The sentence led to renewed efforts for his release, with his daughter Amna Chishty's plea to Aman ki Asha, asking to help get the ailing prisoner released allowing him to spend his remaining days with his family in Pakistan. The appeal has gained momentum with a senior member of the judiciary working behind the scenes to redress what he feels has been an injustice PUCL has been following this case and has intensified efforts to help Dr Chishty, along with several other eminent citizens, lawyers, and journalists.
On Wed., April 20, a PUCL delegation led by Dr. Radha Kant Saxena (Vice President), a national expert on jails, met P. K. Deb, Home Secretary, Government of Rajasthan, and presented him a memo urging him to "request the Chief Minister of Rajasthan and his cabinet of Ministers to advise the Governor of Rajasthan to invoke his powers under Article 161 of the Constitution of India and see that Dr. Chishty returns to his home in Pakistan alive and as soon as possible" (text of memo below; a similar memo has already been sent to the President of India, and to the Governor Rajasthan, signed by prominent citizens Mahesh Bhatt, Kuldip Nayar, Adml L. Ramdas, Kavita Srivastava and Jatin Desai).
According to a briefing sent by PUCL General Secretary Kavita Srivastava to Dr Chishty's family and others involved in trying to obtain a pardon for him, the Home Secretary was very cooperative and will aid a process to facilitate Dr Chishty's release. The process will begin with Dr Chishty writing a mercy petition to which should be appended certain documents. The Home Department will then process the necessary documents and recommendations.
Meanwhile, those who signed the petition urging the release of Dr Chishty will continue seeking an appointment with the President of India as well as the Governor of Rajasthan; should they succeed, the process will move faster. Finally, however, it will be up to the Ministry of External Affairs (MEA) to agree to send the prisoner across. For this purpose, PUCL is also trying to obtain an appointment with MEA Minister SM Krishna and Nirupama Rao.
Following is the text of the PUCL memo:
PEOPLE'S UNION FOR CIVIL LIBERTIES,
April 20th, 2011
Shri P. K Deb, Home Secretary,
Government of Rajasthan,
Subject: Pardon and or Remission of Punishment for Pakistani prisoner Dr. Khaleel Chishty under Article 161 of the Constitution of India by the Governor of Rajasthan
This is to request you to examine the case of Dr. Khaleel Chishty (aged 78 years), a citizen of Pakistan who is currently lodged in the hospital of Central Jail, Ajmer, Rajasthan. He was head of the Department of Virology and Microbiology at Karachi University. His academic career was brilliant and he was a popular teacher and served in Saudi Arabia, UK, Iran, Nigeria and Sri Lanka. Although an accomplished academic he has had a tag of a criminal for the last nineteen years, since 14th April 1992. (See Annexure -1, copy of passport to show age and Annexure II Dr. Chishty's Bio Data )
Dr. Khalil Chishty's tragic story begins in 1992 when he had come to Ajmer to meet his ailing mother. He was staying with his younger brother Jameel Chishty. It is important to know that Dr. Khalil Chishty was born and brought up in Ajmer and went to the famous Government High School, Ajmer in Topdara. He then went to study science in Karachi as his older brother was already studying engineering there. At the time of partition he and his older brother as they were both studying in Karachi, stayed over on the Pakistan side, while half the family, mainly his younger brother Jameel Chishty and his Parents remained on the Indian side in Ajmer. He came every few years to spend time with his parents, as such was here in 1992 to meet his mother.
On the 14th April 1992 an altercation broke out between his brother's family and some neighbours, when the latter came to attack his host family. In the scuffle one person from the neighbour's family died. This led to all the men in his host family being booked and they also did not spare Dr. Khalil Chishty. He was booked under section 302, 307 of the IPC. It was a case of being present at a wrong place at the wrong time.
Dr. Khalil Chishty was incarcerated immediately by the police, but in twenty days he was granted bail and his passport impounded. He started living on his brother's farm on the outskirts of Ajmer, to be out of any further trouble. The trial then dragged for 19 years and finally he was sentenced to life imprisonment on 31st January, 2011 (See Annexure III- Order to the trial court dated 31st January 2011). While he was out on bail for almost 18 years, he never violated any bail condition. He was always available whenever he was asked to present himself before the police or court. There was no charge of misconduct.
He is presently suffering from multiple ailments, including a cardiac ailment, since he suffered a major stroke in 2008 and then in 2010, when he was on the operation table undergoing a hip operation to join his hip bones which had fractured in 2010. His condition is obvious from the fact that after the conviction he was carried by two people to the court and also brought into the Ajmer jail with similar support. His hip joint is completely immobile and therefore he cannot walk on his own. He can barely use a walker. Very slowly but in great pain he uses the toilet in the hospital ward. ( see Annexure IV Medical papers got from the Jail Doctor on 14.04.2011)
On the 16th of March, 2011 he was denied "suspension of sentence" by the Rajasthan High Court, Jaipur Bench. (See Annexure V Order of the High Court) As such he is presently in the Ajmer Jail hospital, with complete uncertainty of whether he will ever return home in Pakistan. His family members wish to see him return so that he can spend his last few years with his wife, who has lost her hearing power, his children and grand children.
As you are aware, a few days ago Pakistan released Mr. Gopal Dass, an Indian citizen, following an appeal by the Supreme Court of India. We urge that it would be a good reciprocal gesture on the part of India to release Dr. Chishty now. Civil society in Pakistan too has appealed for the release of Dr. Chishty. Pakistan Government has already granted him consular access, when he was brought to Jaipur in February, 2011 to meet the members of the Pakistan High Commission in India. This is an opportunity for the Government of Rajasthan to take the lead and advise our Governor, Honourable Sh. Shivraj Patil to grant him Pardon and or remission of sentence and respond to this humanitarian call.
Powers of the Governor to grant pardon and or remission of sentence under article 161 of the Constitution of India.
As you are aware, Dr. Chishty is ailing and 78 years old. Under section 302 of the IPC, against which he has been convicted, he cannot be released from the prison by the State Government unless, he has completed, 14 years of actual imprisonment, from 31st January, 2011 onwards, as is provided under section 433 (A) of the CrPc. Which means that his case for premature release would be considered only when he attains the age of 92 years. Looking at his present infirmed and ailing state of health, it is doubtful whether he will survive to see that age. As such the only ray of hope for him to be back with his family lies under Article 161 of Constitution of India, which gives unbridled power to the Governor to grant pardons, and to suspend, remit or commute sentences in certain cases: It states, "that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends".
The guidelines for the grant of pardon and or remission of sentence by the Governor of the State under Article 161 of the Constitution of India are contained in part V of the Rules framed under the Prisons Act of Rajasthan, 1894 (Popularly called the Jail Manual.). Rule 3 of Part V of the Jail Manual says that "the Superintendent shall on the 1st} of May every year submit to the Inspector-General a list showing the names of every convict who, owing to old age, illness, and infirmity is permanently incapacitated from the commission of further crime of the nature similar to that for which he has been convicted. In cases which appear to him suitable for reference to the government, the Inspector-General, after obtaining the views of the Magistrate where the convicts reside, whether there is any objection to conditional or unconditional release of the convict, shall report the names of such convicts to the government of Rajasthan with his recommendations whether or not the convict should be released."
We reiterate that above stated arguments show that Dr. Chishty is a fit case for granting of pardon and or remission of sentence. He is a person of impeccable character. We urge you to note his advanced age and his illness and we request you to use your good offices and request the Chief Minister of Rajasthan and his cabinet of Ministers to advise the Governor of Rajasthan to invoke his powers under Article 161 of the Constitution of India and see that Dr. Chishty returns to his home in Pakistan alive and as soon as possible.
Awaiting your favourable response,
Radha Kant Saxena (Vice President)
Friday, April 22, 2011
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