SAGHEER AHMAD QADRI, J. ---Petitioner Group Captain Syed Muhammad Fazal son of Syed Abdur Rehman, a convict vide conviction passed on 28-3-2011 by a Field General Court Martial committed to the custody of respondent No,4-Superintendent Central Jail, Rawalpindi to serve out his sentence, has moved this writ petition agitating the facts that as in Warrants of Commitment dated 15-4-2011 issued by the competent authority, the petitioner was declared entitled for 'A' class in civil prison which direction is not being complied with by respondent No,4 therefore, a direction in this respect be issued.
2. This Court on submission of this writ petition sought parawise comments from the respondent No,4 which are submitted on the file.
3. Learned counsel for the petitioner reiterated his stand mentioned in the writ petition referring Air Force Order No,III-48 issued by the Commander in Chief of Pakistan Air Force on 3-8-1971 whereby in para. No,3, it was directed that the officer class if convicted be classified as 'A' class prisoners in civil prison and this classification be recorded in the relevant Commitment Warrants. Learned counsel for the petitioner argued that as the petitioner was classified as 'A' class prisoner in Warrants of Commitment but the respondents in spite of repeated prayers/applications were not treating him as such to which he has lawful right therefore, a direction in this respect be issued while allowing this writ petition.
4. Conversely, learned A.A.G. On the basis of parawise comments and Notification No, SO(R&P)4- 24/10 (Part-I) submitted that as under Rule 243 of Pakistan Prison Rules, 1978, the authority vests with the concerned Government to classify a convict for the purposes of keeping in jail and the relevant Government i,e, the provincial government vide above mentioned Notification has declared the petitioner's case falling under para. No,3 (L) therefore, he was not entitled to be treated as 'A' class prisoner, thus the writ petition filed by the petitioner being without lawful justification and devoid of any merits be dismissed.
5. I have heard learned counsel for the parties and perused the record.
6. The Commitment Warrants if seen which is annexed on this file as Annexure-A, it reads: To ' The Superintendent of Adiyala Jail, District Rawalpindi.
' WHEREAS at a Field General Court Martial held at Air , Headquarters (Unit), Peshawar on 20 day of January, 2011 Gp Capt S.M. Fazal Pak/8413 A&SD of Air Headquarters (Unit), Peshawar was duly convicted of three charges under section 71 (two charges) is committing a civil offence that is to say, for a purpose prejudicial to the interests of the State, obtaining documents/information which might be useful to an enemy contrary to section 3(1) (c) of the Official Secret Act, 1923' and Section 60 (one charge) i,e, making a false statement.
' AND WHEREAS the said. Field General Court Martial on 28 day of March, 2011 passed the following sentence upon the said Gp. Capt. S.M. Fazal Pak/8413 A&SD that is to say to suffer rigorous imprisonment for One Year and to be dismissed from service.
' AND WHEREAS the said sentence has been duly confirmed by Air Commodore Salamat Ali, Officer Commanding Air Headquarters (Unit), Peshawar as required by law. This is to require and authorize you to receive the said Gp Capt. S M. Fazal Pak/8413 A&SD into your custody together with' this Warrant and thereto carry the aforesaid sentence of rigorous imprisonment into execution according to law and for so doing this should be your Warrant.
' This sentence has effect from 28 March, 2011.
' The officer is entitled for class 'A' in civil prison.
Given under my hand at Air Headquarters (Unit); Peshawar this the 15 day of April, 2011."
According to Commitment Warrants, the petitioner is shown convicted under sections 71, 60 of Pakistan Air Force Act read with section 3(1)(c) of Official Secrets Act, 1923 to undergo one year R.I.
And he was also dismissed from the service. Rule 243 of the Pakistan Prison Rules, 1978 provides: "Rule 243.--- For A and B classes the classifying authority will be the Government. Courts may classify prisoners into A and B class pending final orders of the Government. Class "C" will be classified by the trying Courts, but such prisoners will have a right to apply for revision to the Government. Petitions of revision will be forwarded by the Superintendent to the Inspector-General for transmission to Government."
' Admittedly discretion lies with the Court concerned under the above mentioned rule to classify prisoners for keeping-detaining in jail in a specific class but the final authority in this respect is reserved with the concerned Government. Government of Punjab vide Notification dated 5-4-2011 provided: "No, SO(R&P)4-24/10 (Part-I). Governor of the Punjab is pleased to direct that the superior class jail facilities to a, prisoner in the Punjab may be allowed in accordance with the Prisons Rules, 1978 and subject to the. Ulfilment of the following criterion/conditions: a. He is a casual offender and not a professional/habitual criminal; b. He holds a Graduate degree from a recognized University or institution; and c. He establishes his superior mode of living, and for the purpose, he must be in possession of minimum 100 acres of barani or 50 acre irrigated land as verified by Executive District Officer (Revenue) or District Coordination Officer concerned, or he owns comparable business and personal assets, as substantiated by the latest income tax Return/ Certificate.
2. The superior class facilities shall not be claimed as of right.
3. The superior class jail facilities shall not be allowed to a prisoner who does not fulfil the above conditions, or who is a previous convict serving enhanced sentence under Pakistan Penal Code, 1860, who is involved in a heinous offence, such as:-- a. b. c. d. e. f. g. h.
1.
' L. An offence involving subversion, espionage or anti-state acts under Pakistan Army Act, 1952; Pakistan Air Force Act, 1953; Pakistan Navy Ordinance, 1961.
' The superior class jail facilities may be allowed initially on provisional basis for a period not exceeding three months, but the competent authority, for reasons to be recorded, may, from time to time, extend that period subject to good conduct of the prisoner during the period. "
' By mere reading of above mentioned Notification the convicts prisoners convicted involving the subversive, espionage or anti-State acts under Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 are found not entitled for superior class facilities in jail thus, in view of the circumstances when the petitioner is not entitled for any such facility to be treated as 'A' class prisoner, there is no merit in this writ petition which is hereby dismissed.