ISLAMABAD: The Supreme Court on Tuesday set aside the orders passed by the Islamabad High Court (IHC) and Sindh High Court (SHC) granting bail to the accused persons and held that the high court could not exercise suo motu jurisdiction under Article 199 of the Constitution of Pakistan and there is no provision in the law about releasing prisoners on the basis of health emergency, therefore, the prisoners who have already been released must be rearrested.
However, it allowed exceptions to the rule after curtailing the list of possible beneficiaries of such a relief on the attorney general’s recommendations.
A five-member larger bench of the apex court headed by Chief Justice Gulzar Ahmed and comprising Justice Umar Ata Bandial, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah and Justice Qazi Muhammad Amin Ahmed announced a verdict in a petition l, challenging the exercise of suo motu powers by the IHC regarding granting bail to under-trial prisoners.
The IHC had granted bail to 408 prisoners imprisoned at Adiala Jail under minor offences in view of coronavirus outbreak.
One Raja Nadeem had filed a petition in theSupreme Court under Article 185(3) read with 184(3) of the Constitution seeking leave to appeal against the judgment of IHC. The 10-page judgment, authored by Justice Qazi Muhammad Amin Ahmed held that the high court could not exercise suo motu jurisdiction.
“In the peculiar facts and circumstances of the case, we consider it expedient to convert this petition into one under Article 184 (3) of the Constitution and in exercisee of powers vesting in the court under Article 187 thereof set aside the impugned directions issued by the Islamabad High Court as well as High Court of Sindh; bails granted to the accused/convicts,” the court ruled.
The court also set aside the order passed by the IHC on March 24, 2020, granting bail to the accused charged under various provisions of Control of Narcotic of Substances Act 1997. Similarly, it also set aside the order dated 26.3.2020 passed in W.P. No.985 of 2020 by the said court, granting bail to the accused involved in NAB cases.
The court declared the steps purportedly taken in exercise of powers under Section 401 of the code by the government of Sindh as well as KP as without lawful authority, without jurisdiction and of no legal effects.
The court directed that prisoners released in pursuance to the orders of the high courts be taken into custody except those falling within the categories suggested by the Attorney General for Pakistan with the concurrence of advocates general of the provinces.
The relief will therefore be granted only to those accused persons who have been charged for offences under non-prohibitory clauses or under vagrancy law or offences which carry a punishment of less than three years in jail, subject to the following terms:
“The benefit shall not extend in cases involving abuse/violent acts against children and women. The benefit shall first be extended to persons otherwise suffering from ailments or physical or mental disability.
The benefit shall be extended to under-trial prisoners (UTPs) who are 55 years of age or older, and then other male UTPs — provided there is no history of past convictions.
The benefit shall be extended to all women/juvenile UTPs.” The court approved these for conforming the considerations laid down by the law and held that observations made shall not cast their shadow on pending or future legal pursuits.
Larger issue of combating the pandemic shall remain pending, the court ruled. The judgment noted that a severe/acute respiratory syndrome is modern day reminder of past calamities, endured by the mankind; identified as coronavirus disease 2019 (COVID-19), erupted in December 2019 in the Chinese city of Wuhan, metropolis of Hubei province; it took humanity by surprise across the globe through human movement with no available treatment.
“It is in this backdrop that various high courts in the country, Islamabad High Court being on the top, passed omnibus orders for the release of accused/convicts, lodged in different prisons, an issue taken up by the court in the captioned petition filed by Raja Muhammad Nadeem, as “pro bono publico”, says the verdict.
The court noted that the IHC, assuming jurisdiction in Crl. Misc. No.214/2020 titled as The State Vs. District Administration, vide impugned order dated 20.3.2020 had directed that the under trial prisoners alleged to have committed offences falling within the ambit of the non-prohibitory clause are admitted to bail, subject to furnishing such surety or security as may be deemed appropriate by an officer authorised in this regard by the deputy commissioner, Islamabad Capital Territory.
The verdict noted that pursuant to the above directions, 292 prisoners were released overnight, adding that release of 519 prisoners in Sindh has been far more astounding; pursuant to some verbal direction, genesis whereof is a mystery, except a press release dated 26.3.2020, issued by the Registrar of the High Court of Sindh.
The verdict further noted that considering the present scenario of spreading of coronavirus, 829 under trial prisoners were released from jails of Sindh by the districts courts in the cases of lesser punishment on the direction of chief justice of SHC Justice Ahmed Ali M Shaikh.
The verdict held that there was no juridical basis for the high court to undertake an extensive exercise in a criminal miscellaneous application to issue directions impinging upon the whole spectrum of social life; 292 prisoners involved in different offences is quite a number; their abrupt release is far from being expedient for maintenance of law and order in their neighbourhoods; impact could be graver in Sindh; the High Court certainly lacked jurisdiction to invoke provisions of section 561-A of the code ibid, object and scope whereof was clearly laid down way back in the year 1945 by the Privy Council in the case of Emperor Vs Khawaja Nazeer Ahmed (AIR (32) 1945 Privy Council 18); in the said case, high court’s interference with an investigative process, purportedly in exercise of powers under section 561-A ibid was held as ultra vires
“The law is quite settled by now that the jurisdiction of a high court under section 561-A, CrPC can be exercised only in respect of orders or proceedings of a court and that the provisions of section 561-A, CrPC have no application vis-à-vis executive or administrative orders or proceedings of any non-judicial forum or authority,” says the judgment.
“With the exclusion of above (suo motu) powers, nothing is left in the field to sustain the impugned directions. Release of prisoners in Sindh, pursuant to a verbal direction, is even more disquieting,” says the judgment.
The court held that a high court may possibly release an accused who is arrested or detained without warrant if he appears or is brought before the court, however, he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death, imprisonment for life or imprisonment for 10 years, provided further that he shall not be released unless the prosecution has been given a notice to show cause as to why he should not be so released.
Referring to the argument that our overcrowded prisons could be a breeding ground for the deadly virus is beside the mark, the court noted that barring few countries with low crime rates, most prisons in the world are overcrowded.
“An overcrowded prison, though an inconvenient abode, nonetheless, without a contaminated inmate is a safe place; instead of releasing them all, it is more expedient to screen the each after plugging the new entrants. Jail Rules laid down procedures to deal with epidemics and contiguous diseases, in particular, Section 7 of the Prisoners Act, 1900 provides complete mechanism to deal with a situation like one in hand,” says the verdict.
The court also observed that a judge is not like a king who can announce decisions according to his own wish. It observed that the law should never be overlooked no matter what are the conditions.
Meanwhile, hearing a matter pertaining to closure of out-patient departments (OPDs) in the public sector hospitals and availability of facilities to the COVID-19 patients, the Supreme Court directed the federal government to establish within a month proper quarantine centres at Taftan, Chaman and Torkham borders for the coronavirus patients having proper water supply and neat and clean toilets.
The chief justice observed that the pandemic spread in Pakistan through the borders and the government failed to set up quarantine centers there. He directed the government to set up proper quarantine centres of 1,000 beds and isolation wards at Taftan, Torkham and Chaman borders with each person having a separate room, bathroom and good food.
The court further directed provision of adequate medical facilities at the borders in order to screen patients and to keep them in isolation. The court directed submission of compliance report within a month. The court warned the government of contempt proceedings if its order was not implemented in letter and spirit.
The chief justice observed that how the government, which was facing sugar and flour crises scandal, will deal with coronavirus threat. He said that influential and resourceful people were causing losses to the country.
The attorney general, however, submitted that the government deserved credit for making the inquiry report public in the matter.
The chief justice said in order to fight the corona pandemic, there was a dire need for immediate legislation and Parliament should play its constructive role in enacting new laws. The court observed that it had come to its knowledge that most of the doctors dealing with the coronavirus patients were protesting against non-provision of medical kits. The court observed that the lives of doctors and paramedics would be in danger if medical kits were not provided to them.
The apex court further directed the federal government, all the provinces as well as Gilgit-Baltistan to ensure adequate medical facilities at all the hospitals, including medical kits for doctors and paramedics dealing with the corona patients. The court expressed hope that the government will provide ventilators to the hospitals as well as quarantines centers.
The chief justice observed that some of the doctors were discharging their duties without preventive kits and majority of them were taking best care of the affected patients.
Attorney General Khalid Javed said doctors were playing their role as the front line soldiers. Khalid told the court that he wanted to bring the representatives of the National Disaster Management Authority (NDMA) and Dr Zafar Mirza to give a proper briefing on the steps taken so far by the federal government. He told the court that the government was taking effectives measures to deal with the pandemic.
The court also directed that if there was a need for appointing doctors and paramedics at the federal or provincial level, then it should be done at the earliest so that the pandemic could be dealt with in a professional manner. The court directed appointment of all the professionals strictly in accordance with the law.
It was further directed that the law and order situation must be ensured across the country.
The court directed the federal government to ensure transparent disbursement of financial assistance under the Ehsaas Programme besides taking all the stakeholders on board.
“It is the money of the Pakistani nation, so it must be ensured that it is being distributed among the needy people and not among the people not eligible for this,” the court ordered.
Additional Advocate General Balochistan informed the court that the provincial government was provided Rs443 million to cope with the coronavirus adding that so far Rs118 million has been used.
Justice Umar Ata Bandial remarked that the government will have to help out the unemployed people in the present situation.
“Had the local governments existed, people will have been facilitated at the grass root levels, but the government itself made the local governments non-functional. Even in the federal capital, the local government does not exist,” Justice Bandial said, adding that in Punjab too there was no local government. Meanwhile, the court adjourned the hearing until next Monday.