The Superintendent Central Prison has filed a so-called list of under-trial prisoners which does not appear to be worth the paper that it is written on. The first Pakistani prisoner held in custody since 1996 one Shahid Kamal is stated to be involved in certain offences under the P.P.C. And is said to be tried before the "Special Court, Customs and Taxation". This person appears to have made a personal complaint to Mr. Muhammad Farooq advocate who undertook a visit to Central Jail for the purposes of assisting Mr. M. Ilyas Khan that he has not been produced in Court for the last 4-1/2 years. The volume of such "mistakes" in the list is so large that we are not at all prepared to accept Mr. Abdul Maroof's argument of being premised on inadvertent error. Prima facie a mala fide attempt is being made to mislead the Court and perpetuate unlawful detention of citizens. Let the Superintendent Central Prison along with Mr.Abdul Maroof be present in person in Court at 8-30 a.m. On 3-10-2006 with an explanation in writing. He is also directed to produce prisoners Nos.1 to 7 mentioned in the list furnished by Mr. Abdul Maroof and produce their history tickets along with appropriate documents including latest remand orders passed by relevant Courts. Failure to appear on time might be treated as contempt of the authority of the Court.
8th November, 2006 Reports from some of the trial Courts have been received by the M.I.T. Pursuant to the Court order dated 10-10-2006. These reports unfortunately, reflect a sad state of affairs. For instance it is reported at serial No,308 of the report received from Sessions Judge, Karachi Central that one Humayun son of Sabbir was arrested on 13-10-2003 for alleged offence under section 13-E Arms Ordinance pursuant to F.I.R.No,182 of 2003, P.S. Noor Jahan . He is being tried by a Judicial Magistrate-IV District Central whose maximum sentencing power is three years, yet he has remained in custody for more than three years and the reasons for delay appear to be "non- production of custody by jail officers." Mr. Nusrat Hassan Mangan has shown complete ignorance about the matter and has undertaken to find out facts. We would like to make it clear that under the law the Government as well as the officers responsible for unlawful detention of a person is liable to compensate such person on a daily basis.
2. We regret to observe that some of the judicial officers are not taking appropriate interest in the matter and not complying with the directions of this Court. The following five persons had made applications before the Court and information in their respect has been made available by the.
Superintendent Jail, yet neither of the trial courts trying these five persons have furnished any information as regards reasons for delay in the trial. Let the concerned Judicial Officers furnish their respective explanations in writing for not complying with the directions of this Court.
S.No.Name of accused F.I.R. Trial Court L.D.H. N.D.H.
1 Shahid Kamal son of Roshan Khan122/95 124/95 123/951A.D.J./ STA(S)21-10-2006 11-11-2006 2 Faisal son of Mujahid 192/06 194/06 49/06 193/06CJ & JM XIII(C)17-10-2006 14-11-2006 3 Sehar Gul son of Taj Gul 362/02 IV-ADJ West 18-10-2006 11-11-2006 4 Faisal son of Murad Bux 278/05 254/05 CJ & JM x(S)
II-ADJ (S)JCC4-11-2006 20- 10-200618-11-2006 20- 11-2006 5 Abdul Haleen son of Abdul Ghaffar413/05 421/05 424/05IV-ADJ, J.CC VII ADJ South CJ & JM VII(S)30-10-2006 18- 9-2006 31-10- 200618-11-2006, 13- 11-2006, 14-11- 2006
3. It appears that a large number of under-trial prisoners are detained in cells. Learned A.A.-G. Has relied upon rule 235 of the Pakistan Prisoners Rules purporting to enable such confinements.
Nevertheless, it seems that section 28 of the Prisoners Act only speaks of detention of convicted prisoners in Cells. We would like to examine the question whether rule 235 is ultra vires of the parent statute i,e, section 28 of the Prisons Act or has been made under some other authority.
4. We have also noticed that according to the reports received from the trial Courts the main reason for delay in trial of the cases of prisoners detained in custody for long duration are non- appearance of prosecution witnesses and non-production of prisoners in Court. Indeed a person accused of an offence cannot be detained indefinitely and a presumption of innocence is attached until proof of guilt. Therefore, we would like to know what measures the State has taken to expedite trials. At the same time, the system of production of prisoners is not working satisfactorily and therefore, we would direct the Prosecutor-General, a Senior Officer not below the rank of Additional Secretary from the Home Department and SSP Courts Karachi to appear in person on the next date of hearing. To come up on 24-11-2006 at 8-30 a.m. Copies of the MIT report may be made available to Mr. Ilyas Khan and Mr.Abbas Ali, A . A. G.
24th November, 2006 The Prosecutor General, Government of Sindh, who was directed to appear today, is not available, perhaps because owing to mistake of the Court office. No notice was issued to him in respect of prisoner Humayun son of Sabir. Learned A.A.G. Has pointed out that this prisoner was not merely accused of an offence under section 13-E Arms Ordinance but also one under section 302, P.P.C., which is being tried in the Court of IV-Additional Sessions Judge, Karachi South. The explanation in this context is accepted.st
2. As regards Shahid Kamal a reply has been submitted by the 1st Additional Sessions Judge, Karachi South, in whose court the cases against him are being tried. We regret to say that it has neither been explained why such an old case was not mentioned in the list furnished to this Court nor the reasons for delay in trial appears to be satisfactory. We would order that complete diaries of this case be transmitted to the M.I.T. Before the next date of hearing. Mr. Ilyas Khan has also pointed out that the order of this Court dated 10-10-2006 has not been complied with by none of the trial Judges in District South and only a list of women prisoners has been furnished. Let notices issue to all such Judges as to why the Court order has not been complied with.
3. Prima facie several agencies seem to be responsible for the delay and we would direct the trial Court to furnish up to date diaries of this case before the next date of hearing. No satisfactory explanation is furnished as to why the cases referred to in the order dated 8-11-2006 were not mentioned in the earlier lists provided by the respective courts and the Presiding Officers are warned to ensure that appropriate records are kept in their offices and complete information is communicated to this Court. The Superintendent Central Prison has reported that Dr. Muhammad Ajmal Mughal a psychiatrist from the Services Hospital is now regularly visiting jail every week and will attempt to treat prisoner Zubair Bin Abdullah. In case hospitalization is advised by the Doctor, appropriate facilities to shift him would be provided. No further order is required on this point.
4. With respect to general state of production of prisoners in Court the position appears to be far from satisfactory. Mr. Asif Haider, however, has assured that a large number of vans would be made available for the aforesaid purposes in the first week of March, 2007. In the circumstances, we would allow the Government reasonable time but would order that after 31st March, 2007, non- production of a prisoner on the date of hearing could possibly be treated as detention without lawful authority or in an unlawful manner and be dealt with accordingly. At the same time,,we would direct all trial courts to furnish a list of cases on a daily basis when prisoners in custody have not been produced. At the same time, the Superintendents of Central Prison and special prison Malir are directed to furnish quarterly reports addressed to the M.I.T. Mentioning the prisoner not produced in Court on the date of hearing and reasons for such non-production. In any event we would direct the respective trial Court in cases of prisoners 1, 3, 4 and 5 mentioned in the order dated 8-11-2006 to proceed with the trial expeditiously and preferably dispose them of within six months.
5. We have also noticed that non-production of prisoners is not the only cause of unconscionable delay but on several occasions non-availability of witnesses or the relaxed attitude of the parties or the Courts contribute to such delay. In this context we would.Strictly direct all trial Judges to take strict measures for production of witnesses and in case they are not available to proceed expeditiously according to law instead of providing undue latitude to the parties and prolonging agony of prisoners. At the same time, we would direct notice to be issued to the Prosecutor General Government of Sindh to explain what measures are being taken to expedite the trial of offences.
The legal question as to validity of rule 235 will be considered on the next date. The officer of the Home Department and the Jails need not to attend. To come up on 17-1-2007. At the request of learned A.A.-G. Since Prisons Rules in all the four Provinces are similar notice may also issue to learned Attorney General of Pakistan, who may assist the Court, if he so desires.
17th January, 2007: Pursuant to our order dated 24-11-2006. Mr. Muhammad Ishaq Lashari, the recently appointed Prosecutor General has appeared in Court and stated that the newly established Prosecution Service Department was involved in recruiting personnel. With profound respect, however, we may observe that simple recruitment of personnel is hardly of any significance unless specific decision in respect of what is actually required to be done or taken and acted upon.
Learned Prosecutor-General has also placed before us a copy of the recently promulgated, The Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Ordinance, 2006.
Considering that we were not satisfied with the development having taken place after the promulgation of the Ordinance, we would direct the Secretary. Home Department and Secretary Law Department to be present in Court on the next date of hearing. Learned Advocate-General may also be personally present.
We have received a copy of court diary in respect of one Abdul Haleem from the Court of VII Civil Judge and Judicial Magistrate, Karachi, which unfortunately reflects an appealing state of affairs from the stand point of the accused. The accused was first produced before the Magistrate on 15- 12-2005 and after having been remanded to custody was not produced in Court on six consecutive dates of hearing. After a few occasions when he was produced but the matter had to be adjourned due to absence of prosecution witnesses. There was a further span of four months when the accused was not produced by the jail authorities, once again on six consecutive dates of hearing between June and October, 2006. The first witness was examined as late as 14-11-2006 and within two months thereafter the final verdict was recorded by the trial Court on 13-1-2007. Whereby the accused was convicted and sentenced to one year's R.I. And also granted benefit of section 382-B, Cr.P.C.
The above narration indicates that the trial Court was able to conclude the trial within two months but the matter was delayed by another eleven months, largely due to the failure of the prosecution.
Indeed upon being granted the benefit of section 382-B, Cr.P.C. Perhaps the period of detention between 14-1-2006 and the date of judgment could be counted as part of the sentence (though without remissions) nevertheless the detention of the accused in custody for an additional period of 30 days between 15-12-2005 and 14-1-2006 was absolutely illegal on any legal principle whatsoever and there could obviously be no legal explanation for such extended detention.
In the circumstances, we would direct the respondent-Provincial Government to deposit an amount of Rs,150,000 by way of compensation payable to the accused at the rate of Rs,5,000 per day in terms of the judgments of this Court in Mazharuddin v. The State 1998 PCr.LJ 1035. The amount may be disbursed to the accused unless the respondents are able to establish that the delay was caused on account of the conduct of the accused himself. Indeed, learned A.A.G. Argued that certain individual officers may be responsible for such illegal action but the State should not be burdened with liability. We are afraid this contention is not consistent with the law declared by this Court in the above mentioned case, though we may add that the Government would be completely at liberty to initiate inquiry, affix responsibility and collect the amount from the delinquent officers as permissible under the Efficiency and Discipline Rules.
As regards the question of detention of Under Trial Prisoners in cell under Rule 235, it appeared that learned counsel needed some more time to prepare himself. We would also request Messrs Akhtar Hussian and Khalid Jawaid Khan, Advocates, who are present in Court to assist the Court on the abOve question.
Adjourned to 6-2-2007. The amount ordered must be deposited before the aforesaid date. A copy of this order may be provided to all the learned counsel. ORDER 6th February, 2007: We are of the clear view as has been candidly conceded that under trial prisoners "except those covered by rule 624" could not be kept in cells under any circumstances. Rule 235 cannot be construed so as to confer any power in excess to section 28 of the Prisons Act, which permits confinement in cells for convicted accused. In these circumstances, we would order that all under- trial prisoners kept in cells must be immediately removed to barracks failing which their detention might be liable to be held in an unlawful manner and entail necessary consequences.
At the same time Mr. Akhtar Hussain, learned amicus curiae pointed out that the size of the cells shown in the report of the learned Sessions Judge did not conform to the requirements of Rule 623 and there is nothing to show that a yard is 4ttached to cells to provide the occupant benefit of fresh air. We are afraid detention in such manner might offend the right to life guaranteed by Article 9 of the Constitution and Mr. Rasheed Alam Special Secretary Home Department recognizing the gravity of the situation volunteered to inspect the jail along with Mr. Muhammad Farooq, Advocate, Sofia Saeed, Standing counsel and a representative from the Works and Services Department to carry out measurements (if necessary). He will then take-up the matter with the Provincial Government and be in t position to make a categorical statement regarding appropriate measures that need to be undertaken. It is clarified that such inspection be carried out by Mr. Rasheed Alam even if any of the other persons mentioned above is not available for some reasons.
We expect that serious measures would be taken in the shortest possible time for avoiding deprivation of rights of the prisoners.
Adjourned to 13-3-2007 at 11-00 a.m. When Mr. Rasheed Alam will submit his report. ORDER 27th March, 2007.
Pursuant to Court order dated 6-2-2007.M/s. Rasheed Alam, Soofia Saeed Shah and Muhammad Farooq, Advocate (who could not be available today) visited two prisons in Karachi and one in Hyderabad and submitted their report which is taken on record.
1. As regards the question whether cells in prison conformed to requirements of ranks learned counsel was unable to furnish explanation and needed some more time to consult the persons concerned. Nevertheless it was agreed that only convicts and not under-trial prisoner could be kept in cell save in exceptional conditions. Mr. Rasheed Alam assured the court that within ten days all under-trial prisoners presently kept in cells will be removed into barracks except those who are undergoing in jail punishment or who have been declared dangerous through an order in writing passed by the Inspector General Prison. We may add that such orders should contain reasons and be communicated to prisoners and would be amenable to judicial review.
2. As regards over population it was agreed that the following measures be undertaken on immediate basis in addition to the all existing provisions under the law:--
(i) Immediate steps be taken to construct new barraks in District Jail Malir and Central Jail Hyderabad so that all convicted prisoners may be shifted from Central Jail.
(ii) As soon as barraks are completed in Malir all convicted persons be transferred from Central Jail to partly relieve the said jail from burden of over population.
(iii) That possibilities of further construction in the premises of Central Jail Karachi may also be examined.
(iv) That the jail authorities shall prepare a list of all under-trial prisoners convicts charged with offences punishable with imprisonment for three years or less which will be produced in Court on next date of hearing so that they may be transmitted to Sessions Judge for deputation of Magistrate to conduct trial of cases in jails, requiring urgency as some prisoners keep languishing in jail only because the authorities do riot produce them or the witnesses before the Court at the date of hearing.
(v) It will be ensured that prosecution witnesses are available at the trial and in the events of failure of the prosecution to produce them expeitinusly power to grant bail might be liberally received.
3. It may be added that the Court expects that the commitment of Provincial Government to place vehicles at the disposal of Prison Authorities for production of prisoners by 31-3-2007. In case the commitment is not complied with the officers concerned should be available in Court to explain the position. Copy of this order may be made available to all learned counsel and Mr. Rasheed Alam. To come up on 25-4-2007 at 11-00 a.m. ORDER 25th April, 2007:
1. Mr. Rasheed Alam states that appropriate instructions were issued and according to his information all under-trial prisoners have been transferred from cells to Barracks except a few in exceptional circumstances only after obtaining orders in writing from the Inspector General, Prisons. He agrees that direction may issue to all learned District and Sessions Judges in the Province to cause surprise inspectien of prisons within their jurisdiction and submit report to this Court. .
2. Mr. Rasheed Alam further states that cost estimates and P.C.L for construction of new barracks are already under preparation and a request has been made to place certain lump sum amount available during the next financial year for the purpose of accomplishing such construction without unnecessary loss of time.
3. A list of under trial prisoners charged with offences punishable with less than three years imprisonment detained in various prisons has been furnished by Mr. Rasheed Alam who undertakes to provide a copy to Ms. Romana Siddiqui, Secretary to MIT. On the basis of such list appropriate administrative instructions will be issued to respective Sessions Judges for attempting to ensure speedy disposal of such cases, Mr. Rasheed Alam further undertakes to cause a list of such prisoners detained in judicial lock-ups to be prepared within three weeks. The efforts made by Mr. Rahseed Alam to the above effect deserve appreciation.
4. It may nevertheless be observed that the commitment made on behalf of the Provincial Government by Mr. Asif Hadier, Additional Secretary, 'Home Department, recorded in the order dated 24-11-2006 and reiterated from time to time appears nowhere in sight though it was agreed by the administrative agencies that vans would be dedicated for production of prisoners in Court and a commitment was made in Court to the effect that such vans would be available in the first week of March, 2007. Nothing concrete seems to have happened till the end of April, 2007 Mr. Asif Haider who is present in Court states that he has been consistently reminding other concerned officers as to the urgency of the matter but without success. We would direct Additional Inspector General of Police and the Chairman of the Purchase Committee of the Police Department to be present in Court on the next date of hearing and explain the position. It also needs to be considered whether the law requires enough logistic support to Superintendents of prisons for production of prisoners in Court and some vans can be directed to be placed under the control of the Prison Department under the orders of the Court. We would seek assistance of Mr. M. Ilyas Khan, Advocate and the Advocate General, Sindh, on this aspect of law. Needless to say failure to abide by an undertaking givca to the Court could also lead to its own consequences.
Adjourned to 23-5-2007 at 11-00 a.m. ORDER 23rd May, 2007: Learned acting A.G. States on instructions that the process or procurement of 153 prisoners vans dedicated exclusively for production of prisoners in Courts has been concluded and the vans are likely to be delivered to the Police Department in August, 2007. The only question to be resolved is whether complete responsibility for production of prisoners is to be handed over to the Prisons Department immediately or only through a phased program in as much as the said Department feels it a little difficult to assume such responsibility without requisite personnel being available to it. An updated list of Prisoners charged with offence punishable with less than 3 years punishment has also been filed so as to facilitate their trial in jail which could be helpful in reducing prisoners production and learned Acting A.G. Undertakes to direct the concerned prosecution agencies to make witnesses available on the respective dates of hearings. Copy of the report will be made available to the Secretary MIT.
16th August, 2007: A statement has been filed by Mr. Rashid Alam, Special Secretary, Home Department explaining the latest position about prisonersvans. It seems that some vans have been received and handed over to the Police Department. Though it is acknowledged that great deal of delay in production of prisoners takes place on account of prevailing hierarchy i,e, inasmuch as whereas a under-trial prisoner meant to be in judicial custody is detained under the control of the Prison Department, his production in Court seems to be the responsibility of the police under Rule 173 of the Prisons Rules. It is agreed that entrustment of entire responsibility upon one person or authority might improve the state of production and amendment in the rules through executive powers could always be considered. Let this exercise be undertaken. Adjourned to 4-9-2007 at 11-00 a.m. A copy of the order may be made available to learned Assistant Advocate General.
4th September, 2007: Mr. Rasheed Alam, Special Secretary, Home Department, Government of Sindh, has filed a statement in writing to the effect that appropriate amendments in the Prisons Rules will be effected whereby the administrative control of Court Police would be shifted to the Prison Department.
Necessary budgetary sanctions for fuel and maintenance and those vans shall be provided to the Prison Department and some personnel from the Police Department would be placed on deputation to thePrison Department till appropriate escort force is raised by the latter. In this context, exercise for seeking formal approval of the Chief Minister and its amendment in relevant Rules has already commenced.
We may add that this would be applied to control the delay in production of prisoners in Court and ought to be taken without further loss of time. Indeed, the problem of shortage of manpower, particularly unskilled manpower, can be addressed without much delay in making improvement through formal legal procedure. The Prison Industry itself could be harnessed for providing ancillary service for maintenance etc., which could be both efficient and beneficial for the prisoners.
Mr. Rasheed Alam, however, pointed out that despite best intention of the Government, it might not be possible to fulfil all these commitments instantly and will have to be carried out in phased manner. Indeed we are conscious of objective realities and appreciate his concerned. At the same time, however, it needs to be clearly borne in mind that all public duties need to be performed within a reasonable time. At the same time it will be kept in view in the circumstances of this case, that prolonged detention without trial could be treated as detention in unlawful manner not merely liable to be struck down but also entitle the detainee to be compensated by the detaining Authority. We would further direct that the Special Assistance to M.I.T. To require all the trial Courts to keep record of cases where under-trial prisoners required to be produced were not produced in their respective Courts and submit the same to this Court in the monthly returns which would be periodically communicated to the I.-G. Prisons, who will seek appropriate explanation from the Superintendent of every Prison and communicate the same to this Court.
In view of above undertaking we hope that Rules would be amended and implemented according to phased program within a reasonable time but not later than six months from today. We are grateful to M/s. M. Ilyas Khan and Muhammad Farooq, Amicus Curaie and Mr. Abdul Jabbar Lakho, A.A.-G. Particularly Mr. Rasheed Alam, Special Secretary, Home Department, Mr. Yameen Khan, I.G.
Prisons. Who have been immensely helpful in assisting this Court.