SC judge sees pre-arrest bail in liberal light

Supreme Court judge Justice Sayyed Mazahar Ali Akbar Naqvi has supported a liberal interpretation of granting pre-arrest bail because of the “downfall in the standard of investigation”.

"Courts of law are under bounded duty to entertain broader interpretation of ‘law of bail’ while interpreting material placed before it in a more liberal manner to arrive at a conclusion which is badly required due to apparent downfall in the standard of investigation,” Justice Naqvi noted while differing with the view of two other members of the bench, Justice Manzoor Ahmad Malik and Justice Amin-uddin, on the matter of pre-arrest bail.

“Liberty of a person is a precious right which has been guaranteed under the constitution of Islamic Republic of Pakistan, 1973. To abridge or curtail the liberty merely on the ground of being involved in a criminal case without adjudging it on merits would certainly encroached upon the right against free life,” he added.

”This right should not be infringed, rather it has to be protected by the act of court otherwise it may frustrate the concept of safe administration of criminal justice.”

Justice Naqvi, who was recently elevated to the Supreme Court, observed that while granting pre-arrest bail, the court could consider the merits of the case in addition to element of malafide/ulterior motives which had to be adjudged in the light of law laid down by the court.

He further said the court was conscious of the fact that the concept of pre-arrest bail was an extraordinary relief, which was limited to rare cases based upon trumped-up charges and had to be extended sparingly.

"To avail such relief, it is obligatory to establish that the prosecution has been launched, which is based upon malafide, ulterior motives and if it is materialised, it would certainly cause irreparable loss to his reputation."

The SC judge noted that the practice to grant ad-interim bail was an extension of a remedy to act as a shield to protect innocent person facing highhandedness of individuals or authority against frivolous litigation.” Literally speaking the term ad-interim is a misnomer as it has fallen in practice,” he added.

Justice Naqvi further said ad-interim was not mentioned in any provision rather this idea has been derived from the Order XXXIX Rules 1&2 of Code of Civil Procedure, 1908 (“Code of 1908).

"The rationale to grant ad-interim bail is though synonymous to passing a prohibitory injunction, however, the concept of ad-interim bail is more precious as compare to prohibitory injunction. In the former, liberty of the person is involved whereas in the latter, only propriety rights are in question. The status of the accused becomes “custodia legis” during the period when ad-interim bail is granted till its final adjudication subject to furnishing of sureties to the satisfaction of the court."