ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI
 
C.P. No.D-1159 of 2012

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Date                            Order with signature of Judge

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PRESENT:          MR. JUSTICE SYED HASAN AZHAR RIZVI

     MR. JUSTICE SALAHUDDIN PANHWAR_           

 

 

DATE OF HEARING 16.07.2012

 

Mr. Liaqat Ali Hamid Advocate for the Petitioner.

 

Mr. Saifullah AAG.

 

Mr. Ali Haider Salim APG.

 

 

 

Syed Hasan Azhar Rizvi J;             Instant Constitution Petition has been filed by the Petitioner Shabana wife of convicted person Azhar Iqbal, who has been shifted from Central Jail Karachi to Khairpur through impugned action dated 12th March, 2012.

 

2.       Brief facts of the case are that the convicted person was involved in FIR bearing No.170/2001 registered under section 365-A/34 PPC at P.S. Korangi Industrial Area and he was tried by the Anti Terrorism Court-II, Karachi and awarded sentence of 25 years vide judgment dated 14th April, 2001. While convicted person passing his sentence awarded by the Trial Court, on 12th March, 2012 he was shifted from Central Jail Karachi to Central Jail Khairpur without any justification or reasons, Hence this Petition.

 

3.       Mr. Liaqat Ali Hamid learned Counsel for the Petitioner submitted that the act of the Respondents in respect of shifting of the convicted person from Karachi Prison to Khairpur Prison is illegal, unlawful, unwarranted and against the law/section 161 of Pakistan Prison Rules, 1978  therefore, the same is liable to be set-aside. He further submitted that the convicted persons has passed sentence of about 12 years and during this tenure, the attitude, behaviour of the convicted person was remained good. Learned Counsel for the Petitioner contended that shifting of the convicted person/prisoner from Karachi to Khairpur is quite illegal, unlawful and against the law. He urged that the Petitioner is wife of the convicted person having two children i.e. one son aged about 11 years and one daughter aged about 14 years and they are permanently resident of Karachi therefore, act of the Respondent of shifting the convicted person is against the fundamental rights of the citizen as guaranteed under the Constitution of Pakistan. He further urged that Petitioner and her children have no source of income and they cannot visit Khairpur in order to meet with her/their husband/father, hence on humanitarian ground also the impugned action is liable to be set-aside.

 

4.       On the other hand learned APG and AAG opposed the grant of instant petition and submitted that the conduct of the convicted person during conviction remained unsatisfactory. It is urged that the Rule 147 of Pakistan Prison Rules empower Inspector General of Prisons to make transfer of a prisoner from one prison to another in his province, as such after obtaining necessary permission for transfer of convicted person to other prison as provided under Rule 153 of Pakistan Prison Rule he was shifted to Central Prison Khairpur on 12.03.2012 on disciplinary grounds.

5.       We have heard Mr. Liaqat Ali Hamid learned Counsel for the petitioner, Mr. Saifullah learned AAG, Mr. Ali Haider Salim learned APG and gone through the record carefully with their assistance.  

 

6.       The convicted person Azhar Iqbal was awarded sentence by the Anti Terrorism Court vide judgment dated 14th April, 2001. Since then he is serving out his sentence and according to Report dated 25.06.2012 submitted by the Superintendent Central Prison, Karachi, the convicted person has served out sentence including remissions 14 years, 07 months and 27 days and his remaining/unexpired portion of sentence is 10 years, 10 months and 03 days. Unsatisfactory conduct shown in the Report referred to above, is just on three occasions i.e., on 20.03.2009, 13.09.2009 and 22.11.2009 when the convicted person is behind bars since 2001, which reflects that maximum portion of his sentence remain satisfactory and there is no complaint against him in said period.

 

6.       In the case of Dr. Muhammad Aslam Khakhi and others versus the State and others reported in PLD 2010 Federal Shariat Court 1, a bench of four Members comprising of Dr. Fida Muhammad Khan, Salahuddin Mirza, Muhammad Zafar yasin and Syed Afzal Haider, JJ has held that:-

direction by the Government or the Inspector General of Prison Department for removal of a prisoner from one prison to another prison within the province or from one Province to another Province must be supported by a speaking order. Unless it is a question of dire necessity or emergency, a notice of transfer must be given to the prisoner. It is the right of a prisoner to know why he is being transferred away from his home town. There must be legal justification to lodge a prisoner far away from the place of his residence. Such a transfer has, in many cases, worked to serious disadvantage, particularly of women folk and children of prisoner. Muslims have been directed to create facilities for the people and not to add to their hardships and apprehensions; “YASSARA WA LA TOASSARA

 

Rule 147 through 149 of the Pakistan Prisons Rules, 1978 as well as section 29 of the Prisoners Act, 1900 are repugnant to the above mentioned Injunctions of Islam. However the repugnancy is to the extent that the Government enjoys unfettered power to transfer a prisoner from one Province to another Province without giving notice to the prisoner or without obtaining his consent or without referring to any lawful reasons by way of a speaking order conveyed to the detenue and without providing any remedy against exercise of such authority. Similarly the power of the Inspector General of Prions to transfer a prisoner from one prison to another within the province without notice or consent of the prisoner and without providing a right of appeal before an independent tribunal is declared as repugnant. Federal Shariat Court observed that Chapter 7 of the Pakistan Prisons Rules, 1978 and section 29 of Prisoners Act, 1900 should be recast in a manner in which (1) authority, unbridled and unfettered powers are neither given to the Government nor the Inspector General of Prison; (b) and unless the gravity of the situation really demands and expeditious action, transfers within the province or beyond the limits of province, without notice or consent, should be eschewed. This does not cover the case of convict whose release is due and he is being transferred near his home town as provided in Rule 148 or who is required to be produced in another court in a case being tried elsewhere or there are other reasonable grounds such as safety, security or health. However, the transfer policy should be based upon reasonable considerations subject of course to notice and the right of appeal or representation before an independent tribunal. Notice need not be given where a prisoner himself seeks transfer on solid ground.

 

7.       In the present case neither the notice of transfer was given to the convicted person nor his consent was obtained for such transfer. Petitioner is wife of the convicted person having two children and they have no source of income to meet her/their husband/father by travelling a far off place after bearing heavy expenses. Petitioner and her children are permanent residents of Karachi and the State Counsel has not argued that Central Prison, Karachi is overcrowded or is not in a position to accommodate him.

 

8.       Keeping in view the hardships of the Petitioner and her children as well as dictum laid down in the case of Dr. Muhammad Aslam Khakhi supra; the instant Petition was allowed by our short order dated 16.07.2012 and the Jail Authorities were directed to shift the convict Azhar Iqbal son of Muhammad Akram from Central Jail Khairpur to Central Prison, Karachi immediately.

         

9.       Above are the detailed reasons of our short order dated 16.07.2012.

 

J U D G E

 

Karachi.

Dated: ______________                                                               J U D G E