1989 PLP 3967 (MLD)

Mst. Said Bibi v. State 1971 P Cr. L J 39 ref. Maj. Waheeduddin Virk for Petitioner. Rana Muhammad Arshad Khan, Add1A.‑G. for the State. Date of hearing: 30th August, 1989. On conviction by the trial Court Raza Hussain petitioner was sentenced to death. His appeal (Cr. A. No. 788 of 1988)) is pending in the High Court and naturally the Murder Reference for the confirmation of his death sentence would also be heard along therewith. The petitioner hails from District Sialkot and has been shifted to Borstal Jail, Bahawalpur. The Governor of the Province ordered his transfer to Central Jail Lahore "if there is no administrative hitch". In the parawise comments the Jail authorities have referred to Rules 152 and 154 of the Pakistan Prisons Rules, whereunder every juvenile prisoner who is under the age of 21 years, after conviction, is to be kept in a Borstal Institution/Jail. It is stated by the learned Addl. Advocate‑General at the Bar that such institution/Jail is only available at Bahawalpur.

2. Learned counsel for the petitioner has referred to section 29 of the Prisoners Act under which the local Government and Inspector General of Prisons, subject to the control of the local Government (Provincial Government) can transfer any prisoner from one jail to the other. Even under rule 158 of the Prisons Rules, in his discretion, he can order the transfer of any prisoner from one place to another even in disregard of the Rules. Rule 152 has no application because it deals with various types of prisoners while the condemned prisoners are dealt with under Rule

151. When there is a rule dealing with a subject in particularity, the general rule would not apply. The petitioner being condemned prisoner would fall under Rule 151 and not Rule

152. Of course under Rule 154 a juvenile is to be kept in Borstal Institution/Jail, but the rules are for the convenience of the Government as well as the convicted persons. The petitioner's parents are dead and he has only one brother who is residing at Sialkot. The family is extremely poor and cannot afford to visit Bahawalpur. The learned Addl. Advocate‑General submits that if the petitioner is transferred to Lahore or Sialkot, he would have to be kept in solitary confinement as he could not be allowed to mix with other prisoners at any time while the submission of the learned counsel for the petitioner is that if his brother sees him twice a week that would provide him more solace than what he would get by his association with his j age fellows in the Borstal Jail. He has correctly referred to Mst. Said Bibi v. Sate (1971 P Cr. L J 39) to contend that appeal is a continuation of the trial and so the petitioner is still an undertrial prisoner. If as an under‑trial he can be kept in jail at Sialkot, the Jail Authorities may not find any hitch in keeping him at Lahore or Sialkot till his appeal/murder reference is heard in the High Court.

3. In the circumstances, therefore, the petition is accepted and it is ordered that Raza Hussain petitioner (the condemned prisoner) be transferred to District Jail at Sialkot. However, in the peculiar circumstances of the case, the office may look to the desirability of putting up the case of the petitioner before the Hon'ble Chief Justice and obtain orders for the early disposal of his appeal and the murder reference. S.A./R‑173/L