Shahid Mahmood vs The State, Etc.
The instant petition has been filed under Section 561-A of the Code of Criminal Procedure 1898 seeking the extension of the benefit of Section 382-B of the Code of Criminal Procedure 1898 to the petitioner. The petitioner, a labourer in the Military Engineering Service, was tried by a Field Court Martial under Section 59 of the Pakistan Army Act and Section 3(a) of the Official Secrets Act 1923, and was convicted and sentenced to four years rigorous imprisonment on 27.2.2008 without being accorded the benefit of Section 382-B of the Code of Criminal Procedure 1898. The core legal question is whether a convict tried and sentenced under the Pakistan Army Act and confined to a civil prison is entitled to the benefit of Section 382-B of the Code of Criminal Procedure 1898. The court held that withholding the benefit of Section 382-B of the Code of Criminal Procedure 1898 constitutes glaring discrimination, and accepted the petition, granting the benefit of Section 382-B of the Code of Criminal Procedure 1898 to the petitioner. The key principle laid down is that convicts under the Pakistan Army Act who serve their sentences in civil jails are entitled to the statutory benefit of Section 382-B of the Code of Criminal Procedure 1898.
- Whether a person convicted by a Field Court Martial and serving sentence in a civil jail is entitled to the benefit of Section 382-B of the Code of Criminal Procedure 1898?
- Does withholding the benefit of Section 382-B of the Code of Criminal Procedure 1898 from a military convict sent to a civil prison amount to discrimination?
- Can a petition under Section 561-A of the Code of Criminal Procedure 1898 be maintained to extend the benefit of Section 382-B to a convict sentenced by military authorities?
- 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 Secret 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 of 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 Secret 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 alongwith 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 P.L.D. 2010 FSC 1, 2001 S.C.M.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.