' The petitioner who is being tried under section 302/307, 148/149, P. P. C. Was granted B class in the prison by the District Magistrate on the recommendation of the Ilaqa Magistrate. Later on the Government on some representation by the complainant set aside this order and withdrew the B class jail facilities granted to the petitioner. Hence this petition.
2. There are various Rules in connection with the classification of the under trial prisoners but the rule applicable to the present case is rule 248 which provides that there shall be two classes of undertrial prisoners, (a) better class and (b) ordinary class. Clause (ii) of this Rule describe the prisoners who can be given better class. Clause (iii) provides that before an under trial prisoner is brought before a competent Court, it will be at the discretion of the Officer Incharge of the Police Station to properly classify him. After he is brought before the Court, he will be classified by that Court, subject to the approval of the District Magistrate.
3. The argument of the learned counsel for the petitioner is that since facilities of better class have been granted to the petitioner on the recommendation of the Court by the District Magistrate, the Government has no power to interfere with the order of the Court. The learned Assistant Advocate- General on the other hand referred to rules 242, 243 and 246 of the Pakistan Prison Rules to argue that, the Government has an overall authority to classify notwithstanding the classification made under any other Rule. He particularly relied upon rule 243 which provides that for A and B classes the classifying authority will be the Government. It also authorises the Courts to classify prisoners into A and B class but provides that this classification will be subject to the final orders of the Government. The learned counsel for the petitioner however, submitted that rule 243 is applicable only to convicted prisoners and not to undertrial prisoners for whom there is a specific rule 248.
4. The Rules prescribe Courts or authorities who can classify prisoners subject to the order of the Government.
5. Rule 243 as stated above provides that the Courts may classify prisoners into A and B class pending final orders of the Government. Rule 244 provides that in case the convicting Courts omit to classify convicted prisoners for better class treatment Superintendents of prisons subject to the approval of the Government may classify them. Rule 246 provides that in case there is disagreement between the convicting Court and the District Magistrate, as to the classification of any prisoner, the District Magistrate shall decide the class in which a convicted prisoner shall be kept pending final orders of the Government. All these three Rules make the Government a final authority in classifying prisoners for better class treatment. 11 appears that it is for this reason that rule 245 provides for certain details to be submitted to the Government by the recommending authority while recommending the prisoner at least for either of the two Classes A and B.
6. Reference may now be made to rule 250 which provides that superior class prisoners are (i) convicted prisoners admitted to A or B class by order of the Government, (ii) convicted prisoners admitted to A or B class by order of the Courts pending the orders of Government; and (iii) undertrial prisoners admitted to superior class by order of the Courts subject to the revisional order of the District Magistrate. Clause (i) is clearly referable to the exercise of the powers directly by the Government under rule 243. Clause (ii) in the same manner is referable to rule 246. Both these clauses are applicable to convicted prisoners. The only Rule regarding undertrial prisoners is rule 248 which deals with all categories of cases of undertrial prisoners. Clause (iii) rule 250 clearly refers to rule 248 with the only distinction that under rule 248 (iii) the classification by the Court is subject to the approval of the District Magistrate while in rule 243 it is provided that the order of Court would be subject to the revisional order of the District Magistrate. There does not appear any distinction between this terminology. At most this is a distinction without a difference. Where the order is passed under rule 248 with the approval of the District Magistrate, no further revisional power can be exercised by that authority but there may be cases where the Court may not be willing to classify a prisoner as a superior class prisoner. In that case rule 243 contemplates a revision before the District Magistrate. Thus both these provisions are reconcilable. However, one thing is eminently clear and that is that the Prison Rules have made different provisions for convicted prisoners and undertrial prisoners. I agree with the argument of the learned counsel for the petitioner that it is not possible to refer to rule 243 or 246 as relating to undertrial prisoners. If those Rules are treated to relate to undertrial prisoners, rules 248 and clause (iii) of rule 250 will become redundant. The Government has, therefore, no power to withdraw the order of the District Magistrate.
7. I, allow this petition without any order as to costs and quash the order of the Government in Annexure A.