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It will be a disgrace to our country if he
dies in jail
Pardon can be granted even when a case
New Delhi: Disturbed by reports of an 80-year-old Pakistani national languishing in the Ajmer jail in Rajasthan, Justice Markandey Katju of the Supreme Court has appealed to Prime Minister Manmohan Singh to release him on humanitarian grounds.
In an email sent to Dr. Singh through Rajiv Shukla, MP, Justice Katju said he was making this appeal, not as a judge but as a human being, for the release of Dr. Khalil Chishty, who is old and infirm, under Article 72 of the Constitution.
In an unprecedented step earlier this year, Justice Katju, who was heading a Bench, passed an order, on a writ petition, requesting Pakistani authorities to consider the appeal of Indian prisoner Gopal Dass and release him on humanitarian grounds by remitting his jail term.
“We cannot give any direction to the Pakistan authorities because we have no jurisdiction over them. 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,” he said disposing of the petition filed by Anand on behalf of his brother Mr. Dass. The Pakistan government responded and released Mr. Dass, who has since returned to India.
Taking their cue from this episode, petitioners moved the Pakistan Supreme Court for the release of Dr. Chishty. A three-judge Bench, headed by Chief Justice Iftikhar Chaudhry, however, dismissed the petition after the Ministry of Foreign Affairs informed the court that it was actively pursuing the matter with the Indian government to secure Dr. Chishty's release.
Justice Katju, in his letter, drew the Prime Minister's attention to the fact that Dr. Chishty was an eminent Professor of Virology in the Karachi Medical College, and that he holds a PhD from the Edinburgh University. In 1992, he visited Ajmer to meet his ailing mother. There was a dispute between his family in Ajmer and its collaterals, and in the violence that ensued one person was killed. Among others, Dr. Chishty was also implicated.
Appeal still pending
The criminal case was kept pending for 18 years, during which period Dr. Chishty was granted bail but with a stringent condition that he should not leave Ajmer and should abide by some other conditions. In 2010, the accused, including Dr. Chishty, were convicted under Section 302 of the Indian Penal Code and given life sentence. His appeal before the Rajasthan High Court was still pending, but his bail application had been rejected.
Justice Katju said: “One does not know when the appeal will be heard and in the meantime Dr. Chishty may die in jail since he is so old that he has to be physically carried. He is also a heart patient and has a hip fracture. It will be a disgrace for our country if he dies in jail. I am not commenting anything on the merits of the case as it is a judicial proceeding. However, apart from the judicial proceeding, there is the executive power in the President and the Governor to grant a pardon.”
The judge said: “Mahesh Bhatt [filmmaker] and others have appealed to the President under Article 72 of the Constitution, as well as to the Governor of Rajasthan under Article 161 to grant a pardon, so that he may spend the last days of his life in his home in Karachi. I join them in this appeal. The relevant papers are with the Home Minister, Mr. Chidambaram.”
To drive home the point that the Prime Minister could intervene in a pending case, Justice Katju said: “It has been held by the Supreme Court in [the case of] Nanavati vs. State of Bombay that pardon can be granted even when a case is pending. Please, therefore, do the needful in this connection. Time is of the essence of the matter since Dr. Chishty has not many years to live. Needless to mention, if a pardon is granted it will enhance the prestige of India.”
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