Recognising that the existing prison laws are outdated, the Supreme Court on Tuesday observed that the federal and provincial governments need to reconsider prison laws, enabling prisoners to be treated in accordance with the law and to enjoy equal protection of the 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," observed Justice Jamal Khan Mandokhail.
"We have observed that such an important human rights issue has escaped the attention of the federal as well the provincial governments because it is not on their priority," Justice Mandokhail further observed.
Justice Mandokhail further observed that the living conditions in death cells are miserable and altogether different from the living conditions of other prisoners, including those spending life imprisonment sentences, further lamenting that there is no effort to make prison rules per international standards.
"Even these laws are not properly implemented."
Justice Jamal Khan Mandokhail made these observations in a nine-page judgment on a review petition. A three-judge bench, headed by Justice Mandokhail and comprising Justice Ayesha Malik and Justice Hassan Azhar Rizvi, heard the review petition over the top court's judgment against Ghulam Shabbir Khan, who had been booked in a murder case.
"In a death cell, the convict is under strict supervision, surveillance and is isolated. The space of a cell provided for each condemned prisoner is about 9 x 12 feet, with a single toilet to be used jointly by all the prisoners confined in their respective cells, which compromises their privacy," added Justice Mandokhail.
"The prisoner is permitted to go out of the cell twice a day, but only for half an hour each. The death row prisoner is not permitted to participate in any extracurricular activities, nor is entitled to the benefits and rights available to other prisoners, incarcerated in general prison."
The court observed that the convict is forced to live in such "inhuman conditions". The date and time of the execution of their sentence is uncertain, which, in the given circumstance, "results into horrible feelings and creates anxiety."
"It is not just the prisoner who suffers, it's the family too, who serves the penalty by way of mental torture, in taking care of him while incarcerated."
Justice Mandokhail further said that because of the fact that the courts are overburdened, it takes years and sometimes decades to conclude proceedings.
"The delay in the conclusion of judicial proceedings and execution of sentence awarded to the petitioner was on account of the system, hence, was beyond his control," the judgement noted.
"Due to this hard fact, the petitioner has faced the agony of prolonged criminal proceedings and, hence, is a victim of circumstances, therefore, he cannot be penalised for the act of the court or the executive."
The judgment said the top court, in several cases, has observed that after confirmation of the death sentence by the high court, the convicts 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 the execution of their sentence by the executive.
"There is no doubt that, after confirmation of the 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."
The top court further stated: "Awarding a death sentence to a person does not mean that he/she be treated inhumanly by keeping them in death cell for a long, unlimited period of time. All prisoners living in death cells 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 court said that enjoying the equal protection of the law and being treated in accordance with the law is an inalienable right of every citizen enshrined in Article 4 of the 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 judgement read.
"The reality of increased number of cases causes delay in their disposal, and it also takes a considerably long period of time to execute death sentence, which results in prolonged detention of prisoners, hence, the prisoners spend the best period of their lives in prison."
Referring to international standards for prisoners on death row, the judgement noted that when the issue came up before the United Nations, it issued the United Nations Standards Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules).
In his judgment, Justice Mandokhail observed that, under Article 45 of the Constitution, the President has the power to pardon a death row prisoner.
"Prisoners in death cells present mercy petitions before the President through concerned Superintendent Jail, but mostly they are filed after a considerable period of time without any explanation," the judgement observed.
"Besides, there is no procedure or mechanism in vogue, nor is there any limitation for filing and deciding the mercy petitions by the President, hence, it takes years to decide."
It added: "This is also one of the causes of delay in execution of the sentence of death. The matters pertaining to the submission and disposal of mercy petitions also require consideration. All the respective governments should consider making of policy, enacting laws and/or amending the existing laws, in line with the international standards, in order to minimise the period of detention of death prisoners in death cells to a possible minimum extent."
The case
The original case pertains to Ghulam Shabbir, who was arrested in July 1990 for murdering two people and causing injuries to two others.
The trial court convicted Shabbir under section 302(b) of the Pakistan Penal Code (PPC) in 1994 and sentenced him to death on two counts. He was also convicted under section 307 PPC and sentenced to rigorous imprisonment for five years on two counts.
The relevant high court dismissed Shabbir’s appeal against his sentence in February 2000. The Supreme Court dismissed his subsequent appeal in 2015. As a result, the conviction and sentences were upheld.
The petitioner then filed the criminal review petition on the ground that he had already served a period equivalent to a life term and, therefore, prayed for the conversion of his death sentences into life imprisonment sentences.
Shabbir's counsel submitted that his client was sentenced to death on two counts, but before the top court decided to turn down his appeal, he had already spent 26 years in jail without any remission. This period was more than imprisonment for life, his lawyer argued.
The premise of the counsel's argument was that after serving one of the sentences, his client cannot be punished for another sentence in respect of one and the same offence, but this court did not consider the dictum laid down in different cases.
The counsel argued that Shabbir, the petitioner, had served a cumulative 34 years without any remission, out of which he remained in the death cell for about 24 years.
Impact on SC
The top court said that despite the confirmation of his death sentence by the top court, the petitioner has been awaiting the execution of his sentence for the last nine years. If remissions are applied to his sentence, his detention may come to almost 40 years.
The top court admitted that the petitioner is awaiting the execution of his death sentence to date, which is uncertain.
"He has served out his sentence for more than a life term and that too, in miserable and inhuman conditions while incarcerated in a death cell for 24 years, which has compromised his personal values and dignity."
The court partly accepted the petition and modified its 2015 judgment.
"Resultantly, the conviction of the petitioner, Ghulam Shabbir, under section 302(b) PPC is maintained, however, death sentences awarded to him on two counts are converted into imprisonment for life on two counts, with benefit of section 382-B, Code of Criminal Procedure. The conviction and sentence of the petitioner under section 307 PPC are upheld. All the sentences shall run concurrently."
The top court directed its office to send a copy of the judgment to the interior ministry and home departments of all provinces, as well as to the offices of the attorney general and prosecutor generals of the provinces.