(Writ Petition No. 2488 of 2021)
Fakhar Islam Versus. Superintendent District Jail & another
i. In future in the light of undertaking produced before this Court, in case of emergent situation the process of shifting of a prisoner (convict/under trial) shall be completed within three days.
ii. In case of risk to the life of an ailed prisoner the Superintendent Jail will obtain the permission through, time saving modes.
iii. The moment request is made by the Superintendent Jail seeking permission, a copy thereof shall also be sent to the concerned District and Sessions Judge through special messenger for information.
iv. The DPO or CPO, as the case may be shall facilitate without fail the shifting and security of prisoner.
v. The learned District and Sessions Judges of the Districts or in case of their representatives, on each visit of the Jails shall personally examine that if any of the prisoners is not waiting for his shifting from jail to hospital. If it is so, he shall take all possible measures to ensure the quick shifting of prisoner to hospital in the light of undertaking made before this Court. This fact shall be specifically recorded also in the Jail Inspection Reports.
vi. In the monthly meeting of Criminal Justice Coordination Committee, on permanent basis one of the items of the agenda shall be with regard to such prisoners and their treatment by the Medical Officer concerned, by Specialist or their shifting to hospital.
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
(Writ Petition No. 2488 of 2021)
Fakhar Islam Versus. Superintendent District Jail & another
Date of order/ proceeding
10.08.2021
Raja Ikram Ameen Minhas Advocate for petitioner.
Mr. Mujeeb-ur-Rehman Kiani Additional Advocate General.
Mr. Qaisar Abbas Shah, Assistant Advocate General.
Mr. Zeeshan Shabbir Rana Additional Secretary (Prisons), Mr. Shahid Saleem Baig IG (Prisons), Mr. Shaukat Feroz DIG (Prisons), Mr. Qadeer Alam AIG (Legal), Mr. Ghafoor Ahmad Sulehri Section Officer and Mr. Mansha Sindhu Superintendent Jail.
The word ‘Independent’ means free from outside control and not subjected to another authority. If first syllable of word Independent that is ‘in’ omitted from ‘Independent’ it becomes ‘Dependent’ that is to say relying on another support or controlled by others. Therefore, matter before this Court is in between “Dependent and Independent” i.e. a prisoner in jail vs. the authorities having his control.
2. Fakhar Islam (petitioner) is an under trial prisoner of case FIR No. 174 recorded on 19.06.2021 under Sections 302/324/148/149 PPC at Police Station Chotala District Jhelum and right now confined in District Jail Jhelum.
3. Admittedly at the time of his arrest, on 19.06.2021, he was carrying firearm injury on his right leg. He was medically examined on 20.06.2021 and having a fracture of right femur. He had undergone a surgery in Benazir Bhutto Hospital (BBH) and was discharged on 28.06.2021. Thereafter, he was shifted and admitted in DHQ Hospital Jhelum, where he remained from 28.06.2021 to 03.07.2021 for treatment and management. Finally, he was shifted to jail. As evident from a letter No.10328 dated 13.07.2021, Superintendent
request to the learned Area Magistrate Jhelum for issuance of NOC/concurrence for the shifting of petitioner to BBH Rawalpindi because the Orthopedic Surgeon of DHQ Jhelum had advised follow up by Primary Operating Surgeon of BBH Rawalpindi on selective basis. The learned trial Court issued the concurrence on 19.07.2021. The important reason for his shifting to BBH as disclosed by Dr. Ansar Mehmood the Medical Officer of the Jail was for external fixator1.
4. Despite having concurrence from trial Court on 19.07.2021 and ignoring the serious health condition of petitioner, the Superintendent Jail wrote a letter after four days i.e. on 23.07.2021, seeking permission from concerned quarter for the shifting the petitioner to BBH. This letter then remained in the office of DIG (Prisons) Rawalpindi who also took no pain and after five days he forwarded the request to IG (Prisons) Lahore as it was dispatched on 28.07.2021. Slow and irresponsible conduct even prevailed in the office of IG (Prisons), who forwarded the letter to the Government of the Punjab Home Department, Lahore on 05.08.2021.
5. Petitioner losing his hopes for protection of his health by ‘Independent’ and finding no other way approached this Court through the instant Constitution petition filed under Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973.
6. On 09.08.2021, when this petition came for hearing first time, on the same day on Court’s call Mr. Qaisar Farooq Deputy Superintendent and Dr. Ansar Mehmood Medical Officer of Jail appeared. When they were asked that why despite passing more than two weeks the petitioner has not been shifted, they had no reply except that they had written to the concerned authorities seeking permission for shifting the petitioner to BBH. This Court, therefore, directed personal appearance of IG (Prisons), Lahore, DIG (Prisons) Rawalpindi and Secretary Government of the Punjab Home Department, Lahore. All of them except Home Secretary whose personal appearance has been exempted on the request of learned AAG present in Court stated that last night they have shifted the petitioner to BBH Rawalpindi. They have also produced an undertaking in writing signed by Mr. Zeeshan Shabbir Rana Additional Secretary (Prisons), Mirza Shahid Kareem Baig I.G (Prisons), Malik Shaukat Feroze DIG (Prisons) Mr. Ghafoor Ahmad Sulehri Section Officer Home Department and Dr. Qadeer Alam AIG (Legal) Punjab that in future such issues shall be finalized within three days. According to IG (Prisons) as Superintendent Jail was responsible for this negligence, so he has been suspended.
7. I cannot close the chapter summarily on their undertaking because question before this Court relates to the rights of every prisoner in jail who is having the challenge of his/her health.
8. This is unfortunate that in this Country when such a situation is related to an influential, rich and powerful person, the entire machinery of the State comes into motion and all is to be done within minutes whereas, in case of a person like petitioner having no social status the position becomes otherwise and he is left at the mercy of correspondence between the ‘Independents’. Such discrimination cannot be allowed at any costs because life is precious for everyone.
9. According to a ‘Prison Reforms Report’ issued in 2020 there were about 2100 prisoners with different ailments in all prisons of Pakistan with a breakup as: -
See Scan Judgment for Table
10. It was also reported that: -
i. Although Rules contain provisions for adequate medical assistance, but difficulty is about implementation thereof.
ii. Almost half of the sanctioned posts of medical staff remain vacant.
iii. The worst situation is that every prison is not equipped with medical and dental equipments and very few prisons have functioning labs and paramedical staff.
iv. The prisons’ authorities fail to provide ambulances to transfer the prisoners to hospitals in cases of emergencies.
v. The Executive authorities are contributory towards non enforcement of the Prison Rules.
vi. There is procedural delays in obtaining permission from Home Department.
vii. First and foremost, data reveals that currently there are a total of 245 cases of medically ill prisoners those are pending before the respective Home Departments with 232 cases in Sindh and 12 in Punjab.
viii. Such delays in seeking permission from the Home Departments have seriously affected and worsened the health conditions of prisoners that can be effectively addressed at early stages.
(Emphasized)
11. What can be the consequences in case of negligence and irresponsible conduct in such like eventualities for that an instance has also been quoted in the report about one Abdul Basit, a former administrator at a medical college, who was sentenced to death? On 1st of August 2010 while in Central Jail, Faisalabad, he contracted tubercular meningitis, which, due to the negligence of the jail authorities, resulted into his paralysis from the waist down. He was scheduled for execution three times since July 2010 but such punishment could not be performed since a botched hanging would be in violation of the Articles 7 and 14 of the International Convention on Civil and Political Rights4 and he was still languishing in jail.
12. It was proposed in the report on this particular subject to devise Standard Operating Procedure (SOP) that can reduce.procedural delays and shorten the timelines for medical redress or the authority to issue transportation orders for hospitals may be given to the Superintendent entirely.
13. A further study shows that in Islam the rights of prisoners are considered to exist mainly on the basis that they are humans and thus are endowed with humans’ dignity and cannot be trodden upon or taken away. The respect accorded to Islam to all human beings dictates the state to respect certain crucial rights that may not be taken away even when they have committed crimes and there is a need to have their freedom limited.
14. Rule 197 of the Pakistan Prison Rules, 1978 is with reference to the question of transfer of prisoner to civil hospital in case of serious illness. It is as under: -
“Transfer of prisoners to Civil Hospitals in case of serious illness
Rule 197 (i) Where it is necessary to remove a convicted prisoner or an under trial prisoner to hospital outside the prison for operative or other special treatment which cannot conveniently be given in the prison itself:
(a) The orders of Government shall be obtained through the Inspector General, in cases in which a convicted or under trial prisoner is to be admitted to the hospital for treatment provided that in emergent cases the Superintendent of the prison is authorized to anticipate the sanction of Government and if he does so, he should make an immediate report through the Inspector General.
(b) In cases in which a convicted or under trial prisoner is taken to hospital for treatment as an outpatient only or for X-ray examination, the Superintendent of the prison is empowered to authorize this visit himself.
(ii) The discretion given to the Superintendent to anticipate the sanction of government, does not apply to cases in which it is proposed to remove a prisoner to a hospital in another station. In such cases the orders of the Inspector General must be obtained in advance, and the Inspector General will make an immediate report to Government in all cases in which he allows a prisoner to be so moved in anticipation of sanction.
(iii) In all cases in which a prisoner is removed to a hospital for the purpose of an operation, the removal should take place as close as possible to the time fixed for operation and the prisoner should be brought back to the prison hospital as soon as this can conveniently be done.
(iv) Prisoners admitted in hospital outside the prison shall always be guarded by the Police.
(v) All expenses incurred by the hospital authorities in connection with the treatment of prisoners from prison will be borne by the Health Department.”
(Emphasized)
15. The Rules indicate that even the Superintendent Jail has the authority to shift a prisoner in case of emergent situation however, this discretion is frozen if a prisoner is to be removed to a hospital in another station and for that he has to obtain permission in advance, but it does not mean that such exercise has to take place with an inordinate delay, because the priority is to protect the life of a prisoner who is ‘Dependent’.
16. This is the era of modern devices. In case of abnormal situation, the permission can be obtained in minutes. There are many instances available with the Jail authorities, where in case of urgency the Superintendents Jails have taken the permission on telephone so as to save the life of the prisoners.
17. In the case in hand, it appears that the Superintendent District Jail Jhelum, DIG (Prisons) and even IG (Prisons) did not perform their duties with any level of responsibility. They are bound to protect the rights of every prisoner with same dedication and devotion, which they show in case of a ‘VIP’ but they forget that a prison having serious ailment is also a ‘VIP’ that mean ‘Very Important Prisoner’.
18. Concluding the discussions made above, this writ petition is disposed of with following directions: -
i. In future in the light of undertaking produced before this Court, in case of emergent situation the process of shifting of a prisoner (convict/under trial) shall be completed within three days.
ii. In case of risk to the life of an ailed prisoner the Superintendent Jail will obtain the permission through, time saving modes.
iii. The moment request is made by the Superintendent Jail seeking permission, a copy thereof shall also be sent to the concerned District and Sessions Judge through special messenger for information.
iv. The DPO or CPO, as the case may be shall facilitate without fail the shifting and security of prisoner.
v. The learned District and Sessions Judges of the Districts or in case of their representatives, on each visit of the Jails shall personally examine that if any of the prisoners is not waiting for his shifting from jail to hospital. If it is so, he shall take all possible measures to ensure the quick shifting of prisoner to hospital in the light of undertaking made before this Court. This fact shall be specifically recorded also in the Jail Inspection Reports.
vi. In the monthly meeting of Criminal Justice Coordination Committee, on permanent basis one of the items of the agenda shall be with regard to such prisoners and their treatment by the Medical Officer concerned, by Specialist or their shifting to hospital.
19. Office is directed to circulate copies of this order and undertaking submitted before this Court to all the District and Sessions Judges in the Punjab, all the Superintendents of Jails through IG (Prisons) and all CPOs/DPOs of Punjab through IG Police, Punjab for strict compliance in future.
(Sohail Nasir)
Judge
Approved for Reporting
(Judge)
1An external fixator is a metal frame that holds bones in place. It has pin that go through the skin and into the bone. It is used for limb lengthening has bars (called struts) that are turned to slowly lengthen and realiong the bone
2 Report by the Commission issued by the Ministry of Human Rights Government of the Pakistan (2020)
3 Tuberculosis Meningitis (TBM) is a form of meningitis characterized by inflammation of the membranes (meninges) around the brain or spinal cord and caused by a specific bacterium known as Mycobacterium tuberculosis.
4 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49
5https://www.researchgate.net/publication/325997313_Prisoner's_Right_Under_English_Law_International_Human_Rights_Law_and_Islamic_Law_A_Comparative_Perspective
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