With continuous rise in the number of confirmed coronavirus cases, prisons across the country have become the focus of discussion as prisoners are vulnerable to the deadly virus.
Different high courts in the country have adopted both judicial and administrative measures in a bid to reduce prison populations in their respective jurisdiction, while civil society groups have been campaigning for taking measures so as to release mostly under-trial prisoners specially those arrested in connection in petty nature cases.
In the wake of Covid-19 pandemic two organisations working for the rights of prisoners – Justice Project Pakistan (JPP) and Group Development Pakistan (GDP) – have prepared a joint report wherein they stated that the Government of Pakistan had an obligation under international and domestic laws to protect the rights of prisoners during pandemic and public health emergencies.
In their recommendations, they have asked the government to identify and consider the conditional release of particularly vulnerable and at risk prisoners, including elderly ones, prisoners with existing medical conditions or physical and mental disabilities and women and children.
They recommended to review cases of pre-trial detention for non-violent and minor offences and consider alternatives and also to lower the rate of new intake of prisons.
They also asked the government to implement measures to safeguard health, hygiene and sanitation needs of prisoners, ensuring access to competent medical professionals and isolating affected prisoners to contain spread of the virus.
According to a quarterly report submitted to the Islamabad High Court in Dec 2019 by Federal Ombudsperson Secretariat, there are a total of 77,275 prisoners in 114 prisons across the country having sanctioned capacity of 57,742.
In Khyber Pakhtunkhwa, there are 10,871 prisoners in 37 prisons having capacity of 9,642 prisoners. Thus, these prisoners are having 12.74 per cent more prisoners than the sanctioned capacity.
The alarming aspect of this situation is that a total of 25,456 prisoners are convicted whereas 48,008 prisoners are under-trial and it is not clear when their trials will be completed. These figures show that a total of only 32.94 per cent of prisoners have been convicted for different offences whereas rest of the 67 per cent have been in prisons without convictions and are mostly under-trial. The KP’s situation is more alarming compared to rest of the country as a total of 7,668 prisoners are under-trial whereas 2,794 others are convicted, which means around 70.5 per cent of the prisoners in the province are under-trial.
The said report provides that 462 prisoners in KP have been suffering from hepatitis, 116 from HIV, 52 from tuberculosis, 50 from mental illnesses and 50 from other diseases.
In view of Covid-19 pandemic, the Peshawar High Court issued several directives on March 17 to district and sessions judges to avoid production of prisoners before the concerned court till further orders. The high court asked district judges that the production of under-trial prisoners to face trial shall be avoided so that the accused may not be unnecessarily exposed to the virus.
The high court also asked district and sessions judges to depute a magistrate for daily visits of prisons in the concerned district so that judicial remands of prisoners could be extended from inside the prison instead of their production before courts.
A letter addressed to all the district and sessions judges in the province was issued by PHC Registrar Khawaja Wajihuddin on the orders of PHC Chief Justice Waqar Ahmad Seth.
The PHC has asked judges to benevolently invoke sections 540-A and 205 of Code of Criminal Procedure (CrPC) so that the under-trial accused may not unnecessarily be exposed to this virus while appearing on every date of hearing.
Furthermore, two administrative judges of the high court for prisons, Justice Roohul Amin Khan Chamkani and Justice Ishtiaq Ibrahim, have also issued directives to prison department and conducted visits of prisons to look into the situation.
They have directed the KP prison department to ban entry of visitors to prisons across the province and that new inmates in prisons should be segregated and kept in separate barracks.
A few days ago, two lawyers of the high court, Shabbir Hussain Gigyani and Saifullah Muhib Kakakhel, filed separate writ petitions seeking different reliefs for prisoners so as to reduce population in prisons.
In his petition, Mr Gigyani requests the court to issue orders to the district judiciary for their immediate visits to respective prisons and to issue orders for the release on bail of under-trial prisoners in all cases except those punishable with death or life imprisonment.
He prays the court to issue bail orders of convicted prisoners punished for less than five years and also of those convicted prisoners who are confined in lieu of payment of fine, diyat, etc. He has also requested the court to order for arranging quarantine prison for fresh prisoners so that the already confined prisoners may not be infected. Mr Kakakhel prays the court to release prisoners above 50 years of age and juveniles on bail as they were more vulnerable to the infection.
He requests the court to order release of all such prisoners having medical conditions as cardiac, diabetes, asthma and kidneys issues, etc as they were at higher risk. He further requests that the diyat amount of prisoners may be paid by the government from Baitul Maal. The high court is likely to hear these petitions in next few days.
Earlier, the Islamabad High Court on March 20 expressed concern over overcrowding in Adiala Prison and had ordered release on bail of those under-trial prisoners whose offences fell within the ambit of non-prohibitory clause.
However, a petition was filed in the Supreme Court against the said order, which will be heard by a five-member bench on March 30. Experts on the subject believe that the apex court may while hearing this petition consider the vulnerability of prisoners across the country to the Covid-19 pandemic and issue appropriate orders which would be guidelines for all the high courts and district courts in the country.
Published in Dawn, March 30th, 2020