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March 31, 2020

Coronavirus outbreak: Supreme Court stops prisoners’ release by HCs orders

Top Story

March 31, 2020

ISLAMABAD: The Supreme Court suspended the high courts’ orders for the release of undertrials in view of the coronavirus outbreak in the country.

A five-member larger bench of the apex court, headed by Chief Justice Gulzar Ahmed, heard an appeal on Monday, challenging the exercise of suo motu powers by the Islamabad High Court regarding granting bail to the undertrials. Justice Umar Ata Bandial, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah and Justice Qazi Muhammad Amin Ahmed were the other members of the bench. “No further order shall be passed by any of the high courts and by any of the provincial governments, ICT, Gilgit-Baltistan for releasing the prisoners from jails,” the top court said in the order.

It further said if any order had been passed forthe release of prisoners and not given effect or implemented till now, the same shall not be acted upon until further orders by the Supreme Court.

During the hearing, Chief Justice of Pakistan Justice Gulzar Ahmed questioned the IHC’s powers to issue orders for the release of 408 prisoners to pre-empt the spread of coronavirus in prisons. The chief justice suspended the IHC order. All these undertrials were jailed for their involvement in minor offences.

A single bench of IHC, comprising Chief Justice Athar Minallah, heard the case and approved bail petitions of 408 prisoners. The IHC also directed constitution of two separate committees to materialize the release of prisoners on bail. Director General (DG) Anti-Narcotics Force (ANF) was asked to constitute a committee to scrutinize the cases, while the chief commissioner and IG Islamabad Police were directed to constitute a committee to scrutinize the cases of prisoners involved in other offences. Raja Nadeem filed a petition with the Supreme Court under Article 185(3) read with 184(3) of the Constitution seeking leave to appeal against the IHC judgment. The petitioner contended that the IHC could not exercise suo motu powers thus the impugned judgment dated March 20, 2020 was illegal, without any jurisdiction and liable to be set aside. “It is a settled principle of law that the inherent powers vested in the High Court could only be exercised in a situation where no express statutory provisions are available,” the petitioner contended. The court also appointed Sheikh Zameer Hussain ASC as amicus curiae for assistance and adjourned the matter until April 1.

The court admitted the appeal for regular hearing and issued notices to Niazullah Khan Niazi, Advocate General Islamabad Capital Territory (ICT); Tariq Mehmood Khokhar, Additional Attorney General; Amer Ali Ahmed, Chief Commissioner ICT; Hamza Shafqat, Deputy Commissioner ICT; Waqar-ud-Din Sayyid, Deputy Inspector General of Police ICT, Secretary Health ICT, Inspector General (Prisons) ICT, home secretaries of all the provinces as well as the remaining advocate generals. Notices were also issued to the prosecutor generals of the Punjab, Sindh, Balochistan and KP, Inspector General of Police, Gilgit-Baltistan and Prosecutor Generals NAB and Anti-Narcotics Force (ANF) respectively. Counsel for the petitioner, Nayaab Gardezi, Attorney General for Pakistan Khalid Javed, President Supreme Court Bar Association Syed Qalbe Hassan, President Peshawar High Court Bar Association Abdul Latif Afridi and Vice Chairman of Pakistan Bar Council (PBC) Abid Saqi appeared before the court.

Attorney General Khalid Javed submitted that he had no objection to the locus standi of the petitioner adding that due to the prevailing coronavirus situation, the high courts were delivering different verdicts. He, however, pleaded the court to examine the case and then set guidelines for future. Chief Justice Gulzar Ahmed observed that the court would examine under what authority the IHC had released the prisoners adding that it would also be examined as to how the high court was vested with any jurisdiction to exercise any suo motu powers. “It’s a power game but the authorities should not exercise powers beyond their limits in time of calamity,” the CJP remarked adding that they had to maintain the rule of law. The chief justice said they realized the gravity of the situation but there must be the rule of law as well.

Justice Sajjad Ali Shah observed that granting bails in such a manner was a violation of basic principles. The chief justice noticed that except the accused involved in incidents of terrorism, an order was passed for the release of all the reaming inmates. “How the accused involved in heinous crimes could be released?” the CJP asked adding that they will set guidelines. The chief justice further asked how a person accused of sexually harassing a child or involved in killing or stabbing a person to death could be released after one week arrest.

The chief justice noted that there must be some administrative policy or mechanism whereby an aged person or another person whose time of punishment was near completion could be released but the release through an order itself was a question. “We don’t want to interfere but could not allow release of prisoners in such a manner, as we have to maintain the rule of law,” the CJP remarked.

The chief justice said keeping in view the sensitivity of the pandemic, people around the world were being released in an organized manner adding that the Indian Supreme Court had constituted a powerful commission and assigned it the task to deal with the matter. He said the US Supreme Court was of the view that nobody should be released fearing that the accused might incite violence after their release. The court adjourned the hearing until Tuesday.