SC recalls bails granted by high courts to under-trial prisoners after virus outbreak

Updated Apr 07 2020

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Top court's order spares prisoners suffering from physical or mental illnesses. — AFP/File
Top court's order spares prisoners suffering from physical or mental illnesses. — AFP/File

The Supreme Court on Tuesday issued an interim order, recalling the bails granted to under-trial prisoners by the high courts of Sindh and Islamabad and ordered authorities to arrest all detainees who had been released due to the coronavirus outbreak.

The Supreme Court's ruling, however, excluded:

  • prisoners suffering from a physical or mental illness

  • under-trial prisoners who are 55 or older

  • male under-trial prisoners who have not been convicted in the past

  • female and juvenile prisoners

The prisoners included in the above categories had been spared on the counsel of the attorney general of Pakistan, who presented his recommendations in the court today, all of which were accepted. The AGP had also recommended the apex court to not extend bails to prisoners who had been accused in "cases involving abuse/violent acts against children and women".

The Supreme Court passed the order during the hearing of a petition challenging the Islamabad High Court verdict, which was issued last month. The petition, which has been deemed maintainable under Article 184 (3) of the Constitution, argued 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 questioned 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.

The top court, in its verdict issued today, also observed that high courts have not been bestowed with the power of taking a suo motu notice. The hearing of the case will continue, the top court's order added.

High courts grant bail

Last month, the IHC had taken up a petition based on a report of the high court’s judicial branch on Islamabad-based under-trial prisoners and had ordered the release of detainees in Rawalpindi’s overcrowded Adiala jail who were nominated in minor crimes. The high court had also told capital police not to make arrests in petty matters. The order was passed in consideration of the growing number of coronavirus cases in the country.

The court had observed that the prisoners were vulnerable and exposed to suffer irreparably in case of an outbreak. Prisons, which were overcrowded, had high turnover and intolerable living conditions, could potentially become epicenters for outbreak of the deadly virus, it said.

The Sindh High Court had also issued a similar order last month following which district courts had released more than 800 prisoners nominated in cases of petty crimes.