Kashmir – Case History of Dr. Muhammad Qasim Faktoo
The Milli Gazette Online
Published Online: Mar 10, 2015
Dr. Muhammad Qasim was arrested on 05.02.1993 for his political views but to prolong his detention he was booked u/s 3 (TADA), u/s 302 r/w 120-B RPC.
TADA Court Jammu acquitted him on 14.07.2001 and made following observation:
"The prosecution has miserably failed to prove the case against the accused persons" (File-16, TADA Court Jammu)
Government challenged the said acquittal in Supreme Court of India, as it was the case of no evidence no proof no witness turned against the accused, case was thus solely based on "confessional statement" recorded under section 15 of TADA. Supreme Court sentenced the accused for life imprisonment with this important direction at the end of the judgement:
"They (accused) shall be given benefit of the period already undergone (undertrial period) by them"(Criminal Appeal No. 889 of 2001)
Note:-
This direction speaks mind of the Judge, that convict is entitled for release as per the law established; Government while exercising her prerogative should give convict benefit of his undergone period. If he has to die in Prison, what is the fun to pass this direction?
On completion of 14 years, J&K High Court directed the Jail authorities to place Dr. Muhammad Qasim's case before the Review Board for review of his case. (OWP No. 430/2008 dated 23.5.2008)
Review Board while taking into consideration all aspects of ihe case. Recommended premature release of Dr. Mohammad Qasim in its meeting held on 03.06.2008.
J&K Government rejected the Review Board's recommendations not on the basis of interpretation of the life imprisonment that life imprisonment mean imprisonment of convicts whole natural life but on the basis of J&K Jail Manual Rule 54.1 which according to Government debars TADA lifer convicts from release on completion of two thirds (14 years) of 20 years. (Govt. order No. Home-773(P) of 2009 dated 14.9.2009).
High Court Judge Mr. Mansoor Ahmad Mir quashed the impugned order and directed the Government to consider the case on the basis of J&K Jail Manual:
"keeping in view the discussion made hereinabove read with law laid down by the Apex Court, the respondents had to consider the case of the petitioner in terms of the Jail Manual and law laid down by the Apex Court."
"Viewed thus, the writ petition is allowed impugned order is quashed and respondents are directed to consider the case of the petitioner as indicated above and made a decision."
(OWP No. 997/2009 dated 5.6.2010)
Government challenged the said order before the double bench of the High Court. The said bench in its judgment observed as under:
"The petition as highlighted warrants favourable consideration but impediment in the way of respondent (writ petitioner) is the scope of Rule 54.1 of the J&K Jail Manual which orders him ineligible"
Note:-There is no mention of interpretation of the life imprisonment that, life imprisonment mean; imprisonment for convict's whole natural life.
29. "The disentitlement of the respondent (writ petitioner) for remission of his sentence in terms of Rule 54.1 of the Jail Manual does not deprive him from working out other remedies."
31. "Irrespective of the provision i.e. section 401 and 402 of the State Code of Criminal Procedure, which corresponds to section 432 and 433 of the Central Code, the power of the executive is absolute and unfettered to remit sentence"
(LPA No. 120/2010, dated 08.09.2011)
Ø For the purpose of execution, a sentence of imprisonment for life "shall mean a sentence for 20 years". (J&K Jail Manual Chapter XXI,21.2)
Ø Dr. Muhammad Qasim completed 20 years of imprisonment on 31.05.2012.
Ø More than 26 lifer convicts were released by the Government since 1975, the said list was produced to the High Court with the petition.
Ø Two TADA lifer convicts were released by the Delhi Government even before completion of 20 years of imprisonment. The said Govt. order was also made available to the High Court.
Ø Order copy of the Under Secretary to Government which directs DG Prisons that the lifer convict can be released only after completion of 14 years excluding remission, was presented before the High Court also.
Ø Lifer TADA convicts are entitled for remission, the said information provided by the Tihar Jail authorities was forwarded to the High Court.
Ø Letter of DIG Prisons to Principal Secretary to Government, Home' Department that, lifer Dr. Muhammad Qasim has completed the life sentence according to para 21.2 of the Jail Manual thus necessary action may be taken in pursuance to J&K Jail Manual provision 21.27, was also presented before the High Court.
Our Case: Brief Summary
We do not dispute that, it is the domain prerogative of the Government to remit or commute the sentence of a convict and we need not to discuss the supreme court's interpretation of life imprisonment because our case is entirely based on JK Jail Manual. JK Jail Manual if debars Dr. Muhammad Qasim from release on completion of 14 years (Government version of the rule 54.1, Chapter LIV JK Jail Manual) the Same Jail Manual makes him eligible for release on completion of 20 years. (21.2, Chapter XXI, 46.18, Chapter XLVI). The million dollar question is does prerogative mean wish or will of the Government or there is an established mechanism through which Government exercise her prerogative! It is the J&K Jail Manual which provides this mechanism.
J&K jail Manual says, soon after completion of 14 years ( 2/3 of 20 years [chapter LIV, 54.2, (VI)C ] ) Jail authorities should forward the case of lifer to Review Board for review, after taking into consideration every aspect of the case said board if finds merit, shall make recommendations for convicts release to the Government and Government may order the release of the convict (J&K Jail Manual : Chapter XXI, 21.21, 22, 23).
Since 1947 every lifer convict was released by the Government once Review Board recommended his/her case. In Dr. Muhammad Qasim's case same procedure was followed, his case was forwarded to Review Board soon he completes 14 years, board after review of his case recommended his release to the Government. Government on the basis of J&K Jail Manual Rule 54.1 rejected the Review Board's recommendations. Important question here is that Government does not reject the Review Board's recommendations by saying life is life or it is our prerogative exclusively to remit the sentence or otherwise? But Government in it's order dated 14.09.2009 (Govt. order No. Home-773(P) of 2009) said J&K Jail Manual debars Dr. Qasim!
Justice Mansoor Mir in his order dated 05.06.2010 OWP No. 997/2009, not only quashed the impugned order but directed the Govt. to consider the case afresh. Government challenged the said order before the double bench of the High Court. Double bench in it's order dated 08.09.201 I (LPA No. 120/2010) while set asiding the single bench order said life sentence according to J&K Jail Manual is 20 years and J&K Jail Manual Rule 54.1 debars Dr. Qasim from release on completion of two-thirds (14 years) of 20 years.
Clear Case of Political Vendetta !
The question is why Government is not exercising her prerogative (Sec. 401, 402 CrPc) for Dr. Muhammad Qasim, even when he has completed the period of 20 years and his case has been already recommended by the Review Board for release? Prerogative is not wish or will of the Government. There must be a legal ground for the Government for not exercising the prerogative ! For example ; when Government rejected the Review Board recommendations for Dr. Muhammad Qasim's release in 2008 in it's order reason given was Rule 54.1 of J&K Jail Manual, on completion of 20 years Government again rejected the representation of Dr. Muhammad Qasim but this time in it's order (dated 23.08.2012) no reason was given, but the interpretation of life imprisonment, that life imprisonment means life imprisonment of convict's whole life, very important question here is that, this interpretation of life imprisonment! is not applicable to any particular case but to all life convicts, how does than Government release lifer convicts every year? Is it not misuse of prerogative that Government exercise her powers to release lifer convicts every year, but when it is a case of a convict whose political views are unacceptable to the Government, Government refuse to exercise it's prerogative to order his release?
(As recieved from Dr. Muhammad Qasim's supporters in Kashmir)
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