ISLAMABAD: The Supreme Court on Monday restrained all the high courts as well as respective governments from passing any order till Wednesday for release of under-trial prisoners (UTPs) from jails in the wake of the novel coronavirus pandemic.

“Until then, no further order shall be passed by any of the high courts and by any of the provincial governments/ICT/Gilgit-Baltistan of releasing the prisoners from the jails,” said a two-page order issued by the apex court.

Headed by Chief Justice Gulzar Ahmed, the five-judge bench was seized with a petition moved by Advocate Syed Nayab Hassan Gardezi on behalf of Raja Mohammad Nadeem challenging the March 20 order of the Islamabad High Court (IHC) granting bail to 408 UTPs.

After Monday’s proceedings, the Supreme Court directed the authorities that in case any order had been passed (in the wake of coronavirus) regarding release of prisoners and if it had not been given effect or implemented, the same would not be acted upon until further orders were issued by it.

Restrains high courts, provincial govts from releasing prisoners in the wake of Covid-19

The apex court has asked a number of government representatives to appear before it during the next hearing on April 1. The officials include Advocate General, Islamabad, Niazullah Khan Niazi, Additional Attorney General Tariq Mehmood Khokhar, Additional Attorney General Amer Ali Ahmed, Islamabad Chief Commissioner Hamza Shafqat, Deputy Commissioner Waqaruddin Sayyid, Deputy Inspector General of Islamabad Police, Health Secretary, Islamabad IG (Prisons), home secretaries of all the provinces as well as the remaining advocate generals for the provinces, prosecutor generals of Punjab, Sindh, Balochistan and KP, IG of Gilgit-Baltistan and prosecutor generals of National Accountability Bureau and Anti-Narcotics Force.

The SC also appointed a senior lawyer Sheikh Zameer Hussain as amicus curiae to assist it in the matter.

At the hearing, the chief justice observed that coronavirus was a serious matter, but the release of prisoners allegedly involved in heinous crimes could not be overlooked.

“We know about the gravity of the situation the country is facing in view of the coronavirus pandemic, but we also have to consider under what authority the high court issued orders for UTPs’ release,” the bench observed.

The authority should not be exercised beyond limits, Chief Justice Gulzar Ahmed remarked.

At the outset, Attorney General Khalid Jawed Khan requested the court to issue uniform guidelines in the matter since high courts were issuing different orders in this regard.

The AG recalled that the IHC issued directions to release prisoners from the Adiala jail, even though those involved in heinous crimes cannot be released.

At this, Supreme Court Bar Association (SCBA) president Syed Qalbe Hassan came to the rostrum of the Courtroom No 1 to ask the court to devise an effective mechanism in wake of the deadly virus outbreak. He said he expected the Supreme Court to take a lead in this regard.

He reminded the bench that Turkey was in the process of releasing 150,000 prisoners, whereas the US, Iran and Scotland were also releasing inmates in view of the fact that prisons were vulnerable in the situation.

The SCBA president said the government had announced several packages to deal with the coronavirus outbreak, but no such announcement had been made to protect those languishing in the over-crowded jails.

He highlighted the need of conducting a thorough screening of the prisoners.

The chief justice, however, observed that prisoners were released by different countries through some commission, also emphasising the need of releasing the convicts involved in petty crimes or those who have a few months left in completing their jail terms. The CJP detested the need of instilling fear at this crucial juncture. He questioned what sentiments a victim’s family would have if their tormentor was released only a week after being sent to jail.

The way the prisoners were granted bail were against the basic norms of issuing bails, observed a bench member, Justice Sajjad Ali Shah.

Another SC bench member, Justice Qazi Ameen Ahmed, highlighted the need of “exercising authority with patience” instead of doing the same in the state of fear.

In his petition against the IHC bail oder, the petitioner had assailed the exercise of suo motu powers by the IHC for releasing 408 under-trial prisoners from Adiala jail on bail in the wake of Covid-19 pandemic.

The petition highlighted that it was within the exclusive domain of the executive to frame any policy or to deal with under-trial prisoners in a manner it deem appropriate keeping in view the prevailing public emergency of international concern.

The petitioner also raised a question asking whether the inherent powers vested in the high court under Section 561-A of the criminal procedure code was unfettered or could only be exercised where no express statutory provisions was available.

Meanwhile, a non-governmental organisation, the Justice Project Pakistan, in a statement expressed the hope that the SC would set an example for the protection of prison population from coronavirus.

Prisons across the world were ill-equipped to handle an outbreak of this magnitude, it said, adding that Pakistan’s prisons, in particular, were poised to become a flashpoint for the virus. The jails were notoriously overcrowded and brimming with categories of prisoners most vulnerable to contracting the disease and even dying as a result of it, it said, adding that any delay in enacting strategies and mechanisms to curb the outbreak in Pakistan’s prisons could mean death not only for hundreds of prisoners and prison staff but also the community surrounding them.

Published in Dawn, March 31st, 2020