article i.e, 13(b) is attracted as the petitioner was compelled to be a witness against himself when his confession was recorded. Section 164, Cr.P.C. Is about power of Magistrate to record statement of confession. The confession, if recorded, is to be recorded in the manner laid down in section 364, Cr.P.C. It is significant to note that section 364, Cr.P.C. Speaks about that how examination of an accused is to be recorded. It provides details and the manner in which the confession is to be recorded. It is also significant to note that the Magistrate has to take all precautions to see that it is voluntary and further he is required to certify that "examination was taken in his presence and hearing". Under present system of dispensation of criminal justice much reliance is not placed on self-incrimination and it is duty of the prosecution to prove its case through legal evidence based upon established judicial norms enunciated by superior Courts.
Cardinal principle is that a person is presumed innocent until proved guilty. An act of compelling a person to expose his own guilt or depose against himself is taken as illegal under various provisions of law, including the provisions under discussion. Article 13 of the Constitution provides the protection to the accused of not being a witness against himself and the provisions of sections 164 and 364, Cr.P.C. Are not violative of Article 13(b). We are of the view that the provisions of aforesaid two sections are in consonance with Article 13 of the Constitution. This contention is also without any substance.
12. Learned counsel also argued that the case was not covered by the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975, as nature of the fire-arm used in the commission of the offence was not clearly disclosed. Explaining further he submitted that it was not proved that automatic rifle was used in the commission of this offence and that recovery of rifle from petitioner was not established. Above plea is not a pure question of law but it is of mixed question of law and fact. The facts as stated by P.Ws. Were not controverted. Besides, learned counsel frankly conceded that neither before trial Court nor High Court the issue of jurisdiction of Court was raised. There is no force in this contention also.
13. In consequence, leave to appeal is refused and the petition is dismissed.
Leave to .