ISLAMABAD - The Supreme Court of Pakistan on Tuesday declared that the High Courts could not exercise suo motu jurisdiction under Article 199, and the release of prisoners on the directions of Islamabad High Court (IHC) and Sindh High Court (SHC) is not sustainable under the Constitution and laws.

A five-member bench of the apex court, headed by Chief Justice of Pakistan Gulzar Ahmed, announced the verdict on the petition, filed by Raja Muhammad Nadeem under Article 184(3) of the Constitution, against the release of Under Trial Prisoners (UTPs) by the IHC and SHC due to the coronavirus pandemic.

Earlier, in the backdrop of the rapidly spreading virus, the IHC and SHC had passed the omnibus orders for the release of several accused and convicts. The IHC had passed orders for the release of 408 under-trial prisoners on March 20, while on the SHC’s verbal directions 519 prisoners were released in Sindh.

The apex court’s judgment, authored by Justice Qazi Muhammad Amin Ahmed, noted that no judge of a High Court or the Supreme Court is robed, crowned and sceptered as a king to do whatever suits his whim and caprice. In all eventualities, he is bound to abide by and adhere to the law and the Constitution.

The Supreme Court, exercising powers under Article 187 of the Constitution, set aside the impugned directions issued by the IHC and SHC for granting bails to the accused/convicts and re-called them. The Court also set aside the IHC order granting bail to the accused charged under various provisions of Control of Narcotic of Substances Act 1997 and bails granted there were re-called. Likewise, the IHC order granting bails to the accused involved in NAB cases was also set aside and bails granted there were re-called.

The apex court declared that the steps purportedly taken in exercise of powers under Section 401 of the Code by the Sindh government and Khyber Pakhtunkhawa were without lawful authority, without jurisdiction and of no legal effects. The Supreme Court ordered that the prisoners released in pursuance to those orders should be taken into custody - except those falling within the categories suggested by the Attorney General of Pakistan.

The court said that the concomitant fears, aggravated by fast expending contagion, would susceptibly admit perceptional acceptance of the impugned arrangements but the law must not be a casualty even in the most extreme or adversarial situations; it must reign supreme and the government in the given legal framework must strive hard to combat the menace; the Court would not be swayed by popular themes.  “Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times,” said the judgment.

The top court of the country ruled that the framers of the Constitution never intended to confer suo motu jurisdiction on a High Court. Had they intended; they would have conferred it in clear terms.

The verdict said that the plain language of Section 561-A Cr.P.C. and the law previously declared by the apex court unambiguously settles that provisions of the said section cannot be invoked to interfere, interrupt or divert procedural courses provided under the law, nor it can be applied as a substitute for remedies otherwise available under the Statute.

It added, “The law is quite settled by now that the jurisdiction of a High Court under section 561-A, Cr.P.C. can be exercised only in respect of orders or proceedings of a court and that the provisions of section 561-A, Cr.P.C. have no application vis-à-vis executive or administrative orders or proceedings of any non-judicial forum or authority.”

It maintained 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. 

519 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 neighborhoods. Hence its impact could be graver in the province of Sindh.

Also, the court in its judgment on Tuesday directed that the released prisoners should again be detained. It said that the prisoners should be released as per the recommendations of the Attorney General and the law. The Attorney General had proposed that those involved in minor crimes and those facing less than three years sentence may be considered for release. The Attorney General had further proposed that the prisoners facing jail due to non-payment of penalty also deserve to be released.