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Writ Petition No.691 of 2015, decided on 8th May, 2015.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction under Art.199 of the Constitution is not fettered by provisions of subordinate legislation and it can be brought into operation in aid of citizen whose fundamental rights are put in jeopardy.

----Arts. 10-A & 199---Constitutional jurisdiction of High Court---Scope---Due process of law---Any act purported to be in violation of due process or fair trial is amenable to constitutional jurisdiction of High Court.

----S. 38(1)---Pakistan Air Force Rules, 1957, R.99---Criminal Procedure Code (V of 1898), Ss.5(2) & 382-B---Constitution of Pakistan, Art.199---Constitutional petition---Remission of pre-sentence custody period---Scope---Petitioner was employee of Pakistan Air Force who was prosecuted under S.38(1) of Pakistan Air Force Act, 1953 and was convicted and sentenced by District Court Martial---Grievance of petitioner was that he was not given benefit of pre-sentence custody---Validity---Provisions of S.382-B, Cr.P.C. was inapplicable to a trial conducted under Pakistan Air Force Act, 1953, by virtue of non-obstante clause contained under S.5(2), Cr.P.C.---Provisions of R.99 of Pakistan Air Force Rules, 1957, carried the same spirit of counting pre-sentence period towards period of sentence but record was silent on such consideration which was mandatory upon District Court Martial---Authority in original, the confirmation authority, as well as Appellate Court failed to perform statutory requirement---High Court directed that pre-sentence period of confinement be remitted and Jail authorities would re-issue Jail roll accordingly---Petition was allowed accordingly. Federation of Pakistan v. Abdul Basit 2012 SCMR 1229; Nizam-ud-Din v. the State PLD 2014 Sindh 248; Bakhat Jamal and others v. Hakeem Khan PLD 2014 Pesh. 84; Abdul Khaliq v. The State (W.P.No.23035 of 2013) and Shah Hussain v. The State PLD 2009 SC 460 ref.

----Substantive rights of persons cannot be decided on the basis of presumptions.

----Liberty of person---Scope---Disadvantageous interpretation in matters relating to liberty of person is not permissible. Ibrar Hussain for Petitioner. Arshad Kiyani, Standing Counsel for Respondent No.1. Flt. Lt. Asad Hussain, Assistant Director Legal Service, PAF AHQ Peshawar for Respondents Nos. 2 and 3. Aamer, Asstt. Superintendent Sub Jail Chakwal for Respondent No.4. Date of hearing: 5th May, 2015.

Case of petitioner pertains to his grievance regarding non-consideration of pre trial confinement period in sentence awarded to him vide order dated 20-11-2014 passed by District Court Martial, Pakistan Air Force. 2 Brief facts of the case are that petitioner is an Ex-Airman of Pakistan Air Force. He joined the service on 11-2-2000 and on 10-12-2007 absconded from duty due to which he was declared deserter. On 21-9-2014, he was apprehended at Benazir Bhutto International Airport Islamabad, whereafter he was prosecuted under section 38(1) of PAF Act, 1953. When charge was read over to him, he pleaded guilty which was accepted by the Court Martial and vide order dated 20-11-2014 he was sentenced to undergo rigorous imprisonment of 1 year and 2 months. The officer commanding PAF Base Nur Khan vide his order dated 8-1-2015 remitted the sentence by two months and confirmed the remaining sentence. 3. Petitioner/convict moved appeal in consequence whereof the court of appeal i.e. Air Vice-Martial further remitted the sentence for another 45 days. 4. Petitioner was still aggrieved that he has not been afforded the benefit of pre-conviction period of confinement, therefore, brought this constitutional petition. 5. Learned counsel for petitioner pre-empting the objection regarding maintainability of petition submits that an order in negation of established statutory rights can be examined by this Court in exercise of constitutional jurisdiction and that bar contained under Article 199(3) of the Constitution does not attract where order impugned is mala fide, coram non judice or in conflict with enabling law. In support of this submission, leaned counsel placed reliance on case of "Federation of Pakistan v. Abdul Basit" (2012 SCMR 1229) and "Nizam-ud-Din v. The State" (PLD 2014 Sindh 248). 6. Learned counsel next submits that petitioner was arrested on 21-9-2014 while he was awarded sentence on 20-11-2014, therefore, it is necessary that intervening period of 61 days be counted towards substantive sentence in accordance with section 382-B, Cr.P.C. He placed reliance on cases of Nizam-ud-Din supra, "Bakhat Jamal etc v. Hakeem Khan" (PLD 2014 Peshawar 84), "Shahid Mehmood v. The State" (PLD 2011 Lahore 502), "Sajid lqbal v. Superintendent Jail Adiala Rawalpindi" (2011 YLR 283 and "Abdul Karim v. Federation of Pakistan" (2011 YLR 1572). 7. On the other hand, learned Standing Counsel assisted by representative of the PAF vehemently opposed the petition by submitting that petition is not maintainable due to lack of jurisdiction as the petitioner being employee of PAF was subject to PAF Act, 1953 and pursuant to section 162 of the Act, no court shall question the correction, legality or propriety of any decision. He adds that constitutional petition is also hit by bar contained under Article 199(3) of the Constitution. In support of this contention, learned counsel placed reliance on order dated 28-4-2014 passed by the honourable Lahore High Court in case titled "Abdul Khaliq v. The State" (W.P. 23035/2013). 8. Learned counsel next submits that petitioner was proceeded under PAF Act, 1953 which is a complete compendium of procedure and being special law, Criminal Procedure Code does not apply to the proceedings conducted there-under as section 5(2) of Cr.P.C. renders the Code inapplicable to matters covered by special law. 9. Learned counsel further submits that under Rule 99 of PAF Rules 1957, the principle corresponding to that of section 382-B, Cr.P.C. has been contained, pursuant to which period of confinement prior to conviction has already been considered by the Court Martial by fixing quantum of sentence. Elaborating this point, he mentions that under PAF Act, maximum punishment for the offence under trial is two years, however the Court Martial considered confinement during trial and imposed punishment only for one year and two months which was then further reduced by 2 months and 45 days by confirming authority and the Court of Appeal, respectively. 10 Learned counsel also argued that under section 164 of PAF Act, 1953 the term of sentence begins from the date when President of Court Martial signs the proceedings, therefore, it cannot be made effective from a prior date as claimed by the petitioner. 11. Learned Standing Counsel relying upon case of "Shah Hussain v. The State" (PLD 2009 SC 460) submits that where a case is covered by Special Law and section 382-B, Cr.P.C. itself is not applicable, no remissions for pre-sentence custody period can be allowed to the prisoner. 12. Heard and record perused. 13. Constitutional jurisdiction of this Court under Article 199 is not fettered by provisions of subordinate legislation and it can be brought into operation in aid of a citizen whose fundamental rights are put in jeopardy. The present case pertains to purported omission to exercise jurisdiction by the authority in the manner that his confinement has not been reckoned towards the sentence due to which allegedly such confinement period becomes violative of the freedom of movement as safeguarded under the Constitution. The honourable Supreme Court in case of Abdul Basit supra held in unambiguous term that Article 199(3) of the Constitution had to be strictly construed and where an action of the authority was in colorful exercise of power and/or was tainted with malice, Art.199(3) could not come in the way of the High Court to entertain such a petition. Moreover, Article 10-A of the Constitution provides an alienable right of fair trial and due process to a person under criminal charge, therefore, any act purported to be in violation of due process or fair trial is amenable to constitutional jurisdiction of this Court. 14. Undeniably section 382-B, Cr.P.C. is inapplicable to a trial conducted under PAF Act 1953 by virtue of non obstante clause contained under section 5(2) of Cr.P.C. However, rule 99 of PAK Rules, 1957 carries the same spirit of counting the pre-sentence period towards period of sentence but the record is completely silent on such consideration which was mandatory upon the District Court Martial. Presumption that such period has already been considered by the Court by awarding sentence is not tenable because substantive rights of persons cannot be decided on the basis of presumptions. It was incumbent upon the authority to have explicitly indicated as to whether benefit of Rule 99 has been extended to the convict or not and omission to do the same would obviously be interpreted in favour of accused as disadvantageous interpretation in matters relating to liberty of person is not permissible. It is worth mentioning that neither the confirming authority nor the Court of Appeal specifically addressed adjustment of pre-sentence confinement period which amounts to negation of statutory requirement contained under Rule 99 ibid. In case of "Muhammad llyas Khan alias Lice Khan v. The State" (1991 PCr.LJ 90 Peshawar), similar preposition emerged before the honourable Peshawar High Court where learned Trial Court omitted to record in Judgment as to whether benefit of section 382-B, Cr.P.C. is extended to accused or not and the honourable High Court in the said case held that "omission to give effect to a statutory requirement has to be remedied in exercise of inherent powers and no one is to suffer for the act of the Court". 15. In view of above, it is concluded that the authority in original, the confirmation authority as well as the appellate court failed to perform the statutory requirement, therefore, it is directed that pre-sentence period of confinement commencing from 21-9-2014 to 20-11-2014 be remitted and the Jail Authority shall reissue the Jail roll accordingly. It is clarified that if the convict prisoner is found to have already served the sentence in accordance with fresh jail roll, he shall be released forthwith, if not required in any other case. 16. The petition is allowed in above terms. No order as to costs. MH/63/Isl. Petition allowed.

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