2023 SCLR 40
Other citations:
2023 SCP 287 (https://www.supremecourt.gov.pk/downloads_judgements/crl.m.a._1566_2016.pdf)
2023 SCMR 1867 (https://www.pakistanlawsite.com/Login/MainPage)
[Supreme Court of
Pakistan]
Present: Umar Ata
Bandial, HCJ and Athar Minallah, JJ
Raja Azmat Ali—Applicant
versus
Abu Malik Naseem
and another—Respondents
Crl.M.A.No.1566 of
2016
(Compliance report
of Secretary, Law and Justice Commission of Pakistan in respect of order dated
23.11.2015 passed in Crl.P.No.449 of 2015)
Crl.M.A.No.2027 of
2016
(For permission to
file and argue review filed against order dated 26.10.2016 of this Court passed
in Crl.P.No.449 of 2016)
Date of decision: 23rd
May, 2023.
HEADNOTES
Constitution of Pakistan —
—
Arts. 9, 10-A, 14, 25 & 37(d) — Constitutional imperative: Ensuring the right
to life and dignity for prisoners through fulfilled duties of care and
probation implementation — Scope — The prisoner, whether convicted or
non-convicted, has no choice but to place reliance for his right to life and
other needs, such as medical attention, solely on the authorities holding
him/her in custody — This reliance gives rise to a duty of care on the part
of the State and its functionaries — The Constitution guarantees the right to
life under Article 9 — In the context of a prisoner, it is implicit in
Article 9 that it is the duty of the State to ensure that every person
incarcerated including those who are convicted for an offence and undergoing
sentence, are treated in a manner that does not expose the latter to harm and
that humane treatment is extended so long as the incarceration lasts — The
prisoner is thus entirely dependent on the State and is at its mercy for the
purposes of safeguarding the right to life — The State, therefore, owes a
duty of care to every prisoner, regardless of the nature of offence for which
the latter has been incarcerated — It is only liberty and the right of free
movement that has been curtailed and definitely not the constitutional rights
to life and to be treated with respect, having regard to the fundamental rights
of inviolability of the dignity of man guaranteed under Article 14 of the Constitution
— Moreover, it becomes a duty of the functionaries to ensure that no prisoner
is unjustifiably deprived of the right to liberty even if it is on the basis of
being released on probation — It is a right of every eligible prisoner to be
considered for the purposes of enjoying liberty on the basis of probation — The
neglect of the executive authorities to perform their obligations and duties
imposed by law and to give effect to the enforced laws, particularly relating
to the inmates of prisons amounts to a breach of the duty of care that is owed
to the incarcerated prisoner — This breach of a fiduciary duty could expose
the concerned authorities and the State to be sued by the inmates of the overcrowded
prisons for damages — Supreme Court directed the respective Chief Executives’
of the Federal Government and the provinces to ensure that the enacted laws
relating to release of a prisoner on the basis of probation are effectively implemented
and made functional. [Para. No. 2, 3 & 4]
In Attendance:
Ch. Aamir Rehman,
Addl.AGP
Malik Waseem
Mumtaz, Addl.AG Punjab.
Muhammad Farid
Dogar, AAG, Baluchistan
Sibtain Mahmood,
Addl.AG Sindh (via video Link, Kci)
Mualim Jan,
Director Probation, KP
Shakir Ullah, SO,
Home Dept. KP.
Sajjad Ahmed Alvi,
AD Probation, Rawalpindi
Hafiz Muhammad Sultan,
AD Probation, Rawalpindi
Nemo for applicant/petitioner.
Nemo for respondents.
Date of hearing: 23rd
May, 2023.
-.-.-.-.-.
Athar Minallah, J.- These proceedings
stem from the order, dated 23.11.2015 whereby this Court had sought reports
from the Federal Government and the respective Provincial Governments regarding
the status of implementation of the enforced enacted laws relating to the
release of inmates from the prisons on the basis of ‘probation’. The reports,
submitted by the respective governments and the Secretary Law and Justice
Commission of Pakistan (“Commission”) have been perused. The latter, in
its report, has raised crucial questions regarding the inability of the
respective governments to extend the benefit of release provided under the
relevant enforced laws.
2. The proceedings before this Court and
the reports submitted by the respective governments manifest that grave
conditions affecting the fundamental rights prevail in the prisons across the
country. It is an undeniable fact that living conditions and the treatment of
prisoners in overcrowded and inadequately equipped prisons profoundly affects
the constitutionally guaranteed rights. Most of the victims of a non-functional
criminal justice system are those who belong to economically and socially
marginalized sections of the society. They do not have the means to access the
courts nor has the State fulfilled its constitutional obligation to ensure
inexpensive and expeditious justice contemplated under Article 37(d) of the
Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”).
Justice is denied to the weak and vulnerable because the prevailing criminal
justice system allows its exploitation by the privileged and those who wield
influence. The abysmal conditions in the prisons are intolerable in a society
governed under a Constitution. The prisons exist as institutions for the
reformation and social rehabilitation of those prisoners who have been
convicted by a competent court following a fair trial. The prisoner has been
defined as a person legally committed to a prison as a punishment for a crime
or while awaiting a trial. There are mainly two categories of prisoners i.e.
convicted or non-convicted. The latter is presumed to be innocent till guilt is
established by a competent court of law. The convicted prisoners are imprisoned
because they are required to undergo a period of sentence. The object of
undergoing a sentence pursuant to being convicted by a competent court of law
is to make the convicted person and others realize that what the former has done
or his/her acts, omission, and conduct which have led to the conviction or
handing down of the sentence were unacceptable. The sentence deprives a
prisoner of his/her liberty and the freedom to be free and this curtailment of
liberty may have limited consequences regarding some other rights. A
non-convicted prisoner retains the presumption of innocence, which is an
integral and fundamental part of the right to a fair trial. The prisoner,
whether convicted or non-convicted, has no choice but to place reliance for his
right to life and other needs, such as medical attention, solely on the
authorities holding him/her in custody. This reliance gives rise to a duty of
care on the part of the State and its functionaries. The Constitution
guarantees the right to life under Article 9. In the context of a prisoner, it
is implicit in Article 9 that it is the duty of the State to ensure that every
person incarcerated including those who are convicted for an offence and
undergoing sentence, are treated in a manner that does not expose the latter to
harm and that humane treatment is extended so long as the incarceration lasts.
The prisoner is thus entirely dependent on the State and is at its mercy for
the purposes of safeguarding the right to life. The State, therefore, owes a
duty of care to every prisoner, regardless of the nature of offence for which
the latter has been incarcerated. It is only liberty and the right of free
movement that has been curtailed and definitely not the constitutional rights
to life and to be treated with respect, having regard to the fundamental rights
of inviolability of the dignity of man guaranteed under Article 14 of the Constitution.
Moreover, it becomes a duty of the functionaries to ensure that no prisoner is
unjustifiably deprived of the right to liberty even if it is on the basis of
being released on probation.
3. In the circumstances and the context
of unjustified deprivation of the right to liberty, the benefit of enjoying
release on the basis of probation is of pivotal importance and thus the
enforcement of the laws relating to probation become crucial. It is a right of
every eligible prisoner to be considered for the purposes of enjoying liberty
on the basis of probation. The neglect of the executive authorities to perform
their obligations and duties imposed by law and to give effect to the enforced
laws, particularly relating to the inmates of prisons amounts to a breach of
the duty of care that is owed to the incarcerated prisoner. This breach of a
fiduciary duty could expose the concerned authorities and the State to be sued
by the inmates of the overcrowded prisons for damages.
4. We, therefore, dispose of the petition in
the following terms:-
(a) It is declared that neglect or refusal to
effectively enforce the enacted laws relating to release of a prisoner on the
basis of probation is violative of the fundamental rights guaranteed under the
Constitution, inter alia, under Articles 9, 10-A, 14 and 25 ibid.
(b)
The respective Chief Executives’ of the Federal Government and the provinces
are directed to ensure that the enacted laws relating to release of a prisoner
on the basis of probation are effectively implemented and made functional.
(c)
The Federal and Provincial Governments, as the case may be, shall ensure that
the prisoners who are eligible under the enacted laws for availing the benefit
of being released on probation are identified and their cases are processed
expeditiously.
Order accordingly