Stringent bail conditions overturned by top court

The top court has held that if bail is to be granted subject to conditions then those conditions must not be unreasonable, disproportionate or excessive.

"When a court is satisfied that a case for grant of bail has been made out then refusal to exercise discretion in favour of releasing the accused, subject to conditions described under Section 499 of the Criminal Procedure Code, 1898 (CrPC) would not be in conformity with the right to liberty and the fundamental rights guaranteed under the Constitution," said a 6-page order.

The order was authored by Justice Athar Minallah, who was part of a three-judge bench led by Chief Justice of Pakistan (CJP) Athar Minallah that heard an appeal against an order of the Peshawar High Court (PHC) with regard to grant of bail to an accused under some stringent conditions.

The judgment noted that the conditions described under Section 499 are ordinarily sufficient to guarantee the presence of an accused before a court during the trial proceedings.

Nonetheless, the court may refuse grant of bail or make it subject to conditions in order to regulate the conduct or movement of an accused.

"A court, for example, may be satisfied that, if released on bail, the accused would abscond or that there exists a likelihood of tampering with the evidence or influencing the witnesses. In such eventualities, the court must exercise its discretion with care and caution, by balancing the scales of justice and equity.

"Even if bail is to be granted subject to conditions then they must not be unreasonable, disproportionate or excessive. The foundational principles of criminal law are the presumption of innocence of an accused and that bail must not be unjustifiably withheld because it then operates as a punishment before being convicted upon conclusion of the trial. The unnecessary and unjustified incarceration of an under trial prisoner simultaneously becomes a burden on the taxpayers and the already overcrowded prisons," it said.

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The court noted that the PHC was satisfied that a case for grant of bail was made out and the discretion was also exercised accordingly.

"While granting bail, it was made subject to certain conditions. One of the conditions for release was surrendering the cryptocurrency code.

"It is the case of the petitioner that he has no concern or nexus with the alleged cryptocurrency and, therefore, the condition is harsh and excessive and thus amounts to denying to him the concession of bail granted by the High Court.

"However, the prosecution wants to ensure that the evidence in the form of cryptocurrency is not tampered with. The factum whether the petitioner has the ability to access the cryptocurrency could not have been decided at bail stage because it would require deeper appreciation of evidence, which is yet to be recorded during the trial.

"The condition, therefore, appears to be excessive and unreasonable because it denies the petitioner the right to liberty granted by the High Court by extending the concession of bail on the ground of delay in the conclusion of the trial.

"Moreover, there are more than fifteen hundred witnesses on the list of the prosecution who would be entering the witness box. The early conclusion of the trial, therefore, is not foreseeable.

"On the other hand, the concern of the prosecution is regarding the likelihood of the petitioner's access to the cryptocurrency. Admittedly, the cellular phone and the SIM were seized and they are in the custody of the Bureau [National Accountability Bureau]."

"The investigating officer has stated that if the SIM could be blocked it would serve the purpose because in such an event access of the petitioner to the cryptocurrency would be denied. It appears to us that, while exercising its discretion, this crucial aspect was not taken into consideration by the High Court.

The SC said the condition of surrendering the cryptocurrency code was excessive and disproportionate to the purpose which it sought to be achieved.

"We are, therefore, of the opinion that it would be appropriate to remand the matter to the High Court to the extent of reconsidering the condition regarding the surrender of the cryptocurrency code and thereafter exercise its discretion so that the purpose of securing its integrity is achieved while, simultaneously, enabling the petitioner to avail the concession of bail granted on the ground of delay in the conclusion of the trial."

The SC converted the petition into an appeal and disposed of it by remanding the matter to the PHC to the extent of reconsidering the condition regarding the cryptocurrency code.

"The High Court may, inter alia, seek assistance of an expert in order to set out reasonable condition(s) to prevent the petitioner from having access to the cryptocurrency.

"Since the right of liberty is involved and the High Court has already exercised its discretion by extending the concession of bail, therefore, we expect that the proceedings will be completed at the earliest, preferably within three weeks from the date of receiving the certified copy of this order," it said.