May 16, 2025
By Rehan Piracha
LAHORE
The Peshawar High Court (PHC) has dismissed 25 writ petitions seeking the benefit of Section 382-B of the Criminal Procedure Code for convicts sentenced by military courts. The section allows pre-conviction detention periods to be counted toward sentences.
In an eight page written judgment on May 15, a two-member bench comprising Justice Naeem Anwar and Justice Dr Khurshid Iqbal ruled that these petitioners, who were sentenced under the Pakistan Army Act, 1952, had already been granted the benefit of Section 382-B, which allows pre-conviction detention periods to be counted toward sentences.
The lead case involved Gul Muhammad Khan, whose brother-in-law Riaz Ali was reportedly arrested on April 30, 2013, and sentenced by a military court to seven years of rigorous imprisonment. Despite completing his sentence, the petition claimed he remained incarcerated for eleven years, allegedly violating his fundamental rights guaranteed under Articles 9, 13, 14, and 25 of the Constitution.
The judgment extensively analyzed the legal distinction between general and special laws. The court cited Section 59 of the Army Act, which deals with civil offenses committed by persons subject to military law, noting that these offenses are “deemed to be guilty of an offense against this Act” and tried accordingly under military jurisdiction.
A critical legal point in the judgment was the court’s interpretation of Section 135 of the Army Act, which specifies that sentences 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.” This provision, the court held, creates a specific mechanism for calculating sentences that differs from the general provision in Section 382-B of the Criminal Procedure Code.
The court also examined Rule 53(1) of the Pakistan Army Rules, 1954, which requires military courts to consider “the length of time [the accused] has been in arrest or in confinement” when determining sentences. The bench found this provision “more in line with the spirit of section 382-B of the Code,” effectively providing military courts with a parallel mechanism to account for pre-conviction detention.
In its legal analysis, the court distinguished the present cases from the precedent in Manthar alias Manoo v. Federation of Pakistan, where the Sindh High Court had granted Section 382-B benefits to a civilian tried by a military court. The PHC noted that in Manthar’s case, the accused was tried for an offense under the Official Secrets Act, 1923, which is “ordinarily triable by a Magistrate First Class, but was brought within the jurisdiction of a military court through deeming provisions.” By contrast, the petitioners before the PHC were “tried and convicted for offences falling squarely within the substantive provisions of the Army Act.”
The court further cited Section 1 of the Criminal Procedure Code, which “restricts the application of the Code to any local or special law, or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law.” This provision, the court held, “places all the special laws and jurisdictions outside of its ambit.”
Another significant legal distinction drawn by the court related to the timing of when the benefit is applied: “In cases under general law it is mandatory for the trial Court to take into consideration pre-sentence custody period in the light of the principles laid down in the case of Shah Hussain vs. The State (PLD 2009 SC 460) and the effect shall be taken into account at the time of release of convict… whereas in [Army Act cases] the court at the time of sentencing the accused considers the period which he remained in custody being under trial prisoner.”
The court respectfully disagreed with previous PHC judgments that had granted Section 382-B benefits in similar circumstances, holding that those decisions failed to adequately consider the special nature of the Army Act and its relationship to the general provisions of the Criminal Procedure Code.
“For the reasons articulated above and the legal principles cited, we have reached the conclusion that the military courts have granted the benefit of section 382-B of the Code read with sub-rule ‘1’ of Rule 53 of the Army Rules,” the judgment concluded in dismissing all 25 petitions.
‘Judgment condones delay in initiating military trials’
Shabir Gigyani, a senior High Court lawyer in Peshawar, said the judgment disregarded the legal precedents of granting benefit of Section 32-B to convicts of military courts in various judgments of the Peshawar High Court, Lahore High Court as well as the Supreme Court.
In his view, the judgment condones delay in initiating proceedings against accused in military courts.
“If the military authorities don’t timely start the court martial proceedings this is no fault of the accused and the convict should be penalised for it,” Gigyani told Voicepk. In his opinion, convicts of military courts should be provided benefit Section 382-B as extended to all convicts in the country.