Case Summary & Legal Holding

This judicial decision was delivered by the Islamabad High Court on 2020-03-14. The matter involves proceedings between Khadim Hussain and Secretary, Ministry of Human Rights, Islamabad, etc, officially reported as 2020 PLD 268. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Islamabad High Court Judge(s): Athar Minallah Title: Khadim Hussain vs Secretary, Ministry of Human Rights, Islamabad, etc Case No.: W.P. No. 4037 of 2019 Date of Judgment:2020-03-14 Reported As: 2020 [M] C L R 1351, PLD 2020 Islamabad 268, 2020 IHC 68 Result: Petition disposed off

Judgment JUDGEMENT ATHAR MINALLAH, CJ. Through this consolidated judgment, I will dispose of the instant petition and the connected petitions listed in "Annexure-A" attached hereto. 2. The proceedings before this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred to as the "Constitution" ] have highlighted unprecedented and grave conditions prevailing in the prisons across the country . The living conditions and the treatment of prisoners in overflowing and inadequately equipped prisons has raised serious constitutional and human rights concern s. The proceedings which had emanated from applications under Article 199 of the Constitution, received from incarcerated prisoners through the post, have affirmed the vulnerability of the criminal justice system, which inevitably causes grave violations of constitutionally guaranteed rights and irretrievable miscarriages of justice. Most of the victims of the deteriorating 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 in ensuring that each citizen receives 'inexpensive and expeditious' justice mandated under Article 37(d) of the 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. These proceedings have highlighted the shockingly abysmal conditions in the prisons, which under the law have been established as institutions for the reformation and social rehabilitation of those prisoners who have been convicted by a competent court following a fair trial. Regrettably , the proceedings in these petitions have affirmed otherwise. The worst victims of what appears to be a dysfunctional criminal justice system are the pre trial or under trial incarcerated persons. They are presumed to be innocent but, due to several factors, are treated as condemned prisoners before the State can discharge the duty of proving their guilt before a competent court and that too on conclusion of trial. As will be discusse d later, an innocent person who may have been a victim of compromised police officials and who does not have access to proper legal advice or

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the weaknesses of the judicial system forces him to spend years in incarceration because bail is denied, is likely to walk into the four walls of a State prison and upon acquittal leave as a hardened criminal. This Court had received applications from prisoners who had raised grievances through applications received through the post regarding denial of their fundamental rights. The prisoners had stated in their respective applications that they could not access the courts and that they feared being punished by the prison authorities, drawing the attention of this Court to their plight. It was obvious to this constitutional Court that, though the applicants/petitioners were taking the risk of reprisal from the prison authorities, they were attempting to raise grievances of serious violations of fundamental rights guaranteed under the Constitution and treatment not in conformity with the commitments of the State of Pakistan under various international treaties, conventions and other instruments ratified by the Government of Pakistan. It is noted that the implementation of international conventions is covered under items 3 and 32 of the Federal Legislative List under the Fourth Schedule of the Constitution. Keeping in view the gravity of the matter , notices were issued to the Ministry of Human Rights, Government of Pakista n and other concerned public functionaries. Moreover , notices were also issued to the administrative authorities of Islamabad Capital Territory because the applications had raised serious concerns regarding the wellbeing and right of life of the under trial prisoners whose cases are pending before various courts under the jurisdiction of this High Court. It is noted that 1362 under trial prisoners, allegedly involved in cases pending before various courts under the jurisdiction of this High Court, are incarcerated in the overcrowded Central Prison, Rawalpindi. The most alarming grievance implicit in the applications was denial of access to the courts and thus denial of justice, because most of the incarcerated prisoners are poor and inadequately educated or they fear complaining against the prison regimes. In the light of the law laid down by the august Supreme Court in the case titled "Dr Imran Khattak v. Ms Sofia Waqar Khattak, PSO to Chief Justice" [ 2014 SCMR 122 ] the applications were numbered under Article 199 of the Constitution. 3. This Court was informed by the officials who had initially appeared on behalf of the Ministry of Human Rights, Government of Pakistan that various international treaties, conventions and other instruments have been ratified, setting out obligations required to be fulfilled by the State of Pakistan. It was also informed that the prevailing conditions in the prisons were not in conformity with the minimum standards set out in the ratified international conventions and treaties. Keeping in view the public importance of the questions raised in these proceedings and the grave concerns regarding safeguarding constitutionally guaranteed rights which are consistent with the commitments of the State of Pakistan under the ratified international conventions and treaties, a commission headed by Ms Shireen Mazari, Federal Minister of Human Rights [hereinafter referred to as the "Commission" ] was constituted to, inter-alia, investigate and submit a report regarding human rights violations of the incarcerated petitioners as well as other prisoners and their treatment, with regard to the obligations under the ratified conventions and treaties. The Ministry of Human Rights, therefore, vide notification, dated 27.11.2019, constituted a Commission which included Secretaries of the Ministry of Interior and Health, representative of the Human Rights Commission of Pakistan, Mr Ghazi Salah ud Din, Journalist, Mr Zia Awan, Advocate Supreme Court, the respective Chief Secretaries of the four provinces and the Secretary Ministry of Human Rights as members. The Commission submitted its first report on 13.12.2019, while the final report was submitted on 17.01.2020. The report has been made an integral part of this judgment. STATUS OF FUNDAMENT AL RIGHTS IN THE PRISONS 4. The prevailing conditions described in the report submitted by the Commission are indeed shocking and cannot be tolerated in a society governed under a Constitution which guarantees fundamental rights. The prison population at the time of filing of the report was approximately 77000 while the authorized capacity of all the prisons in Pakistan was to accommodate 55634 inmates. In the Province of Punjab, 29 out of 41 prisons have been reported to be overcrowded and 8 in Sindh. The most disturbing feature is the exceptionally high number of prisoners who retain their presumption of "innocence" till a competent court has handed down a conviction following a fair trial. Out of 73,721 prisone rs incarcerated in prisons across the country more than sixty percent i.e. 44847 are un-convicted prisoners. The other alarming factor is the large number of prisoners who are suffering from serious illnesses such as HIV, Hepatitis, Tuberculosis and mental disease s. The province wise status of prisoners suf fering from various illnesses is as follows.-

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Prisoners Punjab Sindh KPK Balochistan Male F Male F Male F Male Hepatitis 1047 34 461 1 Hepatitis 1047 34 461 HIV 255 2 115 1 HIV 255 2 115 TB 87 0 50 2 TB 87 0 50 Mental disease290 8 50 0 Mental disease290 8 50 Other sickness1453 27 50 0 Other sickness1453 27 50 5. The Commission, in its report, has highlighted the devastating and harmful consequences of overcrowding in prisons. It has been pointed out that the prisoners are generally not aware of their rights nor have an adequate opportunity to access the courts. The report also highlights the cumbersome process involved in having access to timely medical facilities. As an illustration an example of one of the prisoners has been cited who has become permanently disabled due to the negligence of the prison authorities because of delay in medical treatment. The report also highlights inadequate medical facilities available to incarcerated priso ners and deficient training and discipline of prison staff/authorities. The Commission, in its report, has made recommendations which essentially emphasis the need for ensuring the treatment of prisoners in conformity with the commitments of the State of Pakistan under the ratified conventions, treaties or other instruments. Although it is public knowledge that the treatment of prisoners is in breach of their constitutionally guaranteed rights and the commitments under the ratified conventions and treaties and the report of the Commission unequivocally affirms the same. It would not be out of place to mention that during the historic lawyer 's movement of 2007, which was aimed at upholding the rule of law and the supremacy of the Constitution, lawyers and members of civil society were detained and incarcerated in prisons across the country . None had committed any crime but it gave them an insight into the hidden and elusive world within the high walls of the State prisons. They witnessed the irretrievable physical and mental harm likely to be caused on account of overcrowding, deplorable sanitation conditions and inadequate training of the prison authorities. The hardened convicted criminals and pre trial or under trial prisoners were kept together . Even juveniles, having impressionable minds, were exposed to being influenced by hard core convicted prisoners. Abuse of juveniles and women by the prison authorities and confined inmates has been widely alleged and reported by entities who have carried out credible research. Even otherwise, the fact that juveniles and women are vulnerable to abuse cannot be ruled out given the intolerable conditions in the prisons. In many overcrowded barracks prisoners are reported to take turns to sleep and when they do get an opportunity they sleep without having the space to turn over. While the toilets lack sanitation, the prisoners may have to wait for hours for their turn because of overcrowding. The hospitals are under staffed and lack proper equipment. The privileged manage to exploit the system by getting themselves admitted to a hospital even when not in need, while those who require urgent attention become victims to apathy and red tapism of the executive bureaucracy managing the prison regimes. It cannot be denied that the prison system is exploited by the privileged and powerful and victimizes the marginalized and vulnerable inmates. The ordinary prisoners are not respected as humans and the manner in which they are treated violates their constitutionally guaranteed rights. The fear of reprisals from the inadequately trained prison authorities, rampant corruption, brutality and complete lack of accountability virtually prohibits the inmates from raising grievances and this has been reportedly the cause of riots in many priso ns. The abysmal, inhuman and degrading treatment and living conditions ought to be a cause of serious concern for the Constitutional Courts, particularly when the majority of incarcerated prisoners, which include those who are presumed to be innocent, have no access to courts nor proper legal advice merely because it is out of reach for them. The report submitted by the Commission only reflects the tip of the iceberg. However , its findings and recommendations were not objected to. Needless to mention that the Federal Government has the jurisdiction of ensuring that its international obligations under ratified treaties and conventions are complied with. Moreover , under item 13 of Part II of the Federal Legislative List of the Constitution, inter provincial matters and coordination falls within the ambit of the

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jurisdiction of the Federal Government and the Majlis-e-Shoora (Parliament). As the above described treatment of prisoners in prisons across the country falls much below the prescribed standards, therefore, vide order , dated 15.02.2020, the Commission notified vide notification, dated 27.11.2019, was directed to continue as the Implementation Commission. The Implementation Commission has submitted its report regarding its meeting held on 06.02.2020. This Court cannot restrain itself from recording appreciation for the dedicated and earnest efforts made by the members of the Commission, particularly its Chairperson, namel y Dr Shireen Marazi, the then Secretary , Ministry of Human Rights Ms Rabia Javeri, Director General Mohammad Arshat and the officials of the Ministry for submitting a comprehensive report in a short time. Before concluding it would be beneficial to examine the relevant laws, ratified conventions and treaties so as to determine the rights of the incarcerated prisoners. LEGAL REGIME GOVERNING EST ABLISHMENT AND MANAGEMENT OF PRISONS. 6. The prisons have been established and are being managed under various primary legislations as well as rules/regulations. They deal with almost every aspect, from admission, incarceration of the prisoners and their treatment till release. The Prisons Act 1894 provides for establishing prisons and their maintenance and administration but also describes how prisoners are to be dealt with and prescribes the prison offences. The Prisoners' Act 1900 was enacted with an object to consolidate the law relating to prisoners who are confined pursuant to an order passed by a comp etent court. The Reformatory Schools Act 1987 was enacted to make provisions for dealing with youthful offenders. The expression "youthful offender" has been defined in section 4(a) as meaning a person who has been convicted for an offence punishable with transportation or imprisonment and who, at the time of such conviction, was under the age of 15 years. Section 5 provides for establishing Reformatory Schools. The Punjab Borstal Act, 1926 was enacted to establish borstal institutions. The Probation of Offenders Ordinance, 1960 provides for the mechanism for release of an offender on probation. Pursuant to powers conferred under section 14 read with section 15 of the Probation of Offenders Ordinance, 1960 the Probation of Offenders Rules, 1961 have been framed. The Good Conduct Prisoners Probational Release Act, 1926 empowers the provincial government to release a person confined under a sentence of imprisonm ent on conditions imposed and prescribed under a license. The Good Conduct Prisoners' Probational Release Rules, 1927 have been framed in exercise of powers conferred under the Good Conduct Prisoners' Probational Release Act, 1926. The Mental Health Ordinance, 2000 was enacted to establish the Federal Mental Health Authority . The most significant legislation promulgated in the context of the right of access to the court and justice of a prisoner was the Public Defender and Legal Aid Office Act, 2009 which aims at promoting justice throughout Pakistan by providing quality and free legal services, protecting individual rights and advocating effective defender services and a fair justice system. Its purpose is to ensure equal protection of law to such persons through legal assistance, advice and representation in courts and outside who cannot afford the high costs of gaining access the courts. Regrettably , the said law, although enacted, remains un operational. The prisons established under the law and the prisoners incarcerated therein are governed and regulated under the Pakistan Prison Rules, 1978 [hereinafter referred to as the "Jail Manual" ]. JAIL MANUAL. 7. The Jail Manual regulates the establishment and management of prisons, confinement, treatment and transfer of prisoners. The maintenance of discipline and matters relating to prisoners has been comprehensively covered in 1250 rules which have been divided into 50 chapters. Rule 1065 describes the duties of the prison authorities relating to treatment of the prisoners and the same is reproduced as follows: "Rule 1065. (i) Every officer of a prison shall at all times avoid all conduct likely to unduly irritate or annoy any prisoner , and shall treat every prison humanly and with fact, good temper , and strict impartiality . He shall listen, without displaying impatience or irritation, to every complaint or report which any prisoner may at any time make to him, and shall show all such kindness and consideration to every prisoner as is compatible with the firm and effective, discharge of his duties. Subject to the foregoing provisions every officer shall firmly maintain strict discipline and enforce all rules, regulations and orders applicable to the discharge of his duties. (ii) It is important that every complaint made by a prisoner should be listened with attention, so that, if genuine, the grievance may be redressed or remedied, and there should not be any just cause for discontentment."

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8. Chapter-6 describes the classification of prisoners. The prisoners have been divided into four broad categories; i) criminal prisoners, which has been further divided into convicted and non-convicted or under trial prisoner , (ii) a civil prisoner , (iii) a prisoner ordered to be detained in prison without trial under a particular law and, lastly (iv) those persons who are detained under the orders of a Magistrate on account of being lunatics. Rule 222 divides the convicted prisoners into three classes i.e. (a) superior class; (b) ordinary class; and (c) political class. Rule 226 further divides convicted persons into casual and habitual. The former are persons who are first offenders and who lapse into crime not because of a crimina l mentality but on account of surroundings or some physical disability or mental deficiency . Habitual convicted prisoners are classified as ordinary habitual or professionals or repeaters. Rule 227 has classified convicted prisone rs on the basis of age into three categories; i.e. (i) "Juvenile" under the age of 18; (b) "Adolescent" over 18 and under 21 years of age and lastly "Adults" over the age of 21. Rule 229 has classified under trial prisoners into two categories i.e. (a) committed to sessions and (b) committed to other courts. Rule 231 makes it mandatory to keep the classes described therein separate from each other . It provides that juveniles shall be kept separate from all other prisoners while under trial prisoners shall be kept separate from convicted prisoners. Chapter 12 provides that juvenile and youthful offenders will be sent to Borstal Institutions and Reformatory Schools, respectively . Rule 295 describes the manner in which juveniles are to be treated. It is mandatory under rule 298 to maintain a well stocked library in the Borstal Institution and Reformatory Centre while rule 299 makes it obligatory to provide for a spacious play ground in every prison and opportunities of physical activities/sports to the prisoners. The treatment of women and children prisoners has been described in Chapter- 13. Chapter-15 deals with under trial prisoners. The minimum standard for diet, clothing, equipment, sanitation and accommodation/space has been specifi ed in the respective chapters. The administration of the prisons in a province is headed by an "Inspector General" appointed under rule 888. Rule 898 describes the duty of the Inspector General and clause (d) thereof provides that during inspection the latter shall ensure that accommodation is ample and there is no overcrowding. Chapter-37 empowers the Deputy Commissioner or the District Coordination Officer, as the case may be, to visit prisons and to exercise powers mentioned in rules 908 and 909, respectively . Chapter-38 empowers the Government to appoint visitors for inspect ion of the prisons. Rule 913 has divided the visitors into two categories i.e. (a) ex-of ficio of ficials, and (b) non-of ficials appointed by name. 9. A plain reading of the Jail Manual as a whole shows that it prescribes minimum standards for treating a prisoner while the latter remains in the custody of the prison authorities. It is a comprehensive set of rules most of which is consistent with the constitutionally guaranteed rights of the prisoner . It also has set out rules regarding classification of prisoners and their mandatory segregation. This classification is aimed at achieving the fundamental principle of reformation and rehabilitation of an incarcerated convicte d person while safeguarding an under trial non convict from being exposed to the influence of a hardened criminal. These minimum standards guarantees to a prisoner that the latter has a right to be treated in a humane manner and shall be respected as a human. It, therefore, prescribes duties and obligations of the State and prison authorities on the one hand and, on the other , rights are accrued in favour of the incarcerated inmate to be treated in accordance with the set out minimum standards. The Jail Manual, read with the relevant primary statutes, makes it a statutory duty of the prison authorities and the respective governments to treat prisoners in accordance with the minimum standards elaborated therein. A breach of such statutory duty, depending on the facts and circumstances of each case, may expose the prison authorities and the concerned government to an action under the law of tort. Likewise, depending on the circumstances, the conditions of incarceration may give rise to cause of action for false imprisonment. As an illustration, incarceration of a juvenile in the same cell or barrack with convicted hardened criminals and that too under intolerable living conditions would constitute illegal detention and thus render it as false imprisonment. This would indeed not make the prisoner entitled to be released but it would give rise to a cause of action under tort for as long as the false imprisonment would continue. It is important to note that the Jail Manual provides for various modes of accountability in order to remedy breach of the minimum standards set out for treatment of the prisoners. The prison authorities can be proceeded against by treating the breach of the Jail Manual as misconduct. The Inspector General and respective Superintendents are mandated to conduct visits aimed at ensuring that the prisoners are being treated in conformity with standards prescribed under the Jail

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Manual. The District Co Ordination Officer or the Deputy Commissioner , as the case may be, has wide powers for the purposes of oversight. The District and Sessions Judge, the ex officio visitors described in Rule 193 (ii) are also empowered to take appropriate action to remedy breaches of the Jail Manual. The non official visitors have also been entrusted such a role. Under Rule 917 (vi) members of the National Assem bly, Senate and the Provincial Assembly can be appointed as ex officio members. It appears that, despite such oversight mechanism, the prisoners are treated in the most inhuman and degrading manner and thus the provisions of the Jail Manual are flagrantly violated leading to the breac h of constitutionally guaranteed rights. Such blatant unconstitutional treatment and violation of unambiguous provisions can by no stretch of the imagination be justified in a State governed under the Constitution. INTERNA TIONAL CONVENTIONS/TREA TIES RA TIFIED BY THE ST ATE OF P AKIST AN. 10. The Government of Pakistan has ratified seven crucial conventions having relevance to the rights of prisoners and which are as follows.- i. International Convention on the Elimination of All Forms of Racial Discrimination. ii. Convention on the Rights of the Child. iii. Convention against T orture and other Cruel, Inhuman or Degrading T reatment or Punishment. iv. International Covenant on Civil and Political Rights. v. International Covenant on Economic Social and Cultural Rights. vi. Convention on the Elimination of All Forms of Discrimination against Women. vii. Convention on the Rights of Persons with Disabilities 11. The preamble of the International Covenant on Civil & Political Rights recognizes that the rights described therein derive from the inherent dignity of the human person while Article 10 (3) explicitly provides that the object of incarceration of a prisoner is reformation and rehabilitation. Moreover , it makes it an obligation of the…

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