1. G. PAFDAR SHAH, J.-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 :- 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.
2. 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.
3. 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--petition of this Court in that behalf would be co- extensive with the jurisdiction, of the High Court.
4. 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."
5. 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.
6. I, therefore, feel satisfied that the judgment of the High Court is unexceptionable, and consequently both these petitions must be dismissed.
7. KARAM ELAHEE CHAUHAN, J.-I agree.