Dr. Muhammad Aslam Khakhi And Others Vs The State And Others

IN THE FEDERAL SHARIAT COURT

(Original Jurisdiction)

PRESENT

MR. JUSTICE DR.eFIDA MUHAM1VIAD KHAN

MR. JUSTICE SALAHUDDIN MIRZA

MR. JUSTICE MUHAMMAD ZAFAR YASIN

MR. JUSTISCE SYED XFZAL HAIDER

SHARIAT PETITION NO. 613 OF 1992 Along with

SHARIAT MISCELLANEOUS APPLICATION NO.10/I OF 1998.

Dr. Muhammad Aslam IChakhi II •• Petitioner

Versus

Federation of Pakistan etc. ' Respondents SHARIAT PETITION NO.62/I OF 1992 Along with

SHARIAT MISCELLANEOUS APPLICATION NO.11/I OF 1998

Dr. Muhammad Aslam Khakhi I Petitioner Veruss

Federation of Pakistan etc. '1; Respondents

SHARIAT MISCELLANEOUS APPLICATION NO.21/I OF 1995

Master Ejaz Hussain Petitioner

Versus

Government of Pakistan Respondent

SHARIAT MISCELLANEOUS APPLICATION NO.16/I OF 1997

Master Ejaz Hussain Petitioner

Versus

The State Respondent

SHARIAT MISCELLANEOUS APPLICATION NO.19/I OF 1997

Capt.(Retd) Mukhtar Ahmed Sheikh Petitioner Versus The Government of Pakistan .... Respondent

Master Ej az Hussain Petitioner

Versus

Government of Pakistan Respondent

SHARIAT PETITION NO. 4/I OF 2004

Dr. Muhammad Aslam Khakhi Petitioner Versus fen

Federation of Pakistan etc. Respondents Petitioners Dr. Muhammad Aslam Khakhi, Advocate, Capt. (Retd) Mukhtar Ahmed Sheikh and Master Ejaz Hussain

For the Federal Government Hafiz S.A. Rehman, Standing Counsel, Mr. Iftikhar Hussain Chaudhry, Standing Counsel, Dr. Abdul Malik Irfani, Advocate Mr. Muhammad Aslam Uns, Advocate, Sardar Abdul Majeed, Standing Counsel, Mrs. Naheeda Mehboob Ellahi, Standing Counsel, Mr. Rizwan Ahmed Siddiqui, Deputy Attorney General with Mr. Asif Mangi, Advocate.Mr. Zahoor Hussain Soomro, Section Officer Human Rights Division, Zahid Hussain Soomro, Section Officer Human Rights Division Ministry of Law, Mr. Amanat Parvaiz Bhatti, Deputy Secretary, Home Department, Govt. of Punjab, Mr. Falaq Sher, S.O. Home Department, Govt. of Punjab, Mr. Haseeb Shah Jehan, S.O. Home Department Govt. of Punjab and Ch. Liaqat, Deputy Secretary (Judicial) Home Department, Govt. of Punjab.

For the Punjab Province Mr. Muhammad Aslam Uns, Advocate on behalf of A.G. Punjab, Rana Fazal-ur-Rehman, Advocate, Mrs. Rukhsana Malik, Assistant Advocate General, Mr. Shafqat Munir Malik, Additional Advocate General, Haseeb Shah Jehan, Section Officer Home Department, Govt. of Punjab,

Mr. Mehboob Ahmed Khan, Advocate for Human Rights Commission, Ch. Liaqat, D.S. (Judicial) Home Department and Ch. Saleem Murtaza Mughal, Assistant Advocate General.

For the Sindh Province Mr. Muhammad Sarwar Khan, Additional Advocate General on behalf of A.G. Sindh, Mr. Munir Ahmed Khan, Additional A.G, Miss. Qamar-un-Nisa, Advocate, Mr. Abdul Waheed Siddiqui, Advocate, Mr. Muhammad Shoaib Abbasi, Advocate, Mr. Arshad H. Lodhi, Assistant Advocate General, Mr. Fareed-ul-Hassan, Assistant Advocate General, Mr. Munir Ahmed Khan, Additional Advocate General, Mr. Qasim Mir Jat, Assistant Advocate General, /tr , ho For the N.W.F.P. Mr. Aziz-ur-Rehman, Advocate, Haji Tasleem Hussain, Advocate, Mr. Fazal-ur-Rehman Rana, Advocate with Noor-ul-Haq S.O. (Litigation), Sind GAD Department, Mr. Muhammad Sharif Janjua, Advocate, Pir Liaqat Ali Shah, Advocate General, Sardar Shaukat Hayat, Assistant Advocate General, Qari Abdul Rashid, Standing Counsel, Mr. Muhammad Saeed Shangla, Additional Advocate General, Section Officer(Litigation) S and GAD Department NWFP, Mr. Muhammad Saeed, Acting Advocate General, N.W.F.P. Mr. Sohail Alchtar, Law Officer for Govt. of N.W.F.P. and Mr. Noor-ul-Haq, Section Officer, (Litigation) Sand GAD Department,

NWFP.

For the Balochistan Ch. Ejaz Yousaf, Additional Advocate General, Malik Sikandar Khan, Advocate General, Qari Abdul Rashid, Advocate, Mr. Mehmood Raza Khan, Additional Advocate General, Mr. Azam Khan Khattak, Additional Advocate General, Mr. Salahuddin Mengal, Advocate General, Mr. Muhammad Shoaib Abbasi, Advocate and Mr. Amanullah Jaween, Assistant Advocate General.

Juris-consults Dr. Allama Muhammad Hussain Akbar and Dr. Muhammad Yousaf

IP

Farooqi.

Officers of Prisons 1. Mr. Tipu Sultan, Assistant (Punjab, Sindh, NWFP and Superintendent Adyala Jail, Balochistan) Rawalpindi.

2.Raja Abdul Qayyum, Law Officer I.G. Jail IChana Jat, Punjab.

0 3. Mr. Shahid Saleem Baig, Superintendent Jail, Rawalpindi.

Mr. Arshad, Assistant Superintendent, Adyala Jail, Rawalpindi.

Mr. Sarmad Tehmoor, Assistant Superintendent Central Jail, Rawalpindi. I

Mr. Muhammad Yamin Khan, Inspector General Prisons Sindh.

Mr. Ajmal Khan, Deputy Superintendent, Central Jail, Peshawar.

Mr. Masood-ur-Rehman, Deputy Superintendent Jail, Peshawar.

Mr. M. Asghar Munir, Deputy Superintendent, Adyala Jail, Rawalpindi.

Dates of Institution 19.10.1992, 22.7.1998, and 03.06.2004

Places of hearing Islamabad and Karachi Dates of hearing 12.11.1992,24.05.1993, 17.10.1993, and 26.08.2009

Date of Decision 28.08.2009

rj 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

JUDGMENT

SYED AFZAL HAIDER, JUDGE.

10 t- , Lecis r- t-ews

And they make priovision 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. “

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

SECTION A: SHARIAT PETITIONS

SHARIAT PETITIONS , PROVISIONS CHALLANGED

Shariat Petition No. Rules 307, 314 of Chapter 13 61/1 of 1992 entitled: Women Prisoners and Children.

(filed on 19.10.1992) Rules 935, 939 of Chapter 39 entitled: Superintendent. If

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.

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, 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.

Shariat Petition No. Rule 1078 of Chapter 44 entitled: 12/1 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 4/1 of 2004 Rules 624(0,633 of Chapter 25 filed originally on 2004 entitled:

and refilled on 23.12.2008 Prisoners in cells.

'0I

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

Dr. M. Aslam Khalchi Vs. i;

Federation of Pakistan etc.

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 r 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

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

prohibits employment of dismissed Government Servant and previous convicts. It was urged that earning , of Rizq-e-Halal i.e, legitimate livelihood 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.

614 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

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

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 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 lad 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

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

i. Sh.Misc. App. No. Section 382-B of the Code of 21/I of 1995 Criminal Procedure and other (flied on 09.04.1995) matters.

Master Ijaz Hussain Vs.

Govt. of Pakistan

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

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:-

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 “ Shariat Petition No.4/I of 2004

i/ Shariat Miscellaneous Application No.21/I of 1995 was

I

moved by prisoner Master Ijaz Hussain from Central Jail, Faisalabad, on 09.04.1995 in which he raised the following 11 contentions for consideration of the Federal Shariat Court:- 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) /VI

I •

or Prisoners undergoing long terms sentences be released on parole for two months every year for the performance of conjugal rights and looking after frilly 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)

Judicious and equal grant of remissions to prisoners on auspicious days;

(Already applicable).

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. Whild' 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. The State PLD 1991 Supreme Court 1145 May be seen].

The execution of the sentence awarded to the prisoners by the Superintendent of Jail should not executed till it is confirmed by the District & Sessions Judge concerned;

( Notice already taken).

The District & Sessions Judge should visit Prison' s in their jurisdiction every month to redress the genuine grievances of the prisoners; ( This is a already being done).

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

i. Proper ! arrangements should be made outside the prison house for those who come to visit the prisoners;

( Notice already taken).

Free legal aid should be provided to the prisoners at the initial stage in the Supreme Court of Pakistan when petition for special leave to appeal is moved;

(Notice already taken). • k. Maintenance allowance from Bait-ul-Mal be given to the dependents of needy prisoners.

( Doesnot relate to Prison Rules).

[NOTE: The fate of each contention mentioned above has been indicated in bold letters in brackets]

This application was admitted in Islamabad on 10.07.1997 by a Full Bench of the Federal Shariat Court. Written arguments were submitted by some convicts in support of these contentions in which it was contended that Islamic teachings enjoin equality and it was further stated that the Holy Prophet (PBUH) once let off a prisoner of war without demanding compensation. It was therefore contended that the Zakat fund maintained officially by State should be used for securing release of the prisoners. This aspect will be discussed in Segment Fifteen.

Shariat Miscellaneous Application No. 16/1 of 1997 was also moved by Master Ijaz Hussain Pon 07.07.1997 from District Jail, Faisalabad to challenge Rules No.546 and 690 of the Jail Manual. Rule No.546 makes

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

it mandatory for the Superintendent Jail to censor letters sent by or addressed to a prisoner. No.690 deals with list of articles which are prohibited in the prisons. However the petitioner has not mentioned verses of Holy Quran or Sunnah which have been violated by these two rules.

This topic is the subject matter of discussion in Segment Three of this judgment.

Shariat Miscellaneous Application No.19/I of 1997 was moved by Capt. (Retd) Mukhtar Ahmad Shaikh on 23.8.1997. It is in fact a letter requesting the Federal Shariat Court to examine the question of classification of prisoners into class A,B and C because the Pakistan Law Commission did not deal with this issue in its report on jail reforms. There is no reference to any verse of Holy Quran or Sunnah in support of the contention that the classification of prisoners in class A, B and C is ultra vires the Injunctions of Islam. This topic will be discussed in Segment Two.

iv. Shariat Miscellaneous Application No.10/I of 1998 in Shariat Petition No.61/I of 1992 was moved by Dr. Muhammad Aslam Khaki on

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

14.07.1998. This Miscellaneous Application does not challenge any existing provision of the prison discipline but it seeks to propose amendments in Rules 307(i) and 314.

v. Shariat Miscellaneous Application No.114 of 1998 was moved on 15.02.1997 by Dr. M. Aslam Khaki to amend the main Shariat Petition No.62/I of 1992 with the object of seeking a declaration that Rules 242(b), 245(d), (e) and (0 as well as Rule 248 (i) and (ii) are repugnant to the Injunctions of Islam. These legal provisions deal with classification of prisoners into class A, B and C as well as b) the classification of under- trial prisoners. The contentions raised therein will be discussed in detail in Segment Two.

ISSUES INVOLVED

5.The above mentioned Shariat Petitions and Miscellaneous Applications were heard on more than 20 occasions spread over a period of 16 years. During this period certain obstinate questions relating to prison discipline also became subject matter of public debate at socio-political plane. In order therefore to resolve the controversy agitated before us

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

through these petitions, two steps were taken:fir*, to consider the prison discipline as amended upto date instead of scrutinizing the prison

discipline as it prevailed in 1992 when these petitions were moved and secondly to strike consensus issues afresh with the active assistance of the learned counsel for the parties, in order not only to understand the scope of the problem agitated before us but also to make effort to define the limits Ii of the controversy in order to finally determine the various questions under review. The issues were therefore reframed. Supplementary issues during the course of arguments cropped up which are also being incorporated after mentioning the re-framed issues:

i. Whether a prisoner be allowed to perform conjugal rights in the prison?

Whether the female prisoners be allowed to remain under control and conductof the male staff of Jail?

Whether various classes i.e. A,B,C in the Jail be allowed to prisoners on the basis of their status, position, educational and financial background?

Whether remission of sentence be granted to prisoners on festival and special occasions?

Whether financial assistance and remuneration for labour of prisoners be provided to the families of prisoners?

vi. Whether a convicted person sentenced to death whose appeal has not been disposed of for long be allowed to suffer double punishment of imprisonment?

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

Whether all prisoners who have not been given benefit under section 382-B, of the Code of Criminal Procedure should by a general order be accorded benefit thereunder?

Whether the provision of section 35 of the Code of Criminal Procedure be made mandatory so that sentences awarded to prisoners in two or more sections under one FIR be made to run concurrently?

What facilities and conveniences be provided to the prisoners and their families?

What measures be taken for rehabilitation, reformation and character building of prisoners?

At the close of lengthy arguments spread over years the following questions were however considered germane to the ten issues already under consideration.

SUPPLEMENTARY ISSUES

Whether the punishment by way of rigorous imprisonment is not opposed to Islamic Injunctions?

This point is not the subject matter of any Shariat Petition.

Whether uncompensated hard labour, as a consequence of imposition of the punishment of rigorous imprisonment by criminal courts, cdn be exacted from a convict without violating Ayat 29 Siira 4 of Holy Quran and the tradition "The wages of a labour should be paid immediately" quoted by Ibn Maja in the Book on Mortage?

Issue answered in this Judgment. See Segment 19 What are the rights of an accused before and after the verdict has been recorded?

Issue answered in this Judgment. See Segment 15 Whether a system be not evolved on the basis of Islamic Insurance permissible by Islamic Injunctions, to compensate the victim in advance and then deduct the same from the

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

wages in installments on monthly basis from the wages that will be earned by a prisoner within prison precincts?

Proposal given: See Segment 19

e. Whether a convict can , be declared as condemned prisoner the moment a trial court announces capital punishment upon him notwithstanding the fact that the sentence is subject to confirmation by the High Court? and he still has a statutory right of appeal against confirmation of his conviction and sentence by the High Court;

Issue answered in this judgment. See Segment 13 in Whether the isolation imposed upon an already incarcerated condemned convict while confined in a death cell at all justified in the light of Islamic Injunctions? And Issue answered as above

Whether the current amount of Rs. 33/- allocated by the Prison Department as dietary money per person per diem is adequate to sustain a normal healthy person? Reference Ayat 8 Sura 76 (Al-Dahr).

Issue answered in this judgment. See Segment 11 Whether the sentences awarded to persons convicted under different counts in relation to the same crime report should not be made concurrent by operation to law.

Issue not raised in any petition.

Whether Prison Department should not be under administrative control of Judiciary

Suggestion made in Segment 14

What are the main causes of Jail Riots?

Mentioned in Part B of Segment Fifteen of this Judgment.

Issue No.VI relating to Condemned Prisoners was recast to read as follows:-

"Whether the person, sentenced to death by the trial court, should continue being treated as a Condemned Prisoner immediately after the trial court has announced its verdict and before his appeals or mercy petitions are decided and thereby subject him to additional hardships and strict surveillance in squalid and overcrowded cells?"

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

II 18

1.In view of notices sent in the related matters the following issues were also struck:-

What are the causes of Jail riots?

Are the Guiding Principles (the Permanent Values), enunciated in the Holy Quran, not covered by the scope of the term Injunctions of Islam? Can these principles be identified?

What are the problems associated with prison discipline and what are the possible solutions?

What are the rights of accused/prisoners in our legal system.

7.We decided to deal with the four Shariat Petitions and five Shariat Miscellaneous Applications through this consolidated Judgment as the substance of all these petitions is the same i.e, prison discipline.

Though the provisions actually challenged before us by the applicants have been picked up from different chapters of Prison Rules, The Prisons Act, 1894 and the Code of Criminal Procedure, 1898, yet during the course of arguments copious reference was made to various chapters of the Rules and laws relating to criminal administration of justice. For all practical purposes we had to go through various legal instruments in force in Pakistan in addition to the Pakistan Prison Rules,1878 while deciding these eleven connected matters.

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.During the hearing of these petitions we had the opportunity to go through some of the International documents relevant to the controversy before us. The reasons for considering the contents of these instrument and making a reference to these International Documents in this judgment are firstly that a larger Bench of the Federal Shariat Court through this

I

Judgment will, for the first time in our judicial history go through the entire provisions of Prison Discipline in Pakistan; secondly to enable individuals, groups and authorities, working in different capacities towards achieving the goal of a better and human friendly prison disciple, to appreciate and profit from the views adopted and steps taken at global level by renowned jurists and friends of humanity on a long neglected chapter of the administration of criminal justice; thirdly a perusal of these documents will certainly enable the policy making Executive and the law making Legislature to comprehend not only the dimensions of the problem but will assist them in appreciating the mode and manner in which the leaders of public opinion in different jurisdictions the world over, succeeded in introducing human friendly measures in the once very oppressive and

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

degrading discipline; and fourthly, the need to watch, examine and adopt new developments in contemporary societies is a religious obligation of

I

every Muslim in view of the following precepts of the Holy Prophet PBUH, which must be kept in "mind whenever amendments are about to be incorporated in the existing legal code.

Wisdom (erudition) is the lost treasure of a believer. He should acquire it (whenever and) from wherever it is available. Hadees No.2687 in Kitab-ul-Ilm Jama Tirmazi and Ibn-e-Maja.

Acquistion bf knowledge is obligatory for every Muslim (male or female). Reference Ibn-e-Maja, volume 1 (urdu translation), page 143 Chapter ILM.

u Muslims must acquire knowledge even if he has to travel to China because acquisition of knowledge is obligatory for every Muslim man and woman. So long as a person is busy in the pursuit of knowledge the angels keep their wings spread for the seeker of knowledge. Reference Hadith No.28697 Bab- ul-Ilm, volume 10 Kunz-ul-Ummal.

d. Whenever Advice/Information is sought from you, it should be given (honestly). Ibn-e-Maja volume 3. Chapter on Advice.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 .•.r.1

For the sake of reference we have detailed below the list of various legal instruments relating to Prisons, Prisoners and Detenues applicable in Pakistan in section A and the list of International documents relatable to these subject have been noted in section B. To avoid narration of the tin lengthy text, the titles of relevant legal instruments alone have been ' mentioned.

A. PAKISTANI LAWS

Regulation III of 1818 for the confinement of state prisoners.

The Prisons Act, 1894.

The Prisoners Rules, 1894

The Reformatory School Act, 1897

Chapter VIII of the Code of Criminal Procedure, 1898 (Chapter 13).

The Prisoners Act, 1900 pi

Provisions of the Civil Procedure Code, 1908

Lunacy Act 1912

The Punjab Borstal Act, 1926

Restriction of Habitual Offender (Punjab) Act, 1918 Good Conduct Prisoners Probationers Release Act, 1926 Superintendence and Management Adaptation of Pakistan Laws Order, 1947 The Probation of Offenders Ordinance, 1960

The West Pakistan-Maintenance of Public Order Ordinance, 1960.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

The Probation of Offenders Rules, 1961 West Pakistan Public Order Detention Rules, 1962 The Defence of Pakistan Rules, 1971

Article 10 of the Constitution of Pakistan, 1973 Pakistan Prisons Rules, 1978

Execution of the Punishment of Whipping Ordinance, 1970 The Punjab Execution of the Punishment of Whipping Rules, 1979 Sindh Execution of the Punishment of Whipping Rules, 1986 Abolition of Punishment of Whipping 'Act, 1996 Prisons (NWFP) (Amendment) Act, 1996

Juvenile Justice System Ordinance, 2000 Juvenile Justice System Rules, 2001

Baluchistan Ordinance N9.VII of 2001

Punjab Ordinance XXXIX of 2001

Punjab Ordinance XL of 2001

Women Protection Ordinance, 2007 Pi Offences under various Court Martial Regulation Pakistan Law Commissions Report No.80 on Jail Reforms Rules and Orders of the Lahore High Court Lahore, volume III, Chapter 27: Judicial and Police Lock-ups.

34.Report of Pakistan Lawtommission on Jail Reforms.

B. RELATED INTERNATIONAL DOCUMENTS

Charter of the United Nation, 1945

The Criminal Justice Act, 1948 (U.K)

Universal Declaration of Human Rights, 1948 European convention for the Protection of Human Rights, 1950.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

International Covenant on Civil and Political Rights, 1966 Declaration on Territorial Asylum, 1967

Declaration on the Protection of all Persons from Tortuous and other Cruel, Inhuman or Degrading Treatment or Punishment, 1976 Standard Minimum Rules for the Treatment of Prisoners, 1977 Code of Conduct for Law Enforcement Officials, 1979 African Charter on Human and Peoples Rights, 1981 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 4n European Convention for the prevention of tortuous and Inhuman or Degrading Treatment or Punishment, 1987

United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985.

Declaration of basic Principles of Justice for Victims of Crime and abuse of power, 1985. u

Basic Principles for the Treatment of Prisoners, 1990 Protocol to the American Convention on Human Rights to Abolish Death Penalty, 1990.

African Charter on the Rights and Welfare of the Child, 1990.

Cairo Declaration on Human Rights in Islam, 1990.

Protocol No.1 to the EUropean Convention for the Prevention of Tortuous and Inhuman or Degrading Treatment or Punishment, Arab Charter on Human itights, 1994.

Crime and Criminal Procedure (Escape and Rescue), U.S.A. A resume of these instruments has been tabled in the appendix.

MEANING OF THE TERM REPUGNANT

9.The Federal Shariat Court has to examine and decide the question whether or not a provision of law, or a law which includes any

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 S Shariat Petition No.4/I of 2004

Law Dictionary) means: Tanaqaz, Zid, Adum Mutabqat *s::•44 .ti (44 /14,4;44," e rt

The State of being opposed, highly distasteful, offensive, objectionable, contrary. (The Lexicon Webster Dictionery Volume II, p. 815).

That which is contrary to what is stated before (Wharton's Law Lexicon).

vii. Repugnant: "Repugnant to" really means "inconsistent with" and when they cannot stand together at the same time, and one A law is inconsistent with another law when the command or power or provision i in the one law conflicted directly with the command or power or provision in the one law conflicted directly with the command or power or provision in the other.

Vishnu Bhattathiripaid v. Poulo, 1953 Ker. L. T. 238: I.L.R.

1952 Tray-Co. 670 A.I.R. 1953 Tray-Co. 327 (D.B.)

ix. Repugnancy is an inconsistency or conflict with something else. Presson vs. Presson, 147 p. 1081, 1082, 38 Nev. 203 (Words and Phrases - Volume 37-Page 90).

11.The question, therefore, that the impugned provision of law would be repugnant to the Injunction of Islam only if both of them relate to the same subject matter is not very relevant under Article 203-D or the latter part of Article 227 of the Constitution for the reason that the Injunctions of Islam exist prior in time to the legal provision under

Shariat Petition No.62/I of 1992

• Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

question. In other words, the man-made law has to conform to the pre- existing NASS/Injunctions of Islam. From the wordings of Article 203-D of the Constitution it is abundantly clear that in case of repugnancy, the impugned law or provision of law shall give way to the Injunction of Islam to the extent of such repugnancy. In other words, the impugned law shall Mit

not prevail and declared void without legal effect. Moreover the interpretation of a NASS cannot be static at all because a NASS is a Divinely acknowledged source of guidance till eternity. The constitutional requirement of conformity, which for convenience sake and for the purpose of this judgment, may be termed as Theory of Conformity, under Article 227 of the Constitution is that the laws must conform to the Injunctions of Islam. This theory will pre-suppose that the impugned law and the NASS/Injunction of Islam must not necessarily relate to the same subject.

The letter as well as the spirit of the NASS/Injunction of Islam would be a relevant factor. It should not be violated at all. The Injunction of Islam is a permanent value whereas the legislative instrument is variable.

Furthermore the application and interpretation of an Injunction of Islam can

Shariat Petition No.62/I of 1992 0

Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

neither be limited to a particular time or a clime or for that purpose to any particular provision of law. The Injunctions of Islam or NASOOS are meant to guide in all ages and situations. The possible interpretations of NASOOS cannot be predicted.

12.However according to this theory there can be no repeal of impugned law by implication but a declaration based upon reason must be made under Article 203 D(2)(3) of the Constitution stating clearly that the provision of law under challenge, is repugnant to a given NASS/Injunction of Islam and till such time that the required declaration is not made under Chapter 3A of the Constitution, the presumption of validity of the impugned law or the provision of law will continue unaffected. In accordance with this Theory of Conformity it would be irrelevant whether the impugned law is general or special in nature or is Federal or Provincial.

Even a custom having the force of law, existing before or after the commencing day of the Constitution of the Islamic Republic of Pakistan, would be valid and enforceable unless struck down in accordance with the procedure prescribed under Chapter 3A of the Constitution.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

The net result of the discussion is that the meaning and scope of the term repugnant is not limited only to the actual state of being contrary i.e. contrariety, conflict, antagonistic, opposite or being disparate to the letter of the NASS/Injunction of Islam alone but would also cover the case when an impugned provision of law, law itself or a custom is,

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disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit of the NASS i.e. Injunction of Islam.

TABLE

SUBJECTWISE EXAMINATION

With this background we will now take up examination of the contentions and provisions of law impugned before us in the above mentioned petitions and applications. We propose dividing our discussion on the various issues relating to prison discipline, which have been grouped into distinct segments, wherein different provisions, under challenge, will be examined on the touchstone of the NASOOS/Injunctions of Islam as mandated by Article 203 D of the Constitution. In the end we intend enumerating ground realities relatable to the subject under review and

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 would also consider certain amendments and thereafter we will give closing remarks and our conclusions:

SEGMENT SUBJECT LEGAL ISSUE PETITION

PROVISIONS NO. OR

APPLICATION

ONE TRANSFER Rules180-181, Ix Sh.Petition OF Chapter 7 No.62/1-1992 PRISONERS Pakistan Prison Rules, iln tx

TWO CLASSIFICATION Rules 225 Iii Sh. Petition No. OF , through 267, 62/1-1992 PRISONERS Chapters 9/10 Sh.Misc.A.No. Pakistan 19/1-1997 Prison Rules, Sh.Misc.A.No.1 la- THREE LETTERS Rule 546, Ix Shariat AND Chapter 22 Miscellaneous INTERVIEWS Pakistan Application Prison No.16/I-1997 Rules,1978 FOUR DISCIPLINE Rule 690, Ix Shariat AND “ Chapter 28, Miscellaneous DAILY ROUTINE Pakistan Application Prison Rules, No.16/I-1997

(Reference

S.42/45

Prisons Act,

FIVE WOMEN Rules 307,314 Ii Sh. Petition No. PRISONERS Chapter 13, 61/1-1992, ANT) Pakistan Sh.Misc.

INNOCENT Prison Rules, A.No.10/1-1998

CHILDREN 1978

SIX SUPERINTENDENT RULES Ix Sh.Petition No. OF 935,939 61/I of 1992 JAIL . Chapter 39, Pakistan Prison Rules,1978 SEVEN LADY ASSISTANT Rules ii Sh.Petition SUPERINTENDENT 1180,1181 & No.61/I-1992 AND Chapter 46, ix WOMEN Pakistan WARDERS Prison Rules,

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

custom or usage having the force of law, is repugnant to the Injunctions of Islam. It is called upon, therefore, to see firstly whether the stated Injunction of Islam covers the impugned provisions of law or both are related inter-se and secondly whether the provision under challenge as well as the touch-stone i.e, the Injunction of Islam can be read and construed together, with a view to harmonizing them; and thirdly whether the impugned legal provision cannot be given effect to without violating the letter or spirit of the Injunction of Islam. If the NASS ie. the Injunction of Islam declares an act or omission to be a sin or something abominable, then the impugned legal provision, permitting such a thing, would certainly be covered by the mischief of repugnance. If it is not possible to retain the impugned legal provision along with the Injunction of Islam, then the Court would proceed to declare the legal provision under review to be offensive to the Injunctions of Islam. It is therefore imperative to know the meaning of the term repugnant/repugnance because this word plays a pivotal role in the exercise of jurisdiction.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

10.The word Repugnant has however not been defined in the Constitution. Meaning of this word has also not been given in the General Clauses Act. In order to understand its meaning we have no option but to consult the dictionaries and those precedents where the meanings of this word have been explained.

DICTIONARY MEANINGS

i. extremely unpleasant or offensive MacMillan: English Dictionary.

disagreeable or offensive; distasteful; objecting averse, opposed; inconsistent, contrary; The World Book Dictionary.

strong feeling of dislike or disgust about something.

Incompatibility, of ideas, statements etc; the synonym suggested is repulsive.

Oxford Dictionary.

The urdu meaning of the word repugnant is (Tanafur) (Karahat) : Dictionary of Terms/English-Urdu volume 3 page 1472, 1985 Edition Printed by Urdu Science Board 299 Upper Mall, Lahore. The word repugnance, according to Kitabistan's New Millennium Practical Dictionary English - English-Urdu by B.A. Qureshi means: Nafrat, Napasand %;_•111 The word repugnancy according to law rir

Dictionary English Urdu published recently by National Language Authority Pakistan (based upon the famous Black's

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 EIGHT DEPUTY . Rules Ix Sh.Petition SUPERINTENDENT 1002,1004 No.61/1-1992 Chapter 41, Pakistan Rules, 1978 NINE EMPLOYMENT Rule 1078 Ix Sh.Petition RESTRICTIONS Chapter 44, No.12/I-1999 Pakistan p Prison Rules,1978

TEN STATUTORY Section 382-B vii, Sh. Miscellaneous RELIEF i Code of viii Application Criminal No.21/I-1995 i Procedure. nn ELEVEN DIERARY .9 Chapter 20 ix Suo Moto REQUIREMENTS Pakistan Prison Rules,

TWELVE FAMILY LIFE Rule545-A, i, ix Sh.Misc.A.No.21/I- Chapter 22 1995 Pakistan SUO MOTO Prison Rules,

THIRTEEN CONDEMNED Chapter 14, vi Sh.Petition No.4/I- PRISONERS Pakistan 2008 originally Prison Rules, registered as 1978 and S.P.No. 4/1-2004

S.30(2)

Prisons Act,

FOURTEEN GROUND Chapter iv,ix, Suo Moto REALITIES 36,38, 49 x

FIFTEEN PRISON PRISON x Sh.Misc.A.No.21/I-

DISCIPLINE RULES 1995

Sh.Mis.A.No.10/I-

Suo Moto SIXTEEN JAIL RIOTS ON PRISONS x Suo Moto

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

SVENTEEN GUIDING ISSUES x Suo Moto

PRINCIPLES/ UNDER

PERMANENT DISCUSSION

VALUES

EIGHTEEN OFFENCES AND PRISON x Suo Moto

PUNISHMENT DISCIPLINE

NINETEEN PRISONER'S a RULE 84 Suo Moto

PROPERTY

TWENTY CLOSING Suo Moto

REMARKS

ll itiN

TWENTY CONCLUSIONS Final Order of the ONE Court

SEGMENT ONE

TRANSFER OF PRISONERS

(ISSUE NO.IX)

15.The subject matter of the first segment is Chapter 7 of Rules entitled Transfer of Prisoners. Rules 180-181 have been challenged through Shariat Petition No..62/I of 1992 and Shariat Miscellaneous Application No.11/I of 1998. The text of both the rules is reproduced below:-

Shariat Petition No.61/1 of 1992 Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 " Shariat Petition No.4/I of 2004

Notice to Railway Authorities

Rule 180—(i) The Superintendent shall give at least three days, notice to the Station Master of the number of persons, both prisoners and guard, for whom reserved accommodation is required and the particular train by which it is desired to dispatch them.

(ii)Prisoners on transfer shall be dispatched by ordinary passenger trains except when ail may be necessary for special reasons to dispatch them by mail train.

Superior class prisoners may travel in a higher class.

Rule 181--- Normally third class railway accommodation shall be provided for prisoners. Superior class prisoners may, however, travel in second class and if they pay the difference in railway fare both for themselves and for the police escort they may be allowed to travel in a higher class.

16.Rule 180 contemplates a notice to the Railways Authorities for prisoner's accommodation and rule 181 deals with the travelling of superior class prisoners. No specific arguments based upon Nasoos were advanced by petitioners to challenge the two rules but it appears that the general arguments advanced, on the question of discrimination, covered rule 181 under which the superior class prisoners are allowed to travel in better class compartments attached with trains. It will however be appreciated that the superior class prisoner is only given the option to travel in second class compartment on the condition of payment of difference in the railway fare, both for himself and the escort The prisoner on transfer, while travelling by train in the general compartment, is legally exempt

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

from paying the stipulated railway fare. He travels free. Even in the days of the Holy Prophet (PBUH) and in the times before and after him the way farers would travel on foot or donkeys or horses or camels or even improvised carts according to the resources available with them. Reference be made to Ayat 27 Sura 22 ( Al-Hajj ) where Allah Almighty directs Syedna Ibrahim (A.S.) to:-

Proclaim the (performance of) Pilgrimage Among people: they will come To thee on foot and ( mounted) On every kind of camel, Lean on account of journeys Through deep and distant Mountains, highways.

It was not shown to us during arguments that the two impugned rules are repugnant to the letter and spirit of any one or more Injunctions of Islam.

Presumption of legality is certainly attached to all legal provisions as contemplated by Article 227 of the Constitution of Pakistan. Hence we do not agree that rules No.180 and 181 contravene any of the Injunctions of Islam. Consequently the part of Shariat Petition No.62/I of 1992 which impugns Rules 180, 181 is hereby dismissed.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004 ii 35

17.Notwithstanding diSmissal of a part of Shariat Petition No.

62/I of 1992 we proceed to take Suo Moto Notice of Chapter 7 of the Prison Rules as well as Sections 29, and 42 of the Prisoners Act, 1900.

These provisions speak in terms of transferring certain categories of prisoners within and beyond the territorial limits of a Province and such transfers of prisoners from one ,Jail to another Jail within the Province, as

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seen in the following provisions, is the domain of the Inspector General of Prisons.

Rule 147 of Chapter 7 The transfer of prisoners from one prison to another within the Province shall be directed bY the Inspector General.

THE PRISONERS ACT, 1900

(i)29.--(1) The Provincial Government may, by general or special order, provide for the removal of any prisoner confined in a prison--

under sentence of death, or

under, or in lieu of, a sentence of imprisonment, or

in default of payment of a fine, or

in default of giving security for keeping the place or for maintaining good behavior,

to any other prison in the Province, or, with the consent of the Provincial Government concerned, to any prison in the other Province or, with the consent of the Federal Government to any prison maintained by it or under its authority in any part of Pakistan.

(2)Subject to the orders, and under the control, of the Provincial Government the Inspector-General of

Shariat Petition No.62/I of 1992 11 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

Prisons may, in like manner, provide for the removal of any prisoner confined as aforesaid in a prison in the Province to any other prison in the Province.

(3)The Federal Government may, by general or special order, provide,l for the removal of any i prisoner or class of prisoners confined in any prison to any other prison in Pakistan maintained by or under the authority of the Federal Government or of a Provincial Government with the consent of the Provincial Government concerned."

(ii)Section 42. Power of Government to exempt certain prisoners from operation of this Part- The Provincial Government may, by notification in the official Gazette, as the icase may be, direct that any person or any class of persons shall not be removed from the prison in which he or they may be confined; and thereupon, and so long as such notification remains in force, the provisions of this Part, other than those contained in Section 44 to 46, shall not apply to such Serson or class of persons".

18.Having gone through these provisions we find firstly that no provision has been incorporated for any notice being given to the prisoner before his removal within or beyond the local limits of a Province and secondly arbitrary powers have been given to the Provincial Government as well as the Inspector General of Prison for transfer of a prisoner to different prisons within the Province and the same unfettered power is enjoyed by the Federal Government when the transfer is to be made beyond the limits of a Province, and thirdly that the right of appeal before an independent tribunal has not been provided against such routine but harsh orders; and

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

fourthly there is no limit to the number of transfers that can be inflicted upon a prisoner.

19.Arbitrary exercise of power by mundane authorities has not at all been conceded by Injunctions of Islam. The Federal Shariat Court in re The Civil Servants Act, reported as 1973 PLD 1984 FSC 34 and Dr. An

Muhammad Aslam Khaki and others Vs. Government of Punjab and others, PLD 2005 FSC 3, and the Apex Court in the case of Pakistan and others Vs. Public at large reported as PLD 1987 SC 304 (374) has held that Notice and right of appeal has to be provided whenever an order adverse to the interest of an aggrieved person is passed by any authority. In this view of the matter we find that by now the following principles should be read as part of every statute nanriely:

a). Notice must issue nto a person against whom an order/action, adverse to his interests, is proposed to be made disclosing the reasons for the same with an adequate opportunity tc7Show cause against it.

I 't

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

The authority, office or person issuing any order or direction which affects any person prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be given to the affected person to show cause against the proposed action. Reference Section 24-A General Clause Act, 1897.

Right of appeal Ibefore an independent tribunal/authority, higher than the one which issues the impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge of the District should be the appellate authority.

The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18,19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and Ayaat 06 through 08 Sura 99 of the Holy Quran.

Direction by the Government or the Inspector General of Prison Department for removal of a prisoner from one prison to another prison within the Province or from one Province to another Province must

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

be supported by a speaking order. Unless it is a question of dire necessity or emergency, a notice of transfer must be given to the prisoner. It is the right of a prisoner to know why he is being transferred away from his home town. There must be legal justification to lodge a prisoner far away from the place of his residence. Such a transfer has, in many cases, worked to serious disadvantage, particularly of women folk and children, of prisoner.

We are guided by the tradition of the Holy Prophet (PBUH) wherein the Muslims have been directed to create facilities for the people and not to add to their hardships and apprehensions: "YASSARA WA LA TOASSARA.

22.As a consequence thereof Rules 147 through 149 of the Pakistan Prison Rules, 1978 as well as section 29 of the Prisoner's Act, 1900 is hereby declared repugnant to the above mentioned Injunctions of Islam. However the repugnancy is to the extent that the Government enjoys unfettered power to transfer a prisoner from one Province to another Province without giving notice to the prisoner or without obtaining his consent or without referring to any lawful reason by way of a speaking order conveyed to the detenue and without providing any remedy against

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

exercise of such authority. Similarly the power of the Inspector General of Prisons to transfer a prisoner from one prison to another within the province without notice or consent of the prisoner and without providing a right of appeal before an independent tribunal is declared as repugnant.

Chapter 7 of the Jail Manual and section 29 of Prisoners Act 1900 should be recast in a manner in which a) arbitrary, unbridled and unfettered powers are neither given to the Government nor the Inspector General of Prisons; b) and unless the gravity of the situation really demands an expeditious action, transfers within the Province or beyond the limits of Province, without Notice or consent, should be eschewed. This however does not cover the case of a convict whose release is due and he is being transferred near his home town as provided in Rule 148 or who is required to be produced in another court in a case being tried elsewhere or there are other reasonable ground such as safety, security or health. However the transfer policy should be based upon reasonable considerations subject of course to notice and the right of appeal or representation before an

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I 01 2004

independent tribunal. Notice need not be given where a prisoner himself seeks transfer on solid grounds.

There is not much case law available on the point. However the case of Ataullah Mangal Vs. The State PLD 1965 Karachi 350 and the case of Ali Muhammad Vs. State reported as 1974 P.Cr.L.J. 249 may also

OP.

e.

be considered by the amending authorities. This decision regarding s repugnancy of the impugned provisions of law will take effect as from 01.12.2009 during which period the necessary amendments, additions or alterations may be effected by relevant authorities.

SEGMENT TWO

CLASSIFICATION OF PRISONERS

(ISSUE NO.III)

Rules 224-249 find mention in Chapter 9 of the Pakistan Prison Rules, 1978. The title of this chapter is Classification and Separation of Prisoners. Rules 250-270 are contained in Chapter 10 entitled Superior Class Prisoners. These provisions have been challenged in Shariat Petition 62/1 of 1992 as well as Shariat Miscellaneous

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

Application No.19/I of 1997 and Shariat Miscellaneous Application No.

11/I of 1998. The emphasis of learned counsel appearing in support of these petitions was on all the provisions contained in the two chapters which deal with classification and separation of prisoners with particular reference to the privileges attached with category A and B. In order therefore to appreciate the controversy it 'would be useful to examine the text of the impugned provisions in Chapters 9 and 10 together:-

CHAPTER-9

THE CLASSIFICATION AND SEPARATION OF PRISONERS

Classes of Prisoner

Rule 224—A prisoner confined in prison may be-

i)a criminal prisoner, which includes:

(a)a convicted prisoner; and

(b)an unconvicted or under trial prisoner:

a civil prisoner; or a state prisoner detained under Regulation III of 1818, or a person ordered to be detained in prison without trial under any law relating to the detention of such person.

Note. Lunatics may also be temporarily detained in prisons under the orders of the Magistrate. 9 Classification of convicted Prisoners

Rule 225—(i) Convicted Prisoners shall be classified into (a) superior class;

(b)ordinary class; and

(c)political class (ii)Superior class includes A and B class prisoners. Ordinary class comprises of prisoners other than superior class.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

Political class comprises of prisoners who commit crimes not for personal gain but for political motives. This class is not criminal and does not require reformative or correctional treatment.

Casuals and habitual

Rule 226—Convicted prisoners are classified into casuals and habitual.

(i)Casuals are first offenders and who lapse into crime not because of a criminal mentality but on account of their surroundings, physical disability or mental deficiency.

(ii)Habituals are:-

Ordinary habituals prisoners; and see

Professionals or repeaters.

Ordinary habitual prisoners are those frequently lapse into crime owing to their surroundings or some physical or mental defects.

Professionals or repeaters are men with an object, sound in mind and in body, competent, often highly skilled, who deliberately and with open eyes prefer a life of crime and know all the tricks and maneuvers necessary for that life. They may be first offenders.

Classification of convicted prisoners according to age Rule 227—Convicted prisoners are further classified as under:-

(a)Juveniles under the age of 18.

(b)Adolescent over 18 and under 21 years of age.

Adults over the age of 21.

Nature of sentence

Rule 228—There shall be two classes of convicted prisoners according to the nature of their sentence, i.e.:- those undergoing rigorous imprisonment; and

those undergoing simple imprisonment.

Classification of Under-Trial Prisoners

Rule 229.—Under trial prisoners shall be classified as under:-

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

Committed to Sessions.

Committed to other Courts.

For Sindh Province Only

In rule 229, for the word "committed" the word "sent" shall be substituted.

Classification of women prisoners Rule 230.— Women prisoners will be classified in the same manner as is provided in the case of males.

Separation of prisoners o

Rule 231.-- Prisoners shall be kept separate as under:- In a prison containing men as well as women prisoners, I.." the women shall be imprisoned in a separate prison, or separate part of the same prison• in such manner as to prevent their seeing, conversing or holding any communication with the male prisoners.

Juveniles shall be kept separate from all other prisoners. Undertrial prisoners shall be kept separate from convicted prisbners.

Civil prisoners shall be kept separate from criminal prisoners.

Political prisoners shall be kept separate from all other prisoners.

For Sindh Province Only

In rule 231, for sub-rule (ii) the following sub-rule shall be substituted, (ii), Juveniles shall be kept in a separate institution or jail, or if there be no separate institution or jail in any area, in a separate part of the same prison in such manner as to prevent their meeting or holding communication with adult prisoners.

Further provisions regarding separation

Rule 232.—Separation of the following prisoners shall, to the extent to which it can in each prison be observed, be carried into effect; Under trial prisoners who have been committed to Sessions, shall be kept separate from under trial prisoners who have not been so committed and those who have been previously convicted shall be kept separate from those who have not been previously convicted.

Casual convicted prisoners shall be kept separate from habitual convicted prisoners.

Simple imprisonment prisoners shall be kept separate from the rigorous imprisonment prisoners.

Convicted prisoners who are under 16 years of age shall be kept separate from convicted prisoners who are more than 16 years of age.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

Every habitual criminal shall, as far as possible be confined in a special prison in which only habitual criminals are kept. The Inspector-General may, however sanction the transfer to such special prison of any prisoner not being a habitual prisoner, whom for reasons to be recorded, the Superintendent of the prison believes to be of so vicious and depraved a character: as to make his association with other casual prisoners undesirable. Prisoners so transferred shall not otherwise be subjected to the special rules affecting the habitual criminals.

Political prisoners may be kept separate from each other, if deemed necessary.

Exception to the Rule regarding separation • Rule 233.—When in any prison only one prisoner exists in any class and separation would amount to solitary confinement, such prisoner, if he so desires, be permitted to associate with prisoners of another class in such a manner so as not to infringe the provisions of Section 27 of the Prisons Act, 1894.

Association and segregation of prisoners

Rule 234.—Subject to the provisions of Rule 231, convicted prisoners may be confined either in association or individually in cells or partly in one way and partly in the other.

Segregation of under trial prisoners

Rule 235.—Under trial prisoners may be confined separately in cells, when in the opinion of the Superintendent, it is necessary in the interest of the prison discipline to do so, or under the orders of the Inspector General, or of Government.

Occupation of vacant cells

Rule 236.—Cells not in a use for purposes of punishment or otherwise, shall be occupied by the convicted prisoners for the purpose of separation subject to the following conditions:- Juvenile shall in preference to any other class of prisoners be confined in cells both by day and night.

Prisoners convicted under section 366 (A), 376 and 377 of the Pakistan Penal Code, shall in preference to prisoners other than juveniles be placed in cells both by day and night. " Habitual prisoners shall be placed in cells both by day and night in preference to casual prisoners.

Sections 366-A, 376 and 377 of Pakistan Penal Code are:

Shariat Petition No.62/I of 1992

• Shariat Petition No.12/I of 1999 Shariat Petition No.4/I of 2004

Section 366-A. Procreation of minor girl.

Section 376 Punishment for rape

Section 377 Unnaiural offences

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section.

Separation of habituals

Rule 237.—Habitual prisoners shall be subjected to the system of separation prescribed in the preceding rules in rotation.

Separation of casuals ,

Rule 238.—If at any time there are more cells in any prison than suffice for the separation of all habituals, prisoners of the casual class shall be confined in cells by night only in rotation.

Procedure when separation by day is not feasible Rule 239.—A convicted prisoner who would ordinarily come under the operation of any of the preceding rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some prison service shall be confined in a cell by night.

Explanation- Separation' under Rules 235 to 239, is restricted merely to the separation of individual prisoners for purpose of prison management; such separation is not to have any irksome conditions attached to it.,

Separation of prisoners to prevent the commission of any offence

Rule 240.—If in the opinion of the Superintendent, the presence of any prisoner l in association with others is detrimental to good order and discipline, and is likely to encourage or lead to the commission of any offence, such prisoner may be kept separate in a cell.

Separation to be as complete as possible

IF

Rule 241.—Subject to the provisions of Rule 233, the separation of the various classes of prisoners shall be carried out to the fullest extent as far:as possible. If there are not a sufficient number of latrines, bathing rooms and feeding arrangements to keep the classes completely apart, such arrangement for separation as are under the circumstances practicable shall be made.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 All Shariat Petition No.4/I of 2004

Rules for the classification of prisoners into A,B and C Class Rule 242.—(i) Convicted shall be divided into three class; A,B and C class. Class will contain all prisoners who are- casual prisoners of good character;

by social status, education and habit of life have been accustomed to a superior mode of living and;

have not been convicted of offence involving elements of cruelty, mOral degradation, personal greed, serious or premeditated violence, serious offence against property, offences relating to the possession of explosive, firearms and other dangerous weapons with object of committing or enabling an offence to be committed and abetment or incitement of offences falling within these sub-clauses. /61,

Class B will consist of prisoners who by social status, education or habit of life have been accustomed to a superior mode of living. Habitual prisoners can be included in this class by order of the Government.

Class "C" will consist of prisoners who are not classified as A and B.

Classifying authority

Rule.---243—For A and B Classes the classifying authority will be the Government. Courts may classify prisoners into A and B class pending final orders of the Government. Class 'C' will be classified by the trying Courts, but such prisoners will have a right to apply for revision to the Government. Petitions of revision will be forwarded by the Superintendent to the Inspector General for transmission to Government.

Superintendent may award B class to convicted prisoners.

Rule 244—In case convicting Court omit to classify convicted prisoners for better class treatment. Superintendents of prisons subject to the approval of Government may classify them as B class prisoners, provided that such prisoners appear to fulfil the conditions prescribed for better class treatment.

Qualifications for A and B class

Rule 245—The recommending authority shall invariably furnish to Government the following details when recommending a prisoner to A or B class

Whether the prisoner is casual or habitual.

Previous convictions if any.

Shariat Petition No.62/I of 1992 Shariat Petition No.12/I of 1999 !I

Shariat Petition No.4/I of 2004 lb

Offence and sentence.

Social and financial status of family.

Profession of the prisoner.

(0 Income of the prisoner, if any.

(g)Academic qualifications of the prisoner.

If the statement of the prisoner on these points requires verification, further enquiries should be made from the [District Coordination Officer] :i or any other source. The recommending authority may either defer making any recommendations until it has received the information asked for or may make the recommendations on the materials available and state that the result of further enquiries will be submitted when received.

Disagreement between the convicting Court and the District Coordination Officer.

Rule 246.—In case in which there is disagreement between the convicting Court and the District Coordination Officer, as to the classification of any prisoner, the [District Coordination Officer] shall decide the class in which a convicted prisoner shall be kept pending final orders of the Government.

Condemned prisoners governed by these rules

Rule 247.—The above rules shall also apply to the prisoners under sentence of death.

Classification of under-prisoners

Rule 248.—(i) Therél shall be only two classes of under-trial • prisoners-

better class; and

ordinary class. •

better class will include those under-trial prisoners who by social status, education or habit of life have been accustomed to a superior mode of living and will correspond to A and B class of convicted prisoners. Ordinary class will include all others and will correspond to C class.

(ii-a) Those under-trial prisoners who pass matriculation or higher examination in 1st Division during their stay in the jail shall be allowed better class jail facilities with effect from the date the result is announced.

Before an under-trial prisoner is brought before a competent Court, it will be at the discretion of the Officer[not

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below the rank of Assistant Superintendent/Deputy Superintendent of police having jurisdiction in the area] to properly classify him. After he is brought before the Court, he will be classified by that Court, subject to the approval of the Provincial Government.

(b)Rule 248—Order passed under r. 248 with approval of District Coordination Officer cannot be revised by that authority.

For Sindh Province Only

In rule 248:- r

After sub rule (ii), the following new sub-rules shall be added:

(ii-a) Members of the Senate, National Assembly, Provincial Assembly, Officers of grade 17 or above in the Federal or Provincial Government, Commissioned Officers in the defence forces or the Rangers, Mayors of Metropolitan Corporations, chairmen of Municipal Corporations and District Councils, officers in autonomous institutions or corporations established or controlled by the Federal or nay Provincial Government, holding posts equivalent to or higher than grade 17 in Government, and any person paying income tax or agricultural/wealth tax not less than Rs. 10,000/- per year shall be classified as better class facilities, both in the jails, and sub-jails and while in police custody;

(ii-b) those under trial prisoners who pass matriculation or higher examination in 1st division during their stay in the jail shall be allowed better class jail facilities with effect from the date of result is announced.

(b)for sub-rule (iii) the following sub-rule shall be substituted,

"(iii) The court competent to try a prisoner, if it is satisfied that the prisoner by reason of his exceptionally high educational or professional qualification or his status is accustomed to a superior mode of life, may by an order in writing, with reasons therefore, classify such prisoner as better class prisoner. Provided that if such order is passed by any court sub-ordinate to a Sessions Court," the order shall be subject to approval of the Sessions Judge.

Classification of political prisoners

Rule 249.-- Classification of political prisoners will be determined by the authority ordering their retention in prison.

CHAPTER 10

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SUPERIOR CLASS PRISONERS

Superior Class Prisoners

Rule 250.—superior class pilisoners are- convicted prisoners admitted to A or B class by order of the Government;

convicted prisoners admitted to A or B class by order of the Courts pending the orders of Government; and under trial prisoners admitted to superior class by order of the Court subject ,to the provisional order of the Provincial Government. II

Rule 251.—Except A provided in the chapter, all prison rules shall also apply to superior class prisoners.

Accommodation

Rule 252.-- (i) Superior class prisoners shall, where such accommodation is available, be kept apart from other prisoners and be accommodated in rooms or in association barracks set aside for them. The imprisonment shall in no case involve any thing in the nature of separate confinement, except when it is given as prison punishment.

(ii)In the case of B class prisoners, it shall not be necessary to keep them separate from ordinary prisoners in factories or at times when they are not required to be in their rooms or barracks.

Tasks Ii

Rule 253.—The tasks shall be allotted with due regard to the capacity, character, previous mode of life and antecedents of the prisoners.

Sleeping outside in hot weather

Rule 254.-- (i) A and B class prisoners may be allowed to sleep outside their rooms or barracks during the hot weather (1st May to 1st October), if the arrangements in the particular prison permit this to be done with safety and without any additional expenditure.

(ii)This facility shall not be permitted to condemned prisoners admitted to superior class.

Furniture

Rule 255. (i) - - Rooms shall be supplied with following articles:- [One cot, one chair, one teapoy, one lantern if there is no electric light, one shelf, and necessary washing and sanitary appliances].

(ii)Association barracks shall be provided with the following :-

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One cot per prisoner, one large table with benches, shelves, sufficient lamps to enable reading at the table, necessary night sanitary appliances, latrines and bath rooms in the enclosure.

A class prisoners may supplement the furniture by other articles within reasonable limit at their own cost, at the discretion of the Superintendent.

Commodes shall also be supplied to those prisoners who are accustomed to their use and ask for them.

They shall be allowed a lamp or light for reading upto 10 p.m.

Amendment for Punjab/Sindh

More Furniture.

Rule 255.(i)—Rooms shall be supplied with following articles:- [One cot woven with niwar, one chair, one tea-poy, one table lamp, one shelf, one ash tray, one wooden rack and necessary washing and sanitary appliances].

[(ii) Association barracks shall be provided with the following:- One cot woven with niwar per prisoner, one large table with banches, shelves, sufficient light to enable reading at the tables, necessary night sanitary appliances, latrines and bath rooms in the enclosure.

A class prisoners may supplement the furniture by other articles within reasonable limit [and also portable Radio and T.V. set] at their own cost, at the discretion of the Superintendent [and the B class prisoners shall be allowed to keep a portable Radio at their own cost.] Where flush fittings are not available, commodes shall be supplied to those prisoners who are accustomed to their use and ask for them.

They shall be allowed a table lamp for reading upto 10

P.M.

One waste paper basket will be supplied for each cell and more for association barracks at the discretion of the Superintendent.]

Exercise and games ,

Rule 256.—When there is only one superior class prisoner, he should be allowed walking or some other physical exercise for half [2 hours] an hour both morning and evening. Where the number of such prisoners exceeds one, outdoor games such as volleyball, deck tennis and badminton may be allowed at• the discretion of the Superintendent, provided that the space iri the enclosure permits it. The initial expenditure in every case shall be paid by the Government. Indoor games such as cards carom or chess may also be permitted at the cost of the prisoners.

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Sanitary and bathing arrangements

Rule 257. (i)--They shall be allowed reasonable facilities for bathing, latrines, etc., with due regard to the provision of privacy. They use of toilet and washing soap shall also be allowed. Superior class prisoners shall be allowed to keep the articles as permissible under Rule 75.

(ii)Soap will be allowed to A and B class prisoners on the following scale:- Toilet soap-One cake weighing about 117 grs. For a fortnight. Washing material .. 117 grs. washing soap and 117 grs. washing soda weekly.

For Punjab and Sindh Province Only

In Rule 257, for sub-rules (ii) the following sub-rules shall be substituted and sub-rule (iii) shall be added:-

(ii)A and B class prisoners, if they can not afford themselves, shall be allowed the following articles: Toilet soap one cake weighing about 140 grams for a fortnight. " Washing material, 125 grams washing powder weekly.

Mustard oil 60 grams per week for those who grow hair.

(iii)Prisoners in association barracks shall be provided with one fixed mirror of size 57 x 41 cm, in wall, one hair comb medium quality, one soap case, one Iota plastic one mug plastic and one towel per prisoner and one plastic tub (Medium size) for every ten prisoners. A fixed towel hunger shall be provided in each bathroom.

Cooking arrangement

Rule 258.—When several superior class prisoners are confined together, a separate cook house [two c class prisoners for every ten such superior "prisoners] shall be provided for them. In the case of a superior class prisoners if confined individually he may be permitted a C class prisoner-cook to cook his food.

Utensils

Rule 259. (/).. The following utensils shall be supplied to each prisoner:- One enamel plate, two enamel cups, one metal glass, one spoon and one enamel mug.

(ii)A class prisoners if they desire, shall be allowed to use their own utensils.

Amendment for Punjab Province only:

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Better utensils

Rule 259.—The existing Rule 259 shall be substituted as:-

(i)The following' utensils shall be supplied to each prisoner:- One full plate, one quarter plate, one teaspoon, one table spoon and one tumbler of stainless steel and one tea cup.

The following utensils shall be supplied to the prisoners for common use by six prisoners.

One tea set (tea pot, milk pot and sugar pot). One tea kettle and one jug of stainless steel. ATI The following articles will be provided in common kitchen for preparation and service of food (for six better class prisoners):-

One steel Tawa, one medium size Parat, one cooking kettle, one cooking spoon, one dish for curry, one dish for sweet, one dish for rice, one fry pan, one meat safe (medium size) and one kitchen knife of stainless steel and condiment grinding equipment, one kerosene oil stove (where no Sui gas arrangement exists) Any other articles of kitchen requirement, considered necessary, may be provided at the discretion of the Superintendent Jail.

(ii)A class prisoners if they desire, shall be allowed to use their own utensils],

For Sindh Province Only

For rule 259, the following rule shall be substituted: The following utensils shall be supplied to each prisoner;

One full plate, one quarter plate, one teaspoon one table spoon and one tumbler of stainless steel and one tea- cup.

The following utensils shall be supplied to the prisoners for common use by six prisoners:- One tea set (tea pot, milk pot and sugar pot) one tea kettle and one jug of stainless steel.

The following articles shall be provided in common kitchen for food preparation and services for every six better class prisoners:- One steel tawa, one medium sized plate, one cooking kettle, one cooking spoon, one dish for curry, one dish for sweet, one rice, one frying pan. One meat safe

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(medium size) rand one kitchen knife of stainless steel and condiment grinding equipment, one kerosene oil stove (where no sui gas arrangement exists), Note: The plates and dishes shall be of stainless steel. Any other articles of kitchen requirement, considered necessary, may be provided at the discretion of the Superintendent Jail.

(iv)A and B class prisoners, if they so desire, shall be allowed to use, their own utensils.

Diet

Rule 260. (i)-- Superior diet shall be provided ' do. according to the following scale; provided that the Inspector General may, with the approval of the Government, modify or alter the scale of diet to suit the local conditions:- Name of Article Diet Scale for Diet Scale for Meat Eaters Vagetarians eaters Kgr. Grs. Kgr.Grs.

Wheat atta 0...583 0...583 Dal 0...117 0...117 Meat 0...17 Milk 0...233 0...583 Vegetable Ghee 0...29 0...29 Sugar 0...58 0...58

Milk for tea 0...117 0...117 Vegetables 0...117 0.233 Potatoes 0...117 0...117 Condiments 0...15 0...15 Salt 0...15 0...15 Firewood 1...886 1...886

Meat eaters can exchange meat with eggs or fish when available, or liver, kidneys, brain, etc., provided cost does not exceed that of the authorized amount of meat 175 grs. Loaf bread weighing upto 467 grs may be substituted for wheat atta, in the case of foreigners or Pakistanis accustomed to western diet 467 grs. rice may be substituted for 583 grs. wheat-atta in case of rice eaters.

Prisoners will not be permitted to accumulate, raw rations from day to day. Unconsumed raw rations 'will be taken back in the prison stock.

The diet in the case of A class prisoners may be supplemented at their own expenses with extra article of food of a simple character, provided many for its purchase is deposited with the Superintendent.

The occasional present of fruits to superior class

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prisoners by their relitives and friends is permitted at the discretion of the Superintendent. Alcohol, intoxicating drugs and articles of luxury shall not be permitted.

(vii)A copy of the scales prescribed shall be hung up in the rooms or barracks where such prisoners are confined.

Amendment For Punjab

Better Diet

Rule 260.-- Against the below noted items the quantity be substituted as follows:

Name of Article Kgr.Grs. Kgr.Grs.

a,

Meat 0...175 Tea 0.3 0...7 Potatoes 0...117 0...117 Salt 0...15 0...15 Firewood 1...886 1...886

For Sindh Province Only

In Rule 260, in the table of articles and scales the existing quantity of the articles mentioned shall be substituted as given against them:-

Meat 175 grs nil Tea 7 grs. 7 grs Firewood .1.886 350 grs (Where gas is not provided)

Clothing and bedding Rule 261. (1)—A class [superior class convicted] prisoners may, within reasonable limits, wear their own clothing and provide their own bedding, shoes, etc.

(ii)A class [superior class convicted] prisoners who prefer prison clothing, etc. and all 'B' class [deleted] prisoners shall be supplied with clothing and other equipment according to the scale given below; provided that the Inspector-General may with the approval of the Government, modify or alter the scale to suit the local conditions:-

Male Prisoners Throughout the year.

2 dasuti shirts or kurtas 2 dasuti shalwars or trousers.

2 cotton azarbands. 2 dasuti caps.

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2 towels. 2 dasuti pillow covers.

1 pillow case filled with cotton. 2 dasuti bed sheets. lblanket woolen 1 cotton durrie.

During winter-

1 woollen jersey.

2 Blankets woolen.

1 dasuti mattressfoam Mattress 5 cm thick

Women Prisoners Throughout the year-

2 cotton shalwars. 2 dasuti pillow covers. itn> 2 cotton shirts. 6 napkins. a ,

2 cotton dopattas of coarse Muslin.

2 towels. 2 cotton azarbands.

2 dasuti pillow covers. 1 pillow case filed with cotton.

2 dasuti bed sheets. 1 blanket woolen 1 cotton durrie.

During winter-

3.blankets woolen.

1 Foam Matters 5 cm thick 1 woolen jersey.

Amendment for the Punjab Province only:

Better clothing and bedding

Rule 261.—The existing rule shall be substituted as under:- A class prisoners may, within reasonable limits, wear their own clothing and provide their own bedding, shoes, etc.

A class prisoners who prefer prison clothing, etc. and all 'B' class convicted prisoners shall be supplied with clothing and other equipment according to the scale given below; provided that the Inspector General may with the approval of the Government, modify or alter the scale to suit the local conditions:- Male Prisoners;

Throughout the year--

Two dasuti shirts or kurtas. Two dasuti Shalwars or trousers.

Two cotton azarbands. Two towels.

Twodasuti caps. Two dasuti pillav covers.

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One foam pillow. 1.! Two dasuti bed sheets.

Male Prisoners;

Throughout the year-

One blanket I One cotton durrie.

During winter:

One woolen lersey.

Four blankets (medium quality),

One foam mattress 5 cm thick.

Women Prisoners throughout the year:

al% Cotton shalwars. , Two Two dasuti pillow covers.

Two cotton shirts.

Six napkins.

Two cotton dopattas of coarse muslim. Two cotton azarbands.

Two towels.

One foam pillow.

Two d dasuti bed sheets.

One blanket.

One cotton durree.

During Winter:

Four • blankets.

One foam mattress 5 cm thick.

One woolen jersey.

For Sindh Province Only

In Rule 261, for sub-rule (ii), the following sub-rule shall be substituted:

(ii)A class prisoners who prefer prisoner clothing, and all 'B' class • `convicted prisoners shall be supplied with clothing and other equipment according to the scale given below; provided that the Inspector General may with the approval of the Government, modify or alter the scale to suit the local conditions:- Male prisoners throughout the year Two Dasuti Shirts or Kurtas Two Dasuti Shalwars or trousers Two cotton Azarbands

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Two towels Two Dasuti caps Two Dasuti pillow covers One foam pillow Two Dasuti bed sheets One blanket One cotton Duree.

During Winter :-

One woolen jersey Four blankets (Medium quality) One foam matters 5 cm Women Prisoners throughout the year

Two cotton Shalwars Two Dosuti Pillow clovers Two cotton shirts q Six napkins.

Two cotton Dupattas of coarse Muslim Two cotton Azarbands Two towels One foam pillow Two Dasuti bed Sheets One blanket One cotton duree

During Winter:- Four blankets One foam mattress 5 cm thick One woolen jersey.

Mosquito nets

Rule 262.—Superior class prisoners may be permitted to use mosquito nets at their own expense.

Facilities for reading

Rule 263.— In addition to books from the prisoner library a prisoner may have any [reading material legally available in the market subject to clearance of superintendent from private source] number of books or magazines upto a reasonable limit from private sources, provided that such books or magazines are not considered unsuitable by Superintendent, who if in doubt, shall consult the Inspector General. Daily newspapers shall be supplied from a list dpproved by Government. These papers shall be examined by the Superintendent before issue to the prisoners.

Electric Fans

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Rule 264.—Prisoners may be allowed to use their own electric fans during the summer season, if such arrangement do not already exist in the ward reserved for them.

Letters and interviews

Rule 265.—Superior class prisoners shall be allowed to write one letter and have one interview weekly. Both the letter and interview are interchangeable. One urgent occasion such as death or serious illness in a prisoner's family, this rule may be relaxed at the discretion of the Superintendent. The number of persons who may visit a prisoner at any given times should be limited to six. The discussion of political matters shall not be allowed at these interviews. The subject matter of all letters shall be strictly limited to private affairs and shall not contain any reference to prison administration and discipline, other prisoners or politics.

tr, Publications of matters discussed at interview or of the substance of letters received from prisoners shall entail the withdrawal or curtailment of this privilege.

Menial duties

Rule 266.—They shall not be required to perform menial duties nor to pay for having such duties done for them. These duties will be discharged by the prison servants who shall not be used as personal servants by a superior class prisoner. One attendant and one cook prisoner may be allowed to superior class prisoners upto ten in number.

Punishments

Rule 267.-- There shall be subject to the general rules regarding punishments, except that whipping shall only be inflicted with the previous sanction of the government. All penalties inflicted on A [Superior] class prisoners by the Superintendent shall immediately be reported to the Inspector- General. In case of misbehavior, the Superintendent may withdraw individual privileges, subject to the sanction of the Inspector General, when the period exceeds one month, but the power to remove a prisoner from this class rests with the Government only.

Discipline

Rule 268.—They shall at all times behave in an orderly manner, and shall be required to show due respect to prison officials and visitors. In all respects the prisoners shall be subject to the rules which apply to ordinary prisoners.

Transfer

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Rule 269.—(i) Normally second class railway accommodation shall be provided at the time of transfer from a prison. Prisoners may be allowed to travel by a higher class at their own expense if thy wish to do so, in which case they will be required to pay the difference in fares both for prisoners themselves and their escorts.

(ii)They shall be conveyed by taxi or tonga to and from the prison to the railway station at the time of transfer. Prisoners shall not be transferred from a prison in one district to a prison in another district by motor car unless the previous sanction of Government has been obtained.

Superior class under-trial prisoners AA.

Rule 270.(i)—Accommodation-As far as possible they will be provided with accommodation superior to that provided for "c" class convicted prisoners.

Diet-They shall be allowed the same diet as prescribed for B class prisoners. They may supplement it at their own expense provided that the food so obtained is of a simple character. Alcohol, intoxicating drugs and articles of luxury shall not be permitted.

Clothing-Prisoners inadequately clad and who are unable to obtain clothing from private source be provided with B class clothing at Government expense. They may be allowed their own beddings at the discretion of the Superintendent. Other Concessions-Subject to the discretion of the Superintendent, superior class under trial prisoners may be provided with ordinary furniture as is allowed to B class prisoners. They will ordinarily by permitted to obtain books, magazines and newspapers, subject to censorship by the Superintendent, and allowed the use of a light upto 10 p.m. [in Winter and 11 p.m. in Summer]

Letters.—Their letters will be subjected to censorship in exactly the same way as those of ordinary under trial prisoners [by the concerned agencies.]

Other matters.—All other rules pertaining to ordinary under trial prisoners shall also apply to superior class under trial prisoners.

GENERAL DISCUSSION ON CLASSIFICATION.

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25.Shariat Petition No.62/I of 1992 as well as Shariat Miscellaneous Application No. 19/I of 1997 and Shariat Miscellaneous Application No. 11/I of 1998 deal with the question of classification of convicted prisoners and matters relevant thereto. It is significant to note that in this petition, which consists of foolscap seven typed pages, not a single impugned rule or provision of law has been shown to be violative of any one or the other Injunction of Islam. After narrating various provisions it has been stated in 'paragraph 3 of the petition that "the above classification of the prisoners and discrimination in their facilities is clearly against the principles of justice, equality, equity and fair play as given in Islam". The mover of the petition, in paragraph 1 of this petition, states that he, as a Muslim citizen of Islamic Republic of Pakistan, has gone through legal provisions relating to prisons and has come to the conclusion that these rules are against the basic concept of justice and equality and hence against the Injunctions of Islam. This is an unfortunate trend that regular petitions and miscellaneous applications are moved in Constitutional Courts and registered in violation of the procedure laid down in the Federal

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Shariat Court (Procedure) Rules, 1981. Rule 7 is a mandatory provision contained in Chapter II of, the 'aid Procedure Rules. It is entitled OF PETITIONS. Rules 7 through 16, A deal in detail with the forms and the contents of petitions moved for consideration of Federal Shariat Court. It is unfortunate that the rules are not being followed by parties to litigation and /In officials of the Federal Court Registry. It is high time petitions are filed in "1":

accordance with the mandated provisions so that the precise issues are brought before the Court for determination without loss of time. The a

Registry has to be vigilant in this respect.

26.The element of classification of prisoners was seriously and repeatedly objected to by petitioners before us. It has been urged that classification of prisoners into A, B and C groups is contrary to Injunctions of Islam. This issue has been canvassed forcefully before us by repeating the solitary argument that Islam teaches equality and further that the entire prison population should have equal facilities and any attempt to differentiate between one or the other class of prisoners would amount to violation of the Injunction of Islam. This question of discrimination has

V

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been raised at different fora during the past few years. Whether it is a case of discrimination or reasonable classification has now to be determined.

27.Sardar Abdul Majeed, Standing Counsel for the Federal Government however opposed the contention of learned counsel for the petitioner. He contended that it is in very rare cases that the Government or Prison Department grants A or B class to the prisoners. It is only when political detenues are interned under administrative orders that B class is given to such detenus who are neither criminals nor under-trial prisoners.

Sardar Abdul Majeed, while referring to certain precedents from Islamic history, developed the argument that an accused is not entitled to claim equality in matters of punishments by way of Taazir. The judge may consider even a reprimand to be sufficient in a given case. There can therefore be no claim to equality in every sphere of life.

28.Under the circumstances, it is therefore necessary to consider this question at length through this judgment because this issue had come up for consideration in the case of Abdul Rashid vs. The State 1980 SCMR 632 as well as the case of Waheed Akhtar vs. Superintendent, Camp Jail,

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Lahore and another reported as PLD 1980 Lahore 131 but arguments based upon Holy Quran and Sunnah were not advanced before the Hon'ble Judges for their consideration.

II

29.Before proceeding it would be useful to make a statement about the principle of Equality vis-a-vis the teachings of Islam. Holy Quran and the precepts of Prophet Muhammad, PBUH, are vocal on the a issue of equality status of human beings. The Injunctions of Islam bear ample testimony, as is evident from Ayat 13 Sura 49, that the noblest among the believers in the sight of Allah is the one who is most mindful of his duties towards Allah. Reference may also be made to the Khutba of the Holy Prophet, PBUH, at the time of conquest of Macca as well as the last Sermons. Both the Sermons constitute an illuminating charter of human rights and freedoms wherein Liberty and Equality are declared as basic principles of Divine Messege. But equality should not be confused with classification. Islam negates discrimination but uphold reasonable classification.

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30.The principle of Equality between human beings is innate in Islamic teachings. When the Holy Quran proclaims that every human being is worthy of respect and dignity as is evident from Ayat 70 Sura 17, Bani Israel, it presupposes that all human beings, irrespective of sex, caste, colour, creed, community, country and other man made geo-political

AC)

divisions, are equal. The divine statement contained in Ayat 76 Sura 38, to the effect that man was created from clay is a loud and clear proclamation that all human beings are in fact equal. Similarly the declaration contained in Ayaat 12. and 29, Sura 2 Al-Baqra, and repeated at number of places in the Holy Quran, namely that the bounties scattered in the cosmos are meant for the consumption of human beings, necessarily implies that human beings are not only equal but enjoy equal opportunities.

The Quranic principle that those who do good shall inherit gardens clarifies the matter further by suggesting that the criteria of success is good conduct whether done by some one from the lower strata of society or done by a politically and financially strong person or a blue-blooded aristocrat. The right to choose, as enunciated in Ayat 104 Sura 6 and Ayat 29 Sura 18, has

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II 66

been granted to all and sundry. Why? Because Islamic jurisprudence pre- supposes that all the human beings are equal and enjoy the same set of liberties and limitations. The Holy Quran is that revealed Book which in fact introduced the concept of unity of human race. Reference may be made to Ayat 213, Sura 2, AyL 32 of Sura 30 and Ayat 19 of Sura 10.

Similarly the declaration that no one shall bear the burden of any other soul, as given in Ayat 164 of Sura 67, and that every one is accountable for his deeds as enunciated in Ayat 202 Sura 2, is a clear pointer towards the principle of equality. At the sOcio-economic and political level, the Holy Quran makes it abundantly clear in Ayat 35 Sura 33, that men who submit and the women who submit, the faithful men and the faithful women etc.

etc. shall receive rewards. Ayat 173 of Sura 7 refers to the joint covenant of the children of Adam which is a vivid illustration of equality of all human beings irrespective of time and place of birth. Equivalence is a distinctive feature of Islam. These human friendly principles introduced by Divine Message though the honoured Prophets A.S. paved the way for humanism and the International Charter of Human Rights.

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31.Reverting to the main question of the legality or otherwise of the concept of classification it might as well be stated that Islamic history is replete with instances which vividly• illustrate that the principle of classification has a sanction is based upon reasonable and material grounds.

The above mentioned cases of Abdur Rashid and Waheed Alchtar were in

decided without reference to the Islamic Injunctions on the subject. Hence ".

a detailed discussion has been undertaken in this judgment in the light of Islamic principles in resolving the question relating to legal justification of classification of prisoners into various categories notwithstanding the general principle of equality of human beings.

32.It is not only the prisoners alone but the prisons in Pakistan have also been divided in different categories as in evident from Chapter 2 of the Prison Rules. This categorization did not at all seem unreasonable to the petitioners and they did not opt to challenge this classification. These are all administrative matters and hence beyond challenge. The fact of the matter is that the concept of reasonable classification is now a universally acknowledged phenomenon. The element of inhuman and vicious

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classification amounting to abject discrimination was an accepted reality in the erstwhile Arab Customary Code and contemporary societies elsewhere.

With the advent of Islam a rational and a judicious basis was introduced whenever classification had to be resorted to. However the historically old,

II

appalling and crude mode of classifying human beings on false grounds of tr

colour, caste, creed or nationality was strictly prohibited by Holy Quran and Sunnah of the Holy Prophet (PBUH) as is evident additionally from the

II

following illustrations:-

II

A. Ayat 11, Sura , 4, (An-Nisa) of Holy Quran, accepts categorization of surviving relatives of deceased into different classes of heirs and allots specific shares for each class of heirs. This is an admitted proposition of law of inheritance. Care is taken not to discriminate among

II

the heirs of the same class though shares allocated to each class vary. At the same time Holy Quran warns the believers in the said verse not to be swayed by personal sentiments or inclinations or apprehensions about the future conduct of the recipients of the legacy. The last full owner should therefore eschew discrimination. Each heir must get the prescribed share.

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Holy Quran while laying down the basis for this principle states: You know not which of them is nearer to you in usefulness. Ayat 11 Sura 4.

B. Ayat I of Sura 4, (An-Nisa) of Holy Quran contains the following declaration:-

"0 people! be careful of ( your duty to) your Lord, who created you from a single being and created its mate of the same kind and spread from these two many men and women". t.

This Ayat on the one hand declares unity of human race and on the other hand classifies humanity into two main classes i.e. Men and Women. The reason for maintaining this classification is the perpetuation of human race. u

IP

Each sex has been declared to be ZAUJ of the other i.e, both complement one another and each categdry enjoys a distinct legal capacity with a separate but specific biological role though the twain in the social, economic, political and religious domain have the same rights and obligations. As a matter of general principle the Holy Quran has from the outset classified the entire creation into pairs. In other words the principle of classification is a congenital trait amongst the mortals. Ayat 49 of Sura 51, (Az-Zariat) declares:-

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"And of everything We have created pairs that you may be mindful."

To the same effect is Ayat 45 of Sura 53 as well as Ayat 39 of Sura 75.

C. The most conspicuous example of the principle of equality among human race despite disparate racial and linguistic social groups is to be found in Ayat 13 of Sura 49 of Holy Quran. Its translation reads as follows:

Ayat 13 of Sura 49, (Al-Hijrat, the Chambers) states:- "0 you people, We have created you of a male and a female, and made you tribes and families that you may know each other, surely the most honourable is the one among you who is most careful ( of his duties); Surely Allah is knowing and Aware".

This declaration embraces the entire humanity, past, present and the future generations. Mankind originated from a couple. The two complement each other. The two were created from a single soul. The tribes, races, and nations are convenient labels by which human being may know the characteristics of different people among themselves but as far as Lord Creator is concerned, the entire humanity is one group referred to time and

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again in the Holy Quran as An Naas. The classification into tribes and families is of course apparent. The purpose of this pluralism inspite of unity of human race is to ensure the preservation of different languages and cultures and a means of identifying the different ancestries, groups or stocks. We find black, white, tanned and yellow races with distinct languages, cultures and history but the rights of all categories of human beings inhabiting this earth are the same. There is no discrimination from that aspect though the element of mutual classification, from a practical point of view, has been accepted by Holy Quran as a social necessity. The Holy Prophet (PBUH), in Khutba Hijat-ul-Wida declared that neither is a white superior to black nor is an Arab nonpareil. This declaration illustrates Unity in Diversity.

D. The Holy Quran envisions classification among created thing.

It recounts various types of creatures into pairs and species of various categories. Reference may be made to the following Ayaat of Holy Quran under different heads:

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a) The animals in pairs: Ayat 143 Sura 6; Ayat 6 Sura 39 and Ayat 11 Sura 42.

Adam and Eve: Ayat 35 Sura 2; Ayat 19 Sura 6; Ayat is 117 Sura 20.

Other Categories: Ayat 88 Sura 15, Ayaat 53 and 131 Sura 20; Ayat 05 Sura 22, Ayat 07 Sura 26; Ayat 10 Sura 31. See also Ayat 40 Sura 11, Ayat 27 Sura 23, Ayat 03 Sura 13, Ayat 36 Sura 36; Ayat 45 Sura 53; Ayat 39 Sure 75.

Categorization' in Paradise: Ayat 07 Sura 56, Ayat 52 Sura 55. See also Ayat 35 Sura 02, Ayat 19 Sura 07 and Ayat 117 Sura 20 to show that both categories of sexes will enter heaven.

The last sermon of the Holy Prophet PBUH declared that the white race has no preference over the black people. However the

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existence of different races was recognized.

Every Prophet of God was a class in himself and each one was endowed with a distinct gift. Each Prophet addressed a different nation in a different age though the source of relevation was the same. The Book given to each Prophet was different but the Communication did not vary. Syedna Ibrahim A.S. had the SOHF, Syedna Daood A.S. had the ZABOOR, Syedna Moosa As.S. had the TORAH, Syedna Isa had the INJEEL and

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Syedna Muhammad PBUH had the QURAN. Each Prophet is a distinct entity and each one of them is an illustrious link in the celebrated chain of Apostles. The Muslims are commanded not to differentiate between them but the fact of the matter is that even today the followers of the tradition of Abraham (A.S) i.e. Jews, Christians and Muslims are three separate Apo:

divisions of the same tradition. Reference Ayaat 136, 253 and 285 of Sura 2, Al-Baqra (The Cow). It might as well be added that notwithstanding the equality of status of the Prophets, as the authorized spokespersons of Allah, Syedna Ibrahim, in the roll call of honour, has the unique distinction of not only being a forebear of a distinguished progeny but the Holy Prophet Muhammad (PBUH), alone, among the revered descendents of Syedna Ibrahim A.S. had the unique distinction of becaming Khatam-ul-Ambiya i.e. the Seal of Prophets. In Ayat 124 Sura 2, the office of Imamat in addition to prophet-hood, was reserved exclusively for the righteous progeny of Syedna Ibrahim A.S. and he thereby became a distinct and venerable class in himself in the chain of esteemed Prophets of yore.

Syedna Ibrahim A.S, as an individual, has also the singular distinction of

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being referred to as an Ummah. Reference Ayaat 120-122, Sura 16 of Holy Quran. This is a distinct honour which no other Prophet shares with him.

Ayat 78 Sura 22 indicates that the word Muslim was first used with reference to Syedna Ibrahim A.S. Ayat 253 of Sura 2 of Holy Quran make the point amply clear wherein it is stated: "We have made some of these apostles to excel the others; among them are they to whom Allah spoke, and some of them He exalted by (many) degrees of rank; and we gave clear arguments to Jesus son of Mary and strengthened him with holy revelation." The Holy Prophet Muhammad (PBUH), though a Messenger like any other Prophet, has alone been described in Ayat 107 of Sura 21 to be Rahmatal-al-Alameen i.e, Mercy for all the nations of the world for all times signifying a class in himself

G. The followers of the Holy Prophet Muhammad (PBUH) were classified into various categories during his life time and later on as well:-

(1)Muslim: Ayaat 35-36 Sura 33 Surah Al-Ahzab of Holy Quran and

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Momin: Ayat I of Sura 23 Sura Al-Mominoon of Holy Quran. Reference may also be made to Sura 7 of Sura 40 of Sura Ghafir of Holy Quran

Ibad-ur-Rehman: Ayat 63 Sura 25 Surah Furcian of Holy

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Quran.

Munafiq: Ayat 1 Sura 63 (Munafiqoon).

Muhajir: Ayat 72 of Sura 8 (Anfaal).

Mujahid: Ayat 19 Sura 9 and Ayat 95 Sura 4. The Ayat classifies the believers who sit at home i.e. refractory from others who strive in the path of Allah.

Ansaar: Ayat 72 of Sura 8 (Anfaal).

The First Migrants to Habsha:

Ashra Mubasharah: (The ten companions to receive tidings of Salvation)

Badri companions: Reference Ayat 72 Sura 8 of the Holy Quran.

Ashab us Shajrah. (Those who submitted under the free) Those who accepted Islam before the conquest of Makkah. Reference Ayat 10 Sura 57.

Those who accepted Islam after conquest of Makkah.

Ahle-e-Bait-e-Rasool. Ayat 33 Sura 33.

Ummahat-ul-Momineen. Ayat 6 Sura 33.

People of the Book: i.e. Ahl-e-Kitab. Ayat 70 Sura 3 The four rightly guided Caliphs.

XVIII)Division as regards the period: the pre-Islamic period bereft of Divine Guidance is known as Ayyam-ul-Jahilia. The Holy Prophet (PBUH) is the line of demarcation between the period of darkness and light.

The Muslims as a whole, followers of the last Prophet(PBUH), have been classified as Ummat-e-Wusta to distinguish them from the Ummah of the previous Prophets and contemporary nations. Reference Ayat 143 Sura 2 Sura Al-Baqra, Ayat 7-11 of Surah Waqia, Sura 56 of the Holy Quran divides human beings into three classes namely;

i. Companions of the right hand (good luck) Ashab ul Maimanah;

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ii Companions of the left hand (ill luck) Ashab ul Mashamah.

iii the Foremost in faith. As-Sabecloon. Of-course this division is applicable to hereafter but the fact of the matter is that the concept of classification according to the Injunctions of Islam is applicable not only to the mundane life but also to the life after death.

(XXI)Believers and Unbelievers. Ayat 254 Sura 2

XXII)Reference may also be made to Ayat 177 of Sura 2 (Al- Baqra). In this verse the attributes of a believer are enumerated including the trait that he spends for the love for Allah upon the various classes ofpersons:- Near of kin, Orphans, Needy, The way-farer Those who asked for help; and For emancipation of captives.

Existence of various classes of persons in the society at a given time is recognized in this verse.

Denizens of Heavens and Hell is another division visible in the Holy Book. Reference Ayaat 1-16 Sura 58 (Al-Ghashia The Overwhelming Event).

The Meccans had objected to the mission of the Holy Prophet (PBUH) on the ground that he was neither a chief of the tribe nor a wealthy person. This division, according to non- believers at social level was natural and customary because honour was considered to be the preserve of the privileged classes. But the Holy Prophet (PBUH) became a class unto himself

Some people, at the time of Revelation, raised an objection as to why revelation was not directed towards some significant person of Macca or Taif Ayat 31 states that a the blessings of

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Allah i.e, revelation cannot be divided though material wealth has been divided among people in a way that some are exalted. Abundance of resources is only the provision of this life. The first part classifies human beings into those who are entrusted with Revelation while the other groups received the Message through the Messenger and the second part of these Ayaat deal with un-even distribution of wealth among the people. Reference Ayaat 31-35 Sura 43 Al-Zulchraf.

In the case of divorce, men may enter into another matrimonial contract soon after the divorce; but the women have to wait for a certain period. Reference Ayat 229 Sura 2.

This classification is an admitted fact of life notwithstanding the equality of social, political, cultural and economic rights between men and women. There is a rational basis for this restriction ie, the protection of lineage. This however does not become an instance of discrimination. Equality of rights between men and women is however evident inter-alia from Ayat 195 Sura 3, Ayaat 32, 124 Sura 4; Ayat 97 Sura 16 and Ayat 35 Sura 33.

Men have been declared as protectors and maintainers of women. This is what Ayat 34 Sura 4, (Al-Nisa The Women) ordains. Inspite of equality of rights the classification has been

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prescribed on rational basis. The husband, being the made partner, has also to bear the cost of a wet nurse as provided in Ayat 233 Sura 2 (Al-Baqra The Cow).

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XXVIII. There is yet another Injunction of Islam contained in Ayat 08 Sura 76 (Al-Insan) which, while recounting the attributes of believers, signifies that a believer for the love of God alone provides sustenance to the three disadvantaged classes i.e. (i) indigent (ii) orphan and (iii) the captive. By following this commandment the believer is satisfied that he is doing it for the sake of God alone and no one else and he desires no reward or thanks from any one because he fears the Day of distressful wrath from the side of his Lord. Such believers Aes stand distinct from other believers. The thee categories of the needy recipients are also recognized, though the purpose of charity itself was to eradicate poverty.

XXIX. The Holy Book recounts different categories of people (at spiritual level and otherwise) under separate heads:- The Deaf: Ayat 18 Sura 2 The Dumb: AS/at 18 Sura 2 The Blind: Ayat 18 Sura 2 People of the Ditch: Ayat 4 Sura 85 People of the Town: Ayat 13 Sura 36 Inmates of the fire: Ayat 17 Sura 68 People of the Elephant: Ayat 1 Sura 105 People of Rome: Ayat 1Sura 30 People of the cave and Inscription: Ayat 9 Sura18. Ibad-ul-Mumineen; Thad us Saleheen, Ibadenal Mukhlassen Ayat 25 Sura 12; Ayat 81,111,122,133; Ayat 10 Sura 66. XXX. Though each lunar month has a distinct name yet the four months are considered sacred. These sacred months constitute a separate class. Reference Ayat 194 Sura 2 and Ayat 36 of Sura 9.

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XXXI. Only two mosques have been reverentially mentioned in Holy Quran: Ayat 1 Sura 17 and Ayat 125 Sura 2 as well as Ayat 96 Sura 3. See also Ayat 97 Sura 5 as well as Ayat 29 Sura 22. XXXII The three Mosques namely the Holy Kaaba, the Mosque of Holy Prophet (PBUH) and the Mosque at Aqsa had acquired a distinctive status as compared to other mosques. Each one of these Mosques is a class unto itself though each mosque is the house of God.

According to Ayat 25 Sura 4, the punishment of a slave married woman, guilty of adultery, is half the punishment of a free guilty woman. On the other hand the wives of the Holy Prophet (PBUH) Were warned that if any indecency was 4f) committed by them the chastisement shall be double the prescribed punishment ----Ayat 30 Sura 30 of the Holy Quran. Classification among the wrong doers for the purpose of awarding lesser punishment has also been made. Leniency to members of under-priveledged sections of society is manifest in this Divine rule. Less fortunate social groups will be awarded lesser penalty whereas persons belonging to privileged groups, who had better facilities to lead life according to legal rules will receive exemplary punishment in case of transgression.

Ayat 32 Sura 3 of the Holy Quran declares that surely Allah chose Adam and Noah and the descendents of Abraham and the descendents of Imran above the nations. All these references are a pointer to the principle that notwithstanding general equality among human beings, the rule of classification is an established principle of Islamic Jurisprudence. It does not amount to discrimination if Allah selects one human being or one family to spread His Message.

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H. The concept of ranking persons according to their deeds is familiar to Holy Quran. Ayat 19 of Sura 4, Sura al-Ahqaf states:- "Of these all have ranks According to their deeds So that Allah may Recompense them for Their deeds. They shall not be wronged".

Ayat 10 of Sura 57, (Al-Hadid) declares that those believers, who spent their wealth and toOk part in fighting before the Victory (conquest of Mecca), cannot be equated (with those who spent their wealth and took part in fighting afterwards). They are higher in rank than those who spent and fought afterwards.

Ayaat 95,96 of Sura 4, allude to the higher ranks of believers according to their deeds. Ayat 122 of Sura 6, (Al-An'am) states in very clear terms that every human being is assigned a station according to his deed because Allah is not heed14ss of what people do. All human beings are equal but, at the same time, each individual is a class in himself Now we know it as a scientific truth that finger prints of each individual are different. Ayat after Ayat can be quoted to establish that reasonable

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classification is an accepted principle of Islamic jurisprudence which is as old as the Revelation and the creation of Adam and Eve. But it should not be confused with the equality clause which is a principle of general application in Islamic Fiqh.

35.During the course of arguments on the question of v :, It o‘ classification of prisoners and the elements of reasonable classification, reference was made to the principle of equality as envisaged in Article 25 of the Constitution of Islamic Re-public of Pakistan particularly clause(2) where the words "discrimination" and "alone" occur. The meaning and

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scope of the words "discrimination" and "alone" as they occur in clause 2 of Article 25 were discussed in the case of Shireen Munir and others versus Government of Punjab reported as PLD-1990 SC 295. Mr. Justice Shafi- ur-Rehman, author of the Judgment at page 309, was pleased to observe as follows:

"Discriminating against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility. All pervasive nature of this constitutional provision is self evident. In interpreting Constitution and also in giving effect to the various legislative measures, one distinction has to be consistently kept in view and it is that classification based on reasonable considerations is permissible and

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not violative of the principle. This aspect of the matter was dealt with in a case in the Indian Jurisdiction in Kathi Raning Rawati Vs. State of Saurashtra (AIR 1952 Supreme Court 123) in the judgment of the Chief Justice in the following words:-

"Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in the Articles it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different. Equal protection claims under that article are examined with the V presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies". (Emphasis Added). “

36.This report was also considered in the case of I. A. Sherwani which is proposed to be discussed shortly.

37.The question of grant of class A or B to a prisoner had come before the Hon'ble Supreme Court of Pakistan in the case of Abdul Rashid versus The State reported as 1980 SCMR 632. It was held that no justiciable right vests in a prisoner to seek better class even though he is shown as eligible to better class of prisoners.

38.The case of Waheed Akhtar versus Superintendent Camp Jail, Lahore and another, reported as PLD 1980 Lahore 131, a judgment

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delivered by Justice Aftab Hussain, as his Lordship then was, pertained to rules 243, 246, 248 and 250 of the Prison Rules. It was held that the Prison Rules have made different provisions for convicted prisoners and undertrial prisoners.

39.Reference may also be made to the case of Pakistan Petroleum 1w;,, Workers Union Versus Ministry of Interior reported as 1991 CLC 13 wherein this history of concept 'of "Equality before law" as it occurs in Article 25 of the Constitution has,been traced in the following terms:- "This Article guarantees to all citizens of Pakistan equality before law and equal protection of law. These rights guaranteed by the Constitution are now universally applied and practiced in all the civilized world. It finds recognition in Universal Declaration of Human rights and the Covenant on Human Rights, 1950. An examination of Constitution of various countries will show that the written Constitutions have invariably used the expression "equality before law" but "equal protection of law" has not so commonly been used. According to the jurists term "equal protection of th law" finds it origin in the 14 Amendment of the American Constitution. In my human view, the concept of both terms "equality before law" and equal protection of law" is not of so recent origin in jurisprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and

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principles of "equal protection of the law" was for the first time given and firmly practiced by the Holy Prophet (PBUH). Therefore, it can be traced as far back as 1400 years, i.e. much before the Magna Carta, 14th Amendment of American Constitution, declaration of Human Rights and the theory of Rule of law, enunciated by the Western Jurists. The last Sermon of the Holy Prophet (PBUH) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are now known as Fundamental Rights. The following extracts from the farewell Sermon can' be reproduced for reference. The blood revenges of the days of ignorance are remitted... all interest and usurious dues accruing from the times of ignorance sand wiped out.

"0 people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of yours). Verily you will soon meet your Lord and you will be held answerable for your action".

40.This classification helps the jail officials in keeping different categories of prisoners in separate cells. This type of classification is based upon the status of the prisoner and has no nexus with the nature of offence complained of This classification is categorized as A, B and C class as stipulated in rule 242 of the Pakistan Prison Rules. The prisons too have been classified. Chapter 2, rule 4 through rule 9 of the Pakistan Prison Rules, 1978 deals with classification of Prisons into four categories: The

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Central Prisons; Special Prisons, District Prisons and Sub-Jail. There is also the category of a Female Prison which is located in Multan.

41.We expected that each and every provision of prison discipline, challenged before us, would be supported by reference to a distinct injunction of Islam. During the course of arguments learned An

do, counsel for parties relied upon a few very well known verses of Holy Quran and two or three traditions of the Holy Prophet (PBUH). In order to fully appreciate the issues involved in the controversy we have detailed in this Judgment various rules relating to classification of prisoners because this issue is not as simple as it was given out at the time these petitions were filed in this Court. The question of classification of prisoners as well as the prisons is very much linked with the question of security and safety of the prisons, prisoners and prison staff The prison rules cover the entire discipline including the management and supervision of prison houses apart from maintenance of peaceful atmosphere as well as law and order situation within the prison precincts in addition to health and cleanliness facilities, food requirements, technical and educational training of prisoner

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population, the regular outward and inward flow of prisoners for attendance in the trial courts and a host of other factors obtaining at the spot. This aspect also explains the reason for maintaining division and classification among the prison population. The courts are not required to hunt for the reasonableness of each individual provision of law. There is a general presumption of laws having been made validly. Suffice it to say •.;

that the entire law on a given subject has to be seen as one integrated whole to cater to social requirement in a particular chapter of human life.

42.In response to a Court question, learned counsel for the petitioner frankly conceded that there was no prison system in Mecca and Madina during the time of Holy Prophet (PBUH). The words Sijan i.e.

prison, Aseer i.e. a prisoner, Hubs i.e. restraint and Mask i.e. to confine, are words of Arabic language. The Holy Quran used the then current words Sijan, Aseer, Mask and Habs as part of the erstwhile system of administration of justice. There are no verses of Holy Quran or traditions of 1 Holy Prophet (PBUH) to provide extensive guidelines on different chapters of prison discipline which could become the basis on which the

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existing prison legislation could have rested. There are certain injunctions of Islam, of general import, which have relevance with administration of justice, human dignity and , human welfare. However the specific Injunctions advanced by the petitioners on these issued will be considered.

43.In the case of Baluchistan Bar Association versus Government tan of Baluchistan cited as PLD-1991 Quetta 7, the Civil Law ( Special Procedure) Ordinance I of 1968) and Criminal Law Special Provisions of Ordinance II of 1968 were declared to be void as being inconsistent with articles 25, 2A and 175(3) of the Constitution. The Court came to the conclusion that the said Ordinances gave unbridled, un-fettered and unlimited powers to apply or withdraw the provisions of the Ordinance in any area of the Province without any rational basis and as such discriminated amongst the people or class of people livingi n the like circumstances. The application of Ordinance was neither universal nor uniform and it had been left entirely to the whims and caprice of the Government to decide, without any rational basis, to withdraw the Ordinance or re-apply the same in any area in a most subjective manner. It u

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was held that this type of classification was neither intelligible nor Ir

reasonable nor it was discernible and thus offended articles 4 and 25 of the Constitution. This case went into appeal which was decided as Government of Baluchistan versus Aziz Ullah Memon and 6 others reported as PLD 1993 SC 341. The Apex Court was pleased to confirm the Judgment of the Quetta High Court reported as uPLD 1991 Quetta page 7. The Apex Court was pleased to re-affirm the principles enunciated in the case of I.A.

Sherwani. The Supreme Court while referring to the case of F.B. Ali reported as PLD 1975 SC 506, observed that the principle laid down in Waris Meah's case was that if the Foreign Exchange Regulation Act had set up a Tribunal of exclusive jurisdiction, with a procedure different from the Code of Criminal Procedure, the challenge would not succeed as the offences under the Foreign Exchange Regulation could validly and reasonably be considered a different class from the offences under the

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ordinary law. It was further observed that Fauji Foundation case reported as PLD 1983 SC 457, ruled that legislation in regard to an individual can be made provided it is not discriminatory. The Hon'ble Judges were

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pleased to hold that although class legislation was forbidden, yet reasonable classification for the purpose of legislation was permissible.

Classification is allowed in the legal domain provided the classification is founded on intelligible differentia. There should be a nexus between the classification and the objects of the Act. This principle symbolizes that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate the equality class. Thus the substantive and the procedural law and action taken under it can be challenged as violative of Article 8 and 25". (Emphasis Added)

44.In the case of I. A. Sherwani and others versus Government of Pakistan reported as 1991 SeMR 1041, the provisions contained in article 25 of the Constitution came under review of the Apex Court. It was

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observed therein that clause (1) of article 25 enshrines the basic concept of religion of Islam, which is now known as the golden principle of Modern Jurisprudence. This principle enjoins that all citizens are equal before law and are entitled to equal protection of law. The apex court, after reviewing eleven judicial pronouncements from Pakistan and Indian jurisdiction, was pleased to deduce, formulate and enumerate the following seven principles with regard to equal protection of law and reasonableness of classification:

that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; That different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

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That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances;

That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded

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on any rational basis is no classification as to warrant its exclusion from the 'mischief of Article 25;

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That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

That in order to make a classification reasonable, it should be based:

On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

That the differentia must have rational nexus to the object sought to be achieved by such classification.

(Emphasis Added)

45.Syed Shabbar Raza Rizvi as his lordship then was, in his Book on the Constitution of Islamic Republic of Pakistan, while commenting on Article 25 made a reference to a passage from V.N. Shukla's Constitution of India, 7th Edition wherein the' learned author had formulated certain principles as regards the question, of classification, based upon various judgments of Indian Supreme Court, delivered under article 14 of Indian Constitution, which is counterpart of section 25 of the Constitution of

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Pakistan. The Principles enunciated therein are as follows:

(a)A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not

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applicable to others, that single individual may be treated as a class by himself

(b)There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article 25, has been violated, must make out that not only has he been

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treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to 'decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions "are resorted to when the matter does not admit of dire& proof or when there is some practical difficulty to produce evidence to prove a particular fact;

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It must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds;

The Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest; In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;

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While good faith and kno*ledge of the existing conditions on the part of the Legislature are to be presumed, ifithere is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonable be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain ap individuals or corporations to hostile or discriminating e legislation;

A classification need not be scientifically perfect or logically complete;

The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.

46.Reference may also be made to the case of Ghulam Mustafa Insari and 48 others versus Government of Punjab and others reported as 2004 SCMR 1903 wherein the interpretation of Article 25 cropped up for . u cples enunciated in the case of I.A.

consideration. The seven pnni

Sherwani were re-iterated and it was further held that:- the right relating to the equality of citizens was not violated, if the discrimination proceeded on a rational classification, having relevance to the underlying object of the legislation. [p. 1920] D

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that the principle of equality did not mean that every law must have universal application to all persons who were not by nature, attainment or circumstances in the same position. The varying needs of different classes of persons required different treatment. Classification was the recognition of the relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment. [p.1921] E the Courts did not expect from legislature a "scientific accuracy in classification adopted". [p.1921] F

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that the State was empowered to distinguish and classify persons or things for the purpose of legislation and that a classification need not be scientifically perfect or logically complete. [p. 1921] G

that the guiding principle of equality was that all persons and things similarly circumstanced would be treated alike both in respect of privileges conferred and liabilities imposed." [p. 1921]H

47.As regards the vires Of a statute, the Honourable Judges of the Apex Court in this very case also held (at page 1921) that the courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is ex-facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the constitution. At page 1923 the learned author judge was pleased to hold further that the court cannot question the wisdom of the legislature merely on the ground that a provision of law may work some

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inconvenience or hardship in the case of some persons unless it is

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violative of a constitutional provision including fundamental rights and further that the vires of a legislative measure including on Ordinance are not to be examined with reference to any idea or philosophy extraneous to the Constitution but the Constitutional provisions themselves as held in Liaqat Hussains's case PLD 1999 SC 504. The cases of Malik Khizar Hayat PLD 1956 F.0 200 and Prafulla Kumar Das AIR 2003 SC 4506 (2003) 11 SCC 614. Reference in ihe case of Ghulam Mustafa Ansari was made to the case of Mehreen Zaibun Nisa versus Land Commissioner, Multan and others PLD 1975 SC 397; The Province of East Pakistan and others versus Sirajul Haq Patwari and others PLD 1966 SC 854, Inam-ur- Rehman versus Federation of Pakistan and others, 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh, Managing Director of Patiala State Bank, Patiala versus Firm Narain Das Gulab Singh of Jagadhri through Kr.

Kishore Saren and others AIR 1944 Lahore 302.

48.In the case of Liaqat Hussain versus Federation of Pakistan PLD 1999 Supreme Court 504 at page 591, the author Judge observed that

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a validly enacted law cannot be struck down on the grounds of mala fide.

On page 632 it was further observed that no mala fide can be attributed to the Parliament as it is a sovereign body to legislate on any subject, for which it has been empowered under the Constitution to legislate. The Court, it was further observed, cannot strike down a statute on the ground of mala fide, but the same can be struck down on the ground that it is violative of a Constitutional provision. The Hon'ble Judge made a reference to the case of Mehr Zulfiqar Ali Babu and others versus Government of Punjab and others reported as PLD 1997 S.C. 11.

49.In the case of Muhammad Ramzan and three others versus Government of Pakistan, a case decided by a Division Bench of the Lahore High Court, Lahore reported as 2004 YLR 1856, the issue of reasonable classification came up for discussion. Honourable Judges after reviewing the case law, adverted again to the principle enunciated in the case of I.A.

Sherwani and came to the conclusion that different laws could validly be enacted for different sexes, persons and different groups and person., having different status or financial standing etc. It was further held that the court is

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not required to run behind the wisdom of the legislature or to challenge or discard the same. The courts of law are under obligation to give effect to the laws as they stand. The controversy in this case arose out of the point whether the Punjab Local Government Ordinance, 2001 was ultra vires the constitutional provisions contained in articles 8 and 25 inasmuch as it creates two classes of persons, one coming to their office through a direct vote of the electors of their respective constituency and the other reaching their office through an indirea vote. The court held that the law was not discriminatory because discrimination has to be within one group or classification.

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50.Reference may also be made to the case of Pakistan Petroleum Workers Union Versus Ministry of Interior reported as 1991 CLC 13 wherein the history of concept of "Equality before Law" as it occurs in Article 25 of the Constitution has been traced in the following terms:- "This Article guarantees to all citizens of Pakistan equality before law and equal protection of law. These rights guaranteed by the Constitution are now universally applied and guaranteed by the Constitution are now universally applied and practiced in the entire civilized world. It finds recognition in Universal Declaration of Human rights and the Covenant on Human Rights, 1950. An examination of Constitutions

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of various countries will show that the written Constitutions have invariably used the expression "equality before law" but "equal protection of law" has not so commonly been used. According to the jurists term "equal protection of law" finds it origin in the 14th Amendment of the American Constitution. In my humble view, the concept of both terms "equality before law" and equal protection of law" is not of so recent origin in jurisprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and principles of "equal protection r ok of the law" were for the first time given and firmly practiced by the Holy Prophet (PBUH). Therefore, it can be traced as far back as 1400 years, i.e. much before the Magna Carta, 14th Amendment of American Constitution, declaration of Human Rights and the theory of Rule of law, enunciated by the Western Jurists. The Last Sermon of the Holy Prophet (PBUH) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are now known as Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for reference. The blood revenges of the days of ignorance are remitted... all interest and usurious dues accruing from the times of ignorance sand wiped out.

"0 people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of yours). Verily you will soon meet your Lord and you will be held answerable for your action."

51.The concept of reasonable restriction, as it emerged as a consequence of interpretation of constitutional provisions including Article 25 enshrined in Chapter I of Part II of the Constitution, is not alien to Islamic teachings. Right of life on the one hand, is respected to such an extent that the killing of one person, without legal sanction, is declared in

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Ayat 32 Sura 5 (Al-Maida: The Food) of Holy Quran, equal to the killing of entire humanity, but we find that the law of Qisas is also recognized by Holy Quran. Similarly as against the right that no one shall cause injury to human body the principle of retaliation permits causing similar injury to the offender. Reference Ayaat 178, 179 & 194 of Sura 2, (Al-Baqra) and Ayat 45 of Sura 5, (Al-Maida).

52.In this connection it might as well be stated that the concept of human dignity received legal recognition for the first time when Ayat 70 of Sura 17, Sura Bani Israil was revealed. It declared:- "And surely WE have conferred dignity on the children of Adam, and WE carry them in the land and in the sea, and WE have given them of the good things, and WE have made them to excel, by a high degree of excellence, most of those whom WE have created".

But inspite of this honour, there are people who commit crimes and sins.

These are the persons who choose to tear asunder the robe of dignity and consequently merit a different treatment as a separate class of criminals/sinners and transgressors against accepted norms.

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53.Every human being enjoys the right and freedom of expression but Islamic Injunctions put a limit on the exercise of this fundamental right because an individual in not authorized to violate similar rights of others on the pretext of realization of his own basic rights. The violators are however a different class altogether. Following Injunctions of Holy Quran are being cited in support of the proposition that even fundamental rights are not absolute in the eyes of law:

There is no cbmpulsion in Deen (loosely translated as religion): Ayat256 of Sura 2 (Al-Baqra). It clearly means that a person is free to choose or reject a faith and he has no right to abuse or ridicule the beliefs of others because the others have a similar right.

Every person has a right to marry and raise a family but societies and "religion prohibits incest. Ayat 23 Sura 04 (An-Nisa).

The right of ownership over wealth is absolute but Allah and His Apostle, PBUH, impose obligatory taxes upon the believers Zakat, Khums, Ushar, Sadaqaat etc. Ayat 60 Sura 9; Ayat 41 Sura 8, and Ayat 43 Sura 2.

54.We are conscious of the fact that under Article 8(I) of the Constitution any law, custom or usage having the force of law, in so far as