ISLAMABAD - A larger bench of Supreme Court of Pakistan will Monday (today) take up a petition against the Islamabad High Court (IHC) judgment/order dated March 20 to release 400 under-trial prisoners from Adiala jail. 

The five-member bench of the apex court headed by Chief Justice of Pakistan Justice Gulzar Ahmed would hear the appeal against IHC order regarding threat of coronavirus pandemic and overcrowding in Adiala Jail.

Petitioner Raja Muhammad Nadeem filed the petition under Article 185(3) of Constitution against the IHC judgment dated 20-03-2020 and made Federation through Secretary Ministry of Interior and District Administration ICT through Chief Commissioner, Islamabad as respondents.

Nadeem stated in his petition that 400 criminals/wrongdoers were released in an unprecedented and unconstitutional manner at the cost and expense of the constitutional right of a complainant in the respective FIRs.

He added that the IHC had sought a report from the Superintendent, Central Prison, Rawalpindi regarding the inmates whose cases are pending before the courts under jurisdiction of the court. Accordingly a report was submitted.

The petitioner continued that Superintendent, Central Prison, Rawalpindi, had submitted a report in the IHC that the authorised occupancy of the Central Prison, Rawalpindi is 2,174 while the number of its present inmates is 5,001. The number of under trial prisoners whose cases are pending before the courts under the jurisdiction of the High Court is 1,362. Majority of the incarcerated under-trial prisoners are alleged to have committed offences which fall within the ambit of the non-prohibitory clause; and several convicted prisoners are above the age of 55 years and some suffer from serious illnesses, which cannot be treated while incarcerated.

According to the petitioner, the IHC chief justice in chamber exercising suomoto jurisdiction converted the report into a petition under Section 561 A of the Criminal Procedure Code on the ground that a national calamity has been declared by the federal government in the wake of coronavirus threat and that the situation in the overcrowded prisoners in the Adiala Jail is alarming.

He contended that the IHC is not vested with jurisdiction to exercise any suomoto powers, thus the impugned judgment and order dated 20-03-2020 is illegal, without any jurisdiction and is liable to be set aside on this ground.

The inherent powers vested in the High Court, can only be exercised in a situation where no express statutory provision is available. The remedy under Section 561-A CrPC is not an alternate and substitute for an express remedy as provided under the law.

He stated that impugned judgment/order is also against the concept of the trichotomy of powers between the legislature, executive and the judiciary.

This principle underpins the rationale that forming a government policy is to be undertaken by the executive, which is in a better position to decide on account of its mandate, experience, wisdom and sagacity which are acquired through diverse skills.

The petitioner continued that the judiciary on the other hand is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of dispute between the individuals inter se and between individual and the state.

He stated that in the instant case provincial government is empowered under the Pakistan Prison Rules, 1978 read with Section 401 of CrPC to suspend the sentence. However, none of the provincial government or Islamabad Capital Territory Administration found it expedient to come forward and invoke the said provisions.

He maintained that the ambit and scope of High Court powers is not as wide as of the Supreme Court under Article 187 of Constitution to pass any order or to issue any direction or degrees for doing substantial justice.