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More sinned against

Amid the outbreak of the coronavirus, Pakistan has found itself in turmoil. While the country stays under lockdown to prevent the spread of the pandemic, the judiciary continues to grapple with the dilemma of releasing Pakistan’s prison population languishing in overcrowded prisons across the country.

In the month of March, various provincial high courts ordered the release of various categories of prisoners in light of the grave risk Covid-19 posed to those detained under unsanitary conditions. However, the Supreme Court of Pakistan suspended the order and directed the provincial governments and the judiciary to refrain from issuing any further directives. The apex court observed that the release of prisoners involved in ‘serious crimes’ cannot be allowed only because of a pandemic.

While the judiciary battles with a categorization of those most threatened by this pandemic, who continues to be endangered as Covid-19 spreads in prisons?

It is indeed the case that under-trial prisoners allegedly involved in petty crimes, prisoners whose cases fall under the ambit of the non-prohibitory clause deserve to be released; and let us not forget those wrongfully convicted of ‘serious crimes’ with little respite from their sufferings due to the system’s own failings. A report by the Foundation for Fundamental Rights and Reprieve, ‘The Pakistan Capital Punishment Study’, found that in all capital cases heard by the Supreme Court between 2010 and 2018, the apex court acquitted 39 percent of those sentenced to death, meaning that almost two in five death row inmates in Pakistan received unsafe convictions and may be innocent of the crime.

The study shows that the Supreme Court itself recognizes the system’s ineptitude in convicting innocent persons and is aware of the plight of those who spend years behind bars through no fault of their own.

Those labelled as ‘serious criminals’ by the justice system, on average, spend 10 years in prison before their appeals even reach the Supreme Court – only to be acquitted thereafter. Ten years of their lives are spent in overcrowded prisons, with little to no access to basic amenities and adequate medical facilities. With the rapid spread of Covid-19, these prisoners solely depend on the state for their protection. Numerous prisoners are also immuno-compromised, subjecting them to the greater risk that exposure to the virus will result in grave complications for them.

While these cases collectively form an exigent number, only an analysis of individual cases will ensure that justice is accorded even to those who are entirely at the mercy of the state. This is because they are not merely statistics – they are people with names and stories.

Rani Bibi was 14 years old when she and her family were arrested and convicted for the alleged murder of Rani’s husband. Her family’s appeal was dismissed by the Lahore High Court in 2015 for being infructuous as both her brothers had completed their sentence, while her father had died during confinement.

For Rani, however, her struggle did not end. It was upon the decision of this appeal in 2015, that Rani learnt that her own appeal was not even considered by the high court because the prison authorities, violating their legal duty, had failed to secure Rani’s signature or thumb impression on the memo of the appeal. Only after the intervention of a human rights group was Rani acquitted in 2017. She spent 19 years in prison labeled as a murderer for a crime she never committed.

Another such story is of Orangzaib. Labeled a terrorist and a murderer facing a capital charge for twelve years, Orangzaib was finally acquitted in 2017. The apex court observed that Orangzaib had been charged under the wrong section of law altogether. Even if he were to be convicted, he was to face a charge with a maximum sentence of three years imprisonment – an offence that no judge would deem serious enough to refuse bail. Yet, Orangzaib remained imprisoned for twelve years for a ‘serious crime’.

Many like Orangzaib and Rani continue to languish in Pakistan’s prisons due to the state’s neglect in righting its own wrongs. All of them are at serious risk as this pandemic continues to spread throughout the country. While the state and the judiciary struggle to form a policy for release of prisoners, let us not forget the wrongfully convicted – those who may suffer because of the failings of the criminal justice system, only to fall prey to the pandemic before they are even absolved of the most ‘serious crimes’ that they did not commit.

With the first case of Covid-19 in Lahore Camp Jail, the spread of the disease in prisons is no longer a distant reality. In these challenging times, the state must adopt any measure necessary to protect the prison population; this includes the release of those whose continued incarceration is not necessary for safeguarding public order.

A list of demands has been formulated by a group of human rights organizations who do extensive work in the criminal justice sector and include the following: Pre-trial and under-trial prisoners, specifically those whose trials have been delayed on account of Covid-19 should be released on bail. The elderly, those with underlying health conditions and female inmates with minor children should also be released; convicted inmates who have served a significant portion of their sentences and are not a threat to public safety can be considered for release where the Pakistan Prison Rules, 1978 and Section 401 of the Code of Criminal Procedure enable provincial governments to suspend sentences.

Finally, the judiciary must direct the federal and provincial governments to work through the Inspectorate General of Prisons to identify prisoners who fall within these categories so that detainees do not have to file individual applications and in framing relevant rules, must protect those who may have been wrongfully convicted. Only then will the state be able to control the spread of this pandemic within those who exercise no agency over their circumstances.

The writers work for theFoundation for Fundamental Rights.