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

Updated 30 Mar 2020

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The CJP questioned how the high courts could have ordered the release of under-trial prisoners. — Photo courtesy Supreme Court website/File
The CJP questioned how the high courts could have ordered the release of under-trial prisoners. — Photo courtesy Supreme Court website/File

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.