Javed Iqbal, J.--This petition for leave to appeal is directed against the order dated 12.5.2005 whereby the criminal misc. application Bearing No, 77-I of 2004 has been dismissed whereby it was requested that the entire record of the proceedings conducted by Military Court No, 88, Havelian and record of Writ Petition No, 4 of 1988 of the Peshawar High Court may be summoned and an opportunity be afforded to the petitioners for perusing the same enabling them to evolve a strategy for their defence.
2. Heard Mr. Fazal Ellahi Siddiqui, learned ASC on behalf of petitioners who mainly contended that the petitioners have been awarded death sentence merely on the basis of confessional statements which were never got recorded by them but considered by the learned trial Court and the evidence which favoured the petitioners has been ignored rather suppressed by the learned trial Court for the reasons best known to the learned trial Judge. The learned ASC on behalf of petitioners has referred various provisions of Qanun-e-Shahadat Order. 1984 such as Articles 76, 85 and 87. The relevant provisions of the Pakistan Army Act, 1952 were also referred. The learned ASC has, read all the most entire evidence placed before this Court in Part-II of paper-book to substantiate his prime ,contention that the confessional statements were never got recorded and the petitioners were subjected to torture and maltreatment. It is pressed time and again that the petitioners could not have been denied access to the relevant record and proceedings conducted by the Military Court No, 88, Havelian, perusal whereof is inevitable to defend the petitioners and it is their legal right to have the copies of all the relevant record.
3. Mr. M. Saeed Khan, learned Additional Advocate General, NWFP entered appearance on behalf of the State and controverted the view point as canvassed at bar by the learned ASC for the petitioners and supported the order impugned for the reasons enumerated therein with the further submission that the legal provisions are being exploited to prolong the matter and more so against ad interim order no petition for leave to appeal i,e, maintainable under Article 185(3) of the Constitution of Islamic Republic of Pakistan.
4. We have carefully examined the respective contentions in the light of relevant provisions of law, scanned the available record with the eminent assistance of learned ASC for the petitioners and perused the order impugned carefully. Let us make it clear at the out set that we are not deciding the question of guilt or innocence of the petitioners hence we are deliberately not dilating upon the merits of the case. The main persuasive factor for not touching the merits of the case is that the appeal preferred on behalf of the petitioners is pending adjudication before the learned Federal Shariat Court and all the contentions qua innocence of the petitioners can be raised for the consideration of learned Federal Shariat Court. It transpired from the scrutiny of the appeal that the prime contention of the learned ASC i,e, confessional statements were never recorded but result of torture, coercive measures and maltreatment, has been incorporated in the memo of appeal, relevant paragraphs whereof are reproduced herein below- for ready reference:-- That the so-called confessions were the result of torture and undue influence and all the accused were kept in police custody without obtaining genuine remand during the martial regime even the marks of violence was shown by the accused to the magistrate and the concerned Court and this fact is mentioned in the judgment of the Peshawar High Court.
5. That so-called confessions are not supported with any independent evidence or with any recovery supported by an independent witness or with the medical evidence.
10. That the Magistrates who recorded the confessional statement were under the supervision of the administration who was interested in the present as in the present case IGP himself an other high-ups visited the crime village and they in order- to satisfy the then Martial Law Authorities were interested bring some story with some culprits."
5. The above mentioned grounds will definitely be considered by the learned Federal Shariat Court as may be deemed fit and appropriate. It is significant to note that the trial has been concluded and evolving of a defence strategy at appellate stage is not understandable. We are not aware how this aspect of the matter was portraited before the learned trial Court and how it was determined. Whether any attempt was made to procure the requisite record during trial of any application was made to that effect, how it was decided, its impact and import, what was the defence before learned trial Court, whether the confessional statements were got exhibited afresh or simply transferred from the record of previous proceedings by the Military Court, whether the learned Magistrate by whom the confessional statements were got recorded appeared before the learned trial Court and cross-examined, are the questions which squarely fall within the jurisdictional domain of learned Federal Shariat Court for determination and cannot be addressed by us at this stage as it would be too pre-mature. It is an admitted feature of the case that all the proceedings conducted by learned Military Court were set aside by the learned Peshawar High Court by means of judgment dated 21.1.1990 and by this Court vide order dated 31.3.1992 which culminated into fresh trial which has already been concluded and at the moment appeal is pending adjudication before the learned Federal Shariat Court which shall be decided in accordance with law and on merits. The fate of the said appeal cannot be adjudged during its pendency on conjectural presumptions. Even otherwise order impugned is ad interim order which cannot be assailed by invoking the provisions as contained in Article 185(3) of the Constitution of Islamic Republic of Pakistan. It is well settled by now that "entertainment of petition against interim order and hearing of case piecemeal, is not desirable. Petition in a case was dismissed as incompetent with observation that the petitioner would be at liberty to raise all or any of the contentions raised in the proceedings against the judgment finally disposing of appeal in case of its being decided against him." (Said Khan v. Aya Khan 1979 SCM R 577, Ismat Khanum Toor v. Riaz All Khan 1978 SCM R 334, Abdul Hamid v. Sher Alam 1968 SCM R 1143, Muhammad Sadiq v. Bashir Ahmed PLD 1966 SC 717, Zafarullah Khan v. Abdul Rehman 1971 SCM R 702).
In sequel to above mentioned discussion the petition being merit less is dismissed and leave refuse.