P L D 2025 Peshawar 212 (PLP)

DR. KHURSHID IQBAL, J.

1. This petition and the connected 25 petitions full particulars given in "Schedule A" were filed by the relatives of a number of persons tried under the Pakistan Army Act, 1952 ("Army Act") and convicted thereunder to various terms of imprisonments. The sole and common question raised in these petitions is that: whether the convicts are entitled to the benefit under section 382-B of the Code of Criminal Procedure Code, 1898 ("Code"). We propose to dispose of these petition through this single judgment.

2. The facts of the instant petition are that the petitioner's brother-in-law, Riaz Ali, was arrested on April 30, 2013. Following the conclusion of his trial, he was convicted by a Military Court and sentenced to seven years of rigorous imprisonment. However, despite completing his sentence, he has remained behind bars for the past eleven years, which the petitioner contends is unlawful and in violation of his fundamental rights guaranteed under the Constitution of Pakistan, 1973 ("the Constitution"). The petitioner asserts that the respondents were legally bound to release the internee/convict upon the completion of his sentence but have failed to do so, thereby infringing upon Articles 9, 13, 14, and 25 of the Constitution. Furthermore, he maintains that no criminal case is pending against Riaz Ali, rendering his continued detention unlawful. In these circumstances, the petitioner invokes the jurisdiction of this Court under Article 199 of the Constitution, seeking a declaration that the respondents' actions are illegal and of no legal effect, and praying for the immediate release of Riaz Ali.

3. In the connected petitions, all the petitioners have raised identical grounds, asserting their entitlement to the benefit of Section 382-B of the Code. They contend that the period they have already spent in incarceration has not been duly accounted for, as mandated under the relevant provisions of the Army Act and the Pakistan Army Rules, 1954 ("Army Rules").

4. Learned counsel for the petitioners contended that although the benefit under Section 382-B, Cr.P.C. has been extended to the convicts, they have nonetheless not been released. In support of his submission, he relied upon two judgments of this Court rendered in W.P. No. 2593-P/2023 titled "Maqbool Badshah v. Federation of Pakistan etc." and W.P. No. 2976-P/2024 titled "Shahid Ali v. Federation of Pakistan etc.", wherein similar relief had been granted to convicts. He argued that the continued incarceration of the convicts, despite the application of Section 382-B, Cr.P.C., constitutes an infringement of their fundamental right to liberty. He further requested that these petitions be placed before the same benches that had earlier allowed the two referenced petitions.

5. Conversely, the learned Additional Attorney General submitted that the convicts were subject to the provisions of the Pakistan Army Act, which, being a special law, prevails over the general law. He maintained that the benefit of Section 382-B, Cr.P.C. has already been factored into the sentences awarded to the convicts. He argued that the convicts have been dealt with strictly in accordance with the applicable law, namely, the Army Act.

6. Mr. Shumail Ahmad Butt, the learned amicus curiae, contended that this Court lacks jurisdiction in view of Article 199(3) and (5) of the Constitution. He referred to the judgment dated 30.04.2015 passed in Writ Petition No. 352/2015, wherein a similar plea was dismissed. With respect to the two recent judgments cited by learned counsel for the petitioners, the learned amicus submitted that the respective benches may not have been adequately assisted. We have perused the record with the able assistance of the learned counsel.

7. The persons mentioned in these petitions were tried under section 59 of the Army Act, which is reproduced below for ready reference:

59. Civil offences.

(1) Subject to the provisions of sub-section (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be [dealt with under this Act], and, on conviction, to be punished as follows, that is to say,___ (a) if the offence is one which would be punishable under any law in force in Pakistan with death or with [imprisonment for life], he shall be liable to suffer any punishment assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment assigned for the offence by the law in force in Pakistan, or rigorous imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned [:] [Provided that, where the offence of which any such person is found guilty is an offence liable to hadd under any Islamic law, the sentence awarded to him shall be that provided for the offence in that law. (2) A person subject to this Act who commits an offence of murder against a person not subject to this Act [or the Pakistan Air Force Act, 1953 (VI of 1953)], or to the [Pakistan Navy Ordinance, 1961 (XXXV of 1961)], or of culpable homicide not amounting to murder against such a person or of [Zina or Zina-bil-Jabr] in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be 6 [dealt with under this Act] unless he commits any of the said offences, (a) while on active service, or (b) at any place outside Pakistan, or (c) at a frontier post specified by the [Federal Government] by notification in this behalf. (3) The powers of a Court martial [or an officer exercising authority under section 23] to charge and punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an offence against this Act. [(4) Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act ; and the provisions of this section shall have effect accordingly].

8. The sole question raised in these petitions is that whether the benefit of section 382-B of the Code could be extended to the convicts, if yes, whether it has been extended. A review of the records in these petitions reveals that the benefit under Section 382-B of the Code has been extended to all the convicts. It is also apparent from the record that, in determining the sentence, the period of confinement already served by the petitioners was duly taken into account.

9. It is evident that the Army Act is a special law, and trials conducted thereunder are not governed by the provisions of the Code. In terms of Section 135 of the Army Act, a sentence of imprisonment commences from the date on which the original proceedings are signed by the military court. For ease of reference, the said provision is reproduced below:

135. Commencement of sentence of imprisonment for life or imprisonment or detention. Whenever any person is sentenced under this Act to [Imprisonment for life] imprison-ment or detention, the term of sentence shall, whether it has been revised or not, be reckoned to commence on the day on which the original proceedings were signed by the president or, in the case of summary Court martial, by the Court. [footnote omitted]

10. Evidently, Section 382-B of the Code is not applicable to convictions and sentences awarded under the Army Act. Sub-rule (1) of Rule 53 of the Army Rules provides as follows:

53. Procedure on Conviction.

(1) If the finding on any charge is " Guilty", then, for the guidance of the court in determining their sentence, and of the conforming authority in considering the sentence, the court, before deliberating on their sentence, shall, whatever, possible, take evidence of and record the general character, age, service, rank, and any recognized acts of gallantry or distinguished conduct of the accused, any previous convictions of the accused either by a court martial or a criminal court, any previous punishments awarded to him by an officer exercising authority under section 23, the length of time he has been in arrest or in confinement on any previous sentence, and any military decoration, or military reward, of which he may be in possession or to which he is entitled.

11. Sub-rule (1), however, appears to be more in line with the spirit of section 382-B of the Code. In other words, since the Army Act, being a special law, does not provide a mechanism to account for the period during which the accused remained in custody awaiting trial, section 382-B of the Code, a general law, may be invoked by way of analogy. The issue has been considered in certain cases. In Azhar Iqbal v. The State and 4 others (2014 PCr.LJ 1387 [Lahore]), it was held:

5. So putting section 135 of the Army Act, 1952 which is special law and section 382-B of the Code of Criminal Procedure which is an ordinary law, in juxta position would reveal that sentence awarded under the Army Act would be reckoned to commence from the date when the original proceedings are signed and not before that date whereas persons/accused tried under the Code of Criminal Procedure if convicted their period of detention during trial shall also be considered by the Court convicting said person. Trials under the Army Act and punishment of crimes and sentences thereunder is not for ordinary offences but are restricted only to the offences relating to or under the Army Act which has its own policy and scheme of punishments. The honorable Court ruled that Section 382-B of the Code does not apply. In its reasoning, the Court referred to the case of Nabi Dar v. Registrar Court of Appeals, Judge Advocate General's Department, GHQ, Rawalpindi and 3 others (PLD 2009 Quetta 27), where a similar position was taken. This decision was subsequently challenged before the Apex Court, which, however, declined to grant leave.

12. Another case where the applicability of Section 382-B of the Code was specifically examined is Manthar alias Manoo v. Federation of Pakistan, Cr. Misc. Appl. No. D-107 of 2014. In this case, the honorable High Court of Sindh evaluated the application of Section 382-B of the Code not solely from the standpoint of the Army Act but also in the context of the Official Secrets Act, 1923. The accused, a civilian, had been tried and convicted by a military court under Section 59 of the Pakistan Army Act, read with Section 3 of the Official Secrets Act, 1923. The offence under Section 3 of the Official Secrets Act, 1923, is typically triable before a Magistrate First Class. However, due to the deeming clause under Section 2(1)(d)(ii), read with Section 59(4) of the Army Act, the offence was made triable under the Army Act. The Court accepted the argument that, since the applicant had been tried under the Army Act for a civil offence, the benefit of Section 382-B of the Code was available to him. The honorable Court held: [A] person like the applicant would be discriminated upon as the forum and choice of being tried or convicted under the special law like the Army Act or under any other law by a 1st Class Magistrate does not lie with the applicant, therefore, in our view this amounts to violation of the fundamental rights of the applicant specially Articles 9 and 25 of the Constitution of Pakistan which cannot be appreciated by this Court.

13. The reasoning advanced in the Manthar alias Manoo case is distinguishable from the facts of the present petitions. In that case, the accused was tried for an offence under the Official Secrets Act, 1923, which is ordinarily triable by a Magistrate First Class, but was brought within the jurisdiction of a military court through the deeming provisions.. Consequently, since the underlying offence was a civil one, the benefit of Section 382-B of the Code was held to be applicable. In contrast, the petitioners in the present cases were tried and convicted for offences falling squarely within the substantive provisions of the Army Act, and not for civil offences triable by ordinary criminal courts. Therefore, the reasoning so rendered in Manthar alias Manoo does not extend to the petitioners' circumstances.

14. Additionally, Section 1 of the Code restrict the application of the Code to any local or special law, or any special jurisdiction or power conferred or any special form of procedure prescribe by any other law for the time being in force. It is to be noted that Section 1 defines and delimits the scope and application of the Code to ordinary and general offences and trials, while it places all the special laws and jurisdictions outside of its ambit. Without going further into the reasons the learned court advanced for application of section 382-B of the Code, we would consider it sufficient to note here that in the cases before us the military courts have granted the benefit of the provision to the convicts.

15. As for the contention raised by the learned counsel for the petitioners regarding the judgments delivered by our earned brothers wherein the benefit of Section 382-B was extended to convicts in similar circumstances, we, with the utmost respect, are unable to concur with those views. Our divergence stems from the reasoning that section 135 of the Army Act constitutes a special law, whereas Section 382-B of the Code is a general law and the distinction for extending the benefit of section 382 under general law and in the cases under the Army Act is that in general law it is mandatory for the trial Court to take into consideration the pre-sentence custody period in the light of the principles laid down in the case of Shah Hussain v. The State (PLD 2009 SC 460) and the effect thereof shall be taken into account at the time of release of convict by the authority with whom he was undergoing the sentence whereas in the later (Army Act), the court at the time of sentencing the accused considers the period in which he remained in custody being under trial prisoner within the parameters of section 382-B and when he is convicted, the benefit of 382-B is extended to him and included in his sentence at the time of conviction.

16. For the reasons articulated above and the legal principles cited, we have reached to the conclusion that the military courts have granted the benefit of section 382-B of the Code read with sub-rule '(1)' of Rule 53 of the Army Rules. The petitions stand dismissed. Schedule A S. No. Petition No. Title

1. W.P. No. 3084-P/2024 Fazal Wadood for Convict Imran Khan v. Federation of Pakistan through Ministry of Interior and others

2. W.P. No. 3971-P/2024 Asghar Khan for Convict Qasim v. Federation of Pakistan through Ministry of Interior and others

3. W.P. No. 4740-P/2024 Luqman Uddin for Convict Faramosh v. Federation of Pakistan through Ministry of Interior and others

4. W.P. No. 4824-P/2024 Syed Luqman Shah for Convict Syed Usman Shah v. Federation of Pakistan through Ministry of Interior and others

5. W.P. No. 4833-P/2024 Mst. Saima Bibi for Convict Haider Ali v. Federation of Pakistan through Secretary Defence and others

6. W.P. No. 4834-P/2024 Qasim v. Federation of Pakistan through Ministry of Interior and others

7. W.P. No. 4907-P/2024 Ismail for Convict Arshad Ali v. Federation of Pakistan through Ministry of Interior and others

8. W.P. No. 4835-P/2024 Atta Ullah for Convict Fazal Hakeem v. Federation of Pakistan through Ministry of Interior and others

9. W.P. No. 4909-P/2024 Abdur Rauf for Convict Fazal Maula v. Federation of Pakistan through Ministry of Interior and others

10. W.P. No. 4910-P/2024 Ihsan Ullah for Convict Inayat Ullah v. Federation of Pakistan through Ministry of Interior and others

11. W.P. No. 4911-P/2024 Insaf Ullah for Convict Imran Khan v. Federation of Pakistan through Ministry of Interior and others

12. W.P. No. 4912-P/2024 Rahim Ullah for Convict Imran Khan v. Federation of Pakistan through Ministry of Interior and others

13. W.P. No. 4913-P/2024 Ahmad Khan for Convict Murad Ali v. Federation of Pakistan through Ministry of Interior and others

14. W.P. No. 4927-P/2024 Ali Rahman for Convict Aziz ur Rahman v. Federation of Pakistan through Ministry of Interior and others

15. W.P. No. 4954-P/2024 Sharif Ullah v. Federation of Pakistan through Ministry of Interior and others

16. W.P. No. 4960-P/2024 Hameed Khan v. Federation of Pakistan through Ministry of Interior and others

17. W.P. No. 5021-P/2024 Asaf Khan for Convict Haider Ali v. Federation of Pakistan through Ministry of Interior and others

18. W.P. No. 5220-P/2024 Shakir Ullah for Convict Shamsheer Ali v. Federation of Pakistan through Ministry of Interior and others

19. W.P. No. 5333-P/2024 Abdul Rehman and another v. Federation of Pakistan through Ministry of Interior and others

20. W.P. No. 5334-P/2024 Gul Shad v. Federation of Pakistan through Ministry of Interior and others

21. W.P. No. 5565-P/2024 Sher Rehman for Convict Shahi Muhammad v. Federation of Pakistan through Ministry of Interior and others

22. W.P. No. 5676-P/2024 Saif ur Rahman for Convict Shahid Ali v. Federation of Pakistan through Ministry of Interior and others

23. W.P. No. 243-P/2025 Amjid v. Federation of Pakistan through Ministry of Interior and others

24. W.P. No. 244-P/2025 Khan Muhammad v. Federation of Pakistan through Ministry of Interior and others

25. W.P. No. 245-P/2025 Gul Zarin for Convict Adam Khan v. Federation of Pakistan through Ministry of Interior and others MH/129/P Petitions dismissed.