The Supreme Court Tuesday said it was the duty of the state to ensure fair and humane treatment of every jailed person until the sentence was fully served. 

“The prisoner is thus entirely dependent on the state and is at its mercy for the purposes of safeguarding the right to life and the state; therefore, owes a duty of care to every prisoner, regardless of the nature of offence for which the latter has been incarcerated,” says a five-page judgment authored by Justice Athar Minallah.

A two-member bench of the apex court — headed by former chief justice Umer Ata Bandial and Justice Athar Minallah — issued the order of the proceeding held on May 23, 2023 whereby the court had sought reports from the federal government and the respective provincial governments on the status of implementation of enforced enacted laws relating to the release of inmates on the basis of ‘probation’.

The court noted that the reports submitted by the respective governments and Law and Justice Commission of Pakistan (“Commission”) had been perused.

“The latter, in its report, has raised crucial questions regarding the inability of the respective governments to extend the benefit of release provided under the relevant enforced laws,” the judgment says, adding that the proceedings before this court and the reports submitted by the respective governments manifest that grave conditions affecting the fundamental rights prevail in the prisons across the country.

The court held that it was only liberty and the right of free movement that had been curtailed and definitely not the constitutional rights to life and to be treated with respect, having regard to the fundamental rights of inviolability of the dignity of man guaranteed under Article 14 of the Constitution.

Moreover, the court held that it was the duty of functionaries to ensure that no prisoner was unjustifiably deprived of the right to liberty even if it was on the basis of being released on probation.

“It is an undeniable fact that the living conditions and treatment of prisoners in overcrowded and inadequately equipped prisons profoundly affect the constitutionally guaranteed rights,” says the judgment.

The court noted that most of the victims of a non-functional criminal justice system were those belonging to economically and socially marginalized sections of the society.

“They do not have the means to access the courts nor has the state fulfilled its constitutional obligation to ensure inexpensive and expeditious justice contemplated under Article 37(d) of the Constitution”, says the judgment.

“Justice is denied to the weak and vulnerable because the prevailing criminal justice system allows its exploitation by the privileged and those who wield influence,” the court noted.

The court further noted that the abysmal conditions in the prisons were intolerable in a society governed under a Constitution adding that the prisons existed as institutions for reformation and social rehabilitation of those prisoners convicted by a competent court following a fair trial.

“The prisoner has been defined as a person legally committed to a prison as a punishment for a crime or while awaiting a trial,” says the verdict adding that there are mainly two categories of prisoners i.e. convicted or non-convicted adding that the latter is presumed to be innocent till guilt is established by a competent court of law.

The court noted that the convicted prisoners were imprisoned because they were required to undergo a period of sentence. “The object of undergoing a sentence pursuant to being convicted by a competent court of law is to make the convicted person and others realize that what the former has done or his/her acts, omission, and conduct which have led to the conviction or handing down of the sentence were unacceptable,” says the judgment.

The court noted that a sentence deprived a prisoner of his/her liberty and the freedom to be free and this curtailment of liberty might have limited consequences regarding some other rights.

“A non-convicted prisoner retains the presumption of innocence, which is an integral and fundamental part of the right to a fair trial”, says the judgment adding that the prisoner, whether convicted or non-convicted, has no choice but to place reliance for his right to life and other needs, such as medical attention, solely on the authorities holding him/her in custody.

This reliance gives rise to a duty of care on the part of the state and its functionaries, the court said, adding that the Constitution guaranteed the right to life under Article 9.

The court held that in the context of a prisoner, it was implicit in Article 9 that it was the duty of the state to ensure that every person incarcerated, including those who are convicted for an offence and undergoing sentence, are treated in a manner that did not expose the latter to harm and that humane treatment was extended so long as the incarceration lasts.

The court, while disposing of the petition, declared that neglect or refusal to effectively enforce the enacted laws relating to release of a prisoner on the basis of probation is violative of the fundamental rights guaranteed under the Constitution, inter alia, under Articles 9, 10-A, 14 and 25 ibid.

The court directed the respective chief executives’ of the federal government and the provinces to ensure that the enacted laws relating to release of a prisoner on the basis of probation are effectively implemented and made functional.

The court directed that federal and provincial governments, as the case may be, shall ensure that the prisoners who are eligible under the enacted laws for availing themselves of the benefit of being released on probation are identified and their cases are processed expeditiously.


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2023-09-20

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