The Peshawar High Court has rejected the petitions of 30 military court convicts for counting the period of their pre-sentence detention in their overall prison terms.
A bench consisting of Justice Mohammad Naeem Anwar and Justice Dr Khurshid Iqbal ruled that those convicted under the Pakistan Army Act, which was a special law, were not entitled to the sought-after relief in Section 382-B of the Code of Criminal Procedure.
Fazal Wadud and 29 other petitioners, who were sentenced by military courts to different prison terms for their involvement in terrorism, had sought the high court’s orders for the government to extend the benefit of Section 382-B of CrPC to count their period of detention prior to conviction in their sentences.
Section 382-B of CrPC declares that when a court decides to pass a sentence of imprisonment on an accused for an offence it shall take into consideration the period, if any, during which such accused was detained in custody for such offen
The core question in all these petitions was whether people convicted by a military court can be given benefits of Section 382-B of CrPC and the time spent from the date of their arrest until trial needs to be excluded from the duration of their sentence.
The lawyers for petitioners contended that the field general court martial (FGCM) did not apply the provisions of Section 382-B of CrPC while awarding the punishment.
They argued that the petitioners had mostly been kept in detention much prior to their convictions. The counsel said that some of them were sentenced to five years imprisonment, whereas they had already spent around 10 years in detention.
They claimed that while several of them were sentenced to 10 years imprisonment, they had spent 13-14 years in detention.
The lawyers contended that the petitioners would have completed their prison terms if they were provided with the benefit of Section 382-B of CrPC.
They argued that application of the said provision on sentences of convicts was a mandatory provision of law, but the FGCM had not applied the same.
Senior lawyer Shumail Ahmad Butt showed up as amicus curiae, whereas deputy attorney general Sanaullah Khan appeared for the federal government.
Mr Butt contended that the manner of sentencing by a court martial was different from ordinary criminal courts.
He said that a sentence ran from the date of signing the proceedings by the president of the court martial under Section 135 of the Pakistan Army Act, and at the time of determining the quantum of sentence, the military courts were bound to take into account the time spent in custody before trial under Rule 53 of the Pakistan Army Rules.
The lawyer argued that sentencing guidelines were provided by that rule, so that consideration was done at the time of awarding sentence.
He said the scope of a high court in examining the sentence by a military court was limited in view of a 2017 Supreme Court judgement in the Said Zaman case.
“The high court could only see whether at the time of such sentencing Rule 53 was taken into account or not,” he insisted.
The counsel said that the matter had already been decided by the PHC, declaring that a convict from PAF was denied benefits under Section 382-B.
He added that Section 382-B of the law, as declared by a five-member apex court bench, not to be applicable in cases of conviction under special laws.
DAG Sanaullah Khan contended that the petitioners were subject to Pakistan Army Act, 1952, which was a special law, and they were tried by FGCM for offence under section 59 of the Army Act, whereas Section 382-B of CrPC was a general law.
He said that Section 135 of Pakistan Army Act, which had declared that sentence awarded to a person under that Act would commence on the date on which the original proceedings were signed by the President, had eliminated any misconception regarding applicability of the CrPC’s Section 382-B.
Mr Khan said that punishment of crimes and sentence thereunder was not for ordinary offences, but were restricted only to the offences relating to or under said Act, which had its own policy and scheme of punishment.
He said that Section 135 of Pakistan Army Act, 1952, read with Rule 53(d), suggested that the length of time, during which the accused had remained arrested, should be considered by the court martial.
Referring to the earlier superior court judgements, the DAG argued that the high court, in exercise of constitutional jurisdiction, had declined to interfere in conviction and sentence awarded by FGCM.
He contended that provisions of Rule 53(d) of the Pakistan Army Act Rules, 1954, were similar in nature to that of the CrPC’s Section 382-B, suggesting that the length of time, during which the accused had remained arrested, should be considered by the court martial.
Mr Khan claimed that in the present cases the military court had extended the benefit of Rule 53(d) to the petitioners.
