IN THE HIGH COURT OF SINDH (CIRCUIT COURT)

AT HYDERABAD

 

Cr. Misc. Appl. No. D- 107 of 2014

 

 

 

Manthar alias Manoo          -----------------                                   Applicant

 

VERSUS

 

 

Federation of Pakistan        ------------------                                 Respondents

 

 

Date of hearing:                  10.04.2014

 

Date of judgment:               14.05.2014

 

Applicant:                             Through Mr. Taj Muhammad Khan Qaimkhani,

Advocate

 

Respondent Nos. 1 to 3:     Through Mr. Zahoor Ahmed Baloch D.A.G.

 

 

Respondent No.4          :      Through Syed Meeral Shah DPG

 

 

JUDGMENT

 

MUHAMMAD JUNAID GHAFFAR, J. - Through instant Criminal Miscellaneous Application, the applicant who has been convicted under Section 59 of the Pakistan Army Act, 1952 (“Army Act”) read with Section 3 of the Official Secrets Act, 1923, has sought benefit of Section 382-B Cr.P.C.

 

2.         The applicant was arrested on 8.9.2009 and was tried by the Field Court Martial General (“FCMG”) and was convicted to undergo 4 years RI with effect from 31.5.2011. It is the case of the applicant that he has served out his sentence on or before 8.9.2013 if the period of detention prior to his conviction is included and benefit of Section 382-B Cr.P.C. is allowed.

 

3.         Learned Counsel appearing on behalf of the applicant contended that the applicant is entitled to the benefit of Section 382-B Cr.P.C. as otherwise the applicant would serve sentence more than the one awarded to him by the FCGM. Learned Counsel further contended that the applicant cannot be put behind bars beyond the period for which he has been sentenced, therefore, the instant application is liable to be allowed by granting benefit of Section 382-B Cr.P.C. Learned Counsel for the applicant in support of his contention has relied upon the case of Shah Hussain v. The State (PLD 2009 S.C. 460), Shahid Mehmood v. The State (PLD 2011 Lahore 502), Javed Iqbal v. The SHO and others (2013 P.Cr.L.J 1394), Abdul Karim and others v. Federation of Pakistan and others (2011 YLR 1572), Sajid Iqbal v. Superintendent of Jail Central Jail Adiyala Rawalpindi (2011 YLR 283) and an unreported judgment dated 01.10.2013 passed by a Division Bench of this Court in the case of Abdul Ghani Vs Federation of Pakistan in C.P. No. D- 1345 of 2012.

 

4.         Conversely, learned DAG appearing on behalf of the respondents contended that under the Army Act, no benefit of Section 382-B Cr.P.C. is available and in view of Section 135 of the Army Act, the sentence awarded under the Act commences from the day on which the original proceedings are signed by the President (Presiding officer of a General, District or Field General Court Martial as appointed under section 102 of the Army Act) or, in the case of a summary court martial, by the Court. Learned Counsel also referred to the comments / objections filed by the respondent No.3 and relied upon the case of Nabi Dad V/s Registrar Court of Appeals Judge Advocate Generals Department GHQ & Others reported in PLD 2009 Quetta 27 and upheld by the Honourable Supreme Court in Cr. Petition No. 1-Q of 2009 dated 3.2.2009 as well as the judgment dated 16.7.2010 vide Civil Petition No. 1231 and 1232 of 2010 in the case of Lieutenant Colonel Abdul Ghaffar Khan Babar and Lieutenant Colonel Khalid Mehmood Abbasi v. Federation of Pakistan and others and judgment dated 12.7.2002 in CPLA No. 1644 of 2001 in the case of Ex. Sowar Muhammad Saghir Khan v. Federal Government, Ministry of Defence. Learned DAG has also relied upon various orders and judgments passed by the Learned Lahore High Court which have been annexed with the comments filed by respondent Nos. 2 and 3.

 

5.         Learned DPG appearing on behalf of the Province has adopted the arguments of learned DAG.

 

6.         We have heard the learned Counsel for the applicant and the leaned DAG as well as leaned DPG and have perused the record and the case law relied upon by both the Counsel. In the instant matter a short but a legal controversy is involved, that as to whether a civilian convicted for a civil offence under the Army Act is entitled for the benefit of Section 382-B Cr.P.C. and that as to whether sentence so awarded to the applicant under the Army Act is to be counted from the date of signing of the order by the Court and whether the period for which the applicant has remained under confinement to his pre-sentence is to be added to the period of post sentence or not.

 

7.         Though the learned DAG has not raised any objection as to how a Criminal Miscellaneous Application filed under section 561A Cr.P.C. is maintainable in the instant matter, as the applicant has not challenged the sentence awarded by FCGM and neither the same could be challenged before this Court under Section 561-A Cr.P.C, as in terms of section 133 of the Army Act, there is a complete bar of appeal as no remedy including any appeal lies against any decision of a Court martial in respect of any proceedings or decision of Court martial to any Court exercising any jurisdiction whatsoever save as otherwise provided under the Army Act. In fact through the instant application, the applicant has not challenged the merits of his conviction; rather he is seeking enforcement of his fundamental rights under the Constitution for the grant of benefit of Section 382-B Cr.P.C. as are available to other convicts of civil offences. In view of such position we are of the view that though the instant Cr. Miscellaneous Application is not maintainable, but however, this Court can convert it into Constitutional Petition under Article 199 of the Constitution of Pakistan and consequently we allow such conversion and office is directed to assign proper number of petition to the instant application. It must not be out of place to mention that in fact the respondent No. 2 & 3 in their comments have already raised objection regarding the maintainability of the petition, though no such petition was filed by the applicant, however we will address the issue of maintainability of the instant petition in the latter part of this judgment as well.

 

8.         The applicant who is admittedly a private person or a civilian for that matter has been convicted under Section 59 (4) of the Army Act read with Section 2(1) (d) (ii) read with Section 3 of the Official Secrets Act, 1923. The applicant admittedly has been convicted for a period of 4 years R.I with effect from 31.5.2011 and as per the jail roll available on record till 18.3.2014 he has served sentence excluding remissions for a period of 2 years 09 months and 17 days whereas in terms of Rule 214-A of the Pakistan Prison Rules, the applicant is not entitled for any remissions. It would be advantageous to reproduce the relevant provisions of the Army Act as well as the Official Secrets Act 1923 discussed above.

Section 2(1) (d)  (ii) of Army Act

2(1)(d) persons not otherwise subject to this Act who are accused of

(i)     ……..

(ii)   having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or air-craft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923; or

 

Section 59(4) of Army Act

            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 sub-section (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.

 

Section 3 of the Official Secrets Act, 1923 :

3. Penalties for spying. (1) If any person for any purpose prejudicial to the safety or interests of the State-

(a)      approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or

 

(b)      makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to any enemy; or

 

(c)      obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy;

 

he shall be [guilty of an offence under this section.]

 

(2)      On a prosecution for an offence punishable under this section with imprisonment for a term which may extend to fourteen years, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interest of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document or information shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interest of the State.

 

[(3)] A person guilty of an offence under this section  shall be punishable,-

 

(a) where the offence committed is intended or calculated to be, directly or indirectly, in the interest or for the benefit of a foreign power, or is in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affaires of Pakistan or in relation to any secret official code,  [with death of]; with imprisonment for a term which may extend to fourteen years; and

 

(b) in any other case, with imprisonment for a term which may extend to three years.}

 

 

9.         From the perusal of the above sections it could be seen that primarily the applicant who is a civilian has been tried and convicted under the Army Act for a civil offence in terms of section 59(4) of the said Act, wherein it is provided that a person who by reason of his being accused of an offence mentioned in clause (d) (ii) of sub-section (1) of Section 2, shall be liable to be tried and otherwise dealt with under this Act for such offence as if, the offence was an offence against this Act and was committed at the time when such person (applicant) was subject to this Act and the provisions of this Section i.e. 59(4) shall have effect accordingly. Section 3 of the Official Secrets Act, 1923 deals with penalties and offence of spying and the offences committed under the Official Secrets Act, 1923 are to be tried by the Magistrate of 1st Class in terms of section 13 thereof specially empowered in this behalf by the Government. It must be appreciated that in so far as the offence so committed under the Official Secrets Act, 1923 is concerned, the same is exclusively triable by the 1st class Magistrate, but by virtue of a deeming clause under Section 2(1)(d)(ii) read with Section 59(4) of the Army Act it becomes an offence which could be tried under the Army Act. This would mean, that if a person has been tried and convicted under the Official Secrets Act, 1923 by a Court of 1st Class Magistrate per se would be entitled to benefit of Section 382-B Cr.P.C.; whereas if he is tried and convicted under the Army Act, the benefit of Section 382-B Cr.P.C. is not available. In view of such position we are of the view, that such contention of the respondents is not correct and justified, as in this manner, a person like the applicant would be discriminated upon as the forum and choice of being tried or convicted either 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.

 

10.       So far as the instant matter is concerned, the jail roll as placed before this Court specifically states that no remission has been earned by the applicant as in view of Rule 214-A of the Prison Rules, the applicant is not entitled for any such remission. Though the issue of remission granted by the Federal Government from time to time to the under trial prisoners, is not an issue directly before us in the instant matter, and we leave it open to be decided at an appropriate stage, that whether the convicts under the Army Act are entitled to any remissions or not, especially in view of the specific provision of section 143 of the Army Act which does provide for remission and pardons under special conditions. However, the case of the applicant is not for grant of remission. The applicant has already served the period of sentence of 4 years if the period of his pre-sentence / detention is also added. Therefore, for the moment, it is only the applicability of grant of benefit under Section 382-B Cr.P.C. which is relevant before us. It must be appreciated that a person who is put behind bars is deprived of his life and liberty and it must not be forgotten that the period of detention prior to his sentence if not accounted for, would be without any lawful authority and would amount to illegal confinement or detention. A person cannot be detained or put behind bars for an unspecified period and the State must, and has to account for, such detention of a person. After all it is a question of the life and liberty of a person who cannot be sentenced or detained beyond the period of conviction, as is being done in the instant matter as though the applicant has been sentenced for 4 years RI and till today (after addition of pre-sentence period of detention) he has already served the sentence of approximately 4 years and 7 months, and is further required to serve sentence of 1 year and 2 months more, which in the aggregate would come to around 6 years approximately. The provisions of Section 135 of the Army Act though stipulates that the term of sentence shall be reckoned to commence on the day on which the original proceedings were signed, but simultaneously it must be appreciated that in view of Section 74 & 75 ibid where a person has been detained in custody for a period of 8 days without a court martial for his trial being ordered to assemble, a special report giving reasons for the delay shall be made by his Commanding Officer in the manner prescribed and a similar report shall be forwarded at intervals of eight days until a court martial is assembled or such person is released from custody. This clearly stipulates that the Army Act within itself contemplates such provisions whereby a person arrested and put into custody cannot be detained or kept in confinement for an unspecified period.

 

11.       We have also noticed that in so far as the Army Act is concerned, there is no specific bar or restraint and or exclusion that the provision of Section 382-B Cr.P.C. is not applicable on the sentences awarded under the Army Act except the provisions of Section 135 of the said Act, wherein it has been stated that the sentence shall commence from the day when the same is signed by the presiding officer. The idea and purpose of enacting the provisions of section 382-B Cr.P.C. is to compensate the accused or the under trial prisoner for delay in conclusion of the trial due to factors for which the accused generally cannot be held liable as it is the responsibility of the State to provide speedy justice. It must also be appreciated that denying such benefit could contravene the spirit of law and would also frustrate the principles of dispensation of justice to all. It must also be kept in mind that the time so spent by the under trial prisoner in jail prior to its conviction, is in fact in the context of the same offence for which the accused is later on convicted. It must not go in vain, and must therefore, be taken into account. The fact that such period of pre-sentence spent in jail was punitive or not, is not the question, rather it is the deprivation of life and liberty of a person, and this certainly amounts to punishment. It is also important to keep in mind that initially the words “may” was mentioned in section 382-B Cr.P.C. and thereafter through amendment carried out vide Second Amendment Ordinance (71 of 1979) the words “may” has been substituted with words “shall” making it a mandatory provision and such amendment has its consequences attached to it, for the reason that it shows the intent of the legislature behind carrying out such an amendment. This is beneficial in nature and in terms of the rules of interpretation the same shall be liberally construed in favor of an accused. In view of such position, we are of the view that if a civilian is convicted for a civil offence in terms of Section 59 of the Army Act, then such person is entitled for the benefit of Section 382-B Cr.P.C. and the pre-sentence period spent in confinement and or in detention is to be added or to be counted in the period of sentence actually awarded to such person. The Honourable Supreme Court while dealing with the issue of applicability of Section 382-B Cr.P.C. in the case of Shah Hussain v. The State (Supra) at Para 39 has observed as follows:-

39. The under-trial prisoners, or criminal prisoners, particularly those who are later convicted of the offence in connection with which they were incarcerated, sooner or later join the ranks of convicted criminal prisoners. It is discriminatory not to treat them at par with their co-prisoners living in the same or similar premises, may be under the same very roof. They are equal before law and are entitled to equal protection of law under Article 25 of the Constitution. If remissions of the pre-sentence period were to be denied to the convicts after they were granted the benefit of section 382-B, Cr.P.C., we would be confronted with a situation where remission granted on the eve of Eid would be admissible to a prisoner who was convicted a day before Eid, but not to a person who was convicted a day after Eid, though the two prisoners were on an equal footing two days before Eid, i.e., till then both of them were confined as under-trial prisoners and both of them also got the benefit of section 382-B, Cr.P.C. The classification of `criminal prisoners' and `convicted criminal prisoners' qua the admissibility of remissions granted by any authority where the Court has passed an order granting the benefit of section 382-B, Cr.P.C., does not meet the test of `intelligible differentia' laid down in the case of I.A. Sharwani v. Government of Pakistan (1991 SCMR 1041). The under-trial prisoners getting the benefit of section 382-B, Cr.P.C, cannot be deprived of remissions accruing during their pre-sentence custody period. Article 9 of the Constitution guarantees the right to life of a person and is very much available to a prisoner along with certain other fundamental rights, such as to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, though he is deprived of certain fundamental freedoms like the right to move freely throughout the country or the right to practice a profession, etc., as it was held in the case of D.B.M. Patnaik v. State of A.P. (AIR 1974 SC 2092). Therefore, the protection guaranteed under Article 9 remains available to the under-trial prisoners and they are entitled to the benefit of section 382-B, Cr.P.C., along with remissions if any, granted during their pre-sentence custody period, inasmuch as on account of denial thereof, they would be required to remain in prison for a longer time than warranted and deprived of their liberty. Article 9 has received interpretation by this Court in the case of Shehla Zia v. WAPDA (PLD 1994 SC 693) relevant passage from the judgment reads as under --

 

"Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word 'life' is very significant as it covers all facets of human existence. The word life' has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. ..    .. .

 

"The word 'life' In the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it."

 

Keeping the ratio of the above cases in view, we are inclined to hold that refusal to allow remission of pre-sentence custody period to a convict whom the Court has granted the benefit of section 382-B.Cr.P.C., is tantamount to deprivation of his liberty within the contemplation of above Article of the Constitution The cases of convict prisoners who are expressly debarred under any law from the benefit of section 382-B, Cr.P.C., stand on a different footing. Thus, where section 382-B, Cr.P.C, itself is not applicable, no remission of the pre-sentence custody period can be allowed to the prisoner in question.

 

12.       The above judgment of Honourable Supreme Court has in fact laid down the guiding principles in so far as the provision of Section 382-B Cr.P.C. is concerned, as well as classification of criminal prisoners and convicted criminal prisoners and has also dealt with the provisions and applicability of Article 25 of the Constitution of Pakistan in such matters. In fact in the above judgment the Honourable Supreme Court has gone to the extent of granting remissions to the pre-sentence period to convicts who were subsequently granted the benefit of Section 382-B Cr.P.C. but were refused the grant of remission in their pre-sentence custody. In view of the guiding principles laid down by the Honorable Supreme Court in the above judgment, we are of the view that the applicant cannot be deprived from the benefit of section 382-B Cr. P.C. in the instant matter as he cannot be kept in illegal confinement as he in the aggregate has already served his sentence of 4 years from the date of his initial confinement and or detention. The same view has been followed by two different Division Benches of this Court vide judgment dated 01.10.2013 in the case of Abdul Ghani Vs Federation of Pakistan & Others in CP No 1345 of 2012 and dated 21.03.2014 in the case of Akbar Ali Vs Federation of Pakistan & Others in CP No. 394 of 2013.

 

13.       Now coming to the issue with regard to the maintainability of the instant petition (see Para 7 above) in terms of Article 199(3) read with Article 8(3) of the Constitution. It would be advantageous to reproduce the provisions of Article 199(3) and Article 8(3)(a) of the Constitution of Pakistan:-

Article 199(3): An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Arms Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law”.

 

Article 8(3)(a) : any law relating to members of the Arms Forces, or of the police or of such other forces are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them”.

 

14.       In so far as Article 199(3) of the Constitution of Pakistan is concerned the same restricts or debars the Court for making an order on application made by or in relation to a person who is a member of armed forces of Pakistan or who is for the time being subject to any law relating to any of those Forces in respect of his terms and conditions of service or in respect of any matter arising out of his service, or in respect of any action taken in relations to him as a member of the Armed Forces or as a person subject to such law. It must be appreciated that as stated above, the convict in the instant matter is a civilian and not a personnel of Armed Forces and further, has been convicted for a civilian offence under the Army Act, therefore, the exclusion as provided for in Article 199(3) is not relevant. Similarly Article 8 stipulates that laws which are inconsistent with or in derogation of the Fundamental Rights are void; however Article 8(3)(a) is an exception and provides that the provisions of Article 8 do not apply to any law relating to members of the Armed Forces. Insofar as the applicability and restriction placed through Article 8(3)(a) of the Constitution is concerned, it must be kept in mind that the present issue is not at all attracted or covered in such terms of the said Article. The convict in the present case is not personnel of Armed Forces, but a civilian who has been convicted under the Army Act for a civil offence. In fact Article 8(3)(a) is in relation to any law relating to the members of the Armed Forces for its discharge of duties or the maintenance of discipline amongst themselves. Therefore the exclusions or immunity granted by the said Article is only for the above stated purposes and to that extent and not otherwise. Similarly, sub article (3) is an exception to sub articles (1) and (2) and therefore it must be interpreted narrowly and applied as well in that manner. Therefore the objection so raised by Respondents No. 2 & 3 in their comments with regard to the maintainability of the instant petition is misconceived and is hereby repelled

 

15.       The respondent Nos. 2 and 3 in their comments have referred to various judgments of Honourable Supreme Court as well as the Baluchistan High Court and the Lahore High Court as stated in para-4 above. The first case relied upon is the case of Lieutenant Colonel Abdul Ghaffar Khan Babar Supra in which the said petitioners had challenged the judgment passed by the Lahore High Court Rawalpindi bench, whereby the petitions had been dismissed by the learned High Court in view of the bar contained in Article 199(3) of the Constitution. In those petitions before the learned High Court, the petitioners had challenged their conviction by the Military Court. On appeal the Honourable Supreme Court vide its order dated 16.7.2010 had dismissed the civil petitions by holding that the learned High Court had correctly declined to issue writ in favour of the petitioners. In our view the ratio of this judgment is not applicable on the facts of instant matter as this case pertains to a civilian who has been convicted for a civil offence under the Army Act and further has not challenged the conviction of the military court. The second judgment which has been relied upon by the respondent Nos. 2 and 3 is the case of Nabi Dad Supra wherein the Honourable Supreme Court declined leave to appeal against the judgment of learned Division Bench of Baluchistan High Court reported in PLD 2009 Quetta 27 wherein the learned Baluchistan High Court had dismissed the Constitutional petition filed by Nabi Dad who again was a person employed by the Armed Forces, therefore, this judgment is also distinguishable on facts as in the said case, the petitioners had also challenged the entire conviction on merits as well and secondly so also for the reason that the petitioners in that matter were personnel of Pakistan Army. Even otherwise this judgment of Honourable Supreme Court was delivered on 3.2.2009 and did not had the occasion to go through the subsequent judgment passed by Honourable Supreme Court in the case of Shah Hussain supra wherein the Honourable Supreme Court has laid down certain principles and guidelines with regard to the applicability of the provisions of Section 382-B Cr.P.C. The third judgment relied upon by respondent Nos. 2 and 3 is in the case of Ex.Sowar Muhammad Sagheer Khan supra which again was preferred by a person employed with the Pakistan Army and for the reasons as discussed earlier, the same is also not relevant and applicable in the facts and circumstances of the instant case. The respondents have also relied upon the judgment in the case of Muhammad Afzal supra wherein again the matter pertained to a person who was an employee of Pakistan Army and as such this judgment is also not relevant and does not support in any manner the case of the respondents. In so far as the other cases pertaining to Lahore jurisdiction as referred to by the respondents in their Para wise comments is concerned, it would suffice to observe that with utmost respect we may say that all these judgments, though persuasive, are not binding on us and hence need not be distinguished. 

 

16.      In view of hereinabove we are of the view that the instant petition merits consideration and is accordingly allowed by holding that the applicant / convict who is a civilian and was tried under the Army Act for a civil offence committed under the Official Secrets Acts 1923 is entitled to the benefit of section 382-B Cr.P.C. and his pre-sentence period spent in jail / confinement is to be added to his post-sentence / conviction period. Since after allowing such benefit he has already completed the period of sentence of 4 years, the Superintendent Central Prison, Hyderabad is directed to release him forthwith, if not required in any other case/crime. Office is directed to send a certified copy of this judgment to the concerned jail authorities for implementing the same and is further directed to seek a compliance report thereof within a period of 15 days. Petition allowed.

           

 

Dated: 14.05.2014

           

 

 

                                                                                                            JUDGE

 

 

 

                                                            JUDGE