Longstanding detention in prison up to or more than the period of imprisonment for life is a complete and distinct punishment, as provided by section 302(b) PPC. The death row.......

 Longstanding detention in prison up to or more than the period of imprisonment for life is a complete and distinct punishment, as provided by section 302(b) PPC. The death row prisoner is kept in solitary confinement and inhuman conditions, despite the fact that it is not a part of the sentence.

The petitioner is awaiting execution of his death sentence and till date, which is uncertain. He has served out his sentence for more than life term and that too, in a miserable and inhuman condition while incarcerated in death cell for twenty four years, which has compromised his personal values and dignity. Because of the fact that the courts are overburdened, it takes years and sometimes decades in conclusion of the proceedings in normal course. The delay in conclusion of judicial proceedings and execution of sentence awarded to the petitioner was on account of the system, hence, was beyond his control. Due to this hard fact, the petitioner has faced the agony of prolonged criminal proceedings, hence, is a victim of circumstances, therefore, he cannot be penalized for the act of the Court or the Executive. He fulfils the criteria laid down by this Court in the above-referred judgments. A longstanding delay upto or above the period of imprisonment for life is one of the grounds necessary for awarding lesser punishment, keeping in view the principle of expectancy of life. Facts and circumstances of the case in hand enable us to exercise our discretion by converting the sentence of death awarded to the petitioner to that of imprisonment for life.

In a number of cases, we have observed that after confirmation of death sentence by the High Court, the convict(s) are shifted to death cells, where they are kept for years and sometimes for decades, on account of delay in conclusion of criminal proceedings and thereafter, for execution of their sentence by the Executive. There is no doubt that after confirmation of death sentence, the convict must face its consequence but the delay in conclusion of criminal proceedings and thereafter, delay in executing the death sentence of a convict would amount to punishing him twice for one and the same act, which is neither permissible under the law nor under the injunctions of Islam. Awarding death sentence to a person does not mean that he/she be treated inhumanly by keeping them in death cell for long unlimited period of time. All prisoners living in death cell are not only deprived of their constitutional rights, but they also live under mental stress. Once the judgment attains finality, it must be implemented and executed at the earliest. The issue of prisoners detained in death cell once came up before the Federal Shariat Court in the case of Dr. Muhammad Aslam Khaki, which declared section 30 of the Prison Act, 1894 repugnant to the injunctions of Islam. In the said judgment, the Federal Shariat Court has issued certain directives to the Government, but it seems that the said judgment has not been acted upon.

Even otherwise, to enjoy the equal protection of law and to be treated in accordance with law is an inalienable right of every citizen enshrined in Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 (‘Constitution’). Likewise, Article 14 of the Constitution

provides that the dignity of a man shall be inviolable. His conviction does not disentitle him from his constitutional rights. All the prisoners are subject to prison law and rules in vogue, but these must not be inconsistent with or in derogation of the fundamental rights. The reality of increased number of cases causes delay in their disposal and it also takes considerable long period of time to execute death sentence, which result in prolonged detention of prisoners, hence, the prisoners spend the best period of their lives in prison. The issue of prisoners came up before the United Nations, which issued the United Nations Standards Minimum Rules for the Treatment of Prisoners (‘Nelson Mandela Rules’). According to Rule 3 of the Nelson Mandela Rules, the conditions of imprisonment should not be used as an additional punishment or aggravate the inherent suffering of detention. Pakistan being a member of the United Nations, ratified the same. The existing prison laws are outdated. There is no effort to make them in accordance with the international standard. Even these laws are not properly implemented.

It is need of the hour that the Federal Government and the Provincial Governments must reconsider the prisoners laws, enabling the prisoners to be treated in accordance with law, to enjoy the equal protection of law. Prisons should provide an atmosphere to prisoners especially those incarcerated in death cells in order to maintain their human identity and respect, their personal values and dignity which is their constitutional right.

Crl.R.P.103/2017
Ghulam Shabbir v. The State & another
Mr. Justice Jamal Khan Mandokhail
27-08-2024