' ZAFAR ULLAH KHAN KHAKWANI, J. Azhar lqbal, petitioner was tried under Section 59 of The Pakistan Army Act, 1952 read with Section 3 of the Official Secrets Act, 1923 and Section 4(i) of the Passports Act, 1974 by the Field General Court Martial held at Sialkot and was convicted on eight charges and sentenced to suffer five years R.I. Vide judgment/order dated 11.4.2011. He was also ordered to be dismissed from service. The said conviction and sentence was duly confirmed by Commander Artillery 8 Division vide order dated 3.5.2011. Appeal filed by the petitioner before the Court of Appeals through Registrar/Judge Advocate General's Department Rawalpindi was dismissed on 24.6.2013. The petitioner has approached this Court invoking inherent jurisdiction under Section 561- A of the Code of Criminal Procedure for grant of benefit under Section 382-B Cr.P.C.
2. Learned counsel for the petitioner submits that benefit under Section 382-B of the Code of Criminal Procedure is mandatory in nature and such right of the petitioner cannot be curtailed by any law and that no reason whatsoever has been assigned in the judgment for not granting said benefit to the petitioner. Further submits that same relief has been granted by this Court in a number of similar cases as such the petitioner is also entitled to the same relief.
3. Conversely, learned Addl. Advocate General appearing on behalf of the State submits that provisions of Code of Criminal Procedure are not applicable to the persons dealt with under the Army Act so the benefit provided under Section 382-B Cr.P.C. Cannot be granted to them. In support of his arguments learned Law Officer relies on the dictim laid down in Syed Hashim Ali Shah Vs. President Summary Military Court Karachi, etc.(NLR 1983 Cr.L.J. 483) and Shah Hussain Vs. The State (PLD 2009 SC 460. Learned Law Officer concedes that though in a number of cases of similar nature such benefit has been granted by this court but on the move of the Field General Court Martial, Kharian Cantt. Through Judge Advocate General's Branch Rawalpindi the Hon'ble Supreme Court has granted leave to appeal vide order dated 4.1.2013 to thrash out the law point involved in this petition.
4. The core issue in this petition is whether a person convicted under the Army Act is entitled to the benefit provided under Section 382-B of the Code of Criminal Procedure. It is not denied that the procedure prescribed in the Code of Criminal Procedure for prosecution of trials is not applicable to the trial s conducted under the Army Act which is a special law and there is no express provision in the said Act in this regard. Section. 135 of the Pakistan Army Act clearly declares that a sentence awarded to a person under the Act would commence on the date on which the original proceedings were signed by the President or in the case of summary court martial, by the court.
The said provision runs as under: ' "Section 135: Commencement of sentence of imprisonment for life or imprisonment or detention.- Whenever any person is sentenced under this Act to imprisonment for life, imprisonment or detention, the term of sentence shall, whether it has been revised or not, be reckoned to commence on the day on which the original proceedings were signed by the president or, in the case of a summary court martial, by the court.
' This provision of the Act eliminates any misconception regarding applicability of benefit of Section 382-B Cr.P.C. At this stage it would be beneficial to reproduce Section 382-B Cr.P.C. Also which is as follow: ' "Section 382-B. Period of detention to be considered while awarding sentence of imprisonment.
Where a Court decides to pass a sentence or 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 offence."
' It would also be advantageous at this very juncture to refer to the Commencement of Code of Criminal Procedure, 1989 which has been provided under Section 2 as under: "(2) It extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
' No need to mention here that the Pakistan Army Act 1952 is a Special Law and only the persons enumerated in Section 2 of the Pakistan Army Act are subject to the Act and it does not apply to the general public. The petitioner was admittedly subject to Army Act, 1952 and was tried by Field General Court Martial for offences under Section 59 of the Pakistan Army Act, 1952.
5. So putting Section 135 of the Army Act, 1952 which is special law and Section 382-B of the Code of Criminal Procedure which is an ordinary law, in juxta position would reveal that sentence awarded under the Army Act would be reckoned to commence from the date when the original proceedings are signed and not before that date whereas persons/accused tried under the Code of Criminal Procedure if convicted their period of detention during trial shall also be considered by the Court convicting said person. Trials under the Army Act and punishment of crimes and sentences thereunder is not for ordinary offences but are restricted only to the offences relating to or under the Army Act which has its own policy and scheme of punishments.
6. A somewhat similar issue came under consideration before the Division Bench of Balochistan High Court Quetta reported as Nabi Dad Vs, Registrar Court of Appeals, Judge Advocate General's Department, G.H.Q. Rawalpindi and 3 others (PLD 2009 Quetta 27) and their lordships were of the considered view that section 382-B Cr.P.C. Was not legally applicable to the sentences awarded under the Army Act, 1952 in presence of special provisions in the Army Act, 1952. Although the principles settled by sister High Courts are not binding and are only persuasive in nature but the petitioner in the said reported case (Nabi Dad) assailed the observations of the learned Balochistan High Court through before the apex court through Cr. Petition No, 1-Q of 2009 and the Hon'ble Supreme Court upheld the dictum laid down by the learned High Court and refused to grant leave to appeal in the said case and as such the same is binding on this Court.
7. It may be noted that inherent jurisdiction of this Court under Section 561-A Cr.P.C. Applies only where such orders are necessary to give effect to any order under the Cr.P.C. Or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is very much manifest that none of these situations are involved in this petition as relief sought for is not related with the Court subordinate or under the supervision of the High Court as the proceedings in question under the Army Act admittedly are not under direct control and subordination to this Court. It has been declared concurrently by the courts of competent jurisdiction that the petitioner is involved in Anti State/espionage activities therefore in the opinion of this Court he cannot claim any right under the inherent jurisdiction of this Court and non -granting him the benefit under Section 382-B Cr.P.C.
Is justified.
8. In view of what has been noticed and discussed above I am of the considered view that provisions of Section 382-B Cr.P.C. Are not applicable to the persons convicted and punished under the Pakistan Army Act, 1952. This petition being devoid of any force is hereby dismissed.