Shariat Petition No.61/I of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 5 JUDGMENT SYED AFZAL HAIDER, JUDGE. And they make provision Out of love (of Allah) For the Indigent, The Orphan and The Captive. Al-Quran: Ayat 08 Sura 76 AL-INSAN INTRODUCTORY This consolidated judgment will dispose of four Shariat Petitions and Five Shariat Miscellaneous Applications which have been clubbed together because each petition seeks to challenge one or the other legal provision relating to Prisons, Prisoners and Prison Discipline. The impugned provisions as well as the titles of four Shariat Petitions and five Shariat Miscellaneous Applications are detailed below in sections A and B respectively for reference sake. SECTION A: SHARIAT PETITIONS Shariat Petition No.61/I of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 6 SHARIAT PETITIONS PROVISIONS CHALLANGED i. Shariat Petition No. Rules 307, 314 of Chapter 13 61/I of 1992 entitled: Women Prisoners and Children. (filed on 19.10.1992) Rules 935, 939 of Chapter 39 entitled: Superintendent. Dr. M. Aslam Khaki Rule 1002 of Chapter 41 Vs entitled: Deputy Superintendent. Federation of Pakistan etc. Rules 1180, 1181 of Chapter 46 entitled: Lady Superintendents and Women Warders. Rule 1004 of Chapter 41 entitled: Deputy Superintendent. ii. Shariat Petition No. Rules 225, 242, 243, 244,245 62/I of 1992 248, 249 of Chapter 9 entitled: The Classification and Separation of Prisoners. (filed on 01.11.1992) Rules 250, 252, 253, 254, 255, 256, 257, 261, 262, 263, 264, 265, 266, 267 of Chapter 10 entitled: Superior Class Prisoners. Dr. M. Aslam Khaki Vs. Rules180, 181 Chapter 7 entitled: Federation of Pakistan etc. Transfer of Prisoners. iii. Shariat Petition No. Rule 1078 of Chapter 44 entitled: 12/I of 1999 General Rules Relating to Prison ( filed on 31.03.1999) Officers. Master Ijaz Hussain Vs. Govt. of Pakistan. iv. Shariat Petition No. Section 30(2) Prisons Act, 1894 and 4/I of 2004 Rules 624(f),633 of Chapter 25 filed originally on 2004 entitled: and refilled on 23.12.2008 Prisoners in cells. Dr. M. Aslam Khakhi Vs. Federation of Pakistan etc. Shariat Petition No.61/I of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 7 Reference to Rules in the above noted Petitions or in the body of this Judgment means Pakistan Prison Rules, 1978. 2. The first cause to be agitated on the subject of prison discipline was registered as Shariat Petition No.61/I of 1992. It was moved on 18.10.1992 and admitted to regular hearing on 12.11.1992. This petition challenged Rules 307, 314, 935, 939, 1004, 1180 and 1181 of Pakistan Prisons Rules on the ground that under Islamic provision no woman can be placed in custody of a Ghair-Mahram and the conditions of service which could lead to indecency would also forbidden. Shariat Petition No. 62/I of 1992 was filed on 01.11.1992 and admitted to regular hearing on 17.10.1993. It sought to challenge Rules 180, 181, 225, 242, to 245, 248 to 250, 252, to 257, 261 to 267 as well as section 59 of the Prisons Act, 1894 on the ground that classification of prisoners into A, B and C category was violative of Injunction of Islam. No injunction was however mentioned. Shariat Petition No. 12/I of 1999 was filed on 22.03.1999 and admitted to regular hearing on 05.06.2000. This petition impugned Rule 1078 which prohibits employment of dismissed Government Servant and previous convicts. It was urged that earning of Rizq-e-Halal i.e, legitimate livelihood Shariat Petition No.61/I of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 8 is the right of every person. No injunction of Islam was shown to have been violated by this provision. Shariat Petition No. 4/I of 2004 was moved on 23.12.2008 and placed before the Court at Karachi on 14.01.2009 when, after admission, it was ordered to be heard alongwith Shariat Petition No. 61/I of 1992. The subject matter of Shariat Petition No.4/I of 2004 is section 30(2) Prisons Act, 1894 (Act IX of 1894) which relates to prisoners under sentence of death commonly known as Condemned Prisoners. During the course of arguments on other petitions we had already on our own motion, before the filing of Shariat Petition No.4/I of 2004 on 14.01.2009, taken notice of section 30 of the Prisons Act, 1894 as a whole alongwith the related provisions contained in Chapter 14 of the Prison Rules. This was the time when the issues pertaining to the controversy in hand were being re-structured. Issue No.VI in fact related to the Condemned Prisoners. We had also taken Suo Moto notice of some other provisions. The judgment in these petitions was to be announced before June, 2009 when it transpired that regular notices had not been formally issued to the parties in matters wherein the Court, on its own motion, had Shariat Petition No.61/I of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 9 decided to examine certain legal provisions. Notices, as directed, were therefore issued on 20.6.2009 for further hearing in August 2009. Further hearing in these connected mattes was deemed necessary firstly for the reason that a few months had elapsed when we last heard arguments in these petitions and the judgment had not been announced and secondly on the ground that we also wanted to hear the view point of parties as regards the subjects in which this court had, during the course of arguments, taken notice on its own motion. Formal legal processes had been issued in this regard. SECTION B: SHARIAT MISCELLANEOUS APPLICATIONS. 3. During the pendency of the above mentioned Shariat Petitions, following Shariat Miscellaneous Applications were also moved in the Federal Shariat Court to impugn certain provisions of law with different prayers. The description of these applications is tabled below:- SH. MISC.APPLICATION NO. PROVISION CHALLENGED i. Sh.Misc. App. No. Section 382-B of the Code of 21/I of 1995 Criminal Procedure and other ( filed on 09.04.1995) matters. Master Ijaz Hussain Vs. Govt. of Pakistan Shariat Petition No.61/I of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 10 ii. Sh. Misc. App. No. Rule 546 of Chapter 22 entitled: 16/I of 1997 Letters and Interviews and Rules (filed on 07.07.1997) 690 of Chapter 28 entitled: Master Ijaz Hussain Vs. Discipline And Family Foutines. The State. ( filed on 07.07.1997) Master Ijaz Hussain Vs. The State iii. Sh. Misc. App. No. Rules relating to classification 19/I of 1997 prisoners into A, B & C category. ( filed on 23.08.1997) Chapters 2 and 10 of the Rules Capt. Retd. Mukhtar entitled: Classification of Prisons; Ahmad Sheikh Vs. Superior Class Prisoners Federal Govt. of Pakistan respectively. iv. Sh. Misc. App. No. This application seeks amendment 10/I of 1998 in Sh. Petition No.61/I of 1992. (filed on 22.07.1998) Rules 307(i) and 314 of Chapter 13 entitled: Women Prisoners and Innocent Children. in S.P.No.61/I of 1992 Dr. M. Aslam Khaki Vs. Federation of Pakistan and others v. Sh. Misc. App. No. This is an amended petition and 11/I of 1998 impugns Rules 242(b), 245(d,e,f) (filed on 23.07.1998 248 (i)(ii) of Chapter 9 entitled: in The Classification and S.P.No.62/I of 1992 Separation of Prisoners. Dr. M. Aslam Khaki Vs. Govt. of Pakistan & Others 4. The legal instruments challenged through these Shariat Miscellaneous Applications as well as the ground of attack are being mentioned below very briefly:- i/ Shariat Miscellaneous Application No.21/I of 1995 was moved by prisoner Master Ijaz Hussain from Central Jail, Faisalabad, on Shariat Petition No.61/I of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 11 09.04.1995 in which he raised the following 11 contentions for consideration of the Federal Shariat Court:- a. The use of Bar Fetters is un-constitutional, un-Islamic and is violative of the Islamic principles of human dignity; (Bar fetters are no more in use) b. Prisoners undergoing long terms sentences be released on parole for two months every year for the performance of conjugal rights and looking after family affairs; ( Provision already incorporated ). c. For grant Benefit of section 382-B of the Code of Criminal Procedure should be given invariably to the prisoners; (Notice taken) d. Judicious and equal grant of remissions to prisoners on auspicious days; (Already applicable). e. All the Government employees who are convicted should get suspension allowance till such time that their appeals are finally decided by the Supreme Court; (Does not concern Prison Rules). f. While awarding concurrent sentence there should be no discrimination between the poor and influential prisoners; [Note: This question was not raised at the time of arguments. However the case of Bashir and 3 others vs.