Gopal Dass Thru.
Brother Anand Vir Vs Union of India and ANR
J U D G M E N T
Markandey Katju, J.
"Qafas udaas hai
yaaron sabaa se kuch to kaho Kaheen to beher-e-khuda aaj zikr-e-yaar
chale" -- FAIZ AHMED FAIZ
is a writ petition filed under Article 32 of the Constitution of India praying for
a direction to the respondent, Union of India, to take immediate and necessary steps
for release and repatriation of the petitioner, who is allegedly detained in the
Lahore Central Jail in Pakistan, through the diplomatic channel of the Ministry
of External Affairs, Government of India, New Delhi.
is alleged by the petitioner that he is an Indian national. He was intercepted and
arrested by the Pakistan Border Security Force in July 1984 when he alleged to
have mistakenly crossed over the Indo-Pakistan border into Pakistan.
petitioner was tried by a Field General Court Martial at Sialkot Cantonment in Pakistan
and was awarded life sentence on 27.12.1986 under Section 59/3 of the Pakistan
Official Secrets Act, 1923. The said sentence was confirmed by Brigadier Mallik,
Commander, 10th Brigade. He was lodged in different jails, and presently is
allegedly in Mianwali Jail in Pakistan.
is alleged that due to the petitioner's detention his whole family is suffering
from the year 1986. His brother, through whom this petition has been filed, made
several representations to the concerned authorities of the Government of India
requesting them to take up the matter with the Pakistan authorities for taking necessary
action for release of the petitioner and repatriation on humanitarian grounds,
but as yet nothing has been done. It is further alleged that about 182 Indian prisoners
have been languishing in Pakistan jails for many years. The petitioner has
written several letters to his family members, copies of which have been
annexed to this petition.
counter affidavit has been filed on behalf of the Ministry of External Affairs,
Government of India dated January 2011. It has been stated therein that although
the petitioner is an Indian citizen, he has been convicted by a Pakistani Court,
and hence his detention is governed by the law in force in Pakistan. The Government
of India has an agreement with Pakistan on Consular Access, and has been continually
pursuing the issue of release of Indian prisoners in Pakistani jails. On a
request made by the Government of India a list of prisoners in Pakistani jails
was received from Pakistan's Ministry of Foreign Affairs in January 2010, which
authenticates that the petitioner was awarded sentence of 25 years from 27.6.1986.
On instructions from the Ministry of External Affairs, Government of India, the
Indian High Commission in Pakistan has requested the Ministry of Foreign
Affairs, Pakistan to urgently clarify whether the Court order sentencing the petitioner
required pre-trial detention to be adjusted in the sentence. The Indian High
Commission is still waiting for a response.
is also stated in the counter affidavit that the Government of India has been
consistently taking up the issue of Indian prisoners in Pakistani jails with the
Pakistan authorities at all levels. An `India-Pakistan Judicial Committee on
Prisoners', consisting of retired Judges, four from each country, has been set up
to recommend steps to ensure humane treatment and expeditious release of
prisoners of the respective countries in each other's jails. The petitioner was
produced before this Committee during their visit to Pakistani jails in June 2008.
The Committee has held several meetings and made certain recommendations, and
the response is awaited. It is alleged that there is no confirmation from the
Government of Pakistan about completion of his sentence by the petitioner.
have heard learned counsel for the petitioner and learned Solicitor General of
India for the Union of India.
cannot give any directions to Pakistan authorities because we have no
jurisdiction over them. The Indian authorities have done all that they could in
that does not prevent us from making a request to the Pakistani authorities to
consider the appeal of the petitioner for releasing him on humanitarian grounds
by remitting the remaining part of his sentence.
may be noted that while in the counter affidavit of the Government of India, it
is mentioned in paragraphs 5 and 7 that the petitioner has been awarded a sentence
of 25 years imprisonment with effect from 27.6.1986 (which means he will be
released on 26.6.2011), the order of the Lt. Colonel, Commanding Officer, 27 A.K.
Regiment of Pakistan (Annexure P-1 to this appeal) states that the petitioner has
been awarded life sentence by the Field General Court Martial, which has been
confirmed by the higher authority.
there is a discrepancy here. At any event, we think it appropriate to make an appeal
on humanitarian grounds to the Pakistan authorities to release the petitioner
as he has served almost 27 years in jail. For this we refer to Portia's famous
speech in Shakespeare's `Merchant of Venice' : "The quality of mercy is
not strain'd; It droppeth as the gentle rain from heavenUpon the place beneath.
It is twice blest: It blesseth him that gives and him that takes. It is an
attribute to God himself;And earthly power doth then show likest God'sWhen
mercy seasons justice."
may be mentioned in this connection that a delegation from Pakistan had
recently come to India to request for release of Pakistani prisoners in Indian jails.
This delegation was headed by Hon'ble Mr. Justice Nasir Alam Zahid, a very
respected former Judge of the Pakistan Supreme Court, and it included Mr. Syed
Iqbal Haider, Senior Advocate of the Pakistan Supreme Court (who had been Pakistan's
Law Minister in Mrs. Bhutto's Cabinet). This delegation, accompanied by Mr. Kuldip
Nayyar and Mr. Mahesh Bhat of the Hind-Pak Dosti Manch, met the Prime Minister,
Union Home Minister, Minister of External Affairs and other authorities in India,
and informed them that a petition was filed by them in the Pakistan Supreme
Court and the Court ordered release of 442 Indian prisoners languishing in Pakistan
jails. (The Pakistan Supreme Court deserves to be commended in this
connection). They requested for similar release of Pakistani prisoners in Indian
jails, and the Indian Government generously reciprocated the gesture by releasing
many Pakistani prisoners in our jails. Thus there is a humanitarian spirit on
both sides, which we applaud.
therefore, request the Pakistani authorities to consider the appeal of the
petitioner for remitting the remaining period of sentence and release him (as well
as other similarly Indian prisoners) in the same spirit.
the above observations this petition is disposed off.
Solicitor General of India shall communicate this order to the Pakistan High
Commissioner in India who is requested to communicate it to the concerned
(Gyan Sudha Misra)