' ALI BAQAR NAJAFI, J.---Through this constitutional petition, a direction is sought in the form of a declaration against the respondents that the sentence commuted by the competent authority under the Pakistan Army Act was in excess of powers, without any backing of law and may be declared illegal and of no legal effect, with a further direction to count the sentence of the petitioner from the date of military custody, i.e, 17th of June, 2005 and to grant the petitioner all remissions entitled under the law from the said date.
2. The brief facts giving rise to filing of the present writ petition are that during the service of the petitioner in Headquarters Squadron 14 Independent Armoured Brigade Group of the Pakistan Army at Bahawalpur Cantonment on the night between 13/14th June, 2005, the petitioner was abused by his fellow soldier, namely, Sowar Sadiq Shah, which infuriated the petitioner. The petitioner picked up a bamboo stick, lying close by and struck on the head of said fellow soldier, which led to his death. The petitioner was taken into military custody on 17th of June, 2005 and thereafter he was tried by a Field General Court Martial under the Pakistan Army Act. On 18-1-2006, he was awarded death sentence as Ta'zir, which was promulgated on 8-6-2006. The petitioner filed an appeal within the Military hierarchy, which was heard by Court of Appeals constituted under section 133-B of the Pakistan Army Act who rejected the same on 7-8-2006. Subsequently, the petitioner entered into a compromise on 20th December, 2008 whereby the legal heirs of said fellow soldier forgave him, whereas for minor legal heirs, a sum of Rs,6,00,000 was deposited in the bank, in accordance with the injunctions of Islam. The said compromise was duly verified by Magistrate Ist Class, Shab Qadar, District Char Sadda, upon which on 6-3-2009 the competent authority commuted the sentence of death of the petitioner to fourteen years' R.I. As Ta'zir coupled with dismissal from service. In the month of September, 2011, the petitioner learnt that the Jail authorities have not counted the general remissions granted by the Government from time to time, whereafter on 3rd November, 2011 the GHQ Adjutant General's Branch sent a letter to the Jail authorities stating therein that conviction of the petitioner remained intact and that he was not entitled to any benefit under section 382-B, Cr.P.C. Read with rule 53 of Pakistan Army Act Rules as the period of confinement has already been taken -into consideration while maintaining the sentence. The petitioner also claims acquittal in view of section 338-F read with section 338-E, P.P.C. And section 345 of Cr.P.C. Notwithstanding section 311, P.P.C.
3. The learned counsel for the petitioner submits that under Verse Nos.178 and 179 of Sura Al-Baqra, it is ordained in Holy Qur'an that whenever a compromise is accepted, the convict is required to be acquitted; that after the compromise the conviction slides from section 302, P.P.C. To section 311, P.P.C. Only in cases where all the legal heirs have not forgiven and principle Fisad-Fil-Arz was attracted; that such provisions are not attracted as the occurrence had taken place in Cantonment Area at night, not witnessed by anyone except the petitioner, who having performed Ha]) in the year 2005, has a clean past record of service; that after the commutation of sentence, the petitioner has become entitled to all the remissions including Presidential remissions granted from time to time w.e.f, the date of custody; that the sentence has been made to start from 18-1- 2006, i.e, the date when the death sentence was signed and not from the date when he was taken into custody, i.e, 17-6-2005 and places reference to decision dated 9-7-2012 passed by this Court in Writ Petition No,1534 of 2011 titled Ex. Lt. Col. Shahid Bashir v. Federation of Pakistan, etc.; that the respondents authorities have violated the Fundamental Rights of the petitioner as enshrined under Articles 4, 9, 25 read with 2-A and 227 of the Constitution of Islamic Republic of Pakistan, 1973.
Places reliance on the cases of Shah Hussain v. The State [PLD 2009 SC 460], Muhammad Ramzan alias Ramzani v. The State [1996 SCMR 906], Abdul Ghafoor v. The State [2000 PCr.LJ 1841], Muhammad Nazir alias Jeera v. The State [PLD 2001 Lahore 212] and Muhammad Ashraf v. The State [PLD 1996 Lahore 46].
4. Conversely, the learned Standing Counsel for the Federation of Pakistan submits that this Court has no jurisdiction in view of an embargo under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 to adjudicate upon the matter in question; that the petitioner was tried under the Pakistan Army Act and the provisions thereof were correctly applied as under section 143 ibid, he was given the due benefit of the compromise; the petitioner filed appeal after a lapse of six years; that section 345, P.P.C. Is not attracted to the Army Act; that the commutation cannot proceed from the date of detention and in the judgment referred to passed by this Court, a leave to appeal has been granted by the apex Court. Places reliance on the cases of Tariq Mehmood v.
The State [2011 SCMR 1880], Mushtaq Ahmad and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others [PLD 2007 SC 405] and Muhammad Zaman v. The State [PLD 2006 Peshawar 82] and prays for dismissal of this petition.
5. I have heard the learned counsel for the parties and perused the available record.
6. The ouster clause of Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, wherein an embargo has been imposed for exercising the jurisdiction under Article 199 of the Constitution, is subject to three exceptions, namely the order was coram non judice, passed without lawful authority and on mala fides. The contention of the learned counsel for the petitioner that the Jail authorities were required to acquit the petitioner in view of the compromise effected between the legal heirs of deceased, namely Sadiq Shah and the petitioner is not tenable as the sentence was commuted from death to 14 years' R.I. In view of the principle of Fisad-Fil-Arz as laid down under section 311, P.P.C. Duly followed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Mehmood v. The State [2011 SCMR 1880]. Secondly, no above said exceptional circumstances shown to have existed to interfere in the findings of commutation from death sentence to 14 years'
R.I. Thirdly, the provisions of section 345, Cr.P.C. Are not attracted to Army Act Rules, 1954, which law being related to' disciplinary force is a special law dealing with a classified persons. Additionally, the Armed Forces are custodian of the rights of its employees both of assailants and victims and both living and dead. Any policy decision is aimed at maintaining discipline in the force in a situation, where fights between two armed personnel has resulted into one's death even by using a Danda that too in an isolated place. The learned counsel for the petitioner has not challenged the provisions of section 143 of the Army Act being ultra vires of Article 2-A and injunction of Islamic Law, therefore, no observation can be given in that respect. The next contention of the learned counsel for the petitioner is that the petitioner is entitled to the benefit of section 382-B, Cr.P.C. This Court has already expressed its view in the judgment dated 9-7-2012 passed by this Court in Writ Petition No,1534 of 2011 titled Ex. Lt. Col. Shahid Bashir v. Federation of Pakistan, etc. Based on a judgment rendered by the Hon'ble Shariat Appellate Bench in the case of Shah Hussain v. The State PLD 2009 SC 460 whereby the benefit of section 382-B, Cr.P.C. Has been extended to the convicts under the Pakistan Army Act. There does not exist any exceptional circumstances to deviate from my already expressed view. As far as the last contention of the learned counsel for the petitioner at bar that the petitioner is entitled to the remissions including those granted under Article 45 of the Constitution by the President of Pakistan is concerned, suffice it to say that those remissions, which have been made permissible under the Jail Manual as well as Code of Criminal Procedure and also under Article 45 of the Constitution of Pakistan, 1973 may be extended to the petitioner in accordance with law.
7. For the foregoing reasons, this petition is partially accepted and consequently, a direction is issued to the respondents to extend the benefit of section 382-B, Cr.P.C. To the petitioner with a further direction to record the remissions earned by him from time to time, in accordance with law.