Prisoners release on bail not as per law: Supreme Court

ISLAMABAD: The Supreme Court on Wednesday ordered full screening of new prisoners before sending them to jails and directed the authorities concerned to ensure that entrants either have no symptoms or affected by the pandemic (COVID-19).

A five-member bench of Supreme Court headed by Chief Justice of Pakistan on Monday had suspended the order passed by the Islamabad High Court (IHC) granting bail to 408 prisoners imprisoned in the Adiala Jail under minor offences in view of coronavirus outbreak.

The court ruled that its interim order passed on March 30, 2020 will continue to operate till the next date of hearing. The court on March 30, had suspended the order passed by the IHC granting bail to 408 prisoners imprisoned in the Adiala Jail under minor offences. The court had also restrained high courts as well as the provincial governments, including the Islamabad Capital Territory (ICT) and Gilgit-Baltistan, from releasing prisoners from jails.

On Wednesday, the court directed the IG prisons of all the prisons in Pakistan, including IG prison GB, to ensure that no new prisoner is allowed to enter the respective jail, unless he/she is fully screened and they shall ensure that new entrant does not contain any sign of being affected by coronavirus. “In case of any hintthat he is suffering from such malady, the IG of respective prison should ensure that he is properly quarantined and not allowed to be mixed up with other prisoners, as long as the doctor in jail suggests otherwise,” says the order of the court.

The court gave these directions after it was pointed out to it during the course of hearing that daily a large number of prisoners enter the jail premises and the jail authorities have not made any arrangement of screening of these new entrants in the jail, thus, an order may be passed by the apex court that the new entrants are screened before they are allowed to enter the jail premises and if they are found to have any sign of coronavirus, they should be appropriately quarantined and not put in jail directly.

President of SCBA Syed Qalbe Hassan also stated before the court that more than 800 posts of jail doctors are lying vacant and no steps are being taken by the respective governments for filling up these posts. The court directed all the provincial governments, ICT and also GB to fill up the posts of jail doctors immediately, without waste of any time and the governments’ position in this regard be put up before the next date of hearing.

Similarly, AG KP informed the court that the jail authorities in the province have effectively provided quarantine centres in their jails and the same, as noted above, has also been done by the jail authorities in Punjab.

“Whether any such quarantine centres have been established by the remaining jails in Pakistan i.e. in the provinces of Sindh, Balochistan, ICT and GB, their position be also stated in writing to the court before the next date of hearing,” the court noted down in its order.

It directed that quarantine centres be made by the respective jail authorities, immediately, preferably Wednesday, with all necessary infrastructure.

The court also directed the federal government, the governments of all the provinces as well as the GB and the administration of Islamabad Capital Territory, to put up a report before the court about the measures and expected threats of coronavirus in their respective territory and the measures that have been adopted by these governments to overcome and tackle this pandemic; what steps have been taken up by these governments for providing necessary training and equipping the doctors and paramedic staff for dealing with this pandemic and also what measures so far have been adopted by these governments for providing medicines, protective dresses, kits, medical equipments, ventilators, hospital beds, etc., for treatment of the patients affected by this pandemic; what is the state of readiness of all the hospitals of these governments, to provide adequate treatment to the patients; what inventory/stock these governments are maintaining for the provision of medicines, protective dresses, kits, medical equipment, ventilators, hospital beds, etc., for meeting the looming surge of this pandemic; and whether continuous process of training of doctors and paramedical staff for dealing with this pandemic is being undertaken by the governments and if not, what measures they would adopt for doing it now.

The court ordered that a comprehensive report regarding the above aspects of the matter should also be made available by the respective governments to it well before the next date of hearing.

“In the circumstances, we direct the inspectors general, prison, all over Pakistan, to submit their respective reports regarding the population of prisoners in their respective prison and the actual capacity of the prisons and also point out the categories of prisoners who are under trial or convicted and separate list of prisoners, as has been noted in the recommendations of the Attorney General for Pakistan and also the vulnerable prisoners, as have been pointed out by the learned President of the SCBA, i.e., the women prisoners and elderly prisoners, above the age of 60 years before the next date of hearing,” says the order.

The court noted down in its order that so far as the question about the legality of the orders passed by the IHC and the direction issued by the chief justice of the Sindh High Court and the subsequent orders passed by the district & sessions judges and magistrates, is concerned, arguments on this aspect of the matter will be heard by it on the next date of hearing.

During the hearing, Attorney General submitted the recommendations with regard to the under trial prisoners (UTPs). He recommended to the court that accused persons charged for offences under non-prohibitory clauses or under vagrancy law or offences carrying less than three years sentence may be considered for bail subject to that (a) the benefit should not extend in cases involving abuse/violent acts against children and women (b) benefit should first be extended to persons otherwise suffering from ailments or physical or mental disability and benefit should be extended to UTPs who are 55 years of age or older and then other male UTPs provided there is no history of past convictions while benefit should be extended to all women/juvenile UTPs.

The AG further recommended that bail in the above cases may be extended on personal bonds. Similarly the AG with regard to the convicted prisoners made recommendations stating that the following categories of convicted persons may be considered for release by the provincial governments under Section 401 CrPC (a) Convicts who have otherwise completed their sentences but remain in jail on account of non-payment of fine/monetary penalty. (b) Women/juvenile convicts who have completed 75 percent of their sentence and have no history of past convictions. (c) Convicts whose remaining term in jail is six months or less provided offence was not violence against women or children and women/juvenile who were sentenced to a term of one year or less.

Syed Qalbe Hassan submitted a report with the heading “what makes Pakistani prisoners more vulnerable through the coronavirus” in which some statistics have been mentioned.

He submitted that there are 114 Jails in Pakistan which have the capacity of accommodating 57,742 prisoners but in fact, there are 77,275 prisoners in these Jails. These prisoners who are in jail have been divided into two categories; one, convicted and the other, under trial. It mentions that there are 25,246 convicted prisoners, while 48,008 are under trial prisoners, and amongst them, there are 1,184 women prisoners, who also have their children in jail, and there are 1,500 elderly prisoners above the age of 60 years.

The president of SCBA contended that at least the vulnerable prisoners, namely, the women prisoners and elderly prisoners, above the age of 60 years, may be granted benefit of bail, so that they can be saved from being infected from coronavirus.

Sheikh Zameer Hussain, amicus curiae, while appearing before the court contended that some mechanism has to be evolved for release of prisoners from jails, who are in dire threat of being infected and a classification and distinction in this regard may be made, and such be laid down by this court. He contended that the impugned order of the IHC is without jurisdiction and illegal.

Similarly, Advocate General Punjab informed the court that no prisoner has so far been released from the prisons in Punjab on account of coronavirus.

AG Sindh stated that 519 prisoners have been released from the prisons in Sindh and such orders of release was/were passed by a judicial magistrate along with the list of prisoners and as stated by the AG, the order of the release was authorised by the chief justice of the SHC, in his instructions.

Advocate General KP stated that no prisoner has been released on account of coronavirus from prisons in KP and similar statement is also made by the AG Balochistan. IG prison, Gilgit-Baltistan, who was accompanied by the IG Police, GB, also made a similar statement.

Meanwhile, the court expected that the lawyers, who are interested in assisting it besides the amicus curiae, may file their written synopsis and such be done well before the next date of hearing. The court adjourned further hearing until April 6, 2020.

Chief Justice Gulzar Ahmed observed that the Sindh High Court has released the prisoners on bail. “But there is a unified law across the country and we have to implement it in letter and spirit”, the CJP remarked.

The chief justice questioned under what law the under trial prisoners as well as the accused persons could be released, adding that it was already very difficult to arrest the accused in cases.

The chief justice observed the police are already busy with the coronavirus emergency and questioned as to how they could let criminals be out on the roads as well. The chief justice noted that robberies have already started taking place in Karachi soon after the release of prisoners.

He while referring to an incident said that Karachi’s Defence area is under the control of robbers, adding that the top thieves are targeting the houses under the pretext of checking for coronavirus patients. The chief justice noted with grave concerns and observed that crimes have increased since the Sindh High Court has released the prisoners on bail.

He said that due to the coronavirus and lockdown in Sindh, the businesses of the corrupt have also been affected, adding that those accused of corruption have also been released in Sindh. “The hunger of corruption is greater than the one who works hard to earn livelihood for family in fair manner,” the CJP remarked.

The Attorney General submitted that if the virus spread in jails, the Supreme Court will be held responsible. At this, the chief justice said that the court is concerned with the law, not with the allegations. “If prisoners are to release in such a manner than closed down the system of jails,” the CJP remarked.

On a court query, Advocate General Islamabad told the court that those who were released on bail were involved in little crimes. “What do you mean by small crime?” Justice Qazi Muhammad Amin Ahmed, asked the law officer, adding that there is nothing as such in criminal law.

The chief justice asked the law officer on whom order and under what law, the prisoners were released. The Advocate General Islamabad replied that they were released by order of the IHC, adding that these prisoners had approached the high court and they were released.

The chief justice then asked if this was the case than where does Section 168 of the Code of Criminal Procedure apply? “You should have knowledge about the law. Appear before the court like an advocate instead of standing like a dummy,” the chief justice asked the law officer.

The law officer said let he go through the prescribed law. Justice Qazi Muhammad Amin Ahmed observed that clearing jails from prisoners will not remove coronavirus, adding that a procedure is available for the protection of prisoners. Justice Sajjad Ali Shah observed that as per law the affected prisoners could be kept in quarantine.