PRISON: THE PHILOSOPHY OVER AGES
By:
NOOR
ALAM KHAN ASC,
Member
KPK Bar Council,
Member Executive SCBA of
Chairman
Voice of Prisoners
A.
The
origins of prisons can be traced back to the rise of the state as a form of
social organization and development of formalized legal codes. The most well
known of these early legal codes is the Code
of Hammurabi written in
B.
As
for the Romans, they were
also among the first to use prisons as a form of punishment. One of the most
notable prisons was the Mamertine Prison established in 640 B.C which
was located within a sewer system beneath ancient Rome and contained a large
number of dungeons where prisoners were held in filthy conditions with
contaminated human waste.
C.
Whereas
in the beginning of Islam the
concept of ‘Prison’ meant preventing a convict from society, in a separate
place where he would be able to repent his acts. Prisons were found when the
Islamic empire expanded during the reign of Caliph Omar Ibn Al Khattab
in 633 AD. He bought a house in
D.
In
the west, during the 17th
Century, executions were public events for jeering and condemning illegal
acts in a rather theatrical form
used as a tool for deterring the lower class and suppressing political
opponents.
E.
However,
in reaction to public disorder, this form of punishment was overtaken by
punishing miscreants by secluding them from society leading to the birth of
prisons as a private way of punishment in the 18th Century. It was believed that loneliness of
criminals in solitary confinement
would make them repent their acts resulting in reformation.(Ref:Foucault,
1975)
F.
However,
in the 19th Century
the world moved from ‘retribution’
to ‘reformation’ and ‘rehabilitation’. This ideology
also changed the objectives and functions of prisons. The functions of the
modernized prison are primarily ‘correction,
community involvement, reformation and successful economic rehabilitation of the
prisoners in society’. Prisons are now transformed into institutions of
learning and correction (Ref:Scott
& Gerbasi, 2005).which was first introduced by
the Caliph Omar Ibn
Al Khattab in 633 AD.
Word
"prison " as used in proviso to S.167, Cr.P.C.,
cannot be used for exclusive meaning of place where only convicted or under
trial prisoners are kept but it may also be given effect to other public
building for keeping prisoners. Police station has lock-up within its boundaries
to keep prisoners and such lock-up may also be treated as prison to give effect
to the word "prison " used in S.167, Cr.P.C..
If lockups are included in the definition of prison, then interpretation of
proviso to S.167, Cr.P.C. is not difficult to say
that police officer/official cannot take out custody of prisoner in between
sunset and sunrise from lock-up also. PLD 2009 KAR. 212
G.
Regrettably,
the idea of ‘Reformation’ and ‘Rehabilitation’ are not followed inside the
jails of
CONVICTS ARE HUMAN BEINGS, WITH HUMAN
RIGHTS.
A.
Many
people, including high ranking political leaders, sometimes argue that
prisoners don’t have or should not be allowed to enjoy their human rights. Such
arguments are WRONG and have NO BASIS IN LAW. Prisoners are human
beings and as such they retain their rights even after they are convicted as
they still do REMAIN HUMANS after
all!
B.
Human
rights are universal meaning that every person, including a prisoner, has human
rights. Also, human rights are said to be INALIENABLE
this means that they cannot be taken away from a person, including a prisoner
hence a prisoner RETAINS HIS HUMAN
DIGNITY in all circumstances. His right to human dignity is Inviolable in all circumstances
irrespective of the type of crime he has committed.
C.
In
our system, as soon as the Police registers a case against an accused, from
that point to the time that he is convicted and imprisoned, a stigma is
attached to the accused of being an immoral, corrupt and dishonest man who
requires no pity, sympathy and compassion from society, police or court. This
ideology is what makes us believe that an accused gives up his INHERENT human right and hence
should not be treated equally to a FREE
HUMAN BEING.
D.
This
approach, itself is not only wrong, unethical, unislamic
but against universal human rights. We need to change this mindset FIRST before we advance to
introduce legal, infrastructural and managerial reforms as this is the basis on
which our entire prison and criminal justice system structure must lie on and
be built upon.
General Outlook of Legal and Prison System in
Sages of the ages
conclude that the purpose of imprisonment is both punishment and reformation.
The purpose of imprisonment is to separate the offender from the society. In
old times, it was the practice that wrong doer was banished from the village.
In our country
where no social security is provided, It is highly a
serious question that the punishment is inflicted not only to criminals, but
their whole families. When a bread earner of a family is imprisoned, then his
wife and children are forced to be dependent on others, especially relative.
Their education is disturbed in the extreme condition, they may resort to
become beggars or they may become criminals as well, hence a Judge must not be
casual in awarding punishment to offender. He must be sensitive in this
respect. One year in a Jail is not a Joke, when you live away from your home,
you feel home-sickness. Similarly just imagine about a prisoner. I think we can
let lawyers and Judges to spend few days with prisoners, and then they will
feel their plight. In my knowledge there are numerous such examples. A session
Judge or Judge of High court, when posted at remote cities, they feel
home-sickness, though they are provided with luxury.
In Constitution
Article 10(8) and 10(4) if a person is kept under preventive detention which is
a serious case, that is a person has acted against the integrity and security
of
One must be
mindful of the fact that a prisoner is a human being and he requires
sympathetic treatment. The constitution of 1973 also provides this right to
him. The constitution under article 9 and 14 provides certain right to him. The
Supreme Court has also given its verdict in this respect in case of suomotu constitutional petition [1994 SCMR 1028]
The Jail
authorities have no right to inflict inhuman treatment to the prisoner on the
pretext that he is a prisoner; otherwise if he has not broken the Jail law.
It happens in our
Judicial System that that two criminals are awarded
different punishments for the same crime when their cases were heard and
decided by two different judges. Full Bench of Lahore High Court has addressed
these issues which were as follow.
(i)
Justice
should be dispensed by certain codified standards and not be the personal likes
and dislikes of the Judges citizens should know that certain would be Judicial
reaction for certain action and inaction there should be element of predictability
in this respect.
(ii)
I
have notified that for some crime of narcotics one Judge Award lenient
punishment and the other harsh punishment. In such cases the lawyers will go
for lenient Judges.
(iii)
We
carried out a survey for punishment under control of Narcotics substances Act
1997, there were sharp difference for the same crime, which show lack of
uniformity and there is need for adopting uniform sentencing.
Working as a
lawyer I have encountered certain offender, who have completed their
imprisonment but still in jail because they could not pay fines imposed on them
by the state. An offender is a human being. He deserves love and care, not
hatred.
In civilized
world like
If the purpose of
imprisonment is to reform, then if he has shown certain imprisonment in Jail,
then he should be favored by suspension of sentence and release on the parole. It
is not necessary that one may complete the sentence. The task of the Judge is
to be a neutral observer and not to take revenge. He should not be rigid.
It was in 19th
century when the concept of prison got changed and moved towards reformation.
(A)
But
unfortunately is not taking place in
A Convict is
human beings with right. It is a wrong idea to deprive him of his basic right.
In our judicial
system, it happens that if a person is inflicted with a punishment by the
Court, he loses his social status which is very much wrong.
This approach is
very much wrong in all respects. We need to develop our prison system on sound
ethical and moral basics.
STATE OF
PERSISTENT
DETERIORATION AFTER
During
the last few decades mal-administration and corruption in the prisons has
become very high. Jail population, including the number of under-trial and
juvenile offenders, has escalated rapidly but the capacity of jails to house
prisoners has not increased. Take the case of the
The present Jail
system is pathetic, there is high corruption going on. All the Jails of
Pakistan are overcrowded. There is no substantial increase in the number of
Jails.
Six important
issues are the:-
(i)
Overcrowding
(ii)
Worse
living condition in Pakistan Jails
(iii)
Justice
denied
(iv)
Disparity,
Discrimination and double standers
(v)
Bad
condition of women and Juvenile in Jails
(vi)
Bad human resource management.
It is evident
that massive Jail reforms are in need. There is no way out. If we would not to
have a civilized society, then we will have to go far Jail reforms.
It is punishment,
when we want to imprison someone. The purpose is stop
someone doing the wrong again. But when they are free, they will have to be
part of society again. It happens that at times they become more of criminal
mind, because of bad company. In the Jail something must be done to prevent
this. We must try to go to the root of the problem as why a person becomes a
criminal.
The buildings of
the criminals are the same built by the British rulers. Their purpose was just
to punish people and not to reform. They might have been sufficient for
prisoners at those times but not now. The numbers of prisoners have increased.
If you actually visit a Jail, you can see the deplorable condition. Prisoners
are forced to live like animals. A number of prisoners are forced to live
together in small cell. There is no healthy activity for prisoners; the
technical and vocational training is nonexistent. There are no medical
facilities. Medicines available are sub-standard. It is high time for those who
have power to tackle this issue in the war-footing.
Industries can be
installed on smaller level in Jails, this would make the prisoners skillful and
help them to rehabilitate in the society, when they are release.
Another problem
is this that our Jails have become the hub of drugs. Jail authorities are
involved in this practice and there is no check on them.
In my opinion
when every kind of crime is committed there is obvious reason at its back, the
use of drugs and sexual abuses on the part of people is due to psychological
disorder. Apart from the punishment they need psychological treatment for this.
It is a fact that
police used to arrest drugs addicts from well known localities u/s 9-A and 9-B
of CNSA 1997 in order to show their performance.
In fact these
drug addict offender need shelter homes and not Jails. It is these drug addicts
who are released every year by the District Judges.
It is a habitual
practice that police used to make raids on their well known places. These drug
addicts are sent to Jail, they are released after one month or so by District
Judiciary. Again they go to the same place and again arrested. This cycle
continues on throughout year.
The purpose of
the
It does not mean
that a Judge should not listen the complaint or
release the petty offenders, but concentrate on more important issues. A Judge
should not pass negative remarks against Jail staff in front of the prisoner.
There
are a great number of prisoners who have been
sentenced to death by the courts, but their cases are still lying pending
before courts or president, the govt has failed to
carry out orders of courts in cases of death sentences. C.J of Sindh High Court has already remarked that law and order
situation can not improve unless the convicts are executed, Islamic law also
demands the same, and the Apex court should play their role in ensuring death
penalty to the criminals.
At
present the environment in Jails are as such that it will produce criminals.
UNODC
has started the programme i.e
UNODC is working
a lot to implement National Judicial Policy effectively.
LIVING CONDTITIONS
·
Most
prison facilities are poorly constructed whereas the vast majority
have not capacity despite the extreme heat of
·
The
2010 HRCP Annual Report found that medical care was lacking in all prisons. As
per the report:
Ø Only 3 Doctors were looking after for
2,200 prisoners in
Ø Across
·
Further,
foreign prisoners, often remain behind bars long after completing their
sentences because they cannot pay this fare home. Prisoners from minority
particularly Charistians and Ahmadis
are generally afforded poorer facilities and are often violently attacked by
Muslim inmates.
·
Prison
abuse including torture by jail staff is rampant while accountability
mechanisms for checking such abuses are almost non-existent. Torture techniques
inflicted on victims such as pulling out of fingernails, the rubbing of hot chillies in eyes, endless beatings with sticks, and an
excruciating practices whereby the victim is hung by the wrists from the
ceiling until the shoulders dislocate so common in Pakistan that it has been
accepted as a norm torture techniques.
JUSTICE DENIED.
·
Another
major problem linked is the lack of access to effective system of legal
representation. Prisoners normally have little knowledge of their legal rights
and most cannot afford legal fees or raise enough money to apply for bail or
pay fines.
DISPLARITY, DISCRIMINATION AND DOUBLE
STANDARDS
·
What
is most distressing to learn is the sort of disparity and double standards
being practiced inside Pakistan Prison. Rich
influential persons and political leaders are treated totally differently to
ordinary prisoners. They are awarded good treatment by prison staff, their
families and lawyers are allowed to freely visit them in jail, bring them food
and other amnesties, they keep cell phones, laptops and televisions in their
cells and have privilege of receiving newspapers also. Most tip off the doctors
and get shifted to state hospitals where they dwell freely in VIP rooms whereas
the poor and underprivileged rot and die behind the bars yearning to get
medical care or attention in critical conditions but no one facilitates them.
·
Women
and children are the most vulnerable of detainees in
·
In
the
·
The
HRCP in 2011 pointed out those cells of the
·
UNODC
found that no prison surveyed had childcare facilities or provisions for
children’s education and recreation Women with reproductive health needs have
little or no access to healthcare. In October 2010, the Punjab Prisons Minister
told the Punjab Assembly that not a single gynaecologist
was available in the province’s 32 prisons.
·
As
for juveniles, according to the 2009 statistics 1,662 children are in detention
all across the country; 123 have been convicted while 1,539 are still awaiting
trial. Blatant violations of children’s right to education, health and
protection under legal detention have been reported along with sexual abuse.
Instead of protecting and rehabilitating children back into society, thanks to
our jail atrocities these children enter society being more hardened, militant,
frustrated and deadly. These thousands of children who are languishing in jails
throughout
·
Lack
of autonomy, political appointments, corruption, dishonesty, bribery, fraud and
disregard of human rights are characteristics associated with with prison staff. There is only one prison staff training
institute named as National Academy of Prison Administration (
PRISON REFORMS- A DIRE NEED
The
overview given in the proceeding paras, call for
immediate prison reforms. Our jail conditions depict a dysfunctional criminal
justice system, as well as of the State’s failure to both prevent and prosecute
crimes and protect the rights of prisoners who are dignified human beings and
important citizens of
Policy
makers should acknowledge that what happens within prisons is not isolated from
what happens outside. The treatment and condition of prisoners is a key
yardstick for the stat’s willingness to uphold the rule of law, improve the
public’s access to justice and build a safe crime-free future, a test
One of the
concepts of punishment is to reform an offender so that after serving out
sentence he should become a beneficial member of the society. Present state of
affairs in the jails was such where a person once entered into it, then instead
of coming out as a reform ed
person, he would come out as a hardened criminal. Basic and main idea of
punishment is reformation, which apparently was not available in the jails.
Keeping in view basic principle of punishment, Legislature had enacted
Probation of Offenders Ordinance, 1960, with a view that instead of sentencing
offenders at once after proving them guilty, they should be sent on probation
keeping in view the offence and its punishment and for that purpose S.5 of
Probation of Offenders Ordinance, 1960 had provided certain categories of
offences for which a convict could not be sent on probation and for offence
which carried punishment of imprison ment for life or
death. Accused in the present case had been convicted for offence punishable
under S.324, P.P.C. and other minor offences, which did not carry punishment of
imprisonment for life and death. Accused also did not come within the bar of
offences specified in it. Case in circumstances was fit where question of
sending accused on probation, could be considered. PLD 2007 KAR. 123
Primary concern
of Islamic Jurisprudence is the administration of even-handed justice.
I
will end my from by quoting a verse from the Holy Quran 76:5, 8-10 which refers
to the treatment to be meted out with prisoners of war:
‘But the righteous… give sustenance to
the destitute, the orphan, and the captive, saying: ‘We feed you for God’s sake
only’ we seek of you neither recompense nor thanks’ for we fear from our Lord a
day of anguish and of woe.’
According
to encyclopedia Britannica, prison is an institution for the confinement of
persons who have been remanded (held) in custody by a judicial authority or who
have been deprived of their liberty following conviction for a crime. It is
also known as jail with two different spellings. In surah-e-Yousaf of the Holy Quran, prison has been named as Al-Sijn
In
Sessions Judge all over the province
shall visit the prisons in their jurisdiction on fortnightly basis, for quick
disposal of petty-nature cases, release of prisoners detained on account of
non-payment of Diyat with assistance from
philanthropists, and to monitor overall governance and upkeep of the prisons
aimed at minimizing vulnerability of the prisoners.
A common man shall call it upsurge of
crime in the country. Nevertheless, this is a reality that nature of crime has
reasonably changed with institution of terrorism, remote control bomb blasts,
target killing and suicide bombing resulting in large scale assassinations of
Pakistani citizens throughout the country. This way, the crime rate has
certainly gone upward. However, static nature of prisons’ population despite
large scale liberal releases of petty offenders is owing to some other dilemma.
The unfortunate fact is that police
officials of district and sub-divisional level feel comfortable in arresting
large number of drug addicts from well-known localities of the cities and towns
and involving them in petty cases of possession of narcotic substance up to 100
grams and 1000 grams under section 9-A and 9-B of control of Narcotics
Substance Act (CNSA) of 1997, respectively. This may make them worthwhile in
the eyes of their seniors to whom they submit success stories of so-called
crime control in their sub-division and district by demonstrating substantial
figures of so many FIRs lodged against criminals. The so-called criminals i.e.
drug addicts who provide fuel to the crime control figures of police officials
are actually sel-victims for whom establishment of
shelter homes and special treatment centers are needed, rather than proceeding
against them under criminal laws and sending them to prisons. These drug
addicts, unfortunately, are also a major portion of petty offenders released by
the learned district judges during their prison inspections. Thus, an unending
loop of recidivism continues.
Police officials conduct so-called raids
on places like graveyards, historical mausoleums and other well-identified
places where the narcotic victims typically gather for drug abuse activity.
Addicts are arrested in large numbers almost every day and sent to judicial
custody in the local prisons on orders of concerned area magistrates. They
overcrowd the already overloaded prisons judges during their jail inspections release
these victims in view of vulnerable condition of the addicts. The poor drug
victims are usually having no one in free society to take care of them.
Consequently, they go back to their drug abuse habitats. From here, they are
rearrested in few days or in next month for another term of so-called action
under criminal laws. The malicious loop of recidivism thus continues while
providing good fuel to the figures of crime controllers. The exercise has
become so customary that the prisoners have nicknamed it as Monthly Trawler
Release i.e. a trawler full of drug victims is lodged in the prison by crime
controlling police and the same trawler is released in two installments by the
district judiciary.
The
underlying spirit behind directions of the apex courts issued to the district
judiciary to visit the prisons had been to take and suggest measures for
overall betterment of prisons. This necessarily included speedy disposal of
cases pending against the prisoners irrespective of petty or heinous nature of
crimes committed by them. However, it has been observed in some cases that the
learned session judges during their visits to prisons mainly focus on hearing
and sometime even inviting complaints from the prisoners against the prison
staff regarding their attitude. At times, this apparently positive gesture of
the visiting judges weakens the grip of prison authorities on mischievous
elements among prisoners and may result in creating some uncontrollable law and
order situation with passage of time.
In Surah-e-Baqrah of the Holy Quran,
equitable retaliation has been prescribed for believers in the matter of slain
i.e. free man for freeman, slave for slave and the female for the female.
Addressing the men of understanding among believers, the Holy Quran asserts
life and security inherent in the law of retaliation. Analogous had been the
commandments even in Taurat and Injee.
In Surah Al-Maida of the Holy Quran, it has been
mentioned that Allah ordained life, eye for eye, nose for nose, ear for ear,
tooth for tooth, and wounds equal for equal in these Holy Scriptures and their
followers were directed to judge by what Allah had revealed therein. Those who
disobeyed were declared disbelievers and transgressors. After failure of the
government in implementing the judgments of the honorable courts as well as Islamic
Law of Retaliation, the victim families are looking towards apex judiciary that
by way of declaring powers of the President regarding moratorium on execution
of death sentences as illegal and without lawful authority, culprits shall be
executed to death for the sake of ultimate justice and to check further.
To
make the offender realize that he had done something wrong and that he is to
improve his conduct and to conform to the norms. Of the society that he lives in.
It is, however, of critical importance to appreciate that an imprisoned
offender is also as much a citizen of the State as all of us and, above all, he
is also a human being just like us and is, thus, entitled to all the
constitutional, legal and human rights applicable to him. While dealing with
such an imprisoned offender it must always be kept in view that the thick and
high walls of a prison are not thick or high enough to keep the constitutional,
legal and human rights available to the generality of the citizenry, barring a
few exceptions, do not stop being effective or operational inside the confines
of a prison. I believe that denial of his right to an imprisoned offender or
treating him inhumanely dehumanizes him which neither serves retribution nor
achieves reformation.
The
prisoners who had served out their substantive sentences of imprisonment for
the offences committed by them but were detained in prisons for an indefinite
period merely because they had no financial capacity to pay the fines, Diyat, Arsh or Daman ordered to
be paid by them to the State, the heirs of the victim in cases of murder or the
victims themselves in cases of hurt. The case was Abid
Hussain and another V. Chairman,
“Putting a human being, the best of
Almighty Allah’s creations (Al Quran: Sura 95: Verse
4), in an iron cage for the rest of his life for no other reason than his
abject poverty is an idea abhorrent to the ‘dignity’ bestowed upon him by the
Creator (Sura 17: Verse 70). When the Holy Quran
enjoins upon the believers to spend on prisoners, slaves and those in debt and
for saving their necks and for lessening of their burdens (Sura
76: Vers 8, Sura 2: Verse
177 and Sura 9: Verse 60) it sends an unmistakable
message that what is to be hated is crime and not the criminal and the
unfortunate predicament of such a human being is to be visited with compassion
and mercy wherever and however possible.
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