ORDER
SHEET
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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