MUHAMMAD ISMAEEL vs SECRETARY HOME DEPARTMENT, GOVERNMENT OF PUNJAB and 5 others

ORDER

ASJAD JAVAID GHURAL, J.---Though this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Muhammad Ismaeel has challenged the legality and propriety of order No,SO (R&P) 4-5/2008 (P-II) 5273, Government of the Punjab, Home Department dated Lahore the 11th of July, 2013 whereby respondents Nos,5 and 6 along with other condemned prisoners were accorded conditional release on parole.

2. Succinctly, facts necessary for disposal of instant constitutional petition are that respondents Nos,4 and 5 had been convicted and sentenced to capital sentence in case FIR No,01 dated 02.01.2004, registered at the instance of present petitioner under Sections 302 and 34 P.P.C. at Police Station, City Muzaffargarh vide judgment dated 14.04.2005. Their sentence was converted to imprisonment for life by this Court vide judgment dated 22.04.2010, which was upheld by august Supreme Court of Pakistan vide judgment dated 18.05.2011. Both respondents Nos,5 and 6 had been confined in jail to undergo the aforementioned sentence. The jail authorities processed the case of respondents Nos,5 and 6 having fulfilled the conditions for their release on parole under The Good Conduct Prisoners Probational Release Act, 1926 (Punjab Act X of 1926) and approved their release on parole vide impugned order dated 11.07.2013. Feeling aggrieved, the petitioner being complainant of the aforementioned case, had challenged its legality through this constitutional petition.

3. Learned counsel for the petitioner submits that under Section 2 of The Good Conduct Prisoners Probational Release Act, 1926 the provisions of Section 401 of the Criminal Procedure Code, 1898 shall have overriding effect. It is further contended that respondents Nos.5 and 6 were hardened and desperate criminals, as such they did not fall under the requirements and conditions for their release on probation specified under the law.

4. Learned Assistant Advocate General appearing for the State has supported the impugned order.

5. Contrarily, learned counsel for respondents Nos,5 and 6 has vehemently opposed the aforesaid contentions stating that respondent No, was quite competent to release respondents Nos,5 and 6 under The Good Conduct Prisoners Probational Release Act, 1926.

6. I have heard learned counsel for the petitioner, learned Assistant Advocate General appearing for the State, learned counsel for respondents Nos,5 and 6 and perused the record.

7. Respondents Nos.5 and 6 had been approved to be released on probation by the competent authority under Section 2 of The Good Conduct Prisoners Probational Release Act, 1926 vide aforementioned impugned order after fulfilment of all the conditions required under the said section. For ready reference Section 2 of the act ibid is re-produced as under:-- "Notwithstanding anything contained in section 104 of the Code of Criminal Procedure, 1898, where a person is confined in prison under a sentence of imprisonment, and it appears to the [Provincial Government] from his antecedents or his conduct in the prison that he is likely to abstain from crime and lead useful and industrious life, if he is released from prison, the [Provincial Government] may by licence permit him to be released on condition that he be placed under the supervision of authority of a [servant of the state] or a secular institution or of a person or society professing the same religion as the prisoner, named in the licence and willing to take charge of him."

Bare perusal of the section ibid shows that the conditions precedent for release of a prisoner are that he was confined in prison under a sentence of imprisonment and it should appear from his antecedent or conduct in the prison that he was likely to abstain from criminal activities.

8. Respondents Nos,5 and 6 along with others had been directed to be released on parole on the condition to be placed under the supervision or authority of the Probation Officer. Probation is given to an offender by the judiciary under the Probation of Offenders Ordinance, 1960 (Ordinance No,XLV of 1960) whereas parole is authorized to the executive under Section 2 of The Good Conduct Prisoners Probational Release Act, 1926. Probation and parole both serve the purpose of rehabilitation and reintegration of the offenders.

9. Section 401 of the Criminal Procedure Code, 1898 relates to the power of the Provincial Government to suspend or remit the sentence awarded to an offender. Admittedly, the sentence of respondents Nos.5 and 6 had neither been suspended nor remitted by the Provincial Government and respondent No,1 being competent authority, after fulfillment of all the codal formalities as required under the Act ibid, had issued the impugned order. It is not a case of suspension or remittance of the sentence rather custody of respondents Nos, 5 and 6 had been shifted from jail authorities to the Probation Officer.

10. Learned counsel for the petitioner has failed to point out even a single instance showing that the impugned order had been issued in favour of respondents Nos,5 and 6 without serving out the mandatory period of substantive sentence as required under the Act ibid and Rules framed there under in 1964.

In view of what has been discussed above, the petition in hand is without any force, the same stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.