Supreme Court Dismisses Plea Seeking Remission For 89 Yr Old Pakistani National Convicted In Terror Case

The Supreme Court (October 22) dismissed an Article 32 petition filed by an 89-year-old Pakistan national seeking remission for his unconditional release to go back to his home country.

A bench of Justices B.R. Gavai and K.V. Viswanathan heard this matter and dismissed the petition as withdrawn not before adding that had the Jammu & Kashmir and Ladakh Government recommended remission, it may have led to a different conclusion.

The petitioner was represented by Advocate Warisha Farasat, who argued that the person has undergone an actual sentence of 29 years and has spent over 30 years in prison, without either being granted any relief or temporary release for even a single day. 

Currently, he is lodged in Mandoli prison. As per brief facts, he was arrested on October 25, 1995 for a bomb blast in Srinagar under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) but was acquitted by the TADA Court on March 2, 2009. However, after 9 years, in a criminal appeal before the Supreme Court, his acquittal was reversed.

Through the July 1, 2015 order, the Supreme Court convicted him for offences under Sections 3 and 4 of the TADA, Section 302 read with 120B of the Ranbir Penal Code and was sentenced to life imprisonment. 

As per Warisha's plea, she challenged Rule 54.1 of the Jammu and Kashmir Prison Rules, 2002 which does not allow prisoners convicted for heinous offences including terrorist crimes to be considered for remission. She argued that Rule 54.1 violates the Supreme Court's judgment in Joseph v. State of Kerala (2023) which held: "Excluding the relief of premature release to prisoners who have served extremely long periods of incarceration not only crushes their spirit, instil despairs, but signifies society's resolve to be harsh and unforgiving. The idea of rewarding, a prison for good conduct is entirely negated."

Article 32 writ was vehemently opposed by Solicitor General Tushar Mehta (for Union), who said: "The petitioner is a Pakistani national and infiltrated into India without any documents. He blasted bombs killing 8 innocent and severely injuring 18 others. He was convicted by this hon'ble Court. Not a man who could be entrusted with writ of this Court."

He added: "They are terrorists [and they want to go home]. But when they are sent back, they are never accepted. Kasab was never accepted. So he will remain in Indian soil and became mascot for other terrorist activities."

Stating that these facts may not be entirely relevant to the present case, Farasat submitted that for an Article 32 writ, the Constitution makes no distinction between a citizen and a non-citizen. 

To this, Justice Viswanathan responded that the case is not that Article 32 does not make a distinction. The case is that certain categories of crime including terror offences have a complete bar to be considered for remission.

Farasat submitted that as per the Joseph judgment, the category of heinous offences cannot be excluded, particularly when the period of incarceration is significantly long. She added that some compassion must be shown. To which, Mehta vehemently responded: "There cannot be compassion for terrorists."

Justice Gavai also added: "There was even compassion for Kasab that he should not be hanged. Security of country no value..."

Stating that the security of the country will always be the priority, Farasat referred to the case of former Prime Minister Rajiv Gandhi's assassination case where the accused was given premature release by the Tamil Nadu Government. 

However, Justice Gavai stated that there is a distinction between the two cases in Rajiv Gandhi's assassination case, the Governor was sitting over the remission petition for almost two and a half years before it was referred to the President after the Tamil Nadu cabinet recommended it. He added that the case was on a question of law, which the Court said that the Governor's act was erroneous. 

Case Details: GHULAM NABI GUIDE v. UNION OF INDIA AND ORS.Diary No. 18738-2024

Appearances: Advocate Warisha Farasat assisted by AoR Talha Abdul Rahman, Advocate Aman Naqvi and SG Tushar Mehta for Union 

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