2011 PLP 1572 (YLR)

IJAZ AHMAD, J.

The petitioner No.1 father and the petitioner No.2 son inter se hail from the occupied territory in Jammu and Kashmir. They were arrested from Dina, District Jhelum on 29-5-2005, by Military Intelligence. The FGCM tried the petitioners under section 59 of the Pakistan Army Act, 1952 and section 3 of the Official Secrets Act, 1923. The petitioners were convicted under the said charges and were sentenced to 4 years' R.I. and 6 years' R.I. respectively. The petitioners preferred appeal which was dismissed vide verdict dated 9-5-2007.

2. It is contended by the learned counsel for the petitioner that the petitioner No.1 Abdul Karim, has served out the entire period of sentence and has been released; that the period during which the petitioner No.2 was detained in custody shall be considered while computing the period of sentence served and un served. It is argued that though the said petitioner has been convicted and sentenced by the Military Court yet he was handed over to the civil prison for serving out the period of imprisonment. His period of imprisonment has to be calculated after reduction of the period during which he was detained in the custody. He places reliance on the judgment dated 19-12-2008, passed by the Islamabad High Court, Islamabad, in Criminal Miscellaneous No.342-M-2008 titled Muhammad Ramzan v. The State the judgment dated 22-6-2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.1239 of 2010 titled Tallat Mehmood v. The State wherein it has been held that even a person who has been convicted and sentenced by the Field General Court Martial, is entitled to the benefit of section 382-B , Cr.P.C. He also relies on PLD 2009 SC 406 titled Shah Hussain v. The State.

3. On the other hand, this petition is opposed by the learned Standing Counsel. It is argued that any person convicted by the Field General Court Martial is not entitled to the benefit under section 382-B Cr.P.C. as the provisions of this Code are not applicable to the cases tried by Court Martial; that it is the trial Court who has to lake into consideration the period spent in custody by the under trial prisoner and that does not include a Military Court. He places reliance on NLR 1983 Criminal Law Journal 483 titled "Eyed' Hashim Ali Shah v. Present Summary Military Court Karachi", wherein it has been held that it is per se doubtful if the provisions of section 382-B Cr.P.C. would be applicable to a case tried by a Military Court and that High Court shall not exercise its jurisdiction with regard to the sentence imposed by the Military Court.

4. I have heard the learned counsel for the parties and have also gone through the record.

5. Section 382-B of the Criminal Procedure Code postulates that a court passing a sentence of imprisonment shall take into consideration the period during which an accused was detained in custody for such an offence. The petitioners have not been extended the benefit of section 382-B, Cr.P.C. by the court convicting and sentencing them. The august Federal Shariat Court in case PLD 2010 SC 1 titled Muhammad Aslam Khaki v. The State has held that the benefit of section 382-B, Cr.P.C. shall be available to all such persons serving their sentence passed by any court of law. The dictum laid down by the Federal Shariat Court has been followed by the Lahore High Court in Writ Petition No. 1239 of 2010 titled Tallat Mehmood v. The State. Similar view has also been taken by the Hon'ble Islamabad High. Court, Islamabad in Criminal Miscellaneous No.342-M of 2008. In all these cases, the petitioners were tried by Field General Court Martial. Their lordships, in all the cases, were of the view that benefit of section 382-B, Cr.P.C. was to be extended in all the cases irrespective of the fact which court passed the sentence.

6. For what has been discussed above, I am of the view that the benefit of section 382-B, Cr.P.C. should also be extended in the case of the petitioners. Petitioner No. 1 has already served out the entire period of his incarceration. Petition No.2 is entitled to the benefit of section 382-B, Cr.P.C. This petition is accepted. A.R.K./A-69/L Petition accepted.