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Criminal Petitions for Special Leave to Appeal Nos. 31‑R and 82‑P of 1979, decided on 10th June 1979.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 29‑4‑1979, passed in W. Ps. Nos. 254 and 410 of 1979).

‑‑ Art. 185(3)‑Leave to appeal to Supreme Court‑Grounds of writ petitions filed in High Court containing only one contention, viz. case being one of no evidence, and other two contentions raised before Supreme Court not even alluded to in writ petitions‑All contentions requiring factual inquiry for satisfactory resolution, held, could neither be urged before High Court in writ proceed in nor before Supreme Court in proceedings for leave to appeal.

---Art. 185(3)‑Leave to appeal to Supreme Court‑Case alleged to be one of no evidence but evidence existing on record inculpating accused petitioners‑Trial of petitioners also appearing to have been conducted by Special Military Court properly with care and sole desire to do complete justice‑Contention, held, futile:‑

---Art. 185(3)‑Leave to appeal to Supreme Court‑Petitioners, charged for murder, though retracting their confessional statements during trial yet Special Military Court, seized of matter, in its proper jurisdiction, nonetheless holding such statements to be entirely, voluntary‑Finding of Military Court, corroborated by recovery of many items of personal effects belonging to deceased, held, cannot be said to be arbitrary or unsupported by evidence‑High Court, .not sitting in appeal over judgment of Special Military Court, could not, held, further, possibly interfere with such finding in exercise of its constitutional jurisdiction‑Constitution of Pakistan (1973), Art,

Z. Mahfuz Khan, Advocate, Yaqub Hussain Zaidi, Advocate‑on‑Record (absent) for Petitioners kin both the Petitions).

M. Sardar Khan, Advocate‑General (N.‑W. F. P,) for Respondents (in both the Petitions).

Date of hearing : 22nd May 1979.

.‑These two petitions in which the questions of law and facts are the same, and which were disposed of together by the same judgment of the Peshawar High Court, dated 29‑4‑1979, arise in the following circumstances :‑

In the month of October 1977, a Swiss couple named Mr. Ernst Zeller and Mrs. Mariana Zeller entered into Pakistan via Torkham and arrived at Chitral on October 5, 1977 on a site seeing visit. After visiting some spots in the District of Chitral, they reached a place called Bireer where they stayed for 2/3 day, but on 14‑10‑1977 they left Bireer, for the Valley of Bamborate on foot. Ever since then, however, they disappeared and no one heard of them. It seems that in the meanwhile the Swiss Government some how entered upon the scene, and took up the matter with the Government of Pakistan and the Government of N.‑W. F. P. In' due course an inquiry was initiated into the disappearance of the said Swiss couple under section 156(3), Cr. P. C. by the local Police of Chitral, but the 'inquiry in question was then taken over by the Crimes Branch of the Police headed by P. W. Saeed Akhtar Zaidi, D. S. P., who was specially deputed in that behalf by the Government. P. W. Zaidi, on arrival at Chitral, seems to have plunged himself into the seemingly impossible task of discovering the whereabouts of the said Swiss couple when, through a source, he received an information that one Dilawar Khan (P. W. 28) may prove helpful to put him on the proper trail. On receiving the said information, P. W. Zaidi contacted P. W. Dilawar Khan who told him that a few months ago petitioner Attai Khan and Sher Muhammad (who has not petitioned) had come to him and requested him to given them a Taweez as they appre hended to be arrested by the Police. He also produced before him an alarm clock which he claimed to have been sold to him by accused Sher Muhammad for Rs. 300. On receiving the said information, P. W. Zaidi arrested Attai Khan, who thereafter narrated to him the details of the occurrence, as also that Sher Muhammad and petitioner Shujjat Khan were also his compatriots in killing the said Swiss couple with the object of depriving them of their valuable belongings.

The record would show that after his arrest, petitioner Attai Khan led D. S. P. Zaidi to a lonely spot situated within the jungle of Bomborate Valley and dug out the dead bodies of the said Swiss couple which were taken into possession vide the usual memo. Thereafter P. W. Zaidi arrested the three petitioners and Sher Muhammad all of whom produced before him the stolen belongings of the said Swiss couple or else led him to the recovery of similar items from other persons to whom they had sold them or given them as gift. After completing the usual formalities of the in vestigation; the three petitioners and Sher Muhammad all volunteered to confess their guilt, and consequently Pr W. Zaidi produced them' before the local Magistrate who recorded their respective confessional statements, After the conclusion of the investigation, the petitioners and Sher Muhammad were challaned to Special Military Court No. 7, Peshawar to stand their trial under section 302/34/376, P. P. C. read with M. L. R. 6 for the murder of the said Swiss couple, which found all of them guilty and sentenced them to death. Upon the charge under section 376, P. P. C., however, the prosecution failed to establish its case and in that behalf they were acquitted. The judgment of the High Court would show that in order to seek the commutation of their death sentences, the petitioners submitted mercy petitions to the Chief Martial Law Administrator, but their petitions were dismissed vide order, dated 20‑8‑1978. Finally, the petitioners sought the intervention of the High Court through two Constitutional writ petitions in which a number of grounds were taken by them against the judgment of the Special Military Court but their writ petitions were dismissed by the impugned judgment.

We have heard Mr. Mahfuz Khan, the learned counsel for the petitioners on more than two occasions, firstly, because he felt somewhat handicapped, owing to the incomplete record in his possession, to give us the detailed facts of the case; and secondly, because we wanted to satisfy ourselves about the conviction of the petitioners by the Special Military Court, as the same had been recorded wholly on the basis of circumstantial evidence. The grievance of the learned counsel is that the conviction of the petitioners recorded by the‑ Special Military Court is illegal and without jurisdiction for the following reasons :‑--

(1) that the 161, Cr. P. C. statements of the P. Ws. recorded during the course of investigation were not supplied to the petitioners ;

(2) that the confessional statements of the petitioners were neither voluntary nor true and further that they were recorded almost mechanically ;

(3) that in the confessional statement of petitioner Attai Khan answers to many questions such as whether he was making the confessional statement voluntarily had not been recorded ; and

(4) that it was a case of no evidence whatever.

Now in the grounds of two writ petitions filed on behalf of the petitioners in the High Court only the last contention had been urged, whereas the other three contentions now pressed by the learned counsel were not even alluded to, much less specifically taken. The learned counsel was, therefore, questioned in that behalf to show if he could possibly urge the first three contentions now for the first time in these proceedings, but he could not furnish a satisfactory answer. In any event, the said three contentions, for the satisfactory resolution of which a factual inquiry will have to be. made, could not be urged in the writ jurisdiction of the High Court, and so the same could not be considered in these proceedings, as the jurisdic tion of this Court in that behalf would be co‑extensive with the jurisdiction, of the High Court.

The only contention which was seriously pressed on behalf of the petitioners in the High Court was the last‑mentioned contention, namely, that it was a case of no evidence, and consequently the Special Military Court had no jurisdiction to convict the petitioners as aforesaid. Now this contention, which alone could be pressed into service in the writ proceedings before the High Court, has been considered at page 18 of the impugned judgment, from which the following extract may be noted with advantage :‑

"The three petitioners (two in one case and the third to the other case) as well as Sher Muhammad Khan who has not filed any writ petition, had all confessed their guilt before a local competent Magistrate, although at the trial they did not stick to those confessions. The property belonging to the deceased was recovered from the petitioners or from some others at the instance of the petitioners and none of them has been able to show as to how they got the possession of the same. The confessional statement of accused Sher Muhammad Khan was also recorded by Dr. Muhammad Akram Nadeem, and Sher Muhammad remained admitted in the Hospital for his injuries. P. W. Wazir Muhammad is the brother of Sher Muhammad Khan and he has clearly stated that the golden ring of Mr. Zellar deceased had been recovered from him and that the same had been given to him by Sher Muhammad accused who is his brother. Attai Khan and Sher Muhammad Khan accused who had told P. W. Dilawar Khan that he should arrange for some Taweez (Amulet), so that the army dogs which have been employed for tracing. out the culprits should not pick them up. In fact Attai Khan and Sher Muhammad Khan accused had indirectly indicated to him about their involvement in the occurrence. Sher Muhammad Khan had also sold a small time piece, which the latter had taken from the deceased persons would also show that both of them had been killed as a result of violence. The element of common intention is very much there. The aim of the accused was not only to rob the two deceased persons but also to kill them after robbing them."

In order to ensure if there did exist against the petitioners the said pieces of evidence, I have gone through the original record of the case of the Special Military Court, made available to me by the learned Advocate General, and found that the said evidence indeed exists against the petitioners. Not only this, but the trial of the petitioners seems to have been conducted by the Special Military Court properly, with care and the sole desire to do complete justice in the case. It is, therefore, futile to contend that it was case of no evidence or that the Special Military Court had no Jurisdiction in the matter.

The learned counsel, however; tried to argue the case as if the High Court or for that matter, this Court was sitting in appeal over the judgment of the Special Military Court. But he was constantly reminded that this was not the case, nor indeed could the High Court interfere with the findings recorded by the Special Military Court in the exercise of its Constitutional jurisdiction, unless of course it could be shown that there was no evidence in support of the said findings which however, was not the case. It is true that the petitioners did retract their confessional statements during the trial, but the Special Military Court, which was seized of the matter in its proper jurisdiction, nonetheless held them to be true, as also that the same had been made by the petitioners entirely voluntarily. Now this finding recorded by the Special Military Court, which indeed got corroborated by the recovery of many items of personal effects belonging to the deceased of couple (either from the accused or at their behest from others to whom they had passed the same as a gift or by way of sale), cannot be said to be arbitrary or unsupported by any evidence. In this view of the matter, the High Court, which was not sitting in appeal over the judgment of the Special Military Court, could not possibly interfere with the said finding in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution.

I, therefore, feel satisfied that the judgment of the High Court is unexceptionable, and consequently both these petitions must be dismissed.

I agree.

Petition dismissed.

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