1. ' Criminal Miscellaneous No,77/I of 2004.
2. ' This application, though fails to disclose as to under which provisions of law, has been preferred, bears the following title:-- "Application for summoning the entire record of Military Court No,88, starting with Writ Petition No,4 of 1988, along with all its Annexures, in particular, the statements of the accused recorded under section 340, Cr.P.C. And under section 342, Cr.P.C. By the Military Court, wherein the accused have given hair raising details of brutalities committed by police to force the accused to make confessions, as against their statement made before Mr. Shamsheer Ali Khan, which look to be absolutely routine, providing a scope for the conviction of the accused/ appellants to death on the basis of confessions. The total record thus summoned should essentially carry the details of how the accused were stopped from producing their defence in the Military Court, well within the knowledge of Military Court, and how the whole team of defence lawyers protested in the face of the Military Court and refused to join the proceedings."
3. ' For the purpose of disposal of the application, it would also be advantageous to have a glance at the prayer clause, contained in the application, which reads as follows:-- "For this reason, it is absolutely essential that the full record of the Military proceedings i,e, the proceedings of Military Court No,88, Havelian, along with the complete record of Writ Petition No,4 of 1988 of the Peshawar High Court be called for and perused and the appellants provided a full opportunity of the perusal of the same record. Thereafter, in the interest of three valuable lives, the appellants be given an opportunity, as to how best to conduct their defence either by way of appeal or for requesting additional evidence to be recorded.
4. ' It is, therefore, prayed that the prayer in the above terms be graciously granted and till then the proceedings adjourned."
5. ' Learned counsel for the applicants/appellants has contended that summoning of entire record of the Special Military Court is essential because whatsoever went against the accused persons, including the confessions, was placed on record and exhibited by the learned trial Judge but the evidence going in favor of the accused i,e, that the confessions were neither voluntary nor true, was completely suppressed.
6. ' Sardar Abdul Majeed, Federal Counsel assisted by Mr. Muhammad Sharif Janjua, Advocate, has submitted that since proceedings by the Military Court were set aside by the Honourable Peshawar High Court as well as the Honourable Supreme Court of Pakistan vide judgments dated 21-1-1990 and 31-3-1992 and it was declared that the same would be of no legal effect and the appellants, in pursuance of the above decisions were tried afresh by the learned Additional Sessions Judge, Abbottabad, the evidence was recorded again and the instant case has to be decided on the basis of the evidence recorded at the subsequent trial, therefore, record of the Military Court has no relevance nor would have it any bearing on the fate of the instant case.
7. ' As regards the confessional statements, he submitted that they were, at the trial, proved by the prosecution, in accordance with law and it was neither the desire, nor choice of the learned trial Judge to get the same exhibited. He, however, pointed out that if appellants were desirous to have a copy of any document which formed part of the record of the Military Court then they could have obtained the same by having a recourse to the relevant provisions but no application was made.
8. ' Lt.-Col. Iqbal Hashmi, Officer Incharge, Litigation Cell, G.H.Q. Added that the accused persons, at the trial, before the Military Court were entitled to have copies of certain documents under the relevant laws but that stage is now over.
9. ' Mr. Sher Bahadar Khan, Advocate, learned counsel for the complainant has submitted that since confessional statements of the appellants were not simply transferred from the record of the Special Military Court but were placed on record and proved at the trial, in accordance with law, therefore, no exception thereto can be claimed. He too, has submitted that since trial before the Military Court has been declared as of no legal effect and the instant case has to be decided on the basis of the evidence recorded at the subsequent trial by the Additional Sessions Judge, Abbottabad, therefore, the application was liable to rejection.
10. ' Since trial/proceedings carried out by the Special Military Court were set aside by the Honourable Peshawar High Court vide judgment dated 21-1-1990 and the decision was upheld by the Honourable Supreme Court of Pakistan vide its judgment, dated 31-3-1992 and proceedings before the Military Court were declared as without lawful authority and of no legal effect, the appellants were charged and tried afresh by Additional Sessions Judge, Abbottabad, all the evidence was recorded again and fate of the instant case hinges on the evidence recorded at the subsequent trial, therefore, the prayer contained in the application cannot be granted. The application, therefore, being misconceived, is hereby dismissed.