IHC detailed judgment on Nawaz bail

Ex-PM can approach court for remedy if Punjab govt acts arbitrarily

By Tariq Butt

ISLAMABAD: The Islamabad High Court (IHC) has ruled that deposed Prime Minister Nawaz Sharif can approach the court of law for appropriate remedy in case of non-exercise of duty by the Punjab government or misuse of the discretion or its exercise in an arbitrary and whimsical manner in extending his release on health grounds.

The just released detailed order on grant of eight-week bail to the ex-premier also “noted with dismay” that despite its “observations” regarding different provisions of the Criminal Procedure Code (CrPC) and Pakistan Prisons Rules (PPR), the Kot Lakhpat Jail Lahore Superintendent “never initiated or referred” the health matter for his release in spite of “his severe medical condition.”

The judgment further said that since the jail superintendent was under Punjab government, the Inspector General, prisons, could have made recommendations to it for Nawaz Sharif’s release on account of indisposition, and the government, on its own, could have suspended the sentence if it was believed that the circumstances so warranted.

According to the order, under Section 401 of the CrPC, the Punjab government/executive authority has ample power to suspend the sentence of any prisoner on any ground.

The former prime minister’s lead counsel Khawaja Haris said in the IHC during proceedings on the bail plea making it clear that his client would not approach the Punjab government because it was totally against the Sharifs.

However, the judgment said that in case Nawaz Sharif’s health does not improve and he needs further medical attention, the Punjab government may, on its own, decide the issue regarding suspension of the sentence. Even otherwise, he may approach the provincial government under Section 401(2) CrPC, it said.

Section 401(2) says whenever an application is made to the provincial government for the suspension or remission of a sentence, it may require the Presiding Judge of the court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reason for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

The judgment said that the executive/jail authorities do have powers to release a prisoner who is critically ill under Rules 143 and 164 of the PPR. Another aspect of the matter is that the PPR prescribes procedure for release of prisoners on bail suffering from disease. The jail superintendent may recommend a prisoner for premature release who owing to old age, infirmity or illness is permanently incapacitated from the commission of further crime of the nature of that for which he has been convicted. The case shall be submitted to the government through the Inspector General. It shall be accompanied by the recommendations of the medical officer. The Inspector General will, in all such cases, obtain the medical opinion of the medical board which will be convened by the Director of Health Services, the order said.

Rule 143 says the jail superintendent will refer the case for release of prisoner suffering from serious illness with the consent of the officer incharge of the prosecution in whose jurisdiction the offence was committed if the disease is likely to prove fatal if the prisoner remains in prison; if there is reasonable chance of recovery if the prisoner is released; if the prisoner has not done any willful act since he has been in prison to produce or aggravate his disease; if the medical officer and the medical superintendent of the District Headquarter Hospital recommends the release and certifies that the disease is of the nature described; and if the prisoner has not more than six months to remain in prison before the expiry of his sentence. The prisoner shall be informed before release that his liberation is conditional on the sanction of the government, and that if such sanction is withheld, he will have to return to prison to serve the remainder of his sentence.

Section 164 of the CrPC says no prisoner shall be transferred without the special sanction of the Inspector General from one prison to another when there is an outbreak of epidemic in either the transferring or the receiving prison and for two weeks alter the prisons have been declared free from infection. Special precautions shall be taken to guard against infection when a transfer has to be made along a route where any infection is known to prevail. On the outbreak of an epidemic in a prison, the superintendent shall immediately inform the Inspector General who shall stop all transfers to and from that prison until the prison has been declared free from infection.

The IHC further said that this judgement may be taken as an eye-opener for the federal and provincial governments to rescue the inmates suffering from serious illness by exercising powers under Section 401 of CrPC and to relieve them of their plight.