Guest post by KAVITA SRIVASTAVA
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 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.
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 elder brother was already studying engineering there. At the time of partition he and his elder brother who were 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.
The Criminal Case against Dr. Chishty
On the 14th April 1992 an altercation broke out between his brother’s family and a neighbour. The neighbours family came armed to the house where Dr. Chishty was staying and attacked his host family. In the scuffle Sh. Sayyed Idris Chishty one person from the attackers 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. It was almost like a house arrest, with Dr. Chishty reporting to the police every fifteen days and not being allowed to go anywhere. 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. The trial dragged for 19 years and finally he was sentenced to life imprisonment on 31st January, 2011.
It is further pertinent to know that the persons who attacked the house of the petitioner (the victim’s family) have also been convicted by the same court on 31st January , 2011 in the case number 178/ 2001- FIR number 98/1992, Thana Ganj and they have been sentenced for ten years rigorous imprisonment.
Thus the entire finding given by the trial court is erroneous in the sense that on the one hand it convicts the person who attacked the house of the petitioner armed with weapons on the other hand it convicts the petitioner for exercising his right of private defence.
The petitioner has therefore challenged the legality and validity of the judgement passed by the Additional District and Sessions judge Ajmer, dated 31st January, 2011 by which he has been convicted in the Rajasthan High Court, Jaipur bench. The matter is pending todate.
Dr. Chishty’s Health Condition.
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.
A short history of his condition shows that he has suffered seriously the following ailments.
1) Benign Prostatic Hypertrophy ( since last five years)
2) Ishchemic heart disease since 2008
3) Left ventricular failure (LVF) (in local parlance called congestive heart failure), HTN ( Hypertension) and Cerebro vascular accident ( In local parlance called brain stroke) since 2008 for which he was admitted in the JLN (Government) hospital in, Ajmer. Left sided intertrochantrix fracture of femur on 10/03/10.
4) For L.L. fracture he was about to be operated, but developed convulsions and became unconscious during anesthesia, so was not operated and is recorded in the Mittal Hospital documents
5) 23/04/2010 – after six weeks skeletal traction applied pins and needles at the knee joints. He was catheterized for 3 months, so developed urinary tract infection.
6) 01/07/2010 – Pin traction did not work, so was removed. He got bandaged and was sent home with walker and wheelchair. In the X-ray, fracture sight was not healed. Urination, stool passing, daily bath etc. all on bed in that period.
Being without his family, with the trial not reaching any conclusion, living in isolation he suffered physical, mental and emotional trauma which has changed his mood and psychology. He has developed a communication gap with other people, he feels insecure and is irritable, and wants to be left alone. This may be a condition of mental depression which was never examined ever by any Psychiatrist.
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 Begum Mehrunissa, who has lost her hearing power, his children and grand children.
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 CM of Rajasthan sent the petition of Dr. Khalil Chishty in May 2011 itself to the Governor of Rajasthan. The Governor returned the file in June, 2011 with several queries and concerns which could be clubbed as legal and factual. The CM of Rajasthan has sent the file again to the Governor about four weeks ago. It is time that the Governor Honourable Sh. Shivraj Patil responds to this humanitarian call, signs the mercy petition as advised by the cabinet in the light of revised facts. Dr. Chisty deserves a pardon.
It would be a fitting gesture by India to send Dr. Chishty back home at the earliest alive, as done by Pakistan in the case of Mr. Gopal Dass, an Indian citizen, following an appeal by the Supreme Court of India. Pakistan Government has already granted Dr. Chishty consular access, when he was brought to Jaipur in February and in the month of October.
The Family of Dr. Chishty, his wife Begum Mehrunissa, one of his daughter Shoa Jawaid and his grandson Syed Ali Ghalib Chishty are all in India since the 17th of November. What better gift would they take away than Dr. Khalil Chishty himself in the eventuality of the Governor signing his mercy petition.
(Kavita Srivastava is General Secretary, People’s Union for Civil Liberties. She is based in Jaipur.)
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