Gul Muhammad Khan Vs Federation of Pakistan through Ministry of Interior and others.

PESHAWAR HIGH COURT. PESHA\ryAR

(JUDICIAL DEPARTMENT),/

W.P No.4738-P/2024

Gul Muhatnmad l{h,an Versus

Htr:,?;:;!:;:::";Y::;::

For the Petitioners Mr. Sadiq Ahmad Advocate, Mr. Farhan Ullah Shahb anzat Advocate, Mr. Irfan Ali Yousafzat Advocate, Mr. Abid Ali Advocate, Mr. Wasif Ullah Advocate, Mr. Muhammad Waqar Advocate.

For the Respondents Mr. Sana Ullah, Deputy Attorney General, Mr. Waqar Orakzai, Assistant Advocate General, Lieutenant Colonel Rizwan Akram Assistant Judge Advocate General for Pakistan Army.

Amicus Curiae Mr. Shumail Ahmed Butt Advocate.

Date of Hearing

JUDGMENT

Dr. Khurshid Iqbal. J. -

1.This petition and the connected 25 petitions full particulars given in "sched.ule 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 cotnuicts are erutitled to the benefit under section 382-8 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, 20L3. 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 Page 1 of 8

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 unlawfuI. 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 AIi.

3.In the connected petitions, all the petitioners have raised identical grounds, asserting their entitlement to the benefit of Section 382-8 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 und.er Section 382-8, Cr.P.C. has been extend.ed 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-P12023 titled "Maqbool Badshah v. Federation of Pakistan etc." and W.P. No. 2976'P12024 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 382-8, 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.

b. 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 382-8, 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 Page 2 of 8

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 counsels.

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

59.Civil offences.- (1) Subject to the provisions of eubsection (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 eection, shall be liable to be [dealt with under this Act], and, on conviction, to be punished ae followe, that is to sav.

(a)if the offence is one which would be punishable under any law in force in Pakistan with death or with [imprisonment for [ife], 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

ft) 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 [:]

fProvided 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 M of 1953)], or to the [Pakistan Navy Ordinance, 1961 (Xn(V of 1961)], or of culpable homicide not amounting to murder against such a person or of [Zina or ZinabilJabr] in relation to such a pereon, 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

(a)while on active service, or

(b)at any place outside Pakistan, or

(c)at a frontier post specilied 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 aleo 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 ae 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 ofthis section shall have effect accordinglyl.

8 The sole question raised in these petitions is that whether the benefit of section 382-8 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 382-8 of the Code has been extended to all the convicts. It is also apparent from the record that, in determining the Page 3 of 8

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:

136.Commencement of sentence of imprisonment for life or imprisonment or detention. Whenever any person is sentenced under this Act to fimprisonment for life] imprisonment or detention, the term of sentence shall, whether it has been revised or not, be reckoned to commence on the day ou which the original proceedings were oigned by the president or, in the case of summary Court martial, by the Court. fiootnote omitted]

10.Evidently, Section 382-8 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 ofgallantry or distinguished conduct ofthe 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 382-8 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 382-8 of the Code, a general law, may be invoked by way of analogy. The issue has been considered. in certain cases. In Azhar lqbol u. the Stote ond' 4 othere, (20L4 PCT.LJ 13E7 [Lahore]), it was held:

5.so putting section 135 of the Army Act, 1952 which is epecial law and section a82-g of ihe Code of Criminal Procedure which ie an ordinary law, in juxta position would reveal that sentence awhrded 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 Coae of Criminal Procedure if convicted their period of detention during trial shall aleo be considered by the Court convicting said person. Trial,s under the Army Act and punishment of crimes and sentences thereunder is not for ordinary offencee 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 382-8 of the Code does not apply. In its reasoning, the Court referred to the case of Nobi Dar u. Resistrar Court of tlv.peols. Jud,ee Advocote General's Department. GHQ. Rawolnind,i ond, 3 Page 4 ofE

,L

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 382-8 of the Code was specifically examined is Manthar alias Manoo u. Federation of Pakistan, Cr. Misc. Appl. No. D-107 of.20t4. In this case, the honorable High Court of Sindh evaluated the application of Section 382-8 of the Code not solely from the standpoint of the Army Act but also in the context of the OfEciaI 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 Offrcial Secrets Act, 1923. The offlence under Section 3 of the Officia1 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 382-8 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 lst Class Magistrate doee 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 OfEcial 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 benefrt of Section 382-8 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.

L4. 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 proced.ure prescribe by any other law for the time being in Page 5 of 8

force. It is to be noted that Section 1 and delimits the scope and application of the Code to ordinary and offences and trials, while it places all the special laws and jurisdictions outside of its ambit. Without going further into the reasons the learned advanced for application of section 382-8 of the Code, we would consider suffrcient to note here that in the cases before us the military courts ha granted the benefit of the provision to the convicts.

15.As for the contention raised by the Ie counsel for the petitioners regarding the judgments delivered by our brothers wherein the benefit of Section 382-8 was extended to in similar circumstances, we, with the utmost respect, are unable to concur with those views. Our divergence stems from the reasoning that 135 of the Army Act constitutes a special law, whereas Section B of the Code is a general law and the distinction for extending the benefit section 382 under general law and in the cases under the Army Act is that general law it is mandatory for the trial Court to take into consideration pre-sentence custody period in the light of the principles laid down in case of Shah Hussain vs. Thg State (PLD 2009 SC 460) and the effect shall be taken into account at the time of release of convict by the au with whom he was undergoing the sentence whereas in the later (Ar+y the court at the time of sentencing the accused considers the period. which he remained in custody being under trial prisoner within the of section 382-8 and when he is convicted, the benefi.t of 382-B is to him and included in his sentence at the time of conviction.

16.For the reasons articulated above the legal principles cited, we have reached to the conclusion that the courts have granted the benefit of section 382-8 of the Code read sub-rule '1' of RuIe 53 of the Army Rules. The petitions stand dismissed.

IT\

\/T\

JIJME

DB: Justice Naeem Anwar & J Dr. Khurshid Iqbal Page 6 of 8

Schedule A

S.No Petition No Title

1 W.P. No. Fazal Wadood for Convic ; Imran Khan v. Federation of 3084-P 12024 Pakistan through Ministry of Interior and others 2 W'.P. No. Asghar Khan for Convict ]asim v. Federation of Pakistan 397L-P12024 through Ministry of Interio r and others 3 W'.P. No. Luqman Uddin for Conr ict Faramosh v. Federation of 4740-P12024 Pakistan through Ministry of Interior and others

4.W'.P. No. Syed Luqman Shah for Convict Syed Usman Shah v. 4824-P12024 Federation of Pakistan tl rough Ministry of Interior and others

5 W.P. No. Mst. Saima Bibi for Con'' 'ict Haidar Ali v. Federation of 4833-P12024 Pakistan through Secretaq 'Defence and others

6.W.P. No Qasim v. Federation of Pakistan through Ministry of 4834"P12024 Interior and others

7 W"P. NO Ismail for Convict Arsha, t Ali v. Federation of Pakistan 4907-P12024 through Ministry of Interic r and others

8.W.P. No. Atta Ullah for Convict l 'azal Hakeem v. Federation of 4835-P12024 Pakistan through Ministry of Interior and others

9.W'.P. No. Abdur Rauf for Convict Fazal Maula v. Federation of 4909-P12024 Pakistan through Ministry of Interior and others

10.W'.P. No. Ihsan ullah for Convict Inayat Ullah v. Federation of 4910-P12024 Pakistan through Ministry of Interior and others

11.W.P. No. Insaf ullah for Convict Imran Khan v. Federation of 49tL-P12024 Pakistan through Ministry of Interior and others L2. W'.P. No. Rahim ullah for Convict Imran Khan v. Federation of 49L2-P12024 Pakistan through Ministry of Interior and others

13.W.P. No. Ahmad Khan for Convir t Murad Ali v. Federation of 49L3-P12024 Pakistan through Ministry of Interior and others L4. W'.P. No. Ali Rahman for Convict I .ztz ur Rahman v. Federation of 4927-P12024 Pakistan through Ministry of Interior and others 'W.P. No. Sharif Ullah v. Federatior of Pakistan through Ministry of 4954-P12024 Interior and others

'W'.P. No. Hameed Khall v. Federatic n of Pakistan through Ministry of 4960-P12024 Interior and others

L7 W.P. No. Asaf Khan for Convict Ha der AIi v. Federation of Pakistan 502L-P12024 through Ministry of Interir r and others r8. W.P. No. Shakir Ullah for Convict Shamsheer Ali v. Federation of Page 7 of 8

L

v

5220-P12024 Pakistan through Ministry of Interior and others 19 W.P. No. Abdul Rehman and another v. Federation of Pakistan 5333-P12024 through Ministry of Interior and others

20.W.P. No. GuI Shad v. Federation of Pakistan through Ministry of 5334-P 12024 Interior and others

2L. W'.P. No. Sher Rehman for Convict Shahi Muhammad v. Federation 5565-P 12024 of Pakistan through Ministry of Interior and others 22 W'.P. No. ur Rahman for Convict Shahid Ali v. Federation of 5676-P 12024 Pakistan through Ministry of Interior and others 'W.P. No. 243- Amjid v. Federation of Pakistan through Ministry of Interior P12025 and others

24.W'.P. No. 244- Khan Muhammad v. Federation of Pakistan through P12025 Ministry of Interior and others

25.W'.P. No. 245- Gul Zann for Convict Adam Khan v Federation of Pakistan P12025 through Ministry of Interior and others

Page 8 of 8