SHAHID MAHMOOD vs THE STATE and others
This criminal petition was filed under Section 561-A of the Code of Criminal Procedure 1898, seeking the benefit of Section 382-B of the Code of Criminal Procedure 1898 for a petitioner convicted by a Field Court Martial. The petitioner, a labourer in the Military Engineering Service, had been convicted and sentenced to four years of rigorous imprisonment under Section 59 of the Pakistan Army Act 1952 and Section 3(a) of the Official Secrets Act 1923, but was denied the benefit of the period of detention served prior to conviction. The core legal question was whether a convict sentenced by a Field Court Martial is entitled to the benefit of Section 382-B, Cr.P.C., when serving their sentence in a civil prison. The Court held that since Section 136 of the Pakistan Army Act 1952 mandates that such convicts serve their sentences in civil jails alongside civil prisoners, withholding the benefit of Section 382-B, Cr.P.C. constitutes discrimination. Consequently, the petition was accepted, and the benefit of Section 382-B, Cr.P.C. was granted to the petitioner.
- Is a person convicted by a Field Court Martial entitled to the benefit of Section 382-B of the Code of Criminal Procedure 1898?
- Does the denial of the benefit of Section 382-B of the Code of Criminal Procedure 1898 to a military convict serving time in a civil prison constitute discrimination?
- Section 561-A, Code of Criminal Procedure 1898
- Section 59, Pakistan Army Act 1952
- Section 3(a), Official Secrets Act 1923
- Section 382-B, Code of Criminal Procedure 1898
- Section 136, Pakistan Army Act 1952
ORDER
' CH. MUHAMMAD TARIQ, J.---The instant petition has been filed under section 561-A, Cr.P.C. With a prayer that the petitioner who joined the Military Engineering Service of Gujranwala Cantt. On 26-3- 1999 as a labourer was charged under section 59 of the Pakistan Army Act and section 3. (a) of the Official Secrets Act, 1923. The petitioner was tried by the Field Court Martial and was convicted and sentenced to 4 years' R.I on 27-2-2008 but the benefit of section 382-B, Cr.P.C. Was not extended to the petitioner.
2. In view of the above, the petitioner prays that this petition be accepted and benefit of section 382-B, Cr.P.C. Be extended to the petitioner.
3. Case was repeatedly called. No one has entered appearance on behalf of State.
4. Arguments of learned counsel for parties heard. Record perused.
5. Record shows that the petitioner was arrested on 24-8-2006 under section 59 of Pakistan Army Act read with section 3(a) of the Official Secrets Act, 1923 and he was convicted and sentenced to 4 years' R.I. On 27-2-2008 but benefit of section 382-B, Cr.P.C. Has not been allowed perhaps due to inadvertent. Perusal of judgment passed by Field Court Martial highlights that there is no mention of section 382-B, Cr.P.C. In the judgment and as such it cannot be said that benefit of said section has been denied. Any person convicted and sentenced by the Military Authorities is sent to civil prison to serve the sentence. Section 136 of the Pakistan Army Act, 1952 provides that convicts under Army Act will serve their sentences along with civil prisoners in the civil jail and will be governed according to the provisions of Jail Manual. In the circumstances, not extending the benefit of section 382-B, Cr.P.C. Is a glaring discrimination. The Hon'ble Federal Shariat Court has also defined it as "Zulm". Reliance is placed on PLD 2010 FSC 1, 2001 SCM R 1987. Therefore, benefit of section 382-B, Cr.P.C. Could not be withheld and shall also be allowed to the petitioner convicted under the Army Act. Therefore, this petition is accepted. Benefit of section 382-B, Cr.P.C. Is granted to the petitioner.
Cited by 3 cases
- QAIM vs FEDERATION OF PAKISTAN and others 2016 PLD Sindh 1
- MUHAMMAD SHARIQ vs FEDERATION OF PAKISTAN and others 2015 PLJ Islamabad 231, 2015 PLD Islamabad 180
- MUHAMMAD SHARIQ vs FEDERATION OF PAKISTAN, etc. 2015 PLJ Islamabad 231