P L D 2020 Lahore 622 (PLP)

Main Case C.M.No.1/2020 MAMOON RASHID SHEIKH, C.J.

The instant petition was filed by the petitioner, the brother of one Muhammad Sarfraz son of Muhammad Hussain, a condemned prisoner, who at the relevant time was confined in the Central Jail, Rawalpindi. However, subsequent to filing of the petition Muhammad Sarfraz was executed, on 10.05.2016, in furtherance of the sentence of death passed upon him.

2. The learned counsel for the petitioner submitted that the petition was initially filed for a direction to be issued to the respondents/Jail Authorities to allow Muhammad Sarfraz to execute a fresh Vakalat Nama in order to pursue the further legal remedies available to him.

3. The learned counsel further submitted that the Jail Authoriteis had detrmined that since Muhammad Sarfraz's appeal as well as review petition before the Hon'ble Supreme Court and even his mercy petition before the President of Pakistan had been dismissed/declined, therefore, Muhammad Sarfraz did not have any remedy under the law or the Constitution, hence, the execution of a fresh Vakalat Nama by him in favour of his counsel would be an exercise in futility.

4. The learned counsel further submitted that Muhammad Sarfraz was seventeen (17) years of age at the time of occurrence and subsequent arrest. Muhammad Sarfraz was entitled to grant of special remission to juveniles sentenced to death prior to promulgation of the Juvenile Justice System Ordinance, 2000, under the Presidential Notification, dated 13.12.2001. However, due to various reasons the benefit of the said Notification could not be given to Muhammad Sarfraz. The petitioner's attempt for execution of a fresh Vakalat Nama by Muhammad Sarfraz also did not prove fruitful.

5. The learned counsel further submitted that there are several instances where condenmed prisoners may have a right under the law to pursue their case even after the refusal of their mercy petition but the Jail Authorities normally do not allow condemned prisoners to execute a fresh Vakalat Nama, so that their case may be pursued further.

6. In view of the above, the instant petition was treated as public interest litigation and notice was issued to the respondents/Jail Authorities.

7. The Assistant Inspector General (Judl.) Prisons entered appearance on behalf of the respondents and submitted that keeping in view all the issues raised through the instant petition, in particular and the difficulties faced by prisoners in general, a new Policy and a Standard Operating Procedure (SOP) in respect of attestation of Powers of Attomey/Vakalat Namas executed by prisoners was formulated by the Inspector General of Prisons, Punjab and promulgated through Memo No.Lega1/2018/51483- 510, dated 25.06.2018.

8. Further submitted that the Policy and SOP was framed for creating convenience for prisoners and their relatives for the purposes of visitation and providing duly signed Powers of Attorney of prisoners in a reasonable and speedy manner, whilst keeping in view the provisions of Articles 9 and 14 of the Constitution of the Islamic Republic of Pakistan, 1973, and Rule 92 of the Pakistan Prisons Rules, 1978, and Rule 61(1) of the United Nations Standard Minimums Rules for the Treatment of Prisoners (the Nelson Mandala Rules).

9. Further submitted that the SOP was circulated throughout the prisons and to all the Jail Authorities of the Punjab. Copies were also sent to all Bar Associations within the Province as directed through the order, dated 26.06.2018, passed in W.P.No.1307/2018, at the Rawalpindi Bench.

10. A perusal of the SOP, however, revealed that the issues raised through the instant petition were not addressed therein.

11. As a consequence, a direction was issued to the respondents to hold a meeting with the learned counsel for the petitioner and to make amendments in the Policy/SOP in order to cater for the issues raised in the petition. A number of meetings were held in this respect. And a draft was agreed upon. Today a copy of the amended Policy and the SOP duly approved by the Inspector General of Prisons, Punjab (respondent No.3), and issued through Memo No.Legal/2020/18307-56, dated 05.03.2020, has been submitted by the Assistant Inspector General (Judl.) Prisons.

12. The said copy of the amended Policy and SOP, is placed on the record and is marked as Mark-C.

13. The Assistant Inspector General (Judl.) Prisons, submits that the amended Policy/SOP takes care of all the issues raised in the instant petition and by the learned counsel for the petitioner in respect of prisoners in general and condemned prisoners in particular. Clauses-'0 to S' of the SOP specifically deal with condemned prisoners.

14. The learned counsel for the petitioner submits that the amended Policy/SOP takes care of the issues raised by her through the petition and otherwise. However, she has certain reservations regarding the wording of Clause-R, whereby the Superintendent of Jail has been given absolute discretion to accommodate counsel, the legal heirs, friends and family of the condemned prisoners for signing of Powers of Attorney/Vakalat Namas. Submits that the permission for signing of Powers of Attorney should be mandatory rather than at the discretion of the Superintendent.

15. The Assistant Inspector General (Judl.) Prisons, submits that Clause-R has been framed in line with the Pakistan Prisons Rules, 1978, which only empower the Jail Superintendent to exercise his discretion in accordance with the law in the given circumstances. No absolute power has been conferred upon the Jail Superintendent.

16. I have examined Clause-R as also Rules 543 and 545 of the Pakistan Prisons Rules, 1978, and find that although the power for exercise of discretion in the matter has been conferred upon the Jail Superintendent, yet the exercise of discretion is neither to be arbitrary, nor whimsical nor fanciful but strictly in accordance with the law, in the given circumstances obtaining in a particular case.

17. In view thereof, I am sanguine that the Jail Superintendent concerned shall follow the law in letter and spirit whilst exercising discretion under Clause-R of the Policy/SOP.

18. For ease of reference the relevant portions of the amended Policy/SOP, dated 05.03.2020, are being reproduced hereunder- "From The Inspector General of Prisons, Punjab, Lahore. To

1. The D.I.G. Prisons of all Regions in the Punjab.

2. The Superintendents of all jails in the Punjab. Memo No.Legal/2020/18307-56 Dated Lahore the 05-03-2020 Subject: POLICY ON ATTESTATION OF POWER OF ATTORNEY 2018 (AMENDMENT IN 2020). In continuation of this Inspectorate Memo No.Legal/2018/ 51483-510 dated 25.06.2018 on the subject. (1) Legal Framework (a) This policy aims to creating convenience to the prisoners, their relatives for visitation and providing duly signed power of attorney of prisoners in a reasonable and respectable manner in accordance with their fundamental rights granted to them under Article 9 read with Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973. (b) In this regard, Rule 92 of Pakistan Prisons Rules, 1978 reads: Every convicted prisoner shall be allowed reasonable opportunity of interviewing his relatives, friends and legal advisers for the purpose of preparing his appeal. Each such interview shall be allowed within sight, but out of hearing of the prison official supervising the interview. If a relative or agent of the convicted prisoner undertakes to submit an appeal on his behalf, the arrangement must be authorized by a power of attorney to which the convicted prisoner shall affix his signature or thumb-impression. This shall be attested by the Superintendent or in his absence by the Deputy Superintendent. (c) Rule 61(1) of the United Nations Standard Minimums Rules for the Treatment of Prisoners (the Nelson Mandala Rules) says: Prisoners shall be provided with adequate opportunity, time and facilities to be visited by and to communicate and consult with a legal adviser of their own choice or a legal aid provider, without delay, interception or censorship and in full confidentiality, on any legal matter, in conformity with applicable domestic law. Consultation may be within sight, but not within hearing of prison staff. (2) Standard Operating Procedure (SOP) (A) Superintendent Jail is responsible to display sign board containing all necessary guidelines, rules and regulations regarding power of attorney/wakalat nama at outer/main gate of the Jail. (B) The Superintendent Jail shall install "Wakalat Nama Box" at outer gate or waiting shed wherein the relatives or the legal counsel could insert Wakalat Nama in it. (C) The Superintendent Jail shall depute an official and specify a register namely Wakalat Nama Register. The Deputy Superintendent jail will ensure the presence of the official/warder at the place of his duty at 08-00 A.M. who shall open the said Wakalat nama box twice a day. (D) After collection of the power of attorney, the deputed official will hand over the same to the Day Duty Officer/In-Charge Central Tower. (E) Day Duty Officer/In-Charge Central Tower shall send the power of attorney to the barrack In-Charge concerned. (F) The Barrack In-Charge shall get thumb impression/signature of the prisoner on the power of attorney in his presence and shall send back to the Day Duty Officer/In-Charge Central Tower. (G) The Deputy Superintendent (Judicial) shall verify and attest the signature/thumb impression of the prisoner on the power of attorney in the presence of the prisoner concerned and shall hand it over to the deputed Warder. (H) The deputed Warder will hand-over the attested power of attorney to the lawyers and relatives of the prisoners at the main gate/reception after registering the data of collecting person i.e. lawyers/relatives on the Wakalat Nama register. (I) The Process of thumb impression/attestation of power of attorney/Wakalat Nama should be divided in two phases. In 1st phase, the Power of Attorney/Wakalat Nama shall be collected from the legal heirs or counsel of the petitioner/prisoner from 08-00 A.M. In 2nd Phase, it must be collected from 11-00 A.M. to 12-00 P.M. and returned back to the relatives at about 01-00 P.M. (J) Assistant Superintendent in-Charge reception at each jail will be the contact person for relatives and the legal heirs/counsel of the prisoners. Assistant Superintendent Interview/reception is duty bound to supervise the system under supervision of Duty Superintendent (Judicial). (K) All particulars of the legal heirs/counsel must be recorded on the Wakalat Nama register. The official should get signature of the legal heirs/counsel of the prisoners while collecting or returning the Power of Attorney/Wakalat Nama with time and date. "Wakalat Nama Register" must be countersigned/ seen by the Superintendent Jail on daily basis. (L) The whole process must be completed under the supervision of Deputy Superintendent Jail (Judicial). (M) The particulars of legal heirs/counsel of the convicted prisoners, if any, will be recorded in the Register No.2 in case the Power of Attorney/Wakalat Nama is required to file an appeal before a court of appellate jurisdiction. However, the Superintendent Jail should accommodate the convicted prisoners in case of change of his/her legal counsel. (N) To avoid any wrongful doing regarding the attestation of power of attorney, the specimen signatures of Deputy Superintendent (Judicial) and his substitute should be available in the learned court of District and Sessions Judge and other courts of the district. Condemned prisoners whose Mercy Petitions have been rejected. (O) At the time of submitting a request to the Sessions Court to fix a date of execution on the Black Warrant issued by the said Court, the Superintendent Jail must ensure that Mercy Petition of the condemned prisoner has been duly rejected by the President of the Islamic Republic of Pakistan or the Chief of the Army/Air/Naval Staff as the case may be, his/her death sentence has been duly confirmed by the High Court of the province and his appeal as well as review petition on any grounds, if so preferred by him/her, has duly been rejected by the Supreme Court of Pakistan. (P) The Superintendent jail must ensure that if there is any request for the signing of a Power of Attorney documents on behalf of a condemned prison, the request subject to willingness of the prisoner must be expedited and entertained during all working hours of all working days. (Q) The Superintendent jail must ensure that each condemned prisoner has been provided due legal access and ability to communicate with his/her legal representatives, family and friends as per Pakistan Prison Rules, 1978. Reasonable opportunities and facilities must be provided to the condemned prisoners to effect a compromise with legal heirs of the deceased. In this regard, rule 543 of Pakistan Prison Rules, 1978 provided that: Every prisoner under sentence of death shall be allowed to interview and communicate with his relatives, friends and legal advisor as the Superintendent may think reasonable. One interview and one letter may normally be allowed. If desired by the prisoner, the Superintendent may request the District Magistrate of the prisoner's district to communicate his desire for an interview with his relatives or friends. (R) In line with rule 545 of Pakistan Prisons Rules, 1978, the Superintendent may, at his discretion grant interviews liberally or allow the dispatch of letters at shorter intervals than provided in the preceding rule

543. Besides, in exceptional circumstances and death cases, the Superintendent Jail may at his discretion accommodate counsel, the legal heirs, friends and family for signing of Power of Attorney. (S) The Superintendent Jail will be responsible to ensure the implementation of the above amended policy in letter and spirit. Sd/-- INSPECTOR GENERAL OF PRISONS PUNJAB, LAHORE Endst.No.Lega1/2020/18357-59 dated Lahore, the 05-03-2020"

19. The petition is accordingly disposed of with a direction to the Inspector General of Prisons, Punjab, to forthwith circulate the amended Policy/SOP, throughout the prisons in the Province of the Punjab and amongst all the Jail Authorities in the Province of the Punjab. The Superintendents of all Jails within the Province are directed to comply with the amended Policy/SOP in letter and spirit. The Inspector General of Prisons is further directed to send copies of the amended Policy/SOP to the Pakistan Bar Council, the Punjab Bar Council and all the Bar Associations within the Province at the earliest. A copy of this order be also circulated amongst the District Judiciary. MH/M-59/L Order accordingl