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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 16 OF 2008

Gopal Dass Thru. Brother Anand Vir   ..      Petitioner

-versus-

Union of India and anr.   .. Respondents

J U D G M E N T

Markandey  Katju, J.

        “Qafas udaas hai yaaron sabaa se kuch to  kaho

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,  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.

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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 Indo-Pakistan border into  

Pakistan.

3. The petitioner was tried by a Field General Court Martial at Sialkot  

Cantonment in Pakistan and was awarded life sentence 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 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, 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 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 the Ministry of External

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Affairs, Government of India dated January 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  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  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 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 on Prisoners’, 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

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Pakistani  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.

7. We have heard learned counsel for the petitioner and learned Solicitor  

General of India for the Union of India.

8. We cannot give any directions to Pakistan authorities because we have  

no jurisdiction over them.  The Indian authorities have done all that they could  

in the matter.

9. However,  that  does  not  prevent  us  from making  a   request  to  the  

Pakistani authorities to consider the appeal of the petitioner for releasing him  

on humanitarian grounds by remitting the remaining part of his sentence.  

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  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 confirmed by the higher authority.

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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 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 Upon the place beneath.  It is twice blest: It blesseth him that gives and him that takes. It is an attribute to God himself; And earthly power doth then show likest God’s When mercy seasons justice.”

12. It may be mentioned in this connection that a delegation from Pakistan  

had recently come to India to request for release of Pakistani prisoners in Indian  

jails.  This delegation was 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,  

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 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

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Government generously reciprocated the gesture by releasing many Pakistani  

prisoners in our jails.  Thus there is a humanitarian spirit on both sides, which  

we applaud.

13.     We, therefore, request  the Pakistani 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.   

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

15. Learned Solicitor General of India shall communicate this order to the  

Pakistan High Commissioner in India who is requested to communicate it to the  

concerned Pakistan authorities.  

     ……….…………………….J.  (Markandey Katju)

           …………………………….J.   (Gyan Sudha Misra)

New Delhi: March 14, 2011

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