High Court upholds ‘life in jail’ for Qasim Faktoo

Srinagar, Sep 27: The High Court of J&K and Ladakh Friday upheld its single judge’s judgment whereby the court in 2012 held that a separatist group, Muslim League’s chief Ashiq Hussain Faktoo, alias Qasim Faktoo, would serve “imprisonment for natural life” in connection with the killing of human rights activist Hriday Nath Wanchoo in 1992.

A division bench of Justice Sanjay Dhar and Justice M A Chowdhary dismissed Faktoo’s appeal by holding that imprisonment for life would mean “imprisonment for the natural life of a convict” unless a part of the sentence is remitted by an appropriate authority under “constitutional powers” or under “Code of Criminal Procedure”.

The single-judge bench in its judgment of November 16, 2012, had dismissed Faktoo’s plea seeking the court’s intervention to release him from custody on the ground that he had completed more than 20 years in jail.

Faktoo was booked in FIR No 204/1992 registered with Police Station, Shaheed Gunj, Srinagar for offences under Sections 302 of RPC, 3/4 of TADA Act and 3/25 of Arms Act and it was alleged that he along with co-accused was involved in the murder of Wanchoo “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 Sections 302, and 120-B of RPC besides Section 3 of the TADA Act by the Designated Court (under TADA Act, 1987), Jammu.

Out of these 12 persons, four died and five others absconded, and Factoo along with two other persons was put on trial.

They were acquitted of the charges by the Designated Court in terms of judgment dated July 14, 2001.

The judgment of the Designated Court Jammu was however set aside by the Supreme Court after the investigating agency, CBI, preferred an appeal against it which was allowed on January 30, 2003.

Faktoo along with other accused were convicted of offences under Section 3 of the TADA Act as well as Section 302 read with 120-B of the Ranbir Penal Code.

Consequently, they were sentenced to undergo life imprisonment.

Faktoo has been in custody since February 6, 1993.

The single judge bench judgment dated November 16, 2012, had 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”.

In response to the appeal assailing this judgment, the division bench now in its verdict said: “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 Section 432 of the Code of Criminal Procedure, the convict has to remain in prison for rest of his natural life.”

While the court noted that he (the convict) cannot claim his release from prison after undergoing 20 years imprisonment as a matter of right, it said: “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.”

In response to Faktoo’s contention that given the provisions contained in the 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, 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 execution.”

As per (Para 46.18) of the Jail Manual, the division bench said, imprisonment for life has to be taken as a sentence of imprisonment for 20 years only for administrative purposes.

The bench said that the Single Judge had 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.”

The bench held that it was in complete agreement with the view taken by the Single Judge on this aspect of the matter that “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 by dismissing Factoo’s separate petition challenging the same.

The division bench also dismissed the plea of Nazir Ahmad Sheikh, another convict who was booked in connection with FIR No 105/1990 for offences under Sections 302 of RPC and 3(2) of the TADA (P) Act.

Sheikh along with the two co-accused was allegedly involved in the murder of BSF man Dharamveer Sharma in 1990.

He along with the co-accused was convicted of offences under Sections 302 of RPC, 3(2)(i) and 4 of TADA Act and 7/27 Arms Act and sentenced to imprisonment for life.

Meanwhile, the division bench held that it shall be open to the competent constitutional authorities to consider the cases of the Factoo and Sheikh for grant of remission in the exercise of their powers under Articles 72 and 161 of the Constitution of India.

The bench said this while underscoring 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.

It also said that Article 161 of the Constitution vests power with the Governor to grant pardon and to suspend, remit or commute sentences in certain cases.