1. ' The State, through Advocate-General, Sindh, has invoked the revisional jurisdiction of this Court by the present Criminal Revision Application under section 439, Cr.P.C. Read with section 561-A of Cr.P.C. Against the order dated 4-6-1998 passed by learned Sessions Judge, Karachi West. By the impugned order the respondent has been allowed the facility of air-conditioner on medical ground, on his own expenses.
2. ' Short but precisely relevant facts leading to the present revision application are that the respondent Senator Asif Ali Zardari, is facing his trial alongwith others as U.T.P. In Session Case No,198 of 1998 State v. Wajid Ali Durrani and others, commonly known as Mir Murtaza Bhutto's case, before Sessions Judge, Karachi West. During the trial, an application was moved on behalf of the respondent for air-conditioner facility in the room inside the jail where he is confined, on medical ground. The application was supported by certificate issued by jail Doctor Zarnaz Waheed, who had examined the respondent on 14-4-1998, in respect of his skin trouble (deases) on foot, knee, chest and back of his body. The doctor prescribed medication and also advised precaution as well as living conditions for cure as follows:-
(i) Medication--Abil, Fucicort Cream, Tab. Xanax 0.50 mg. And Rashnil cream.
(ii) Relax, avoid emotional upset, sweating strong soap spicy food, hot weather and humid environment.
(iii) Stay preferably in cool room by AC/Room Cooler.
3. ' The learned Sessions Judge after hearing the party, allowed the application and granted the facility to the respondent, the operative part of the impugned order reads as follows:-- "In exceptional cases the Court has jurisdiction to grant such relief, if found necessary and if the prayer is genuine and in this particular case and the doctor has advised U.T.P. Asif Ali Zardari to be facilitated with air-conditioner or air-cooler, therefore, only on the point of medical ground this facility is being provided to U.T.P. Through Superintendent Jail, Central Prison."
4. ' The State being aggrieved by the above order, has filed the present revision application.
5. ' The grounds urged in support of the application are that under the Prison Rules, 1978 (hereinafter referred to as the rules), the U.T.Ps. Have been classified in two classes (i) Better class (ii) Ordinarily class. The respondent being a member of Senate, comes amongst the better class/superior class and is entitled to the facilities permitted to such category of U.T.Ps. In terms of rules 259 to 264 and
270. He can avail the facility of electric fan (rule 264), if not provided during the summar season.
6. The items of luxury are not permitted under rule 270. There is no provision for air-conditioner facility to superior class prisoners. The order passed by the learned Sessions Judge is not warranted under the law and lacks proper reasons.
7. ' The learned Advocate-General addresses the Court in support of the revision application, whereas Mr. Azizullah Shaikh, Advocate addressed in support of the impugned order.
8. ' During hearing of the application (1) affidavit of Mr. Ghualm Mustafa Khar, ex-Federal Minister has been placed on record, stating that the facility of air-conditionef was provided to him during his detention in Adeyala Jail in the year 1987-88, on medical ground.
9. ' The statement of Mr. Azizullah Shaikh, Advocate, has also been placed on record that during the trial of M.N.A., M.P.A.And office-bearers of defunct N.A.P. The following U.T.P. Were provided the facility of air-conditioner under the Court's order, including Mr. Azizullah Shaikh, who was also facing his trial:--
(1) Khan Abdul Wali Khan.
(2) Mir Ghous Bux Bizinjo.
(3) Nawab Khuda Bux Khan Marri.
(4) Sardar Attaullah Khan Mengal.
(5) Arbab Sikandar Khan Khalil.
(6) Muhammad Afzal Khan.
(7) Mr. Kaswa r Gardezi (on medical ground).
10. ' In reply to the affidavit and statement, a counter-affidavit of Mr. Abdul Majeed, Superintendent of Central Prison, Karachi has been filed, in which he has admitted that the air-conditoner facility to the U.T.Ps. Of Hyderabad trial were provided under the direction of the Court. He has also admitted that Ghulam Mustafa Khar was provided the facility of air-conditioner during his confinement in Adeyala Jail but he was unable to ascertain under what circumstances such facility was provided.
11. ' It has been admitted that the respondent has been provided the facilities of (i) Fridge to keep the medicine and (ii) Physiotherapy Machine, on medical grounds under the Court's order on Government expenses (costs of Physiotherapy Machine about one million), as the respondent is also suffering from other ailment apart from skin disease.
12. ' The learned Advocate-General in support of the revision application maintained that the learned Sessions Judge has exceeded the jurisdiction by granting the facility of air-conditioner against the rules. He referred the rules 259 to 264 and rule 270 and contended that the respondent being a superior class U.T.P. Is entitled to the facilities under the aforesaid rules only. He further contended that items of luxury are prohibited under the rule 270, which deals with (i) accommodation, (ii) diet,
(iii) clothing and (iv) other concessions available to superior class U.T.P.
13. ' Secondly, he contended that doctor has not opined with air-condition facility is necessary to save the life of the respondent as such, the learned Sessions Judge has erred in granting the relief.
14. ' On above premises, the learned Advocate-General contended that the learned Sessions Judge exceeded its jurisdiction, the same be rectified in revisional jurisdiction of this Court.
15. ' Mr. Azizullah Shaikh, learned counsel for the respondent supported the impugned order and maintained that the learned Sessions Judge was within its jurisdiction in passing the order warranted under the circumstances of the case. He maintained that the ailment of the respondent is not disputed, the medical report of the jail doctor has not been challenged. Medical Officer has prescribed the medicine and also advised certain precautions and other measures for recovery from the ailment. The doctor in clear terms has opined evidence to avoid the hot weather and cool atmosphere by air-conditioner/room cooler. He further maintained that such facilities have been provided to U.T.P. Under the Court's order on medical ground. He referred the affidavit of Ghulam Mustafa Khar as well as his own statement, which have not been rebutted. He also pointed out that the facility of Fridge and Physiotherapy machine has been provided to the respondent on medical ground under Court's order. These facilities are not available under the rules.
16. ' He contended that the facility has been provided on medical ground, in absence of anything in rebuttal or the same remained unchallenged, the Court was within its jurisdiction to grant the application moved on behalf of the respondent. He maintained that superior Courts have accepted the medical report and granted the relief. He referred the cases of (i) Khalid Umar v. The State 1989 M LD 4938 and (ii) M. Ismail Shaikh v. The State 1993 SCM R 1460.
17. ' In above cases, for the purpose of bail, the report of Medical Officer/Board about the ailment were accepted in absence of challenge to the authenticity of the report. On the last leg, Mr. Azizullah Shaikh, maintained that the respondent is in custody of jail authority under warrants of the Court under section 344 of Cr.P.C., the Court is competent to pass order in a given circumstances warranting the facility on medical ground.
18. ' The order under revision has been attacked by learned Advocate-General on the ground that the facility of air-conditioner is alien to the rules. Secondly, the facility was not necessary as the doctor has advised cool room preferably A/C or Room Cooler, as such the order was passed in excess of the jurisdiction.
19. ' The learned Advocate-General has emphasised that items of luxury are prohibited under rule 270, which reads as follows:-- "270. (i) Accommodation.--As far as possible they will be provided with accommodation superior to that provided for "C" class convicted prisoners.
(ii) Diet.--They shall be allowed the same diet and prescribed for B Class prisoners. They may supplement it at their own expense provided that the food so obtained is of a simple character.
20. Alcohol, intoxicating drugs and articles of luxury shall not be permitted.
(iii) Clothing.--Prisoners inadequately clad and who are unable to obtain clothing from private source be provided with B-Class clothing at Government expense. They may be allowed their own beddings at the discretion of the Superintendent.
(iv) Other concessions.--Subject to the discretion of the Superintendent, superior class under trial prisoners may be provided with ordinary furniture as is allowed to B Class prisoners. They will ordinarily be permitted to obtain books, magazines and newspapers, subject to censorship by the Superintendent, and allowed the use of a light up to 10 p.m.
(v) Their letters will be subjected to censorship in exactly the same way as those of ordinary undertrial prisoners.
(vi) All other rules pertaining to ordinary undertrial prisoners shall also apply to superior class undertrial prisoners."
21. ' On plain reading of the above rule, it would be clear that alcohol, intoxicating drugs and items of luxury are prohibited.
22. ' The learned Sessions Judge granted the facility to the respondent, as apparent from the operative part of the order, on medical ground as the facility was found to be necessary and genuine.
23. The respondent neither has approached the Court nor the Court granted the facility under the rules but on medical ground. The facility so granted is neither permitted nor prohibited under the rules, so is the position of facility of Fridge and Physiotherapy Machine, as apparent from the plain reading of the rules 690 and 691, listing the prohibited items/articles, in terms of section 42 and clause (12) of section 45 of the Prisons Act, 1894, which are reproduced as under:-- "690.--The articles specified or included in any of the descriptions contained in the list annexed to this rule, shall be deemed to be prohibited articles, within the meaning of section 42 and clause
(12) of section 45 of the Prisons Act, 1894, unless any such article shall be--
(a) introduced into any prison;
(b) removed from any prison;
(c) supplied to any prisoner outside the limits of any prison, or
(d) received, processed or transferred by any prisoner, with the permission of the Superintendent or other officer empowered by him in this behalf.
24. ' List of prohibited articles---
(1) Spirituous liquors of every description;
(2) all explosives, intoxicating or poisonous substances and chemicals, whether fluid or solid of whatever description;
(3) all arms and weapons and articles which are capable of being used as weapons of whatever description;
(4) all bullion, metal, coin, jewellery, ornaments, currency notes, securities and articles of value of every description;
(5) all books, papers and printed or written matter and materials (specially prohibited by the Provincial Government) and appliances for printing or writing of whatever description;
(6) string, ropes, chains, bamboos and all materials which are capable of being converted into string or rope or chain, any article likely to facilitate escape, or implement of any kind;
(7) wood, bricks, stones, and earth of every description. Further rule defining and regulating prohibited articles; ' Rule 691.--Every article, of whatever description shall be deemed to be a prohibited article within the meaning of section 42 and clause (12) of section 45 of the Prisons Act, in the case of:
(i) A prisoner--if introduced into or removed from any prison or received, possessed or transferred by such prisoner, and such article has---
(a) not been issued for his personal use from prison stores or supplies, under proper authority;
(b) been so issued, if possessed or used at a time or place other than such as is authorised; or
(c) not been placed in his possession for introduction, removal or used as the case may be, by proper authority.
(ii) A prison official--if introduced into or removed from any prison or supplied to any prisoner and such article--
(a) has not been issued or sanctioned for his personal use by proper authority;
(b) is not an article of clothing necessary for his personal wear; or
(c) has not been placed in his possession by proper authority for introduction into or removal from the prison or for the purpose of being supplied to any prisoner.
(iii) A visitor--if introduced into or removed from any prison, or supplied to any prisoner and such article--
(a) is not required for his personal use while within the prison and has not been declared by him before entering the prison, and the introduction, into or removal from the prison, or possession of which while in prison, has not been permitted by proper authority;
(b) is introduced, with or without authority and is not retained in his possession until he has left the prison premises; or
(c) comes into his possession while Within the prison, and is subsequently removed by him from the prison.
(iv) Any other person--if introduced into or 'removed from any prison, or supplied to any prisoner, whether within or without the prison."
25. It has not been disputed that the facility of air-conditioner has been provided to U.T.Ps. Under Court's order on medical ground. The respondent is suffering from various ailments including the skin disease. The jail doctor has prescribed medicine simultaneously advised certain precautions such as to avoid sweating, emotional upset and hot weather and recommended stay in cool room, preferably air-conditioned room/room cooler. The authenticity of the medical report has not been challenged. Other facilities, such as, Fridge and Physiotherapy Machine have been provided to the respondent under the order of the Court, on medical ground, on Government expenses.
26. ' So far the report of the Jail Superintendent pursuant to the Court's order to the effect that none out of 28 superior class of U.T.P. Have been provided the facility of air-conditioner is concerned, no doubt the respondent being a member of Senate is superior class prisoner but the facility has been granted to him on medical ground. On the ground of disparity amongst the prisoners of superior class, the facility on medical ground cannot be withheld.
27. ' The revisional jurisdiction could be exercised by this Court in exceptional cases, when the interest of justice require interference for correction of manifest illegality or prevention of gross miscarriage of justice.
28. ' In the circumstances stated above, the impugned order, providing the facility of air-conditioner through Jail Superintendent, on the expenses of the respondent on medical ground, cannot be termed to be illegal or without jurisdiction warranting the exercise of revisional jurisdiction of this Court.
29. ' The revision application has no merits and liable to be dismissed, resultantly the same is dismissed.
30. ' The stay granted on 11-6-1998 is vacated.