IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 17, 2009 (i) CWP No. 11315 of 2006 World Human Rights Protection Council ....Petitioner Versus Union of India and others .....Respondents Present: Shri Ranjan Lakhanpal, Advocate, for the petitioner. Shri Amol Rattan Singh, Additional AG, Punjab, with Ms. Sonu Chahal, DAG, Punjab. Shri Onkar Singh Batalvi, Advocate, for Union of India. (ii) CWP No. 13178 of 2008 Ajay Kumar Vermani ....Petitioner Versus Union of India and others .....Respondents Present: Shri Vineet Sharma, Advocate, for the petitioner. Shri Amol Rattan Singh, Additional AG, Punjab, with Ms. Sonu Chahal, DAG, Punjab. Shri Onkar Singh Batalvi, Advocate, for Union of India. (iii) CWP No. 15142 of 2008 World Human Rights Protection Council ....Petitioner Versus Union of India and others .....Respondents Present: Shri Ranjan Lakhanpal, Advocate, for the petitioner. Shri Amol Rattan Singh, Additional AG, Punjab, with Ms. Sonu Chahal, DAG, Punjab. Shri Onkar Singh Batalvi, Advocate, for Union of India. CWP No. 11315 of 2006 (2) (iv) CWP No. 18731 of 2008 World Human Rights Protection Council ....Petitioner Versus Union of India and others .....Respondents Present: Shri Ranjan Lakhanpal, Advocate, for the petitioner. Shri Amol Rattan Singh, Additional AG, Punjab, with Ms. Sonu Chahal, DAG, Punjab. Shri S.S. Sandhu, Advocate, for Union of India. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Hemant Gupta, J. This order shall dispose of CWP Nos. 11315 of 2006; 13178; 15142 and 18731 of 2008, as all these petitions raise similar questions relating to the release of Pakistani Nationals, being held prisoners in the Jails in India, even though the said Nationals have completed their sentence. In Civil Writ Petition No. 11315 of 2006, the grievance is in respect of 31 Pakistani prisoners. In the reply filed on behalf of Government of India, it has been pointed out that release and repatriation of the Indian and Pakistani prisoners was earlier governed by a Protocol Agreement on Consular Access singed between India and Pakistan singed between the two countries on 2.11.1982. Both the Governments have negotiated a new Agreement on Consular Access which was signed on 21.5.2008. It has been pointed out that 29 Pakistani prisoners, who have been given travel document, have been repatriated through Attari/Wagah Border on 14.11.2008, whereas travel documents have not been issued by the Pakistan CWP No. 11315 of 2006 (3) High Commission to another 26 Pakistanis, who have completed their sentence. It is pointed out in the affidavit that as and when the travel documents are issued by Pakistan High Commission, such persons shall be repatriated. In an affidavit filed on behalf of Shri Rup Kumar, Chief Welfare Officer in the office of Director General of Police (Prisons) Punjab, it has been pointed out that out of 31 Pak Nationals, 19 have been repatriated, whereas 6 Pak Nationals, are awaiting their deportation/repatriation. It is also pointed out that after the Pak prisoners complete their sentence, they are kept as internees at Amritsar, Central Jail, Punjab. It has further been pointed out that the said matter is a transit process and a policy matter of the Government and that the State Government has no authority to release the Pak internees, without permission of the Ministry of External Affairs and Home, New Delhi. In CWP No. 13178 of 2008, it is pointed out by the Government of India that out of 51 foreign Nationals mentioned in the writ petition, 47 are Pakistani Nationals; one is Afghan and 3 are Nationals of Bangla Desh. The Afghan national has been deported on 14.11.2008, whereas 2 Nationals of Bangla Desh, have been deported on 17/18.12.2008, and that the deportation of the remaining one Bangla Deshi National Mohd. Ravail, has been taken up with the Government of Punjab and the issue is under process. In respect of the Pakistani Nationals, it is provided in the agreement of Consular Access signed between the two countries that in case of arrest; detention or sentence made on political and security ground each side may examine the case on its merit. It is also pointed out that after the nationality is confirmed and the travel documents are issued by the CWP No. 11315 of 2006 (4) Pakistan High Commission, the Pak prisoners, who have completed their sentence, can be repatriated. It has been also pointed out that the Governments of India and Pakistan, have constituted a Joint Judicial Committee on prisoners in January, 2007, consisting of Retired Judges of the Superior Judiciary of both the countries to recommend steps for humane treatment and to facilitate expeditious release of prisoners of the respective countries in Jails of the two countries with the provisions in the Agreement on Consular Access. It has been pointed out that 17 prisoners, who have completed their sentence, have been repatriated, whereas in respect of 7 prisoners, the Pakistan Government has issued travel documents and they are proposed to be repatriated on 30.12.2008, whereas in respect of 22 Pak prisoners, the Consular Access was provided through the Pakistan High Commission, but the confirmation of their nationality and the travel documents are awaited from the Pakistan High Commissioner. CWP No. 15142 of 2008, relates to the release of three Pakistani prisoners, namely, Akbar Ali, Abu Saloni and Rashid Masih. In respect of Akbar Ali, a separate Criminal Writ Petition No. 812 of 2005 is pending. Therefore, the present writ petition in respect of Akbar Ali, is not required to be entertained. It shall be open to the petitioner to continue with the Criminal Writ Petition. Another Pak prisoner, namely, Rashid Masih, is facing trial under Section 14 of the Foreigners Act and Sections 3 and 9 of the Officials Secrets Act and 120-B of the Indian Penal Code, whereas in respect of Abu Saloni, it was stated by Ms. Madhu Dayal, that he is facing a trial in NDPS case. Though, Civil Writ Petition No. 18731 of 2008, was for release of Nasir Sultan, who crossed the line of control without valid papers, but CWP No. 11315 of 2006 (5) said Nasir Sultan stands repatriated. However, grievance was made in respect of another minor, namely, Sunil son of Ashraf, who is confined in a Juvenile Home, Faridkot. In reply, it has been pointed out that Sunil son of Mohd. Ashraf; Daniel Zaffer son of Zaffar Abbas, resident of Phalia District Mandi Bahawaldin, Pakistan and Ramez son of Abdul Rahim, resident of Kumar Khan, District Sharhoiya, Afghanistan, crossed over to India from Hussainiwala Sector for seeking better employment. Rs.5,400/- Pak currency along with Pak SIM cards were recovered from them. It is averred that Sunil has entered into India with a clear intention to seek employment and thus, he cannot termed to be an inadvertent crosser. Therefore, legal process will have to be completed before he along with other co-accused can be considered for repatriation to his country. From the facts and circumstances mentioned above, it is apparent that certain Nationals of Pakistan, who have completed their sentence are awaiting repatriation. However, they have not been repatriated for the reason that their nationality has not been confirmed and travel documents not issued. In the absence of confirmation of nationality and issuance of travel documents, they have been kept in the jails as internees and not as convicts. The action for repatriation of Pakistan Nationals has been taken in terms of the agreement dated 21.5.2008 to provide consular access between the two countries. It is also apparent from the documents filed that the communications were addressed by the Government of India on 15.10.2008, 5.2.2008 and 2.12.2008, to the Pakistan High Commissioner for issuance of travel documents to certain Nationals of Pakistan. In the absence of issuance of travel documents, we do not find that there is any CWP No. 11315 of 2006 (6) inaction on the part of the Indian Government for repatriation of Pakistan Nationals. Few of the Pakistan Nationals are still under-trial and therefore, they cannot be considered for repatriation. The cases of Pakistan Nationals involved in criminal cases, do not form part of the agreement dated 21.5.2008, between the two countries. Therefore, we are satisfied that the steps taken by the Government of India for the release of Pak Nationals are sufficient and that no further directions are required to be issued in the present proceedings. Hence, all these petitions are dismissed. No costs. (T.S. THAKUR) (HEMANT GUPTA) CHIEF JUSTICE JUDGE March 17, 2009 ds