GOPAL DASS THRU. BROTHER ANAND VIRversusUNION OF INDIA AND ANR.

                         [2011] 3 S.C.R. 856


A          GOPAL DASS THRU. BROTHER ANAND VIR
                                   v.
                    UNION OF INDIA AND ANR.
              (Writ Petition (Criminal) No. 16 of 2008)

8                         MARCH 14, 2011

    [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

        CONSTITUTION OF IND/A, 1950:

C       Article 32 - Writ petition seeking direction to the Union
   of India to take steps for release of writ petitioner from jail in
   Pakistan - HELD: Supreme Court of India, for lack of
  jurisdiction, cannot give any direction to Pakistan authorities
  - Government of India on its own has been taking steps in
D this regard - However, the Court requests the Pakistan
   authorities to consider the appeal of the petitioner for remitting
   the remaining period of sentence and release him (as well as
  other similar mdian prisoners) in the humanitarian spirit -
   Pakistan Official Secrets Act, 1923 - s. 5913.
E
       The petitioner, an Indian national, was awarded life
  sentence u/s 59/3 of the Pakistan Official Secrets Act,
  1923, by Field General Count Martial in Pakistan on
  27.12.1986, and since then was in jail in that country. The
  instant writ petition was filed seeking a direction to Union
F of India to take immediate steps for his release and
  repatriation. In the counter affidavit filed on behalf of the
  Ministry of External Affairs, Government of India, it was
  stated that Government of India under an agreement was
  continually pursuing the issue of release of Indian
G prisoners in jails in Pakistan.
        Disposing of the petition, the Court


H                                 856
   GOPAL DASS THRU. BROTHER ANAND VIR v.                857
          UNION OF INDIA AND ANR.
    HELD:                                                       A

    This Court, for lack of jurisdiction, cannot give any
directions to Pakistan authorities. However, the Court can
make a request to the Pakistan authorities to consider the
appeal of the petitioner for releasing him on humanitarian 8
grounds by remitting the remaining part of his sentence
as he has served almost 27 years in jail. Recently, on the
request of delegations of both India and Pakistan, the
Pakistan Supreme Court, ordered release of 442 Indian
prisoners languishing in Pakistan jails. (The Pakistan C
Supreme Court deserves to be commended in this
connection). They requested for slmilar 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 6n both sides, which this Court 0
applauds. Accordingly, this Court reques~ the Pakistan
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. [Para 8,9, 11-13) (859-H; 860-A-B; E-H; E
861-A-E]

      CRIMINAL ORIGINAL JURISDICTION : Writ Petition
·(Criminal) No. 16 of 2008.
                                                                F
     Under Article 32 of the Constitution of India.
     Saurabh Mishra, Arvind Kr. Sharma for the Petitioner.

      P.P. Malhotra, T.A. Khan, Anand Verma, Anil Katiyar for
lthe Respondents.                                               G
     The Judgment of the Court was delivered by
     MARKANDEY KATJU, J.
    "Qafas udaas hai yaaron sabaa se kuch to kaho               H
    858       SUPREME COURT REPORTS                    [2011) 3 S.C.R.


A         Kaheen to beher-e-khuda aaj zikr-e-yaar chale"

                                                -   FAIZ AHMED FAIZ

       1. This is a writ petition filed under Article 32 of the
  Constitution of India praying for a direction to the respondent,
B 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.
c
        2. It 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 lndo-Pakistan border into Pakistan.
D
          3. The petitioner was tried by a Field General Court
    Martial at Sialkot Cantonment in Pakistan and was awarded
    life sentenee 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
E   in different jails, and presently is allegedly in Mianwali Jail in
    Pakistan.

        4. It is alleged that due to the petitioner's detention his
  whole family is suffering from the year 1986. His brother,
F 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
G 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.

          5. A counter affidavit has been filed on behalf of them
H
   GOPAL DASS THRU. BROTHER ANAND VIR v.       859
 UNION OF INDIA AND ANR. [MARKANDEY KATJU, J.]

 Ministry of External Affairs, Government of India dated January A
 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 B
 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 c
 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    o
  Indian High Commission is still waiting for a response.

        6. It 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   E
   on Priso~ers', 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     F
  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.                                                     G

      7. We have heard learned counsel for the petitioner and .
 learned Solicitor General of India for the Union of India.

      8. We regret we have to dismiss this petition on the short
                                                                      H
    860       SUPREME COURT REPORTS                    [2011] 3 S.C.R.


A   ground that we have no jurisdiction over the Pakistani .
    authorities. The Indian authorities have done all that they could
    in the matter.

        9. However, that does not prevent us from making an
B   appeal to the Pakistani authorities to release the petitioner on
    humanitarian grounds.

        10. It 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
C 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
D confirmed by the higher authority.

         11. Thus 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
E   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 heaven
F
          Upon the place beneath. It is twice blest:

          It blesseth him that gives and him that takes.

          It is an attribute to God himself;
G
          And earthly power doth then show likest God's

          When mercy seasons justice."

       12. It may be mentioned in this connection that a delegation
H from Pakistan had recently come to India to request for release
    GOPAL DASS THRU. BROTHER ANAND VIR v. · 861
. UNION OF INDIA AND ANR. [MARKANDEY KATJU, J.]

of Pakistani prisoners in Indian jails. This delegation was A
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, B
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         c
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. 0
Thus there is a humanitarian spirit on both sides, which we
applaud.

        13. We, therefore, appeal to the Pakistani authorities to
 remit the petitioner's sentence and release him (as well as
 other Indian prisoners) in the same spirit.                        E

        14. With the above observations this petition is disposed
 off.

        15. Learned Solicitor General of India shall communicate    F
 t~is order to the Pakistan High Commissioner in India who is
  requested to communicate it to the concerned Pakistan
· authorities.

 R.P.                                 Writ Petition disposed of.