SC sets aside IHC, SHC orders for prisoners’ release

Asks authorities to re-arrest prisoners; but accepts AGP’s proposal forgiving relief to people accused of minor...

The country’s apex court has set aside all orders of the high courts and the provincial governments for the release of prisoners in view of the coronavirus pandemic and ordered authorities to re-arrest people released in compliance with such directives.
The court has, however, approved proposal of the state’s top law officer – the Attorney General for Pakistan (AGP) – to give relief to prisoners accused of minor crimes and vulnerable convicts – old people, women and children – and directed that such people if released should not be taken into custody again.
A five-judge larger bench of the Supreme Court issued a 10-page order on Tuesday after a week-long hearing of a petition filed against the release of over 200 under trail prisoners (UTPs) from Rawalpindi’s overcrowded Adiala Jail on the basis of March 20 order of the Islamabad High court (IHC).
The bench had taken up the petition last Monday while suspending the IHC order and the subsequent orders of Sindh High Court (SHC) and provincial government of Sindh and Khyber Pakhtunkwa (K-P) for release of prisoners to prevent spread of the infection in jails.
“We consider it expedient to convert this petition into one under Article 184 (3) of the Constitution and in exercise of powers vesting in the court under Article 187 thereof set aside the impugned directions issued by the IHC as well as SHC
“Bails granted to the accused/convicts, thereunder, are recalled; similarly, order dated 24.3.2020 passed by the IHC in Crl. Misc. No.238/2020 granting bail to the accused charged under various provisions of Control of Narcotic of Substances Act 1997 is also set aside and bails granted thereunder are re-called.
“Likewise, order dated 26.3.2020 passed in WP No.985 of 2020 by the said court, granting bails to the accused involved in NAB [National Accountability Bureau] cases is set aside and bails granted thereunder are re-called.
“Steps purportedly taken in exercise of powers under Section 401 of the code ibid by the governments of Sindh as well as the K-P are also declared as without lawful authority, jurisdiction and legal effects.
“Prisoners released in pursuance to the above mentioned orders are directed to be taken into custody except those falling within the categories suggested by the learned AGP with the concurrence of advocate generals of the provinces ,”said the order authored by Justice Qazi Muhammad Amin Ahmed.
SC approved AGP proposals
The AGP’s proposal said accused persons charged for offences under non-prohibitory clauses or under vagrancy law or offences carrying less than three years sentence might be considered for bail.
Khan had said bail should be considered in the case of UTPs who are 55-year-old or older, provided there is no history of past convictions, adding that it should also be extended to all women and juvenile UTPs. He had further proposed that bail in these cases may be extended on personal bonds.
“Some categories of convicted persons may be considered for release by the provincial governments under Section 401 Code of Criminal Procedure (CrPC).”
The AGP had proposed that convicts who have completed their sentences but remain in jail due to non-payment of fine/monetary penalties and women/juvenile convicts who have served 75 per cent of their sentence and have no history of past convictions can be released.
“In addition, convicts whose remaining term in jail is six months or less – provided that the offence was not abuse against women or children – and women/juveniles who are sentenced to a term of one year or less, may also be released on bail,” his proposal had said.
Legal opinion
Appreciating the order, Saiful Malook advocate said that the SC has truly interpreted the Article 175(2) of Constitution as well as section 497 and 561a of CrPC.
However, Pakistan Bar Council Vice (PBC) Chairman Abid Saqi wondered why the UTPs who are detained under special laws like that of NAB, ANF etc are being treated in a discriminatory manner. Rights of these accused should also be protected under the Constitution, he said.
Salahuddin Ahmed advocate also expressed disappointment over the SC order. He said the court should have at least given directions for release of prisoners who fall in categories described in AGP proposal.
“Instead, the SC has only said that those who have already been released and who fall in those categories should not be re-arrested. In the meanwhile, 50 COVID-19 cases have been confirmed in a Lahore jail,” he added.
Salahuddin said the larger bench has taken a very technical and restrictive view of judicial review powers, which runs contrary to our jurisprudence of the last 30-years.
“They have quoted US chief justice Burger who said ‘judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times’.
“Our SC, however, has always previously insisted that courts cannot remain blind to facts on ground and social realities of the day and that the Constitution itself is a “living and organic” document that must be interpreted as per needs of the time.
SC questions high courts orders
The order said a high court may possibly release an accused who is arrested or detained without warrant if he appears or brought before the court.
However, he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence for punishable with death, imprisonment for life or imprisonment of ten years
.
“What is unmistakably clear is that the high court would exercise such power after notice to the prosecution, that too, on case to case basis having regard to the facts and circumstances of each."
It said this provision of law has an inbuilt mechanism for release of a woman, underage accused or a sick or infirm person. Similarly, there is a mechanism for release of convicts through suspension of execution of their sentences.
The order said there is no concept of en bloc omnibus release of prisoners on the basis of declaration of health emergency issued by the World Health Organization (WHO) in a context altogether different.
Advisory by the international organizations to its member states is to be routed through Foreign Office; no such advisory calling upon the member states to empty their prisons has been issued; the impugned order is structured upon a misdirected premises.
"Argument that our overcrowded prisons could be a breeding ground for the deadly virus is beside the mark. Barring few countries with low crime rates, most prisons in the world are overcrowded.
“An overcrowded prison, though an inconvenient abode, nonetheless, without a contaminated inmate is a safe place; instead of releasing them all, it is more expedient to screen the each after plugging the new entrants.
“Jail Rules laid down procedures to deal with epidemics and contiguous diseases, in particular, section 7 of the Prisoners Act, 1900 provides complete mechanism to deal with a situation like one in hand"
The court noted that there was no juridical basis for the high court to undertake an extensive exercise in a criminal miscellaneous application to issue directions impinging upon the whole spectrum of social life.
“292 prisoners involved in different offences is quite a number; their abrupt release is far from being expedient for maintenance of law and order in their neighborhoods”
The court also said that the release of prisoners in Sindh, pursuant to a verbal direction, is even more disquieting. "Concomitant fears, aggravated by fast expending contagion would susceptibly admit perceptional acceptance of the impugned arrangements but the law must not be a casualty even in most extreme or adversarial situations; it must reign supreme and the government in the given legal framework must strive hard to combat the menace; the court would not be swayed by popular themes”.