Mst. SHARIFAN BIBI vs STATE and 4 others

Mst. Sharifan Bib] filed this petition under Section 491 Cr.P.C. for issuance of a direction to the respondents to again lodge her son Muhammad Tariq alias Ghapal in Central Jail, Kot Lakhpat, Lahore.

2. Briefly the facts of the case are that Muhammad Tariq son of the petitioner was convicted under Section 302(b) PPC and sentenced to death and a fine of Rs, 50,000/-, in default of payment of fine to further undergo six months S.1. in case FIR No, 12/2000 dated 9.1.2000 registered under Section 302/34 PPC at Police Station Factory Area, Lahore vide judgment dated 24.5.2001 passed by Mr. Zawar Ahmad, Additional Sessions Judge, Lahore. Convict filed Criminal Appeal No, 841/2001 which is pending in this Court. Convict was sent to Kot Lakhpat Jail, Lahore but lateron on 9.11.2002 he has been shifted to Central Jail, Mianwali. She submitted an application to the Secretary Law, Justice and Parliamentary Affairs, Government of the Punjab, Lahore for re-shifting of her son to Lahore Jail.

She also made an application to the Home Secretary, Government of the Punjab, Lahore but the same have not been attended to, therefore, she has filed this petition for transfer of her son from Central Jail Mianwali to Central Jail, Lahore.

3. Learned counsel for the petitioner contends that appeal of the convict is pending in this Court and the same is in continuation of the trial, therefore, he could not be shifted to Central Jail, Mianwali till disposal of said appeal. In support of his contention he relied upon Mst. Said Bibi v. The State (1971 P.Cr.L.J. 39), Mrs. Bushra Aitzaz Ahsan v. Superintendent Jail, Kot Lakhpat, Lahore and others (1982 P.Cr.L.J. 683), Sardar Bibi v. The State (NLR 1983 Criminal 340) and Sardar Bibi v. The State (1984 P.Cr.L.J. 1407).

4. Learned State counsel submits that keeping of a convict in a particular jail is a policy matter and convicts are kept in jails keeping in view the availability of the accommodation and other circumstances. Shifting of accused from Lahore jail to Mianwali is not violative of any law warranting interference by this Court.

5. Heard. Record perused. Section 491 (e) of the Criminal Procedure Code empowers the High Court whenever it thinks fit to direct that a prisoner within said limits be removed from one custody to another for the purposes of trial. Said provision of law heavily relied upon by the petitioner is fully attracted in the instant case. Son of the petitioner is a convict and his appeal is pending in this Court. He has been shifted to Central Mianwali to serve out his sentence. Sub-section (e)) of Section 491 Cr.P.C. is attracted when the accused is required in a trial. Mere pendency of his appeal is not a valid ground for his transfer from Mianwali Jail to Lahore. When his appeal comes up for hearing it can be argued by his counsel in his absence. His personal appearance during hearing of his appeal is not necessary in this Court. Convict cannot claim his stay in Lahore Jail as a matter of right but in exceptional cases he can be kept in the jail near the High Court to impart instructions to his counsel for preparation of his case.

6. I have gone through the judgments referred by the learned counsel for the petitioner in support of his contention. In Sardar Bihi's case (1984 P.Cr.L.J 1407) the convict was transferred from Central Jail Faisalabad to District Jail, Sargodha until disposal of his appeal by the High Court as the prayer was not opposed by the learned State counsel in said case. In the case of Mrs. Bushra Aitzaz Ahsan (1982 P.Cr.L.J. 683) the order of detention was set aside on the ground that it did not indicate the . place of detention. Detenu was not an accused convict nor his appeal was pending in the High Court.

In Mst. Said Bibi's case (1971 P.Cr.L.J. 39) in shifting of accused during pendency of the appeal it was observed that the High Court was competent to transfer a prisoner from one jail to another during pendency of appeal. Similar view was expressed in Sardar Bibi's case (NLR 1983 Criminal 340).

7. The perusal of afore-referred judgments show that High Court competent to transfer a convict froth one jail to another in suitable case during pendency of his appeal but cannot claim as a matter of right. The facts of each case keeping in view the capacity in the jail, antecedents of the accused and hardships of his parents, this Court under Section 491 (E) Cr.P.C. is competent to transfer him from one jail to another. Petitioner is a widow having no source of income to meet her son by travelling a far of place after bearing heavy expenses. She and her relatives are permanent residents of Lahore and the State counsel has not argued that Kot Lakhpat Jail is over crowded or is not in a position to accommodate him. Convict's appeal is pending in this Court, he might be required to impart instructions to his counsel through the petitioner keeping in view the hardships of the petitioner and pendency of appeal of her son in this Court, this petition is allowed and the Respondent No, 5 is directed to transfer Muhammad Tariq alias Ghapal to Central Jail Kot Lakhpat Lahore forthwith till disposal of his appeal.