On March 24, it was reported that a prisoner in Camp Jail, Lahore, had tested positive for Covid-19. As of April 15, 59 new cases have been reported at the jail. More than 90 prisoners in Pakistan’s overcrowded prisons have tested positive for Covide-19 to date. While other jurisdictions continue to release the most vulnerable, low-risk prisoners en masse, in cognizance of the high risk of infection and transmission in prisons, in Pakistan prisoner release appears to have become a contention over separation of powers. Can the judiciary demarcate limits on the exercise of an inherently executive function?

It began with the Islamabad High Court passing orders to the effect that all under trial prisoners under the IHCs jurisdiction, imprisoned for bailable offenses, were to be granted bail after submitting surety and an assessment that they were not a threat to public safety and a medical screening. 292 prisoners were subsequently released. The Sindh High Court passed a similar order, releasing 829 under-trial prisoners in cases of ‘lesser punishment’.

In addition to these judicial pronouncements by the High Courts of Sindh and Islamabad, mandating the release of under-trial prisoners, executive authorities in various provinces, too, began taking actions to reduce their prison populations.

Section 401 of the Criminal Procedure Code (1898) states that in the case of individuals who have already been convicted of a crime and sentenced to a punishment, the Provincial Government has the power to suspend such a sentence or remit the whole or any part of the punishment “at any time without conditions”.

There are certain statutory limitations placed on the Provincial Government. In cases where the President has previously exercised his powers to grant pardon, reprieve or commutation of a sentence, the Provincial Government cannot exercise these powers without prior approval of the President. Additionally, some offences, such as murder, cannot be commuted or suspended without the consent of the victim’s heirs.

There are currently large numbers of vulnerable, at-risk convicted prisoners serving their sentences, who are particularly vulnerable to the risk of Covid-19 infection. A judicial inquiry commission constituted by the Islamabad High Court in 2019 found that almost 2,400 prisoners already suffer from chronic diseases such as hepatitis, HIV, and tuberculosis. In addition, there are 2,100 prisoners with physical ailments and 600 with mental illnesses. There are currently 1,500 prisoners who are above the age of 60 in Pakistan’s prisons.

It is these prisoners for whom the spread and transmission of Covid-19 in prisons has the most egregious implications. Weakened immune systems make them particularly vulnerable to contracting infections, as well as less likely to recover from them.They represent Pakistan’s most vulnerable prison population, whom the government can safeguard by suspending or remitting their sentences under Section 401 and releasing them to protect them from infection.

Soon after the orders of the Islamabad and Sindh High Courts, the governments of Sindh and Khyber Pakhtunkhwa had initiated summaries under Section 401 to identify categories of prisoners who could be released. In Sindh, Chief Minister Murad Ali Shah had approved a summary prepared by the Home Department, granting permission to release for four months the prisoners convicted in accountability and drugs cases as well as petty crimes. In Khyber Pakhtunkhwa, a summary was initiated by the Home Department under Section 401 of the Code of Criminal Procedure to start processing the cases of women and prisoners over the age of 60.

However, Criminal Petition No 299 of 2020 Raja Muhammad Nadeem Versus The State and anotherwas then filed before the Supreme Court of Pakistan stating that the Islamabad High Court had exercised the power of suo motu hearing (taking up a case on its own accord) while lacking jurisdiction to do so, and therefore any orders passed by the Islamabad High Courts in that case were void.

The Supreme Court in its Order issued on April 7, 2020 set aside the directions issued by the IHC and the SHC with regard to bail for under-trial prisoners. Importantly, it also stated that steps taken by the Governments of Sindh and the KPK to release prisoners under Section 401 of the CrPC were “without lawful authority”, “without jurisdiction” and of “no legal effect”. It further directed that prisoners who had been released pursuant to the aforementioned orders should be taken back into custody, with the exception of those under-trial prisoners charged with offences under non-prohibitory clauses, vagrancy law or offences carrying less than three years sentence. It stipulated three main categories of under-trial prisoners that could be considered for bail, in line with the recommendations made by the Attorney-General of Pakistan; those suffering from “ailments or physical or mental disability”, “all women and juvenile” under-trial prisoners”, and male under-trial prisoners “aged 55 or older”.

Finally, other male under-trial prisoners could be considered for bail, in the absence of “past convictions”. No prisoner who had been charged with abuse or violent acts against women and children could be considered for bail.

It is clear that the Supreme Court has tried to demarcate specific parameters for the special entitlement to consideration for bail for under-trial prisoners created by the IHC. However, what remains ambiguous is its stance on Section 401 of the CrPC, an inherently executive function.

Section 401 of the CrPC can be applied only in relation to individuals who have already been convicted of a crime and sentenced to a punishment. It is therefore clear that the SC’s exception for under-trial prisoners charged for bailable offences cannot apply in this context, and consequently convicted prisoners released by Provincial Governments under exercise of this power have no way of benefitting from this exception. The implication is that all convicted prisoners released under Section 401 will necessarily have to be re-arrested.

Courts have in the past affirmed the wide discretion of the Provincial Government or executive authority to ‘suspend the sentence of any prisoner on any ground whatsoever’. Additionally, case law has established that this power can be utilized to grant general remissions, or suspensions which apply to a number of prisoners, as in Aftab Ali v The State and 2 others PLD 1978 Karachi 807.

It is therefore uncertain how decisions taken by provincial authorities in Sindh and KPK to release prisoners under Section 401 of the CrPC were deemed to be “without lawful authority”, “without jurisdiction” and of “no legal effect”. The ‘authority’ and ‘jurisdiction’ of Provincial Governments has been created by statute and affirmed by courts subsequently.

While the Bench concluded its order by stating that ‘Observations made hereinabove shall not cast their shadow on pending or future legal pursuits’, it is unclear what the implications of this Order are for the exercise of Provincial Governments’ powers under Section 401. Which categories of prisoners will authorities be able to release without the possibility of a looming judicial challenge? If it is only those categories of under-trial prisoners which the Supreme Court has delineated in its order, then Section 401 becomes redundant in the context of prisoner release during Covid-19, since it only applies to convicted prisoners serving their sentences.

It must be emphasized that even in light of the Supreme Court’s order, provincial governments continue to retain the power to suspend or remit sentences under Section 401 and this power can be exercised within the parameters prescribed by law. Where the constitutional right to life of a prisoner during incarceration cannot be guaranteed by the state, the state must consider alternatives that will safeguard it.