SC suspends all high court decisions regarding release of under-trial prisoners due to virus fears

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SC suspends all high court decisions regarding release of under-trial prisoners due to virus fears

Haseeb Bhatti, Dawn.com
March 30, 2020

The CJP questioned how the high courts could have ordered the release of under-trial prisoners.

The Supreme Court on Monday suspended all decisions taken by high courts regarding the release of under-trial prisoners due to the coronavirus outbreak.

The apex court also directed the provincial governments and the high courts to refrain from issuing any further directives.

A five-judge bench, comprising Chief Justice Gulzar Ahmed, Justice Umar Ata Bandial, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah and Justice Qazi Muhammad Amin Ahmed, was hearing an appeal challenging the exercise of suo motu powers by the Islamabad High Court regarding granting bail to under-trial prisoners.

On March 20, IHC had ordered release of under-trial prisoners detained in Rawalpindi’s overcrowded Adiala jail in minor crimes and directed the Islamabad police not to make arrest in petty matters.

During today's proceedings, the additional attorney general said that the high courts are giving different rulings regarding the release of prisoners. He asked the SC to decide the matter.

The CJP questioned how the high courts could have ordered the release of under-trial prisoners. "Coronavirus is a grave matter. Under what pretence did the IHC issue the directives for releasing the prisoners?"

"How can a high court take suo motu notice in this regard?" the CJP asked. Those involved in petty crimes should be released, but the IHC has ordered for the release of all prisoners except those charged with terrorism, he said.

It cannot happen that people start making decisions which are not within their jurisdiction during a crisis, the CJP said, adding that those prisoners who have two to three months left in their sentences should be released.

He added that everybody was aware of the current situation in the country. Therefore, the release of prisoners involved in serious crimes cannot be allowed because of a coronavirus scare, he said.

The apex court adjourned the hearing until April 8 and issued notices to the federal government, all advocate generals, provincial home secretaries, Islamabad IG, the National Accountability Bureau prosecutor general and the IG jails.

Syed Nayab Hassan Gardezi had moved the six-page appeal before the Supreme Court on behalf of Raja Muhammad Nadeem, questioning whether the IHC had any jurisdiction to exercise suo motu powers.

The appeal had pleaded that the March 20 IHC order militated against the concept of trichotomy of powers since it was within the exclusive domain of the executive to frame any policy to deal with under-trial prisoners in a manner it deemed appropriate keeping in view the coronavirus emergency.

The petition had also raised a plea asking whether the inherent powers vested in the high court under Section 561-A of the Criminal Procedure Code (CrPC) were unfettered or whether they can only be exercised in situations where no express statutory provisions were available.

Glaring omissions and mistakes have crept into the March 20 IHC order violating the law, the Constitution and public policy, the appeal had contended.

 

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CJP Gulzar Ahmad says prisoners not to be released without due process of law

Chief Justice of Pakistan (CJP) Gulzar Ahmad has taken a strict view on the release of prisoners amidst the coronavirus outbreak, stating that whatever measures are taken in Pakistan in this regard will be taken according to the law.

The CJP made these remarks while hearing a petition against the release of under-trial prisoners on the orders of high courts.

The CJP is chairing a five-member larger bench of the Supreme Court that is hearing arguments on the matter.

“Under what law can suspects and accused be released?” the CJP asked while hearing arguments. He noted that it was already very difficult to arrest the accused in cases.

“The police are already busy with the coronavirus emergency. How can we let criminals be out on the roads as well?” he asked. He said robberies have already started taking place in Karachi soon after the release of prisoners.

“Karachi’s Defence area is under the control of robbers,” the top judge said. "Thieves are emptying houses under the pretext of checking for coronavirus patients," remarked the top judge, recounting an incident.

“Ever since the [Sindh] high court has issued bail [for prisoners], crimes have increased,” the judge stated.

He added that any decision to release prisoners should be taken after looking at the facts on the ground.

The judge remarked that due to the coronavirus, the businesses of the corrupt have also been affected. He noted that those accused of corruption have also been released by the courts.

To this, the attorney general interjected to say he would not like to comment on the problems in Sindh.

However, the CJP persisted, saying that if the corrupt do not get a chance to do their corruption, they too will start resorting to crime.

“Coronavirus will not go away by emptying the jails. The law is present for taking care of prisoners,” remarked Justice Qazi Faez Isa.

Justice Sajjad Ali Shah added that the law says that prisoners affected by COVID-19 should be kept under quarantine.

“If the virus spreads in jails, the Supreme Court will be held responsible,” the attorney general warned the court.

The CJP, however, brushed aside the warning, telling the attorney general that the court is concerned with the law, not with the allegations hurled at it.

President of the Supreme Court Bar Association Qalb-e-Hasan, who was representing those who have supported the decision to release prisoners, argued that a team of doctors has yet to visit jails.

He also reminded the court that the jails can keep 57,742 prisoners in total, but are housing 77,275 instead.

“Only 25,456 prisoners are convicted, while there are more than 48,000 who are still under trial,” noted the SCBA president.

He further pointed out that 90 newborn babies are also in jail with their mothers.

The lawyer said that after God, the courts are the only hope for the helpless. He complained that the government has not done anything yet for the people languishing in jails.

“I urge the court to defend the rights of prisoners,” Hasan pleaded.

The AGP once again warned the court that if coronavirus spreads in the jails, no one will say the government failed to do something.

“The people will say that the Supreme Court did not allow the release of under-trial prisoners,” he added.

However, the CJP once again dismissed the concern, saying he did not care about such stuff and that the court has to consider the law.

The attorney general then recommended that the court at least release those prisoners who are under trial for minor crimes.

“Under trial prisoners over the age of 55 should also be released,” suggested the AG. He added that juvenile under trial prisoners should also be given bail.

He, however, conceded that those prisoners who are under trial for corruption and dealing in narcotics should not be released.

“Those under-trial for violence against women and children should also not be released,” the AG argued, while also advising against the release of any who have had a criminal record.

“Prisoners do not have a home, so why do they [the government] want to kick them out on the streets?” the CJP wondered.

To this, the AGP appealed to the court to issue a “uniform guideline” in case of the release of prisoners.

Before wrapping up the day's proceedings, the apex court sought details by April 6 from federal and provincial authorities about the number of inmates and the capacity in jails.

The judges also asked officials to inform the court about the exact number of accused and convicts currently incarcerated in jails across the country.

Arguments on the legality of prisoners' release will take place on the next hearing.

The bench has also directed that it be provided a list of female prisoners and those who are above 60.

It should meanwhile be ensured that no one affected by the novel coronavirus enters into a prison, the court has ordered.

SC suspends orders of high courts

The Supreme Court had on Monday suspended various orders issued by the high courts relating to the release of under-trial prisoners amidst the coronavirus outbreak in the country.

In its order, the top court said: “No further order shall be passed by any of the high courts and by any of the provincial governments/ICT/Gilgit-Baltistan of releasing the prisoners from the jails.”

It added that if any order has been passed regarding the release of the prisoners and not given effect or implemented till now, the same shall not be acted upon until further orders by the Supreme Court.

The apex court further suspended the implementation of the Islamabad High Court's orders regarding the release of under-trial prisoners.