ISLAMABAD: The Islamabad High Court issued on Wednesday a detailed order on the petition for release of former prime minister Nawaz Sharif, empowering the Punjab government to take a decision on suspension of his sentence on its own while keeping in view his medical condition.

An IHC division bench comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani had on Oct 29 through a short order granted bail to ailing Nawaz Sharif for eight weeks by suspending his sentence but enabling him to get the bail extended in accordance with the provisions of the Criminal Procedure Code (CrPC) and jail manual.

In the detailed judgement, the court said: “In case the health of petitioner No. 2 [Nawaz Sharif] does not improve and he needs further medical attention, the Government of Punjab may, on its own, decide the issue regarding suspension of the sentence. Even otherwise, petitioner No. 2 may approach the Government of Punjab under Section 401(2) CrPC. In case of non-exercise of duty by the Government of Punjab or misuse of the discretion or exercise of the same in an arbitrary and whimsical manner, the matter can be agitated before the Court of law for appropriate remedy.”

Court issues detailed order on petition seeking release of former prime minister

The issue cropped up during the course of arguments on whether or not the executive had the powers to suspend the sentence of a prisoner.

Additional prosecutor general of the National Accountability Bureau Jahanzeb Khan Bharwana had contended that the executive did have the authority under Section 401 of the CrPC, 1898.

It was submitted that since Mr Sharif had been serving sentence at Kot Lakhpat jail, Lahore, the Punjab government shall be the executive authority exercising the powers under Section 401 of the CrPC.

Lead defence counsel Khawaja Haris conceded that the relevant executive authority in the instant case shall be the government of Punjab, but expressed reservations over referring the matter to the executive on account of the fact that the present government was a political rival of the petitioner.

The court in its detailed judgement observed: “The medical condition of petitioner No. 2, Mian Muhammad Nawaz Sharif, as per medical reports, has been critical since October 21, 2019 till to-date…The conclusion of the [Medical] Board reads as follows: The Special Medical Board is of the considered opinion that due to severe existent co-morbid conditions like Diabetes Mellitus, Hypertension, Hyperlipidaemia, Hyperuri­cemia, Chronic Renal Disease and Ischaemic Heart Disease [for which he has been already operated upon and stents placed], the condition of the patient is critical and the current scenario of very low platelet count and recent Non-ST Elevation Myocardial Infarction in the early hours of October 25, 2019 has added the seriousness of nature of his illness, where a very delicate balance has to be maintained between coagulation and anti-coagulation to sustain his very fragile and unstable health status.”

The order said: “The Executive/Jail Authorities do have powers to release a prisoner who is critically ill under Rules 143 and 164 of Pakistan Prison Rules, 1978…Another aspect of the matter is that the Pakistan Prison Rules, 1978 prescribe procedure for release of prisoners on bail suffering from disease.

“The Superintendent [Jail] may recommend a prisoner for premature release who owing to old age, infirmity or illness is permanently incapacitated from the commission of further crime of the nature of that for which he has been convicted. The case shall be submitted to Government through the Inspector General. It shall be accompanied by the recommendations of the Medical Officer. The Inspector General will, in all such cases, obtain the medical opinion of the Medical Board which will be convened by the Director of Health Services.

“It is noted with dismay that despite observations by this Court regarding the referred provisions, the Superintendent Jail, Kot Lakhpat, Lahore, never initiated or referred the matter for release of petitioner No. 2 despite his severe medical condition.”

The order said that under Section 401 of the CrPC, the provincial government/executive authority had ample power to suspend the sentence of any prisoner on any ground, adding that since Kot Lakhpat jail was under Punjab government, the inspector general could have made recommendations to the provincial government for the release of Nawaz Sharif on account of indisposition and the government, on its own, could have suspended the sentence if it was believed that the circumstances so warranted.

The court observed that the failure of the provincial governments to recognise responsibilities under Section 401 of the CrPC as well as rules had devastating consequences for thousands of helpless prisoners who were being kept in a deplorable inhumane condition and did not have the means to exercise the right of access to justice by approaching the court of law.

“The rule of law in every civilised society plays the pivotal role in ensuring that every state organ is working according to its obligations and exercise responsibilities as provided in the constitution and the law. The executive cannot be absolved of its responsibilities as important as ensuring the right to life enshrined in the constitution. Hence, this judgement may be taken as an eye-opener for the federal as well as provincial governments to rescue the inmates suffering from serious illness by exercising powers under Section 401 of CrPC and to relieve them of their plight,” the order concluded.

Published in Dawn, November 7th, 2019