Last week, the Supreme Court was apprised by the federal ombudsman on the state of the country's prisons. Ostensibly, the report claimed that 77,275 inmates have been kept in 114 prisons with a maximum capacity of 57,742 inmates.
It was argued that 42 jails of Punjab with a capacity of just 32,477 prisoners are overburdened with 47,077 prisoners. Similarly, Sindh’s 24 jails are overcrowded with 17,239 prisoners with a maximum capacity of 13,038. Thirty-seven prisons of Khyber Pakhtunkhwa are over-packed with 10,871 inmates – with sanctioned space for 9,642 inmates. Only Balochistan's jails are reportedly spacious where inmates are less than the authorized capacity. However, the report of the Human Rights Commission of Pakistan reported the condition of Balochistan’s jails as being ‘pathetic’, and deficient of key facilities.
The most worrisome facts of the ombudsman’ report is that currently there are 48,008 under-trial prisoners in the country's overburden and crowded jails, which are lacking key facilities and necessities under jail laws.
While recognizing the severity of the above issues, the federal ombudsman suggests that cogent steps need to be initiated to ensure proper medical facilities, educational and skill training opportunities and a request to the Pakistan Bar Council for the provision of free legal aid to these prisoners. Lastly, the federal and provincial governments have been requested to allocate necessary resources and funds for the improvement of the prisons.
The report further recommended that jails should be built by provincial governments in very district, with separate sections for juvenile and women inmates with a proper sleeping place and adequate toilets and other facilities.
Besides the above report, last year a joint research study, 'Addressing Overcrowding in Prisons by Reducing Pre-Conviction Detention in Pakistan;, was jointly conducted by the National Counter Terrorism Authority (Nacta) in collaboration with Cursor for Development and Education Pakistan (CODE) and the International Committee of the Red Cross (ICRC). This exhausting research found that “Pakistan' prisons are holding up to 57 percent more prisoners than their authorized capacity, leading to overcrowding, having an adverse effect on the living conditions of both detainees and staff”.
It was found that the main reason for overcrowding is that two-thirds of the total population is under trial. Further, due to the huge numbers, prisons are increasingly unable to play a corrective and reformative role.
As a result, the report recommended that the government de-criminalize petty offences, prevent unnecessary arrests and imprisonment by introducing alternatives to detentions, increasing legal aid to prisoners and ensuring advanced training for public prosecutors.
Another report of the Human Rights Commission of Pakistan (HRCP) holds that Pakistani jails are severely overcrowded, where two-thirds of the prisoners’ population are waiting for their trials or are under trial. Sadly, health and hygiene conditions have been compromised and facilities for mentally ill prisoners have been seen to be particularly poor. Besides that food, clothing, lighting, exhaust system, beds and medical facilities for prisoners with mental challenges were also found wanting. Similarly, the social, moral, behavioural change and environmental conditions were not conducive for these prisoners to live in.
The Pakistani criminal justice system recognizes two types of offences – bailable and non-bailable offences. Bailable offences are those where bail is considered a matter of right while in non-bailable offences bail is a matter of discretion for the court for which procedure and criteria have been laid down by Section 497 of the Criminal Procedure Code. Similarly, Section 426 of the CrPC also provides a procedure for releasing the accused on bail when his appeal is pending and vice versa.
Sadly, there are also laws – for instance, the NAB Ordinance – where there is no provision for bail and the accused has to approach the high court in writ jurisdiction. Besides this, bail on medical ground, bail due to the pendency of appeal, bail due to delay in trial and other grounds have been explained by the law. But owing to “various reasons”, bail in the above-noted grounds is not effortlessly procurable for common people.
In many instances, the accused after getting bail orders from the courts are unable to ensure their release, being unable to produce the weighty sureties or bail bonds. Unfortunately, there have also been occasions where courts have even refused bail in cases which are specifically made bailable by the law.
Secondly, there is no data available on how many prisoners have suffered due to the mere reason that they have been unable to procure surety bonds. How many prisoners are facing various medical challenges and need to be released on medical grounds?
If bail laws are properly reformed, not only can overcrowding be curtailed but individuals’ fundamental human rights of liberty, fair trial and safeguard as to arrest and detention can also be protected and ensured.
The Supreme Court held that “When appeal against the conviction of accused keeps on pending for a long period without his fault, his sentence has to be suspended”. But the same facility is not available in all cases. As a consequence, there have been occasions when the Supreme Court acquitted people after they spent a major portion of their lives in pre-trial detention; they were never compensated.
At a time when there is need for increased space for living, sports, educational, cultural and religious activities, need for segregation of prisoners, provision of free legal aid, upgrading parole and probation and a need for formal and technical skills, there is also an extreme need to revisit the bail laws of the country and bring reforms in the criminal justice system.
The writer is a Peshawar-based lawyer.
Email: irshadahmadadvocate@ gmail.com
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