Srinagar- The High Court of J&K and Ladakh on Friday upheld its single bench’s 2012 verdict, ruling that separatist group Muslim League’s chief Ashiq Hussain Faktoo, alias Dr Qasim, “will serve imprisonment for natural life”.
In 2003, 57-year-old Faktoo, who is husband of separatist group Dukhtaran-e-Millat chief Asiya Andrabi, was sentenced to life imprisonment on charges of involvement in murder of Kashmiri Pandit human rights activist Hriday Nath Wanchoo in 1992.
Faktoo was booked in FIR No.204/1992 for offences under Section 302 RPC, 3/4 TADA Act and 3/25 Arms Act registered with Police Station, Shaheed Gunj, Srinagar, and it was alleged that he along with co-accused was involved in murder of Wanchoo so as to create an imminent sense of terror in the minority community in Kashmir. Thereafter he was charged along with eleven more persons for offences under Section 302, 120-B RPC and Section 3 of the TADA Act by the Designated Court (under TADA Act, 1987), Jammu. Out of these twelve persons, four died and five others absconded, therefore, the Faktoo along with two other persons was put on trial. They were acquitted of the charges by the Designated Court in terms of judgment dated 14th July, 2001. However, the judgment was assailed by the investigating agency i.e. CBI before the Supreme Court by which on 30th January, 2003, allowed the appeal and the judgment of the Designated Court, Jammu, was set aside. Faktoo along with other accused were convicted of offences under Section 3 of TADA Act as well as Section 302 read 120-B RPC. Consequently they were sentenced to undergo life imprisonment. Faktoo has been in custody since 6th February, 1993.
In his plea before the division bench of the court, Faqtoo challenged judgment dated 16 November 2012 passed by the Single Judge, whereby his petition seeking direction to release him from custody on the ground that he has completed more than 20 years in jail, was dismissed.
However, the court held that imprisonment for life lasts until the last breath of the convict and that whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by the Government.
“……there is no manner of doubt in holding that imprisonment for life would, in all cases, mean imprisonment for natural life of a convict and unless a part of the sentence is remitted by the appropriate authority in exercise of its constitutional powers under Article 72/161 of the Constitution of India or under Section 432 of the Code of Criminal Procedure, the convict has to remain in prison for rest of his natural life,” said a division bench of Justice Sanjay Dhar and Justice M. A. Chowdhary said in a 49-page judgment, adding, “He cannot claim his release from prison after undergoing 20 years imprisonment as a matter of right. It is only if the appropriate authority exercises its constitutional or statutory powers of remission in favour of the said life convict that he can be released.”
Referring to Faktoo’s contention that in view of the provisions contained in explanation to Section 3 of the J&K Prisoners Act and Para (46.18) of the Jail Manual, the life imprisonment has to be taken as imprisonment for 20 years, is concerned, the Division Bench said, “the same is without any merit because, as per explanation to Section 3 of the J&K Prisoners Act, the imprisonment for life has to be taken as sentence of imprisonment for 20 years only for the purposes of execution.”
Similarly, the Division Bench said, as per (Para 46.18) of the Jail Manual, imprisonment for life has to be taken as sentence of imprisonment for 20 years only for administrative purposes.
The Single Judge, the Division bench said, has dealt with this argument of Faktoo in para (17) of the 2012 judgment, “wherein it has been clearly stated that the provisions contained in Jail Manual, Prisons Act and Prisoners Act only lays down the provisions as to how to regulate and manage the prisoners in the prisons.”
“We are in complete agreement with the view taken by the learned Single Judge on this aspect of the matter,” the court said, adding, “……imprisonment for life means imprisonment for the natural life of a convict.”
The court also upheld the constitutional validity of Rule 54.1 of the J&K Jail Manual (now repealed) and Rule 20.10 of the J&K Prison Manual, 2022 and also dismissed separate plea filed Factoo challenging the same.
The court also dismissed a plea by another convict, Nazir Ahmad Sheikh who was booked in FIR No.105/1990 for offences under Section 302 of RPC, 3(2) of TADA(P) Act. It has been alleged that the said Sheikh along with other co-accused, were involved in the murder of a BSF personnel, namely, Dharamveer Sharma in 1990 “with a view to spread terror in the Valley amongst the security forces.”
Sheikh along with two other co-accused was convicted of offences under Section 302 RPC, 3(2)(i) and 4 of TADA Act and 7/27 Arms Act and sentenced to imprisonment for life.
Meanwhile, the division bench of the court said that it shall be open to the competent constitutional authorities to consider the cases of the petitioners—Faqtoo and Sheikh— for grant of remission in exercise of their powers under Articles 72 and 161 of the Constitution of India.
The Division Bench passed the direction after noting that the Constitution of India under Article 72 confers power upon the President to grant pardons and to suspend, remit or commute sentences in certain cases. Similarly, Article 161 of the Constitution vests power with the Governor to grant pardon and to suspend, remit or commute sentences in certain cases.
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