MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Mst. Bushra Imran Khan, impugns the notification dated 31.01.2024 issued by the office of the Chief Commissioner, Islamabad Capital Territory, under Section 541 of the Code of Criminal Procedure, 1898 ("Cr.P.C.") read with Section 3 of the Prisons Act, 1894 whereby the residential compound known as "Khan House" Bani Gala located in revenue estate Mohra Noor, Islamabad ("Khan House") was declared as a sub-jail for the purposes of confining therein the petitioner, who had been convicted by the learned Accountability Court No-I, Islamabad (Camp Court at Central Jail, Rawalpindi) for offences under Section 9(a)(iii),(iv),(vi) and (xii) of the National Accountability Ordinance, 1999 ("NAO") and sentenced to undergo rigorous imprisonment for a period of 14 years through the judgment dated 31.01.2024 passed in Accountability Reference No.20/2023.
2. Section 383 Cr.P.C. provides that where the accused is sentenced to imprisonment for life or imprisonment in cases other than those provided for by Section 381 Cr.P.C. and Section 382-A Cr.P.C., the Court passing the sentence shall forthwith forward a warrant to the jail in which he is or is to be confined, and unless the accused is already confined in such jail, shall forward him to such jail, with the warrant.
3. When the petitioner was sentenced by the learned Accountability Court, she was not in detention. Therefore, the learned Accountability Court issued a warrant for the petitioner s arrest.
The said Court also issued a warrant of commitment in the name of Superintendent, Central Jail, Adyala Road, Rawalpindi ("Adyala Jail") authorizing him to receive the petitioner into his custody at the said jail for undergoing the sentence awarded to her.
4. Section 3 of the Prisoners Act, 1900 obligates the Officer Incharge of a prison to receive and detain all persons duly committed to his custody by any Court according to the exigency of any writ, warrant or order by which such person has been committed, or until such person is discharged or removed in due course of law.
5. As per the report submitted to this Court by the Superintendent, Central Jail, Rawalpindi ("the Superintendent") after the petitioner was sentenced, she was admitted as a convicted prisoner at Adyala Jail and her admission was recorded in the relevant register. The petitioner is stated to have entered the said jail after she was medically examined by a female medical officer.
6. On 31.01.2024, the Superintendent addressed letter No.4713 to the Chief Commissioner, Islamabad Capital Territory ("ICT"), stating that "some time is required to make necessary arrangements." He proposed that the petitioner may not be confined at Adyala Jail but at a suitable place to be declared as a sub-jail by the Chief Commissioner, ICT under Section 541 Cr.P.C. read with Rule 2(1)
(b) of the Pakistan Prisons Rules, 1978.
7. Section 541(1) Cr.P.C. provides that unless when otherwise provided by any law for the time being in force, the Provincial Government may direct in what place any person liable to be imprisoned or committed to custody under Cr.P.C. shall be confined.
8. As mentioned above, vide notification dated 31.01.2024, issued by the office of the Chief Commissioner, ICT, Khan House was declared as a sub-jail till further orders. This notification is stated to have been issued pursuant to the request made by the Superintendent in his letter dated 31.01.2024.
9. As per the report submitted by the Superintendent, the petitioner was shifted from the said jail to the sub-jail in accordance with the said notification dated 31.01.2024. Ever since 31.01.2024, the petitioner remains imprisoned in the sub-jail.
10. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the petitioner could not be confined in the sub-jail against her will; that the petitioner never made a request for Khan House to be declared as a sub-jail; that subject to the right of appeal against her conviction, the petitioner is willing to serve her sentence at Adyala Jail in accordance with the warrant of commitment which was issued by the learned Accountability Court on 31.01.2024; that the petitioner does not feel secure in the sub-jail; that the petitioner has only been confined to one room which has the effect of keeping her in solitary confinement; that the petitioner is also suffering inconvenience inasmuch as she has to be transported to Adyala Jail in order to attend the proceedings in Accountability Reference No.01/2024 being conducted in the said jail; that the impugned notification is without lawful authority inasmuch as under Section 541 Cr.P.C., a notification declaring a private residence of a convict to be a sub-jail could only be issued by the Provincial Government, whereas the Chief Commissioner, ICT cannot exercise the powers of a Provincial Government; and that the petitioner is not secure in the sub-jail inasmuch as all the guards are male and she has not been permitted to meet her family members for more than half an hour every week and have a meaningful consultation with her lawyers. Learned counsel for the petitioner prayed for the petition to be allowed in terms of the relief sought therein.
11. On the other hand, the learned State counsel referred to the different reports submitted by the Superintendent and submitted that the petitioner s admission in Adyala Jail had been made in accordance with the applicable rules; that she had been shifted to her residence at Bani Gala which had been declared as a sub-jail vide notification dated 31.01.2024 issued by the office of the Chief Commissioner, ICT; that the security arrangements at the sub-jail are within the domain of the Punjab Prison authorities; that a lady Assistant Superintendent, Jail along with female watch and ward staff have been deputed at the sub-jail; that the external security of the sub-jail is within the domain of the local police; that a schedule for the petitioner's meeting with her family members has been issued by the Superintendent vide order dated 21.02.2024; that the Superintendent has reported that the population of the female inmates at the Adyala Jail is 250 including children with mothers and dangerous under-trial and convicted prisoners; that it is difficult for the prison administration to accommodate the petitioner, who is "a lady of high sensitive category;" and that it was for the sake of the petitioner's safety that she was shifted to the sub-jail. Learned State counsel prayed for the writ petition to be dismissed.
12. I have heard the contentions of the learned counsel for the petitioner as well as the learned State counsel and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 9 above and need not be recapitulated.
13. The office of the Chief Commissioner, ICT issued the impugned notification dated 31.01.2024 by assuming the powers of a Provincial Government in terms of the notification dated 31.12.1980 which has been struck down by this Court vide judgment dated 29.12.2023 passed in writ petition No.2491/2023. Since an Intra Court appeal has been filed against the said judgment and vide order dated 30.01.2024, the appellate Bench of this Court has passed an interim order, I will proceed with the instant case on the assumption that the Chief Commissioner, ICT did have the powers of a Provincial Government under notification dated 31.12.1980 issued by the Ministry of Law, Justice and Parliamentary Affairs pursuant to Article 2 of the Islamabad Capital Territory (Administration)
Order, 1980.
14. As mentioned above, it was after the petitioner was convicted and sentenced by learned Accountability Court-I, Islamabad on 31.01.2024 that she was admitted in Adyala Jail to serve her fourteen-year sentence. On the very same day, the Superintendent requested the Chief Commissioner, ICT to confine the petitioner in suitable premises to be declared as a sub-jail. In his letter No.4713 dated 31.01.2024, the Superintendent had stated that "some time is required to make necessary arrangements." In response to the said request made by the Superintendent, the office of the Chief Commissioner, ICT issued notification dated 31.01.2024 whereby Khan House was declared as a sub-jail where the petitioner has been lodged since 31.01.2024.
15. It ought to be mentioned that vide judgment dated 03.02.2024 passed by the Court of the learned Senior Civil Judge / Judicial Magistrate (Section 30), East-Islamabad ("the Judicial Magistrate"), the petitioner was convicted for an offence under Section 496 of the Pakistan Penal Code, 1860 ("PPC") and sentenced to simple imprisonment for a period of seven years. On 03.02.2024, the Judicial Magistrate had also issued a warrant of commitment in the name of the Superintendent directing him to keep the petitioner in Adyala Jail for undergoing the said sentence.
The petitioner's detention at the sub-jail continued even after the issuance of the said warrant of commitment.
16. Now, vide order dated 01.04.2024 passed by the Division Bench of this Court in Criminal Appeal No.76/2024, the sentence awarded to the petitioner by the learned Accountability Court in Accountability Reference No.20/2023 was suspended under Section 426 Cr.P.C. and she was granted bail. Even after the said order dated 01.04.2024, the petitioner's detention in the sub-jail continued. There is nothing on the record to show that orders had been passed for the petitioner to serve the sentence awarded to her vide judgment dated 03.02.2024 passed by the Judicial Magistrate, at the sub-jail. I am of the view that the Superintendent was bound to execute the warrant of commitment dated 03.02.2024 by admitting and lodging the petitioner to serve her sentence at Adyala Jail. The direction issued to the Superintendent in the said warrant of commitment could not have been ignored on the basis of the earlier notification dated 31.01.2024 which had been issued in order to overcome the directions in the warrant of commitment dated 31.01.2024 which in turn had been issued as a consequence of the judgment dated 31.01.2024 passed in Accountability Reference No.20/2023. Since no orders had been issued for the petitioner to serve her sentence awarded vide judgment dated 03.02.2024 passed by the Judicial Magistrate in the sub-jail, and since the petitioner s sentence awarded by the learned Accountability Court-I, Islamabad vide judgment dated 31.01.2024 had been suspended by this Court, the State is bound to transfer the petitioner to Adyala Jail so that the directions given in the warrant of commitment dated 03.02.2024 are complied with.
17. Even otherwise as a general rule, a convict is to serve a sentence at the jail designated for the purpose in the warrant of commitment. The removal of a convicted prisoner (not under-trial prisoner) confined in a prison is to be provided for by the Provincial Government, by general or special order, only in the circumstances set out in Section 29 of the Prisoners Act, 1900. Reference in this regard may be made to the law laid down in the cases of Ali Mahmood Vs. The State (1974 P.Cr.L.J. 249), and Sardar Ataullah Mengal Vs. The State (PLD 1965 Karachi 320). In the latter case, it has been held that "the power of the Provincial Government for the removal of any prisoner confined in a prison is also laid down in [Prisoners Act, 1900] under Section 29, but that power is exercisable only in the cases mentioned in clauses (a) to (d) of subsection (1), that is, when the prisoner is under sentence of death or is confined in lieu of a sentence of imprisonment or transportation or in default of payment of fine or in default of giving security for keeping the peace or for maintaining good behavior." For the removal of any convicted prisoner confined in a prison in the Province to any other prison in the Province, an order is to be passed by the Inspector General of Prisons under Section 29(2) of the Prisoners Act, 1900. Even if Adyala Jail and the subjail/Khan House are assumed to be in the same Province, there is no order of the Inspector General of Prisons on the record providing for the removal of the petitioner from Adyala Jail to the sub-jail. For the removal of any prisoner or class of prisoners confined in any prison to any other prison in Pakistan maintained by or under the authority of the Federal Government or of a Provincial Government, Section 29(3) of the Prisoners Act, 1900 empowers the Federal Government to pass a general or special order with the consent of the Provincial Government concerned. Since in the case at hand, there is no order of the Inspector General of Prisons under Section 29(2) and/or an order of the Federal Government under Section 29(3), the removal of the petitioner from Adyala Jail to the sub-jail is clearly suffering from mala fide in law and is therefore declared to be without lawful authority.
18. It may, at this stage, be mentioned that the Hon'ble Federal Shariat Court in the case of Muhammad Aslam Khakhi Vs. The State (PLD 2010 FSC 1) declared Section 29 of the Prisoners Act, 1900 repugnant to the injunctions of Islam only to the extent that the Government enjoys unfettered power to transfer a prisoner from one Province to another without giving notice to the prisoner or without obtaining his consent or without referring to any lawful reason by way of a speaking order conveyed to the detenue and without providing any remedy against the exercise of such authority.
19. Drawing wisdom from the said dictum, it is my view that where an order passed by the Provincial Government under Section 541 Cr.P.C. or Section 3(1)(b) of the Prisons Act, 1894 has the effect of a convicted prisoner being incarcerated at a place other than the prison designated for such prisoner to serve his/her sentence in the warrant of commitment, there must be reasons ascribed for such an order. The impugned notification dated 31.01.2024, being devoid of reasons, is also violative of Section 24A(2) of the General Clauses Act, 1897, which provides that "the authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be for issuing the direction and shall provide a copy of the order or as the case may be, the direction to the person affected prejudicially." The said provision obligates not only a Judge, but every authority, officer or person making an order under the powers conferred by or under any enactment is required to assign / record reasons for passing such order. Since Section 541 Cr.P.C. requires the Provincial Government to issue a direction, and since the impugned notification dated 31.01.2024 operates to the detriment of the petitioner, it was the Chief Commissioner s obligation to record reasons for declaring Khan House as a sub-jail to lodge the petitioner to the exclusion of any other inmate. This omission on the part of the Chief Commissioner, ICT is yet another reason why the impugned notification dated 31.01.2024 must be struck down. In the case of Muhammad Amin Muhammad Bashir Vs. Government of Pakistan (2015 SCMR 630), it was held as follows:- "Section 24A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised 'reasonably, fairly, justly and for the advancement of the purposes of the enactment' and further clarifies that an executive authority must give reasons for its decision. Any action by an executive authority which is violative of these principles is liable to be struck down. No other view is permissible."
20. Section 383 Cr.P.C. requires the Court passing a sentence of imprisonment to forward a warrant to the jail in which the accused is to be confined. Although "jail" has not been defined in Cr.P.C., Section 3 of the Prisons Act, 1894 defines a "prison" to mean any jail or place used permanently or temporarily under the general or special orders of a Provincial Government for the detention of prisoners and includes all lands and buildings appurtenant thereto but does not include (a) any place for the confinement of prisoners who are exclusively in the custody of the police; (b) any place specially appointed by the Provincial Government under Section 541 Cr.P.C. Since Khan House has been designated as a sub-jail through a notification issued under Section 541 Cr.P.C., it cannot be categorized as a "prison" for the purposes of the Prisons Act, 1894. Therefore, a place designated as a sub-jail under Section 541 Cr.P.C. cannot be termed as a "prison." Since the impugned notification has been issued in purported exercise of the powers under Section 3 of the Prisons Act, 1894 read with Section 541 Cr.P.C., and since a place appointed by the Provincial Government under Section 541 Cr.P.C. has been excluded from the meaning of the word "prison" by Section 3(1)(b) of the Prisons Act, 1894, the said notification is held to be issued without lawful authority and of no legal effect. As the impugned notification has not been issued in exercise of any of the powers conferred under the provisions of the Prisoners Act, 1900, it is not necessary for the purposes of the instant case to delve into the provisions of the said Act.
21. Since the impugned notification dated 31.01.2024 is not supported by any reasons, the purpose behind the issuance of this notification has to be found in the reports submitted by the respondents during the pendency of the instant petition. The Superintendent s letter No.4713 addressed to the Chief Commissioner, ICT on 31.01.2024 states that "some time is required to make necessary arrangements." This implies that the Superintendent needed some time to make necessary arrangements for the petitioner to be lodged in Adyala Jail. The employment of the words, "some time" in the said letter is indicative of the temporary nature of the arrangement for a sub-jail for the petitioner. By now it has been more than three months that the petitioner has been confined in the sub-jail and the learned State counsel was in no position to give a statement as to the period for which such confinement was to continue.
22. In the report dated 21.02.2024 submitted by the Superintendent to this Court, it has been pleaded inter alia that Adyala Jail is highly populated; its authorized accommodation is 2,174 prisoners whereas the present population is more than 7,000; for female wards, the said jail can accommodate 75 inmates whereas presently the population of female wards is 250; and that it is difficult for the prison administration to accommodate the petitioner who is "a lady of high sensitive category."
23. Vide order dated 07.03.2024, this Court directed the Superintendent to submit a report regarding the number of female inmates lodged at Adyala Jail after 31.01.2024 i.e. the date when the petitioner was admitted to the sub-jail.
24. As per the report dated 18.03.2024 submitted by the Superintendent, 125 female prisoners had been admitted to Adyala Jail since 31.01.2024. This report renders the excuse made by the State for lodging the petitioner in the sub-jail due to overcrowding in Adyala Jail an absolute sham. Even if it is assumed that the petitioner was "a lady of high sensitive category," she could have been lodged in that part of Adyala Jail which is designated for prisoners classified as belonging to "superior class" in terms of Rule 225(1)(a) of the Jail Rules, 1978. It also does not appeal to reason as to why the petitioner has been labeled by the Superintendent as "a lady of high sensitive category" entitling her to be lodged in a sub-jail but her husband, who was also incarcerated in the said jail, has been denied such privilege.
25. The State Counsel had also submitted that it was for the petitioner s own protection from other inmates that she had been lodged in the sub-jail. If this is so, are the non-aggressive inmates at Adyala Jail, children of a lesser god to be meted out a less favourable treatment than the one given to the petitioner? Even otherwise, the official documents pertaining to the declaration of a sub-jail for the petitioner make no mention of her protection being the reason for overcoming the direction given in the warrant of commitment pertaining to the petitioner. In any event, it is the responsibility of the State to afford adequate protection to the petitioner in Adyala Jail.
26. The instant case is of a unique nature since it is the convict / petitioner who is seeking to be transported and lodged in a prison where other ordinary mortal convicts are serving their sentences instead of the sub-jail which happens to be a portion of a house where she was residing before her conviction. As per the report submitted by the Director (Law), Office of the Chief Commissioner, ICT, the "master bedroom along with attached washroom and lounge" has been designated as the sub-jail. There is no other inmate with the petitioner lodged in the said area. She gets an opportunity of interaction with others when she is taken to attend the hearings at Adyala Jail in Accountability Reference No.1/2024, and every Thursday when she is allowed to meet her family members and lawyers for 30 minutes each. Other than this period, the petitioner is in solitude. Rule 233 of the Pakistan Prisons Rules, 1978 provides inter alia that when in any prison one prisoner exists in any class and separation would amount to solitary confinement, such prisoner, if he so desires, may be permitted to associate with prisoners of another class. The instant petition is a cry by the petitioner to be lodged in the prison with other inmates so that her isolation is brought to an end. The State, by resisting the prayer made in the instant petition wants to, in effect, perpetuate her solitude. In the case of Khadim Hussain Vs. Secretary, Ministry of Human Rights (PLD 2020 Islamabad 268), this Court had the occasion to hold as follows:- "The Constitution of the Islamic Republic of Pakistan, 1973 guarantees the right to life under Article 9. It is implicit in Article 9 that it is the duty of the State to ensure that every person incarcerated in the prisons of Pakistan, including those who are convicted for an offence and undergoing sentence, are treated in a manner that does not expose him/her to harm and that proper medical treatment is made available in case it is required. The status of a prisoner is similar to that of a ward of the State because he or she, as the case may be, is in its legal custody and care. The prisoner is thus entirely dependent on the State and at its mercy for the purposes of safeguarding the right to life and to meet medical needs. The State, therefore, owes a duty of care to every prisoner regardless of his or her nature of imprisonment. It is only liberty and the right of free movement that has been curtailed and definitely not the constitutional rights to life and to be treated with respect, having regard to the fundamental right of inviolability of the dignity of man guaranteed under Article 14 of the Constitution. The incarcerated person loses freedom of movement but not his or her status as a human being.
Every prisoner, without discrimination, has to be treated as a human. Inhumane treatment of a prisoner is a serious violation of the constitutional rights guaranteed under Articles 9 and 14 of the Constitution. The most hardened offender, regardless of the nature of his/her offence, has to be treated as a human."
27. The mere fact that the room where the petitioner is confined in the sub-jail is guarded by a prison ward does not mean that the petitioner is not in isolation. In the case of Begum Shamim Afridi Vs. The Province of Punjab (PLD 1974 Lahore 120), solitary confinement has been termed not just as a punishment but as torture which is specifically prohibited by Article 14 of the Constitution.
In the case of Sunil Batra Vs. Delhi Administration (AIR 1980 SC 1579), Krishna Iyer J. held that "harsh isolation from society by long, lonely, cellular detention is penal and so must be inflicted only consistently with fair procedure." Being kept in isolation was obviously not part of the sentence awarded by any Court of law to the petitioner. In the case of Sunil Batra Vs. Delhi Administration (supra), it was also observed that "it is the Court's concern, implicit in the power to deprive the sentences of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens." It was also held that the Court has the power and responsibility to intervene and protect the prisoner against inter alia harsher restraints and heavier severities than the sentence carries. As mentioned above, the sentence of fourteen years rigorous imprisonment awarded to the petitioner by the learned Accountability Court in Reference No.20/2023 has already been suspended by this Court, whereas the sentence awarded by the Judicial Magistrate is of seven years of simple imprisonment. By keeping her in isolation at the sub- jail and depriving her of interaction with other prisoners, the State has not just made the sentence of simple imprisonment harsher and heavier but has also transgressed the petitioner s right to life guaranteed under Article 9 of the Constitution.
28. The United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) were adopted by the United Nations General Assembly through Resolution 70/175, dated 17.12.2015. Rule 43 of the said Rules prohibits indefinite solitary confinement and prolonged solitary confinement. Since the said Rules are consistent with the fundamental rights enshrined in Chapter- 1 of the Constitution, Courts in Pakistan have to show deference and respect to such Rules in terms of the law laid down by the Hon'ble Supreme Court in the case of Al-Jahad Trust Vs. Federation of Pakistan (1999 SCMR 1379). In the case at hand, the learned State counsel did not give any indication as to the period for which the petitioner was to be kept in the prevailing conditions.
29. The entire residential premise known as Khan House has been declared as a sub-jail. What this implies is that the said property cannot be freely accessed by the petitioner's children / family members or her husband's children / family members unless specifically permitted by the Superintendent and/or the Court. In other words, the impugned notification dated 31.01.2024 has had the effect of requisitioning the said property in its entirety. The said property is admittedly in the use of government officials who have been assigned the responsibility of internal and external security of the premises. The Inspector General of Prisons, Punjab, in his report, has stated that the internal security arrangement is within the domain of the Punjab Prisons and in this regard, a lady Assistant Superintendent, Jail along with female watch and ward staff have been deputed at the premises, whereas the external security is within the domain of the local police. There is nothing on the record to show that the consent of the owner of the said property was obtained before the issuance of the impugned notification dated 31.01.2024 by the office of the Chief Commissioner, ICT.
In this way, the State has deprived the owner of Khan House of his fundamental right enshrined in Article 24 of the Constitution and remains under an obligation to adequately compensate him for such deprivation. In the case of D. Bhuvan Mohan Patnaik Vs. State (AIR 1974 SC 2092), Chandrachud J. held as follows:- "Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practise a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."
(Emphasis added)
30. Article 24(2) of the Constitution does not just prohibit the compulsory acquisition of property but also its possession being taken over, save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given. By declaring Khan House as a sub-jail, the State has virtually taken over possession of that property. There is nothing on the record to show whether the consent of the owner of Khan House was obtained before its declaration as a sub-jail. The learned State counsel did not come-up with any plausible explanation when asked whether the State would be paying compensation to the owner of Khan House for declaring it as a sub-jail. Such wanton usurpation of private property with no compensation is clearly violative of Article 24(2) of the Constitution.
31. In view of the aforementioned, the instant petition is allowed; the impugned notification dated 31.01.2024 issued by the Office of the Chief Commissioner, ICT declaring a private property known as Khan House as a sub-jail only for the purposes of confining therein the petitioner, is declared to be without lawful authority and of no legal effect; and the respondents are directed to forthwith transfer the petitioner to Adyala Jail where she is to serve the sentence of seven years simple imprisonment awarded to her by the Judicial Magistrate, vide judgment dated 03.02.2024. The State shall bear the petitioner's costs.