Top lawyers bodies back IHC over bail for under-trial prisoners

Updated 29 Mar 2020


The rapid increase in Covid-19 cases needs concerted efforts and practical contributions on war a footing by all concerned, the statement stressed. — AFP/File
The rapid increase in Covid-19 cases needs concerted efforts and practical contributions on war a footing by all concerned, the statement stressed. — AFP/File

ISLAMABAD: Standing firmly behind the Islamabad High Court (IHC), the two premier lawyers’ bodies on Saturday hoped that the Supreme Court would also take notice of hardship of under-trial prisoners (UTPs) in overcrowded jails in the wake of the coronavirus outbreak.

The two lawyers’ bodies said this in a joint statement that came prior to the March 30 hearing by a five-judge SC bench that would take up a challenge to the exercise of suo motu powers by the IHC through its March 20 bail-granting order for UTPs.

In the statement, Pakistan Bar Council (PBC) vice chairman Abid Saqi and Supreme Court Bar Association (SCBA) president Syed Qalbe Hassan expressed concern over filing of a petition against the high court’s order before the SC.

The petition has assailed the high court’s order for the release of 408 prisoners from Adiala jail, Rawalpindi, in the wake of the coronavirus outbreak and sought prompt fixation of the petition for hearing before a larger bench on Monday.

Express concern over filing of petition against high court’s order before SC

“It seems the bail-granting order for UTPs has stirred quite a controversy,” observed a senior counsel on condition of anonymity.

On Friday Advocate Syed Nayab Hassan Gardezi had filed the six-page appeal before the SC on behalf of Raja Mohammad Nadeem — a practising lawyer — questioning the IHC jurisdiction to exercise suo motu powers.

Immediately after the filing of the petition, the SC constituted a five-judge larger bench consisting of Chief Justice of Pakistan Gulzar Ahmed, Justice Umar Ata Bandial, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah and Justice Qazi Mohammad Amin Ahmed to take up the matter.

The petition has pleaded before the apex court that the March 20 IHC order militates against the concept of trichotomy of power since it was within the exclusive domain of the executive to frame any policy or to deal with UTPs in a manner it deems appropriate, keeping in view the prevailing public emergency of international concern.

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) was unfettered or can only be exercised where no express statutory provisions were available.

Consequently, on Saturday the elected heads of both the apex bar bodies expressed their earnest hope that the SC while hearing and deciding the petition would keep in view the threat of Covid-19 to UTPs in overcrowded jails of the country.

The statement said that the virus outbreak was also endangering lives of inmates and its decision in the matter would promote the object of protection of human rights, especially of UTPs.

The bar leaders also expressed their optimism that any verdict of the apex court would surely improve the system of dispensation of justice pertaining to preservation of human rights.

The statement recalled how all bar bodies and the legal fraternity had fully appreciated and supported, what they called, the timely decision/judgement of the IHC regarding conditional release of 408 prisoners from Adiala jail.

The decision, they recalled, had been taken in a peculiar circumstance arising out of the virus outbreak, simply on humanitarian and compassionate grounds in cases of UTPs.

The joint statement also hoped that other superior courts would also pass similar decisions/orders on humanitarian grounds that have become all the more significant in view of the grave situation confronting Pakistan.

The rapid increase in Covid-19 cases needs concerted efforts and practical contributions on war a footing by all concerned, within sphere of their activities, including courts, to combat the deadly disease, the statement emphasises.

Needless to add that Pakistan is one of a very few countries in the world, having large percentage of under trial prisoners which is one of the main causes of overcrowding of our jails, the statement says.

National calamity

On March 20, the IHC had sought a report from the superintendent of the Central Prison, Rawalpindi, about UTPs. Subsequently, a report furnished before the high court highlighted that the sanctioned occupancy of the Rawalpindi’s central jail was 2,174, but presently it housed 5,001 inmates, of which 1,362 were UTPs.

At this the IHC while exercising suo motu jurisdiction converted the report into a petition under Section 561-A CrPC because the federal government in the wake of the virus threat had declared a national calamity.

In its order the high court stated that the overcrowding in Adiala jail was alarming and, therefore, bail was granted to UTPs whose offence falls within the ambit of non-prohibitory clause.

The high court had also ordered the Islamabad’s deputy commissioner to facilitate the release of UTPs, but after conducting proper screening. Moreover, the deputy commissioner was also required to identify prisoners who were eligible to release under the Prison Rules, the Probation of Offenders Ordinance, 1960, and Section 410(1) CrPC.

Published in Dawn, March 29th, 2020