LAHORE: The Lahore High Court has held that prisoners suffering from serious ailments and those who are old and infirm have a right to be considered for premature release and directed the Punjab government to decide the matter of petitioner Mubarik Ali alias Mukhan afresh.
The petitioner had approached the court against a decision of additional home secretary of home department who denied him a parole on medical grounds. The court said every convict and under-trial prisoner has a fundamental right to be treated humanely and with dignity at all times even if he is incarcerated for the most heinous offence.
The court said that the additional chief secretary had rejected the petitioner’s application on the grounds that although he was suffering from a chronic liver disease but an executive order issued by the director general of the Punjab Probation and Parole Service had prohibited the release of a prisoner on parole who too was suffering from a serious illness.
The court observed that the executive order did not mention any such thing and added that the additional chief secretary had unnecessarily “stretched its language” to draw the inference.
The court said the object of the provisions of Good Conduct Prisoners’ Probational Release Rules, 1927 supplement the Act in rehabilitation of the convict in society after his release and not medical parole. It observed that the said section empowers the provincial government to release a prisoner if his antecedents or conduct in prison reflects that he is likely to abstain from crime and lead a useful and industrious life when released from prison.
The government may legitimately entertain an individual’s application if he qualifies thereunder, the court said. Even if the government thought there was some impediment in releasing the petitioner on parole, it could have considered submitting his case to the president for the remission of his sentence under Article 45 of the Constitution.
The court said that the petitioner’s eligibility for parole has to be determined on the basis of criteria set out in Section 2 of the Probational Release Act but the impugned order did not consider that at all. The court, therefore, directed the government of Punjab to decide the matter of the petitioner afresh.
The court also held that 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.
The court said in extreme cases where the Code of Criminal Procedure places an embargo on the provincial government, 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 the same article for relief.
The court observed that the Supreme Court in a human rights case had directed the provincial governments to define the procedure for release of deserving prisoners to ensure transparency and fair play. It said that the Punjab government has not implemented the Supreme Court’s directives even though almost four years have elapsed, and directed the chief secretary of Punjab to bring this matter to the notice of the chief minister forthwith.
The court said Pakistan has ratified core international human rights treaties relevant to prisoners’ rights, including ICCPR, ICESCR and CAT. 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 recognised norms of international law even in situations where no such law has been enacted, the court concluded.
The petitioner, Mubarik Ali alias Mukhan, is undergoing life sentence at the Central Jail, Lahore. Although he was receiving appropriate medical care, his health was continuously deteriorating. The petitioner then submitted an application to the additional chief secretary, home, for suspension of his sentence, which was dismissed. The petitioner then challenged the said order before the LHC.
Copyright Business Recorder, 2023
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