P L D 2023 Lahore 19 (PLP)

TARIQ SALEEM SHEIKH, J.

The Petitioner and Muhammad Ilyas were accused of the murder of Muhammad Yaqub in case FIR No.5/2006 dated 06.01.2006 registered at Police Station Nowshehra Virkan, District Gujranwala. They were tried by the Additional Sessions Judge, Gujranwala, who convicted them under sections 302/34, P.P.C. vide judgment dated 03.11.2008 and sentenced the Petitioner to life imprisonment and Muhammad Ilyas to capital punishment. They assailed their conviction and sentence through Criminal Appeal No.1256 of 2008 in this Court while the Additional Sessions Judge submitted reference under section 374 Cr.P.C. This Court decided these matters vide judgment dated 04.06.2013 upholding the convictions. It maintained the Petitioner s sentence but converted the death penalty of Muhammad Ilyas to life imprisonment. Both the convicts filed Jail Petition No.297/2013 in the Hon ble Supreme Court of Pakistan that was dismissed on 26.10.2015.

2. The Petitioner is presently confined in the Central Jail, Lahore. According to the Medical Officer s report dated 21.11.2020, he is suffering from a chronic liver disease with splenomegaly ascites and a paraumbilical hernia. Although he is receiving appropriate medical care, his health is continuously declining. On 8.12.2020, the Petitioner made an application under section 401, Cr.P.C. to the Additional Chief Secretary (Home), Government of the Punjab, for suspension/ remission of his sentence which was dismissed vide order dated 09.04.2021 (the Impugned Order ). Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution ), he has assailed the said order before this Court.

3. This Court issued notices to the Respondents and asked them to submit para-wise comments to this petition, which they did. Dr.M. Aslam Khaki, Advocate, was appointed amicus curiae.

4. The Petitioner had not arrayed Liaquat Ali, the Complainant of FIR No. 5/2006, as a respondent in this case. On 6.12.2021, this Court directed that he should be impleaded as Respondent No.4 and issued him notice but he did not join the proceedings.

5. According to the record submitted to this Court, the Petitioner is being treated at the Jail Hospital and, since March 2020, he is taken to the Jinnah Hospital, Lahore, as an outdoor patient every two weeks. Additionally, he underwent four examinations at the Pakistan Kidney and Liver Transplant Institute and Research Centre, Lahore (PKLI), on 9.12.2021, 13.12.2021, 15.12.2021 and 31.12.2021. The latest investigations show that he has advanced liver disease with Child Pugh Turcotte (CTP) score of around 8 - 9 CTP (Class B) and needs to be on regular follow-up.

6. Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General, states that the Petitioner s application under section 401, Cr.P.C. was not maintainable as it was not accompanied by any document showing that the legal heirs of Muhammad Yaqub deceased had no objection if his sentence was suspended or remitted. According to him, section 402-C, Cr.P.C. bars the President of Pakistan, the Federal Government, and the Provincial Government from suspending, remitting or commuting the sentence of a prisoner who is convicted of an offence under Chapter XVI of the Pakistan Penal Code, 1860 (the P.P.C. ), unless the victim or, as the case may be, his heirs give their consent. The learned Law Officer submits that because of the above shortcoming, the Additional Chief Secretary considered the Petitioner s request under section 2 of the Good Conduct Prisoners Probational Release Act, 1926 (the Probational Release Act ), but Executive Order No.47 issued by the Director General, Punjab Probation and Parole Service, Lahore, stood in his way. The said Executive Order prohibits the release of a prisoner on parole suffering from any serious illness. The learned Law Officer maintains that the Government s hands are tied, and it cannot provide any relief to the Petitioner.

7. Dr. M. Aslam Khaki, the learned amicus curiae, submits that Islam ordains that the prisoners should be treated with compassion. It is true that section 402-C, Cr.P.C. bars relief to the convicts undergoing punishment for offences relating to the human body unless the victim or his legal heirs give their consent but the present case is extraordinary and should be dealt with sympathetically. Since the Petitioner is distressed, the authorities should be directed to submit his case to the President of Pakistan under Article 45 of the Constitution for the remission of sentence. The learned amicus curiae contends that the President s powers are overarching and cannot be hedged by section 402-C, Cr.P.C. as it is a sub-constitutional legislation. Discussion

8. A number of Verses in the Holy Quran deal with the prisoners. Surah Muhammad Verses 4 and 5 are the most normative verses concerning the prisoners of war.1 They say: When you meet the unbelievers on the battlefield strike off their heads and, when you have laid them low, bind your captives firmly. Then grant them their freedom or take a ransom from them until the war shall lay down her burdens. According to Maududi, the above Verses ordain that during the battle the believers should focus exclusively on destroying the enemy s power but they must not kill the captives when it is over. They should either release them for ransom or exchange them for Muslim prisoners. It also asks them to be kind to the prisoners. Maududi says that Islam restored the dignity of prisoners when they were looked upon, fettered and paraded in the streets.2

9. The following two passages from the Holy Quran also mandate that prisoners should be treated humanely and benignantly. Their language suggests that they apply to all categories and are not limited to war prisoners. Surah Al-Maidah, Verses 5, 8-10: But the righteous [5] give sustenance to the destitute, the orphan, and the captive, [8] saying: we feed you for Allah s sake only; we seek of you neither recompense nor thanks; [9] for we fear from Allah a day of anguish and of woe.[10] Surah Bani Israil, Verse 71: Prophet, say to those you have taken captive: If Allah finds goodness in your hearts, He will give you which is better than what has been taken from you, and He will forgive you. Allah is forgiving and merciful.

10. The teachings of Prophet Muhammad (peace be upon him) are also to the same effect. He said: Translation: Listen the advice that you treat the prisoners fairly.

11. During World War II grave atrocities were committed against the captives which became a worldwide concern and led to the demand for recognition of the prisoners rights. Resultantly, the law in this respect has gradually developed. Article 55 of the United Nations Charter set the tone when it envisaged universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. This was followed by Article 5 of the Universal Declaration of Human Rights 1948 which proclaimed that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article XXV of the American Declaration of the Rights and Duties of Man (1948), in pertinent part, provided that [e]very individual who has been deprived of his liberty has the right to humane treatment during the time in his custody ; and Article XXVI stated that an accused has the right not to receive cruel, infamous or unusual punishment. However, the Geneva Conventions of 1949 codified the laws of war and laid the foundation for the global protection of prisoners of war. Geneva Convention III expressly outlined the protections that should be provided to all prisoners of war. It states that they must at all times be humanely treated.

12. The Preamble of the World Health Organization Constitution (1946) is also relevant to the discourse. It says: The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

13. In addition to the foregoing, several other multilateral human rights treaties, United Nations resolutions and agreed model standards and guidelines adopted by the UN General Assembly address prisoners rights. Some apply exclusively to prisoners while others have only a few prisoner-specific provisions among their general human rights provisions. 3 In this context, the following instruments require special mention: (i) European Convention for the Protection of Human Rights and Fundamental Freedoms (1953);4 (ii) International Covenant on Civil and Political Rights (ICCPR) (1966); (iii) International Covenant on the Economic, Social and Cultural Rights (ICESCR) (1966); (iv) American Convention on Human Rights (1978); (v) Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) (1984); (vi) African Charter on Human and Peoples Rights (1986); (vii) Inter-American Convention to Prevent and Punish Torture (1987).

14. On 30 August 1955 the UN Congress5 held in Geneva adopted the Standard Minimum Rules for the Treatment of Prisoners which were approved by the Economic and Social Council in the resolution of 31 July 1957. Lately, these have been revised6 and are now known as the Nelson Mandela Rules in the honour of the former South African President. Rule 1 thereof provides: All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times. Reference may also be made to the following rules: Rule 24(1) The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary healthcare services free of charge without discrimination on the grounds of their legal status. Rule 27

1. All prisons shall ensure prompt access to medical attention in urgent cases. Prisoners who require specialized treatment or surgery shall be transferred to specialized institutions or to civil hospitals. Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide prisoners referred to them with appropriate treatment and care.

2. Clinical decisions may only be taken by the responsible healthcare professionals and may not be overruled or ignored by non-medical prison staff.

15. In 1988, the UN General Assembly adopted the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment . These Principles have been developed to protect not only the prisoners as the Nelson Mandela Rules do but also those deprived of personal liberty by actions of State authority. 7 They are supplemented by The Principle of Medical Ethics to the Role of Health Personnel, particularly physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment 8 and The United Nations Basic Principles for the Treatment of Prisoners 9

16. The Human Rights Committee, the independent expert body which monitors compliance with the obligations under the ICCPR, has expressed the view that the States are obligated to attend to the medical needs of the prisoners carefully. In Communication No. 763/1997 it said: The essential fact remains that the State Party by arresting and detaining individuals takes the responsibility to care for their life. It is up to the State Party by organizing its detention facilities to know the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility. 10 Although there is no specific right to health provision in the ICCPR, the UN Human Rights Committee has stated in General Comment No.20 that it is included in the right to life (Article 6), the protection against torture and other cruel, inhuman or degrading treatment or punishment [Article 7 read in conjunction with Article 2(3)] and the right to humane treatment (Article 10).11

17. Interestingly, the instruments mentioned above use the terms cruel , inhuman , and degrading but do not clearly define them. However, the following extract from the decision of the European Court of Human Rights (ECtHR) in Soering v. United Kingdom, 11 Eur. H.R. Rep. 439, may help understand them: The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical. Further, treatment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his own will or conscience ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 312 of the European Convention for Protection of Human Rights and Fundamental Freedoms.13 The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.

18. Reference to some of the cases may further enlighten us. In Keenan v. United Kingdom, [2001] 33 EHRR 38, the applicant s son was serving a four-year prison sentence for assault. He had a medical history of self-harm, violence and paranoia which indicated that he was prone to suicidal thoughts. He was not provided specialist supervision and instead punished for disorderly behaviour in prison and placed in solitary confinement during which he committed suicide. The ECtHR held that inadequate medical care, including mental healthcare, constitutes inhuman and degrading punishment prohibited under Article 3 of the European Convention on Human Rights (ECHR). As such, the prisoner s rights had been infringed. In Price v. United Kingdom, [2002] 34 EHRR 53, the applicant, who was four-limb deficient, complained that the jail authorities did not provide her with appropriate provisions. It was found that the male police officers helped her use the toilet, and she was kept in harsh conditions. It was dangerously cold and she struggled to maintain her hygiene and her bed was so hard that she was at risk of getting sores. The ECtHR said that although the authorities had no intention to humiliate the applicant, the issue needed to be considered in the light of her unique requirements and circumstances. It ruled that she had received degrading treatment within the meaning of Article 3 of the ECHR. In Mouisel v. France, [2004] 38 EHRR 34, the applicant was serving 15-year custodial sentence. He was diagnosed with leukemia and had to be taken to the hospital for chemotherapies. During those sessions his feet were chained and one of his wrists bound to the hospital bed. The ECtHR held that an individual s continuous incarceration might raise issues under Article 3 of the ECHR if his medical needs cannot be satisfactorily met inside the prison. Relevant excerpt is reproduced below:

38. The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention (see Chartier v. Italy, No. 9044/80, Commission's report of 8 December 1982, Decisions and Reports (DR) 33, p. 41; De Varga-Hirsch v. France, No. 9559/81, Commission decision of 9 May 1983, DR 33, p. 158; and B. v. Germany, No. 13047/87, Commission decision of 10 March 1988, DR 55, p. 271). In the case of a prisoner suffering from disorders associated with hereditary obesity, the Commission expressed the opinion that there had been no violation of Article 3 of the Convention because the applicant had been provided with care appropriate to his state of health. It considered, however, that detention per se inevitably affected prisoners suffering from serious disorders. It took care to point out that in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies to be taken in the form of humanitarian measures and stated in conclusion that it would appreciate any measures the Italian authorities could take vis- -vis the applicant in order to alleviate the effects of his detention or to terminate it as soon as circumstances require (see Chartier, Commission's report cited above, pp. 57-58). The Court recently observed that the detention of an elderly sick person over a lengthy period could fall within the scope of Article 3, although in the decision in question it held that the applicant's complaint under that Article was manifestly ill-founded (see Papon (No. 1), cited above). Health, age and severe physical disability are now among the factors to be taken into account under Article 3 of the Convention in France and the other member States of the Council of Europe in assessing a person's suitability for detention.

19. Similarly, in Du Plooy v. Minister of Correctional Services, et. al., [2004] 3 All SA 613(T), the applicant was suffering from chronic myeloid leukemia and was on the verge of dying in prison. The authorities declined his application for medical parole. The South African High Court in Pretoria acknowledged that, generally, the prisoners could not be excused from punishment due to illness. However, considering that the applicant s condition was critical, it held that refusal to grant him medical parole violated section 10 of the South African Constitution which provides that everyone has inherent dignity and the right to have it respected and protected. The High Court found that the following rights of the applicant had been violated: freedom and security of the person, access to health care services; prisoners right to conditions of detention that are consistent with human dignity; and the right to just administrative action. Accordingly, it set aside the executive decision and, subject to certain conditions, directed the applicant s immediate release on medical parole.

20. This takes us to the concept of compassionate release which allows release of terminally ill and some other categories of very sick prisoners from custody before the completion of their sentence. It is based on the hypothesis that changes in the convict s health status may alter the justification for his imprisonment and completion of sentence.14 Alam, who has appeared in this case with the learned Law Officer and assisted this Court, explains: Criminal justice system in vogue across the world recognizes four theories of punishment retribution, rehabilitation, deterrence and incapacitation. The confinement of person is not relevant who is cognitively impaired to be aware of punishment. At the same, incarceration of person who is too sick to participate in rehabilitation, or too functionally compromised to pose a risk to public safety does not in conformity with the four principles of justifications for incarceration Compassionate release programs envisage to reduce financial burden on national exchequer and allow the prisoners to die with dignity amidst their friends and relatives. 15

21. There is no precise definition of terminal illness. According to Marie Curie, it is an illness or condition which cannot be cured and is likely to lead to someone s death. It is sometimes called a life-limiting illness. 16 In M. Rajeshwari v. The Additional Director General of Police (Prisons) and others (MANU/TN/1722/2021)17, the Madras High Court explained the aforementioned expression with reference to a circular issued by the Government of India and said: Terminal illness is a medical term to describe an active and progressive illness that cannot be cured or adequately treated and that is reasonably expected to result in the death of the patient. It is also described as a malignant disease for which there is no cure and the prognosis is fatal. As defined by the American Cancer Society, terminal illness is an irreversible illness that without life-sustaining procedures, will result in death in the near future or a state of permanent unconsciousness from which recovery is unlikely. Some examples, among others, of terminal illness may include advanced cancer, advanced heart disease, full-blown AIDS etc. In some jurisdictions, a prisoner is reckoned as terminally ill if his expected life is less than six months while in others this period is three months. Inasmuch as it is a big challenge for medical science to predict the specific period of life expectancy, complaints of corruption arise.

22. Pakistan has ratified core international human rights treaties/conventions relevant to prisoners' rights, including ICCPR, ICESCR and CAT.18 The general rule is that the provisions of a treaty are not automatically incorporated into the municipal law and a country s legislature must pass legislation to implement them. The courts in Pakistan are required to interpret and apply every statute, so far as its language admits, in accordance with the principle of comity of nations and the recognized norms of international law, even in situations where no such law has been enacted. Reliance is placed on Hanover Fire Insurance Company v. Messrs Muralidhar Banechand (PLD 1958 SC 138), Al-Jehad Trust through Habibul Wahab AlKhairi, Advocate, and 9 others v. Federation of Pakistan, and 3 others (1999 SCMR 1379), Human Rights Case No.29388-K of 2013 (PLD 2014 SC 305), and Najib Zarab Limited v. Government of Pakistan and 4 others (PLD 1993 Karachi 93). In Khadim Hussain v. Secretary, Ministry of Human Rights, Islamabad, and others (PLD 2020 Islamabad 268), while considering a case relating to the plight of the prisoners in the country, the Islamabad High Court held that the rights of the prisoners contemplated by the aforementioned treaties and conventions are enshrined in Articles 9 and 14 of the Constitution.

23. At present, we have a comprehensive Jail Manual called the Pakistan Prisons Rules, 1978 (the Prisons Rules ). It regulates the establishment and management of prisons and confinement, treatment and transfer of prisoners. For our present purpose Rules 143, 145 and 146 are relevant. These rules insofar as they apply to the Province of the Punjab are reproduced below for ready reference: Rule 143.

(i) The Superintendent will refer the case for release of prisoner suffering from serious illness to the Government provided that: (a) the disease is likely to prove fatal if the prisoner remains in prison; (b) there is reasonable chance of recovery if the prisoner is released; (c) the prisoner has not done any willful act, since he has been in prison, to produce or aggravate his disease; (d) the Medical Officer and the Medical Superintendent of the District Headquarter Hospital recommend the release and certify that the disease is of the nature described; and (e) the prisoner has not more than six months to remain in prison before the expiry of his sentence. (ii) The prisoner [if a convict] shall be informed, before release that his liberation is conditional on the sanction of the Government, and that if such sanction is withheld, he will have to return to prison to serve the remainder of his sentence. The prisoner s friends shall be sent for and a security bond taken from them, before he is released, that they will give him up if required to do so. (iii) The case shall be immediately reported to the Inspector General in the prescribed form for submission to Government. Rule 145.

Cases not provided for the foregoing rules will be dealt with by the Government under the provisions of section 401 of the Code of Criminal Procedure, 1898, on receipt of recommendations from the Inspector General. Rule 146.

The Superintendent may recommend a prisoner for premature release who owing to old age, infirmity or illness is permanently incapacitated from the commission of further crime of the nature of that for which he has been convicted. The case shall be submitted to Government through the Inspector General. It shall be accompanied by the recommendations of the Medical Officer. The Inspector General will, in all such cases, obtain the Medical opinion of the Medical Board which will be convened by the Director of Health Services. The board will send its opinion through the Inspector General Prisons.

24. Rule 143 deals with specific categories of convicts. Rule 145 clearly states that the cases not falling in its purview would be dealt with under section 401, Cr.P.C. Rule 146 must be read in conjunction with Rule 145 because it is procedural.

25. Section 401(1), Cr.P.C. empowers the Provincial Government to conditionally or unconditionally suspend the execution of a convict s sentence or remit the same in whole or in part at any time. The Criminal Law (Amendment) Act, 2004, added a proviso to section 401(1), Cr.P.C. by which this power cannot be exercised in respect of an offence committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices. Section 402, Cr.P.C. explains that the Provincial Government is competent to commute any sentence without the convict's consent. Section 402-A, Cr.P.C. stipulates that, in the case of a sentence of death, the President of Pakistan may also exercise these powers. Section 402-B, Cr.P.C. says that the Provincial Government shall not, except with the previous approval of the President, exercise the powers under sections 401 and 402, Cr.P.C. if the President has already granted pardon, reprieve, respite, remission, suspension or commutation of sentence under Article 45 of the Constitution. Section 402-C, Cr.P.C. stipulates that the Provincial Government, the Federal Government or the President shall not, without the consent of the victim or his legal heirs, suspend, remit or commute the sentence passed under any of the sections in Chapter XVI of the P.P.C. Section 402-D, Cr.P.C. bars the Provincial Government from granting any relief in rape cases.

26. In Habib-ul-Wahab Alkhairi and others v. Federation of Pakistan (PLD 1991 FSC 236), the Federal Shariat Court (FSC) was called upon under Article 203-D of the Constitution to examine whether sections 401 to 402-B Cr.P.C. were repugnant to the Injunctions of Islam. The FSC held: There is a restriction placed on the power of the Head of an Islamic State regarding commutation of death sentence if it has been awarded under the law of Qisas and Diyat and the punishment of death has been awarded by the Court as Qisas, life for life. Such power, however, vests in the hands of the heirs of deceased or the victim who suffered bodily injuries However, if a death sentence had been awarded by the Court of law as punishment by way of Ta zir, the Provincial Government and the President, as provided by the said sections 401, 402, 402-A and 402-B of the Code of Criminal Procedure, 1898, have got the power to commute the same in public interest. This power of the President, however, to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by court, tribunal or other authority, is exercisable by him in the light of Shari ah, in the matter of any sentence passed by way of Ta zir. He has no power in matter of Hadd or Qisas.

27. Article 45 of the Constitution empowers the President to grant pardon, reprieve and respite, and remit, suspend or commute any sentence passed by any court, tribunal or authority. In paragraph 26 of the aforementioned judgment the FSC expressly stated that it had no jurisdiction to examine any provision of the Constitution in view of Article 203-B(c) so it could only advise the President to keep the above principles in mind while exercising those powers.

28. The Hon ble Supreme Court of Pakistan had the occasion to consider the import of Article 45 of the Constitution in several cases, including Bhai Khan and others v. The State (PLD 1992 SC 14), Hakim Khan and 3 others v. Government of Pakistan through the Secretary Interior and others (PLD 1992 SC 595), Mst. Sakina Bibi and 14 others v. Akram Beg and 7 others (1994 SCMR 1511), Shah Hussain v. The State (PLD 2009 SC 460), Abdul Malik and others v. The State and others (PLD 2006 SC 365) and Nazar Hussain and another v. The State (PLD 2010 SC 1021). Two of them require special mention.

29. Hakim Khan s case19 arose from the judgment of a Full Bench of this Court reported as Mst. Sakina Bibi v. Federation of Pakistan (PLD 1992 Lahore 99). The facts were that on 7th/8th December 1988 the President of Pakistan, on the advice of Prime Minister Mohtarma Benazir Bhutto, which she made soon after assuming her office, commuted all death sentences awarded by the military or other courts to imprisonment for life. The President s order was challenged. The High Court held that the Objectives Resolution has become an operative part of the Constitution with the insertion of Article 2A so it has to be given due effect. Consequently, the President cannot commute the death sentences awarded in matters of Hadood, Qisas and Diyat. Only the heirs of the deceased were competent to do it. However, the cases in which the offender has been punished by way of Ta zir stand on a different footing. There, the Head of State can pardon the offender provided it is in the public interest. The Hon ble Supreme Court disagreed and held that Article 2A is not supra-constitutional and does not control other provisions of the Constitution. Shafiur Rahman J., who authored a separate judgment, wrote: The provisions of Article 2A were never intended at any stage to be self-executory or to be adopted as a test of repugnancy or contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provision of the Constitution (Article 45).

30. In Nazar Hussain s case,20 a 7-member Bench of the august Supreme Court considered the following questions concerning Article 45 of the Constitution: (i) Whether the President enjoys unfettered power to grant remissions under Article 45 of the Constitution unhampered by any subordinate legislation; (ii) Whether the policy formulated by the Government of Pakistan for grant of remissions (August 2009) is in consonance with the judgment delivered by larger Bench of the Supreme Court in Shah Hussain v. The State (PLD 2009 SC 460); (iii) Whether the Prison Rules are subservient to Article 45 of the Constitution and the latter would prevail if there is a conflict between the two; and (iv) Whether the President can grant remission in certain classes of offences to the exclusion of others and whether such classification is permissible under Article 25 of the Constitution.

31. The Hon ble Supreme Court answered the first question in the affirmative and reaffirmed the view expressed earlier in the cases of Bhai Khan and Abdul Malik. It held that the President s power under Article 45 is not subject to any limitations or conditions that might be found in the Pakistan Penal Code or the Code of Criminal Procedure because it is a constitutional mandate. However, it added that he must exercise that power according to the highest standards of justice and equity to provide relief against undue harshness or correct a serious mistake in the judicial process in a particular case. At times he may exercise it by way of grace for instance, to celebrate an event like the installation of a new President or Prime Minister. The apex Court particularly stated that Article 45 of the Constitution would prevail over section 402-C, Cr.P.C. as the latter is subordinate legislation. It clarified that when a sentence is commuted, the punishment originally handed down by the court is replaced with that of the President or the Federal Government or the Provincial Government, as the case may be, but the guilt is not erased or the verdict changed. If the commutation order is passed during the pendency of a convict's appeal, the appellate court can still decide about his guilt or innocence. Lastly, the powers/actions of the President under Article 45 of the Constitution are part of his functions and are to be exercised in accordance with the advice of the Prime Minister and the Cabinet. The Supreme Court emphasized that all public power, which includes constitutional power, is a public trust and has to be exercised bona fide for public good and welfare.

32. The Hon ble Supreme Court answered the second issue also in the affirmative. The policy framed by the Ministry of Interior, Government of Pakistan, lays down parameters/guidelines for granting remissions under Article 45 of the Constitution. It excludes those convicted of heinous offences which are defined as murder, espionage, acts against the State, acts of sectarianism, acts of terrorism, kidnapping/abduction (sections 364-A and 365-A, P.P.C.), rape, unnatural offences (section 377, P.P.C.), robbery (section 394, P.P.C.), and dacoity (sections 395 and 396, P.P.C.). The apex Court noted that the said exclusions are based on reasonable differentia and are neither individual-specific nor arbitrary. The denial of remissions to a class of convicts/prisoners is backed by law and has an objective criterion so it is not violative of Article 25 of the Constitution.

33. On the third question, the Hon ble Supreme Court held that the powers of the President under Article 45 of the Constitution are a part of the constitutional scheme and cannot be circumscribed by any subordinate legislation or executive instrument. The former will prevail if there is a conflict between the two.

34. The Hon ble Supreme Court answered the fourth question in the affirmative and added that the classification of convicts based on the nature of offence is permissible as the President may while exercising authority under Article 45 of the Constitution like to grant remissions only to those who are not involved in heinous crimes.

35. The legal position that emerges from the above discussion is that the authority granted to the President by Article 45 of the Constitution is on a high pedestal. It is separate from the Code of Criminal Procedure, 1898, and is not subject to its syncopation or that of the other subsidiary statutory or executive provision. Hence, section 402-C, Cr.P.C. insofar as it clogs that authority is ultra vires the Constitution and has no force.

36. Article 9 of our Constitution guarantees the right to life. In Shehla Zia and others v. WAPDA (PLD 1994 SC 693) the Hon ble Supreme Court of Pakistan ruled that it includes the right to live with dignity and all that goes along with it.21 In Nilabati Behera v. State of Orissa and others [1993 (2) SCC 746] the Indian Supreme Court held that convicts and undertrial prisoners are not denuded of their fundamental rights, including the right to life. They can be subjected only to such restrictions as are permitted by law. In this view of the matter, every convict and undertrial prisoner has a fundamental right to be treated humanely and with dignity at all times even when he is incarcerated for the most heinous offence. He must be protected against all types of cruelty, including those described by the jurisprudence discussed above. The prisoners suffering from a serious illness and those who are old and infirm have a right to be considered for premature release. The Jail Superintendents are obligated to report such cases to the Inspector General of Prisons who should submit them to the Provincial Government for appropriate orders. In extreme cases where the Code of Criminal Procedure places an embargo on the Provincial Government (like the offences under Chapter XVI of the P.P.C.), it may forward the case to the President with a request to consider it for remission or commutation of sentence under Article 45 of the Constitution. An eligible convict may also approach the President directly under Article 45 for relief. One may recall that in Human Rights Case No. 30694-P/2018 the Hon ble Supreme Court directed the Provincial Governments to define the procedure for release of deserving prisoners to ensure transparency and fair play. Relevant excerpt from order dated 27.07.2018 is reproduced below: We have been informed that a number of prisoners who are terminally ill have been assessed by the concerned medical board. Some of them have already been released whereas for some others recommendations have been forwarded to the Ministry of Interior for approval. In the light of the above, we would not like to continue this Human Rights Case. However, we direct all the Provincial Governments to take appropriate steps for release of terminally ill and indisposed prisoners in accordance with proper rules and Standard Operating Procedures (SOPs) so that such persons are released on the basis of a structured procedure rather than anybody s whim and caprice and in an arbitrary manner.

37. The Punjab Government has not implemented the Supreme Court s directions even though almost four years have elapsed. The Chief Secretary, Punjab, is directed to bring this matter to the notice of the Chief Minister forthwith. The case at hand

38. The Petitioner is undergoing a life sentence for the murder of Muhammad Yaqub. He made an application under section 401, Cr.P.C. to the Additional Chief Secretary for suspension/remission of his punishment which was not maintainable because the legal heirs of the deceased had not given consent in terms of section 402-C, Cr.P.C. Nevertheless, the Additional Chief Secretary treated it as a request for parole under section 2 of the Probational Release Act. There can be no objection to it. The said section empowers the Provincial Government to release a prisoner by license on the conditions imposed if his antecedents or conduct in prison reflects that he is likely to abstain from crime and lead useful and industrious life when released from prison. The Good Conduct Prisoners Probational Release Rules, 1927 (the Probational Release Rules ), supplement the Act. Even though the object of these provisions is the rehabilitation of the convict in society after his release and not medical parole, the Government may legitimately entertain an individual s application if he qualifies thereunder.

39. The Additional Chief Secretary has rejected the Petitioner s application on the ground that he is suffering from chronic liver disease and Executive Order No. 47 issued by the Director General, Punjab Probation and Parole Service, prohibits the release of a prisoner on parole who is suffering from a serious illness. I am afraid the Executive Order does not say any such thing. The Additional Chief Secretary has unnecessarily stretched its language to draw the inference mentioned above. Since the Probational Release Act and the Probational Release Rules do not impose any such condition, the Director General cannot give any instruction which limits their scope or otherwise conflicts with them.

40. Even if the Government thought there was some impediment to releasing the Petitioner on parole, it could have considered submitting his case to the President for the remission of sentence under Article 45 of the Constitution.

41. The Petitioner s eligibility for parole has to be determined on the basis of the criteria set out in section 2 of the Probational Release Act. The Impugned Order does not consider that at all. Therefore, vide short order dated 16.05.2022, I granted this petition and directed the Government of the Punjab to decide the matter afresh within three days.

42. Above are the reasons for the short order dated 16.05.2022 passed in this petition.

43. I appreciate the assistance given to me by Dr. M. Aslam Khaki, Advocate (amicus curiae), Dr. Muhammad Qadeer Alam, AIG, and Mr.Muhammad Imran Sheikh, Senior Research Officer, LHCRC. SA/M-219/L Order accordingly. 1 Brian Bertosa, The Treatment of Prisoners of War and Non-Combatants in the Quran , Canadian Military Journal, Spring 2007. Available at: https://www. journal.forces.gc.ca/vo8/no1/bertosa-eng-asp 2 Gul. Rais, Sajid Hussain. How to Deal With Prisoners: An Islamic Perspective , Bannu University Research Journal in Islamic Studies 5.1 (2018). 3 Miller, Nan D. (1995) International Protection of the Rights of Prisoners: Is Solitary Confinement in the United States a Violation of International Standards? California Western International Law Journal: Vol. 26: No.1, Article

6. Available at: https://scholarlycommons.law.cwsl.edu/cwilj/vol26/iss1/6 4 hereinafter referred to as the European Convention . 5 UN Congress on the Prevention of Crime and the Treatment of Offenders 6 Adopted by the United Nations General Assembly Resolution 70/175 on 17th December 2015. 7 See note 3, supra. 8 General Assembly Resolution 37/194 adopted on 18 December 1982. 9 General Assembly Resolution 45/111 adopted on 14 December 1990. 10 WHO, Good Governance for Prison Health in the 21st Century: A Policy Brief on the Organization of Prison Health, Copenhagen: WHO Regional Office for Europe, UN City, Marmorevej 51, DK-2001, Copenhagen, Denmark, 2020. 11 United Nations Compilation of General Comments, p.141, para 14. 12 Article 3 reads: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 13 Also called The European Convention on Human Rights (ECHR). 14 Brie A. Williams, Rebecca L. Sudore, Robert Greifinger and R. Sean Morrison, Balancing Punishment and Compassion for Seriously Ill Prisoners (2011), Annals of Internal Medicine. Available at: https://www.acpjournals. org/doi/10.7326/0003-4819-155-2-201107190-00348 15 M.Q. Alam, Premature Release of Old Age, Terminally Ill Prisoners Confined in Jails in the Punjab: Cross Cutting Themes at Policy Imperatives. Al-Azva, Vol.36, Issue 55 (2021). Available at: https://iri.aiou.edu.pk/wp-content/uploads/2021/11/Premature-release-of-old-age.pdf 16 mariecurie.org.uk/who/terminal-illness-definition 17 Online citation 18 These were ratified by the Government of Pakistan respectively on 23 June 2010, 17 April 2008 and 23 June 2010. 19 Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595) 20 Nazar Hussain and another v. The State (PLD 2010 SC 1021) 21 The Indian Supreme Court expressed the same view in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (AIR 1981 SC 746); and D.K. Basu, Ashok K. Johri v. State of West Bengal, State of UP (AIR 1997 SC 610).