MALIK MUHAMMAD QAYYUM, J.- The petitioner was sentenced to death by the Special Court No. l2 constituted under the Speedy Court for Speedy Trial Act (XV) of 1987, in absentia on 24th December, 1987. He was arrested and admitted to Central Jail, Kot Lakhpat, Lahore, on 9th October, 1989. In the meantime, the President of Pakistan by issuing a Presidential Proclamation had commuted certain sentences of death into imprisonment for life. Though originally the petitioner was considered to be a condemned prisoner, but in view of the Presidential Proclamation, he was removed from the death cell and treated as having been sentenced to imprisonment for life.
2. In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the grievance raised by the petitioner is that he was being treated as a dangerous person without any justification whatsoever by the respondents. In the report and parawise comments submitted by the respondents, it has been stated that the petitioner falls under the definition of 'dangerous prisoner', as there was another murder case registered against him and also for the reason that he had absconded after his conviction by the Special Court and was declared as a proclaimed offender. Reliance has been placed by the respondents on memorandum dated 8th September, 1981, from the Inspector General of Police, Punjab,. To all Superintendent of Jails wherein, the criteria approved by the Government for declaring a prison to be dangerous for security purposes has been reproduced.
3. The establishment, the management, the consignment, treatment and transfer of prisoners, maintenance of discipline and other allied matters are regulated inter alia by the Prisons Act, 1894 (Act IX) of 1894 and the Prison Act, 1900 and by the Prison Rules framed thereunder. According to rule 723 of the Pakistan Prison Rules, special pre-cautions are to be taken for safe custody of dangerous prisoners and certain rules prescribed thereunder are to be strictly observed. This rule was, However, amended by notification No.3/23 SO-II- HD/81, issued on 2nd October, 1987 and according to the amended rule, it applies to the dangerous prisoners declared as such by the Superintendent of Jail.
Prior to the amendment of this rule, there was no requirement that the prisoner should have been declared as dangerous by the Superintendent of Jail for the purposes of this rule. However, by the amendment, it was specifically provided that the rule applies to those prisoners who have been declared as dangerous by the Superintendent of Jail. Consequently, in view of this amendment, the provisions of rule 723 can be only invoked by the Jail Authorities, if a declaration has been made by the Superintendent that the prison is dangerous,. In the present case, it has been conceded by Sibte Hassan Naqvi, Superintendent, Central Jail, Kot Lakhpat, Lahore, that no declaration in the terms of rule 723 of the Pakistan Prisons Rules, has been made by him in respect of the petitioner.
That being so, the petitioner cannot be treated as a dangerous prison within the meaning of rule 723.
4. As regard the memorandum dated 8th September, 1981, it merely lays down the criteria on the basis of which a person can be declared to be dangerous for security purposes. This memorandum, however, does not obviate the necessity of declaration under rule 723 by the Superintendent of Jail.
5. The learned Additional Advocate-General also relied upon rule 382 of the Prison Rules to contend that the petitioner could be treated as a dangerous person. This rule, However, does not advance the case of the respondent for it merely requires the Superintendent of Police to inform the Superintendent of Jail about the background and dangerous character. It does not empower the Jail Authorities to treat a person as a dangerous without making the declaration under rule 723 of Pakistan Prison Rules.
As a result of what has been stated above, this petition is accepted and the action of the respondent in treating the petitioner as a 'dangerous prison' is declared to be without lawful authority and of no legal effect. It shall, however, be open to the respondent to proceed afresh in the matter in accordance with law. There shall be no orders as to costs.