' MUNIB AKHTAR, J.---The applicant was, at the relevant time, a member of the armed forces of Pakistan, being a Subedar (clerk) in the Pakistan Army. On 1-9-2006, he was taken into custody by the army authorities and charged with four offences under section 59 of the Pakistan Army Act, 1952 ("Army Act"). A field general court martial ("FGCM") was convened, and on 13-11-2008, the applicant was found guilty as charged, and accordingly, convicted and sentenced. The sentence of the FGCM was sent for confirmation by the concerned authority as required by the Army Act.
That authority revised the conviction in certain respects and the revised sentence was announced by the FGCM on 28-11-2008. In terms thereof, the applicant was to undergo four years' rigorous imprisonment, awarded 80 stripes, dismissed from service and directed to pay a fine of Rs.100,000 fail which he was to undergo three months further rigorous imprisonment. The applicant appealed his conviction and sentence under the Army Act, and the appellate authority, while maintaining the conviction, varied the sentence only to the extent of setting aside the punishment of whipping.
2. The applicant is currently undergoing the sentence of imprisonment at Central Jail-I, Sukkur, Mr. Nizarnuddin Balouch, who appeared on behalf of the applicant, did not challenge the trial or conviction or sentence awarded to the applicant. His only grievance was that the applicant had not been given the benefit of the period that he remained in custody before the conviction by the FGCM. i.e. The period from 1-9-2006 to 12-11-2008. He submitted that the applicant was entitled, under section 382-B, Cr.P.C., to have this period taken into consideration and hence to have the amount of time he has to spend in jail reduced correspondingly. He submitted that the failure to take this period into consideration was discriminatory. Mr. Shyam Lal, learned A.P.-G., challenged the maintainability of the application, which was filed under section 561-A, Cr.P.C. He submitted that the application was not maintainable under this provision by reason of section 133 of the Army Act. Mr. Balouch submitted that the latter provision did not come in the way of the inherent power of the High Court. However, he pleaded that an application under section 561-A could, in appropriate circumstances, be treated as a petition under Article 199 of the Constitution. As to that, the learned A.P.-G. Submitted that the issue of maintainability would still remain, by reason of Articles 199(3) and 8(3)(a) of the Constitution. On the merits, he submitted that the instant matter was covered by section 135 of the Army Act, which provided that the period of any sentence of imprisonment was to be reckoned from the day on which the original proceedings were signed by the president of the court martial. Thus, according to learned A.P.-G., the pre-conviction period of custody could not be taken into consideration on any view of the matter. Learned counsel for the applicant on the other hand, referred to sections 74 and 75 of the Army Act. The learned counsel for the parties also relied on certain case-law which is examined below.
3. It will be seen from the foregoing that this case involves no factual issue or controversy, but requires an examination of the relevant constitutional Articles and the provisions of the Army Act and the Code of Criminal Procedure. We first take up the objection raised by learned A.P.-G. In terms of section 133 of the Army Act, which provides as follows:--- "133. Bar of appeals.--No remedy shall lie against any decision of a court-martial save as provided in this Act, and for the removal doubt it is hereby declared that no appeal or application shall lie in respect of any proceeding or decision of a court-martial to any court exercising any jurisdiction whatever."
' Section 561-A, Cr.P.C., is of course, a statutory provision, as is section 133 of the Army Act. The question of whether a statutory provision ousts the ordinary jurisdiction of a court and if so, to what extent, is a matter that has been examined by the courts on many occasions and in different contexts, When the question involved is as to the extent to which the inherent power of a High Court to make an order to secure the ends of justice can be ousted by an ordinary provision, it obviously assumes even greater importance, since the High Court is (subject to the Supreme Court), the ultimate repository of judicial power in a Province. It is not however, necessary for us to consider and decide this question in this case, since we are satisfied that this is a fit case in which the application under section 561-A can, and ought to be treated as a petition under Article 199 of the Constitution.
4. As noted above, learned A.P.-G. Submitted that in the facts and circumstances of the present case, the jurisdiction of the High Court to Make an order under Article 199 was also barred by reason of Articles 199(3) and 8(3)(a). He submitted that the question of whether the benefit of section 382-B, Cr.P.C. Was available to the applicant could not therefore be considered by the High Court. He placed reliance on Syed Hashim Ali Shah v. President, Summary Military Court, Karachi and others 1984 PCr.LJ 1379, Muhammad Sharif v. Home Secretary 1986 M LD 1767 and Nabi Dad v.
Registrar, Court of Appeals, Judge Advocate General's Department PLD 2009 Quetta 27.
5. Clause (1) of Article 8 declares that any law inconsistent with fundamental rights shall be void, and clause (2) prohibits the State from making any such law. Clause (3) contains certain exceptions to the foregoing clauses, and sub-clause (a) is as follows:-- "(3) The provisions of this Article shall not apply to:--
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; ...."
' Two points need be noted about Article 8(3)(a). Firstly, it applies only (insofar as is presently relevant) to a law relating to the Armed Forces. Secondly, there is no blanket immunity granted to such a law. The immunity is only in respect of a law relating to the Armed Forces (or any provision of any such law) that has been enacted for either one of two purposes; (i) to ensure that the Armed Forces are able to properly discharge their duties, or (ii) to ensure the maintenance of discipline among the Armed Forces. Thus, the Army Act is immune from inconsistency with fundamental rights only in respect of those of its provisions as serve either of these two purposes.
Secondly, since Article 8(3)(a) is an exception to clauses (1) and (2), its provisions must be read and applied narrowly and restrictively. Reference may be made to F.B. Ali v. State PLD 1975 SC 506
531. A member of the Armed Forces is as much a citizen of Pakistan as any civilian, and is therefore as much entitled to fundamental rights as the latter. Any derogation from the fundamental rights of any citizen of Pakistan is only possible if the Constitution expressly so permits, and then only to the extent necessary for the purposes made permissible by the Constitution, and no further.
6. Article 199(3) provides as follows:-- "An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law."
' It is well-settled no matter what the scope and extent of clause (3) may be, it does not in any case extend to three types of orders, namely, those made mala fide, those without jurisdiction and those which are coram non judice. Reference may, in this regard, be made to Anwar Aziz v. Federation of Pakistan and others PLD 2001 SC 549, Shahid Zahir Abbasi and others v. President of Pakistan and others PLD 1996 SC 632 and F.B. Ali v. State PLD 1975 SC 506.
7. The first case relied upon by the learned A.P.-G. In relation to his objections as to maintainability was Syed Hashim Ali Shah v. President, Summary Military Court, Karachi and others 1984 PCr.LJ 1379, a Division Bench decision of this Court. The following passages from this decision are pertinent (at page 1380):- "The contention of Mr. Akhlaq Ahmad Siddiqi is that, by reason of section 382-B of the Code of Criminal procedure such period during which a person remains in custody as an under trial- prisoner should be reduced from the substantive period of imprisonment that was awarded. It is per se, doubtful if the provisions of section 382-B of the Criminal Procedure Code would be applicable to cases decided under the Army Act as distinct from cases decided under the Code of Criminal Procedure. The Army Act devises a separate and independent scheme in relation to trials for punishment of crimes and sentences. In our view, this provision, is not attracted.
' There is, however, still another reason which dissuades us from admitting this petition. As it is, in a sense the petitioner is seeking interference by this Court in the matter of sentence awarded to him by a Military Court. Article 199 of the Constitution was recently amended to provide that the High Court shall exercise no jurisdiction in regard to decisions, or. Sentences imposed by a Military Court.
The relief that is being claimed is for reduction in the term of sentence imposed by the Military Court and. By grant of such relief, we would only be interfering or, granting relief in respect of a decision and sentence imposed by Military Court. This appears, to be clearly forbidden. A Full Bench of this Court in Constitutional Petition No. 942 of 1980 has also taken that view " .
' The reference to the "recent amendment" to the Constitution was to clauses (3A) to (3C) of Article 199, which had originally been inserted in 1975, substituted in 1976 and finally substituted in 1980. It was the last substitution that was the "recent amendment" being referred to, and by this, the jurisdiction of the High Court to make an order in respect of a judgment or sentence passed by a military court was taken 'away. These clauses were done away with in 1985. Thus, the ratio decidendi of the aforesaid case turned on provisions which are no longer part of the Constitution.
The observations relating to section 382-B, Cr.P.C. Are also, in our view, not germane to the present case since there was no consideration of any fundamental rights issue and in any case, the entire matter has to be reconsidered in the light of the recent decision of the Supreme Court in Shah Hussain v. The State PLD 2009 SC 260, which is considered in detail below. Muhammad Sharif v.
Home Secretary 1986 M LD 1767, a decision of the Lahore High Court, involved a question relating to whether two sentences awarded by two different courts martial were to be served concurrently or consecutively. Obviously, this question is different from the one that arises in the present case. In any case, the petition was allowed, and the sentence directed to run concurrently. In Nabi Dad v.
Registrar, Court of Appeals, Judge, Advocate General's Department PLD 2009 Quetta 27, a question relating to section 382-B was raised, and the Baluchistan High Court referred to Syed Hashim Ali Shah's case referred to above. As already noted with reference to that case, no question of fundamental rights was raised, nor did the Baluchistan High Court have the benefit of the Supreme Court's decision in Shah Hussain (the High Court case being decided on 15-12-2008, while the Supreme Court handed down its judgment on 1-6-2009).
8. Before considering the fundamental rights issues raised in the present petition, and the Supreme Court decision in Shah Hussain, it will be pertinent to refer to section 59 of the Army Act under which the applicant was charged. For present purposes, offences under the Army Act can be regarded as falling into one of two classes: offences created by and under the Act itself, and "civil offences". The latter is a term defined in section 8(3) as follows:-- "civil offence' means an offence which, if committed in Pakistan, would be triable by a criminal Court".
' Subsection (7) of the same section defines a "criminal Court" as under: "criminal Court' means a Court of ordinary criminal justice in Pakistan, or established elsewhere by the authority of the Federal Government" (emphasis supplied)
' Section 59 is concerned with civil offences. Subsection (1), insofar as is presently relevant, provides as follows:-- "59. Civil Offences.---(1) Subject to the provisions of subsection (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be dealt with under this Act, and, on conviction, to be punished [as provided under this Act....
Subsection (2) is not relevant for present purposes. The first point to note is that, as is clear from its definition; a civil offence is not an offence that is peculiar to the Armed Forces. It is an offence that can be committed by any person, whether a civilian or a member of the Armed Forces. It is, in other words, part of the ordinary law of the land, and is not specific to, or specially enacted for, the Armed Forces. Secondly, it will be seen that subsection (1) is a deeming clause, the object of which is readily apparent: it is to shift the forum of the trial of a person accused of a civil offence from the criminal courts to a court martial. The substantive offence remains the same; it is only the forum (and, as applicable, the manner and incidents) of the trial that are changed. It follows from the foregoing that a civil offence under section 59 does not come within the ambit of Article 8(3)(a) of the Constitution. The reason is that firstly, civil offences are almost inevitably offences under some statute other than a law relating to the Armed Forces. Secondly, a civil offence can be committed by a civilian or by a member of the Armed Forces. It cannot therefore be an offence that has been enacted for the purpose of either ensuring the proper discharge by the Armed Forces of their duties, or for maintaining discipline among them, since those are purposes peculiar to the armed forces. Thus, fundamental rights do not stand excluded in respect of a civil offence even if such an offence has been committed by a member of the Armed Forces, and in particular is an offence to which section 59 applies. These points must be kept in mind for the proper resolution of the issues raised by the present petition.
9. We now turn to the recent decision of the Supreme Court in Shah Hussain v. The State PLD 2009 SC 260. The case involved certain offences committed by the petitioner, Shah Hussain under the P.P.C. And the Offences Against Property (Enforcement of Hadood) Ordinance, 1979, for which he was convicted. The sentences were to run consecutively and the benefit of section 382-B, Cr.P.C.
Was not granted. The Supreme Court dismissed the appeal on the merits, but considered whether the sentences were to run consecutively or concurrently and the proper scope and application of section 382-B Cr.P.C. It is the Court's decision on the latter point that is relevant for present purposes. Before proceeding further, it will be helpful to reproduce section 382-B:-- "382-B. Period of detention to be considered while awarding sentence of imprisonment.--Where 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 offence."
' It is to be noted that the word "shall" had originally read "may", and had been substituted with the former in 1979. The Supreme Court could; have restricted itself simply to a point of statutory interpretation, and held that the substitution had made the application of section 382-B mandatory. It did not however, limit its decision in this manner. The Supreme Court considered the question of pre-conviction imprisonment as a matter of principle and on a much broader plane, including that of fundamental rights, with specific reference to the rights enshrined in Articles 9 and
25. The Court considered but did not follow its earlier decisions reported as Haji Abdul Ali v. Haji Bismillah PLD 2005 SC 163 and Human Rights Case No.4115 of 2007 PLD 2008 SC 71. In those cases, the benefit of section 382-B had been denied. The Court reaffirmed certain other earlier decisions reported as Qadir v. State PLD 1991 SC 1065, Muhammad Rafiq v. State 1995 SCM R 1525, Mukhtarud- Din v. State 1997 SCM R 55, Javed Iqbal v. State 1998 SCM R 1539 and Ghulam Murtaza v. State PLD 1998 SC 152, in which a more positive view had been taken of the scope and applicability of section 382-B.
10. In para. 26 of the judgment, the Court formulated certain propositions that emerged from the case-law in respect of the implications of section 382-B, and its proper application. In particular, it was observed as under:-- "(7) As the accused is put in jail for the very offence for which he is convicted and sentenced to imprisonment, the pre-sentence period spent by him in jail is nor in vain and must, therefore, be taken into account;
(8) It explodes the notion that such period can be ignored because it is not spent in jail by way of 'punishment'. Not to treat that period as punishment, will be a play on the meaning of the word, 'punishment'. Whether the detention in jail was punitive or non punitive,, the consequence, as regards the person detained was the same, namely deprivation of liberty and that is certainly punishment." (emphasis supplied)
' It was observed in para 29 as follows: "It is noticed that it was being pleaded successively on behalf of the convicts, and the Courts were also inclined to it in many cases, that the pre-sentence period of the convicts spent in jail in connection with the offence of which they were convicted, should not go unaccounted for and must be taken into consideration. The hue and cry of the convict-prisoners ultimately led to the enactment of section 382-B, Cr.P.C., which made a specific provision requiring the Court to take into consideration the pre-sentence period while passing the sentence. This was a new era in an area of the criminal law which dealt with the liberty of a person. Prior to it the Time spent by the convicts in custody for the same offence would not be accounted for in any way. Having waited for the conclusion of their trials for months and in many cases for years together, they would re enter the jail to serve out the sentence imposed upon them. The enactment of section 382-B, Cr.P.C., brought a complete shift in the approach of the Court toward the issue of pre-sentence period of a convict." (emphasis supplied).
' Finally, reference must be made to the relevant portions of para.39, where the Court considered the principles of section 382-B, and the question of pre-sentence remissions, in the light of the fundamental rights enshrined in Articles 9 and 25:-- "39. The under-trial prisoners, or criminal prisoners, particularly those who are later convicted of the offence in, connection with which they were incarcerated, sooner or later join the ranks of convicted criminal prisoners. It is discriminatory not to treat them at par with their co-prisoners living in the same or similar premises, may be under the same very roof. They are equal before law and are entitled to equal protection of law under Article 25 of the Constitution. If remissions of the pre-sentence period were to be denied to the convicts after they were granted the benefit of section 382-B, Cr.P.C. We would be confronted with a situation where remission granted on the eve of Eid would be admissible to a prisoner who was convicted a day before Eid, but not to a person who was convicted a day after Eid, though the two prisoners were on an equal footing two days before Eid, i.e., till then both of them were confined as under-trial prisoners and both of them also got the benefit of section 382-B, Cr.P.C. The classification of 'criminal prisoners' and 'convicted criminal prisoners' qua the admissibility of remissions granted by any authority where the Court has passed an order granting the benefit of section 382-B, Cr.P.C., does not meet the test of 'intelligible differentia' laid down in the case of I.A. Sharwani v. Government of Pakistan (1991 SCM R 1041). The under trial prisoners getting the benefit of section 382-B, Cr.P.C., cannot be deprived of remissions accruing during their pre-sentence custody period. Article 9 of the Constitution guarantees the right to life of a person and is very much available to a prisoner along with certain other fundamental rights, such as to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, though he is deprived of certain fundamental freedoms like the right to move freely throughout the country or the right to practice a profession, etc.... Therefore, the protection guaranteed under Article 9 remains available to the under-trial prisoners and they are entitled to the benefit of section 382-B, Cr.P.C., along with remissions if any granted during their pre-sentence custody period, inasmuch as on account of denial thereof: they would be required to remain in prison for a longer time than warranted and deprived of their liberty. Article 9 has received interpretation by this Court in the case of Shehia Zia v. WAPDA (PLD 1994 SC 693)....
' Keeping the ratio of the above cases in view we are inclined to hold that refusal to allow remission of pre-sentence custody period to a convict whom the Court has granted the benefit of section 382-B, Cr.P.C. Is tantamount to deprivation of his liberty within the contemplation of above Article of the Constitution. The cases of convict prisoners who are expressly debarred under any law from the benefit of section 382-B. Cr.P.C., stand on a different footing. Thus, where section 382-B, Cr.P.C. Itself is not applicable, no remission of the pre-sentence custody period can be allowed to the prisoner in question." (emphasis supplied)
11. In our view, when the judgment of the Supreme Court in Shah Hussain is read as a whole, it is clear that the Court, by affirming that prb-conviction custody is punishment, has equated it with punishment in the same sense as post-conviction imprisonment, and has held that a refusal to give due recognition to this is violative of the fundamental rights enshrined in Articles 9 and 25. The same principle would appear to apply in relation to remissions during the period of pre-conviction custody. In Qadir v. State PLD 1991 SC 1065, one of the decisions reaffirmed in Shah Hussain, it had been observed by the Court with reference to section 382-B as under:- "It may be noted that the mandatory provision has been introduced because of the realization that an accused person is entitled to be put to trial or released on bail. If he is not to be released on bail, he must be put to trial. If for any reason the State is unable to put him up for trial it is only fair that during the period he is detained to await his trial that period is taken into consideration in computing the sentence of imprisonment given to him. Another point to be noted is that the provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial. Provisions need to be construed liberally. These are axiomatic principles. (emphasis supplied)
' These observations were, also cited with approval in Javed Iqbal v. State 1998 SCM R 1539, which was also reaffirmed in Shah Hussain.
12. In Shah Hussain, the principles reproduced in paras 10 and 11 were considered by the Supreme Court in the context of S.382-B, because that was the statutory provision which was under consideration by the Court, and in which these principles had been given effect. In our respectful view, there can be little doubt after Shah Hussain that the principles therein enunciated and reaffirmed are of general application and unless expressly excluded, ought to, and must, be given due recognition and effect in every appropriate statutory context. A failure to do so would be violative of the fundamental rights enshrined in Articles 9 and 25. In particular, any post-conviction imprisonment that did not take the pre-conviction period of custody into account would result in an unlawful extension of the convict's imprisonment beyond the permissible period, and would be tantamount to a deprivation of liberty under Article 9. It necessarily follows that any such detention would be beyond the power or jurisdiction of the detaining authority, In our view, the matter of civil offences under section 59 of the Army Act comes within the scope of the principles laid down and reaffirmed by the Supreme Court in Shah Hussain. Thus, in respect of any sentence imposed on a person convicted under section 59, even if he is tried by a court martial, the period of pre- conviction custody must be taken into consideration while computing the length of time that he is to remain in custody post-conviction, The only question is whether there is anything in the Army Act that expressly excludes the application of the principles enunciated in Shah Hussain.
13. The reliance placed by learned counsel for the applicant on sections 74 and 75 of the Army Act is also apt when considered in the light of the foregoing principles. Section 74 casts a mandatory duty (by using the word "shall") on every commanding officer to ensure that a person charged with an offence and taken into custody is not so detained for a period exceeding 48 hours without the charge being investigated. Section 75 provides that, subject to the conditions laid down therein being applicable, the matter of a person who remains in custody for more than 8 days without a court martial being convened must be reported to the appropriate authority after every such period until the court martial is convened or the person released from custody. Thus, the Army Act itself recognizes the need for the time between a person's arrest by the military authorities and the convening of the court martial to be kept to a minimum. It follows that if this period becomes extended through no fault on the part of the person concerned, it would only be fair, as held by the Supreme. Court, for the period of detention to be taken into account while computing the post- conviction period of imprisonment. The relevant statutory provisions of the Army Act ought therefore, to be interpreted and applied accordingly.
14. Theft is yet another aspect of the matter. Section 94 of the Army Act provides as follows:-- "94. Order in case of concurrent jurisdiction of Court-martial and criminal Court: When a criminal Court and a court-martial have each jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and, if that officer decides that they shall be instituted before a court-martial, to direct that the accused person shall be detained in military custody."
' It will be seen from the foregoing that this section allows the concerned officer to decide whether a person charged under the Army Act of a civil offence (i.e., charged under section 59) is to be tried by a criminal court or by court martial. Now if the person is to be tried by a criminal court, he would become entitled to the benefit of section 382-B, since such a trial would be by a "court or ordinary criminal justice" (per section 8(7) of the Army Act) and thus under the Code of Criminal Procedure.
Thus, the Army Act itself contains a mechanism whereby a person charged of a civil offence can directly enjoy the benefit of section 382-B. This is however, at the unfettered discretion of the concerned officer., In the well known case of Waris Meah v. The State and another PLD 1957 SC 157, the Supreme Court struck down as discriminatory a statutory provision which conferred an unfettered discretion on the concerned authority to pick and choose between different methods of adjudication, each of which resulted in penal consequences of different severity. The vires of section 94 is of course not in question in this case. However, the important point for present purposes is this. Section 94 provides for two methods of adjudication in respect of civil offences, but leaves the choice at the unfettered discretion of the concerned officer. One is by way of a court martial. The other is by way of a trial before a criminal court. In the former, the benefit of section 382-B is (at least as argued by the learned A.P.-G.) not available. In the latter, it is expressly available. If both routes lead to conviction, the person convicted by way of court martial would be at a disadvantage as compared to the one convicted by way of an ordinary trial, since the first would not get the benefit of any pre-conviction custody while the second one would. This would be so even though the offence may be exactly the same (and conceivably, even if the two were co- accused in the same crime, but tried by the two different forums). Thus, section 94 of the Army Act is prima facie discriminatory on the basis of the principle enunciated in Waris Meah. Now it is a settled principle of interpretation that statutes should be interpreted and applied conformably and consistently with fundamental rights, and not in a manner that derogates from the same. If therefore, the Army Act were to be interpreted and applied such that the period of pre-conviction custody is also to be taken into consideration even in the case of a court martial conviction, then section 94 would cease to be discriminatory (at least to this extent). In our view, this is another reason why the Army Act should be read and applied in a manner that a person convicted by way of a court martial gets the benefit of any pre-conviction period of custody.
15. It will be noted from para 39 of Shah Hussain (reproduced in para 10 herein above) that the benefit of section 382-B (or the principles encapsulated in that section) may not be available if expressly debarred by any law. Learned A.P.-G. Submitted that section 135 of the Army Act is a provision of precisely this nature. This provides as follows:-- "135. Commencement of sentence of imprisonment for life, or rigorous imprisonment or detention.- -Whenever any person is sentenced under this Act to imprisonment for life, rigorous imprisonment or detention, the term of sentence shall, whether it has been revised or not, 5e reckoned to commence on the day on which the original proceedings were signed by the president or, in the case of summary court-martial, by the Court."
' Learned A.P.-G. Submitted that since section 135 expressly provides, that the term of sentence is to be reckoned from the date the original proceedings were signed by the president of the court martial, the application of section 382-B (or the principles encapsulated in that section) necessarily stood excluded. In this context, he also referred to the following passage from para.38 of Shah Hussain:-- "The practical effect of reducing the sentence to the extent of pre-sentence custody period, particularly the way it is done in Pakistan, is that the sentence takes effect from the date of arrest of the convict in connection with the offence." (emphasis supplied)
' In our view, the interpretation placed by learned A.P.-G. On section 35 is misconceived. It stems in fact from a peculiarity of the military justice system. Under the Code of Criminal Procedure, a judgment of a criminal court must be signed by the presiding officer in open court (section 367, Cr.P.C., which also prescribes the contents of the judgment). Such a judgment is effective immediately, i.e., upon being signed. This is not the case with a court martial. Section 119 of the Army Act expressly provides that no finding or sentence of a field general court martial shall be valid unless confirmed in accordance with the provisions of the Act. The confirming authority may approve what the court martial; has done or revise either the finding or sentence or both. Thus, since the finding and sentence of a court martial are not effective immediately, it was necessary to specify in the Army Act when the term of the sentence would commence. This, in our view, is the true (and limited) scope of, and intent behind, section 135. Thus, it does not in any manner exclude the application of the principles enunciated by the Supreme Court in Shah Hussain. Insofar as the passage from para 38 of that judgment, relied upon by learned A.P.-G., is concerned, that is simply reflective of the actual statutory language employed in section 382-B. The Supreme Court in that para was explaining the "practical" (as opposed to the legal) effect of the manner in which section 382-B is drafted. It does not affect the broader principle which in our respectful view, emerges clearly from that judgment namely, that the period of pre-conviction custody must be taken into consideration in determining the length of time a convict is to undergo imprisonment post- conviction. This is a principle of general application and is not in any manner excluded by section 135 of the Army Act.
16. One final point must be noted. As was pointed out in para.8 of this judgment, we are here concerned with civil offences under section 59 of the Army Act. The deeming provision of subsection (1) of section 59 merely affects the forum before which the civil offence is to be tried, and not the substantive offence itself. That offence remains part of the ordinary law of the land, and as noted above, can be committed by a civilian as much as by a member of the Armed Forces. It therefore follows that if the provisions of section 382-B are expressly barred in respect of a particular civil offence under the ordinary law, and the pre-conviction custody is to be ignored in respect of that offence, then that would also be the position of a conviction under section 59 of the Army Act for that offence, since the substantive nature of the offences is the same.
17. The foregoing discussion can be summed up as follows. If a person is charged with a civil offence under section 59 of the Army Act, and the provisions of section 382-B are not excluded in respect of that offence if tried by a criminal court then the principles enunciated by the Supreme Court in Shah Hussain v. The State PLD 2009 SC 260 would be applicable to the conviction and sentence for that offence by a court martial under the Army Act. The pre-conviction period of custody must be taken into consideration while determining the total period for which the convict is to remain in prison post-conviction. Any failure to do so would be violative of the fundamental rights enshrined in Articles 9 and 25. The convict can be kept in prison only for the period computed in these terms, and the detaining authority would, have no jurisdiction or power to detain the convict beyond the period so computed.
18. In the present case, the application of section 382-B was not excluded in the case of the civil offences for which the applicant was tried, had such offences been tried by a criminal court. It follows that the pre-conviction period of custody i.e. From 1-9-2006 to 12-11-2008) must be taken into consideration while determining the total period that the applicant is to remain in custody post-conviction. The detaining authority has no power or jurisdiction to continue to detain the applicant beyond the period so computed.
19. Before parting with this judgment, we would like to place on record our appreciation of the assistance provided by learned counsel who appeared in the matter. Mr. Nizamuddin Balouch is of course, a senior member of the Sukkur Bar, and handled the matter with his usual dexterity, Mr. Shayam, Lal, learned A.P.-G., also presented his case with great skill and fairness, and we found his assistance invaluable.
20. In view of what has been stated above, this application is converted into a petition under Article 199 of the Constitution and is hereby allowed. The Jail Superintendent, Central Prison-I, Sukkur is hereby directed to prepare a fresh jail roll for the applicant within 7 days of the receipt of this judgment, in which the pre-conviction period of custody (i.e., from 1-9-2006 to 12-11-2008) is taken into consideration (along with any other applicable remissions). Once the applicant has served out his period of detention as so computed, he shall be forthwith set at liberty unless required in some other case. The Jail Superintendent, Central Prison-I, Sukkur shall provide a copy of the fresh jail roll to the applicant and shall also send a copy to the Additional/Deputy Registrar of this Court, who shall have it placed in the file of this case. If the Jail Superintendent, Central Prison-I, Sukkur fails to prepare a fresh jail roll as herein provided, the applicant may seek any appropriate remedy in accordance with law. The office is directed to forthwith send a copy of this judgment to the Jail Superintendent. Central Prison-I, Sukkur in order to ensure prompt compliance.