Aim of trial is legal process not imprisonment, rules SC

Says basic idea is to enable accused to answer criminal prosecution against him

Hasnaat Malik May 12, 2024
The Supreme Court of Pakistan. PHOTO: APP/FILE


The Supreme Court has ruled that the object of a trial is to make an accused person face the legal proceedings, and not to punish an under-trial prisoner.

"The basic idea is to enable the accused to answer the criminal prosecution against him, rather than let him rot behind bars. The astuteness and insight that bail is the rule and jail is the exception is overwhelmingly recognised through the repetitive pronouncements of this Court," a five-page judgement authored by Justice Muhammad Ali Mazhar said while granting bail to an accused involved in a smuggling case.

A division bench of the apex court, led by Justice Mazhar, noted that there is no hard and fast rule or inflexible principle to regulate the exercise of discretion for granting bail, except that the discretion should be exercised judiciously.

The bench emphasised that there is no inexorable principle in the matter of extending bail, rather it depends on the facts and circumstances of each case.

While exercising judicial discretion in granting, refusing, or cancelling the facility of bail, which is neither punitive nor preventative, the court stressed that it is based on an important feature of the criminal justice system that cannot be ignored.

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The court highlighted that just as liberty is precious for an individual, simultaneously, the interest of society in maintaining law and order is also paramount.

"In our view, both are immensely indispensable for the survival and perpetuation of a civilized society," the order read.

The order also stated that the case of further inquiry presupposes a tentative assessment, which may cast doubt on the involvement of the accused in the crime. The expression "reasonable grounds" refers to grounds that are legally tenable, admissible in evidence, and appealing to a reasonable judicial mind, as opposed to being whimsical, arbitrary, or presumptuous.

"The prosecution has to demonstrate that it is in possession of sufficient material/evidence, constituting 'reasonable grounds' that accused had committed an offence falling within the prohibitory limb of Section 497 of the Code of Criminal Procedure, 1898, while for attaining bail, the accused has to show that the evidence/material collected by the prosecution and/or the defence plea taken by him created reasonable doubt/suspicion in the prosecution case and he is entitled to the benefit of bail. For all intents and purposes, the doctrine of ‘further inquiry’ denotes a notional and exploratory assessment that may create doubt regarding the involvement of the accused in the crime," it added.

The order also said that when applying the doctrine of parity in bail matters, the court is obliged to focus on the specific role attributed to the accused. It then determines whether a case for granting bail based on the standard of parity or the principle of consistency has been established.

Facts of case

According to the First Information Report, Muhammad Azhar Azeem,

Intelligence Officer, Directorate General Intelligence and Investigation (Customs), lodged an FIR No M-4070/DCI/Seiz/2024 under Sections 2(s), 16, 157 (1) and 178 of the Customs Act, 1969 at PS Directorate

General I & I-Customs, Karachi.

He reported that the anti-smuggling wing of the Directorate of Intelligence and Investigation Customs, Karachi, received information that non-paid petroleum, oil and lubricants (POL) are transported from Karachi to Pak-Arab Refinery Limited (Parco) through White Oil Pipeline which is being pilfered/stolen by some unscrupulous elements by clamping/welding a concealed pipeline at the warehouse situated at North West, Industrial Zone, Port Qasim Authority, Karachi, and that they are selling the said stolen POL in the open market.

After obtaining a search warrant, a notice was served to the tenant/possession-holder of the warehouse.

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During the search, the raiding team discovered a 174 feet long tunnel that led to “White Oil Pipeline” of Parco, three vehicles (Both Mazda Truck) having concealed tanks loaded with stolen/non-duty paid POL., and a Suzuki Swift car used as pilot to clear the loaded stolen POL.

All the recovered goods and vehicles were taken into custody and the available culprits involved in the illegal activity were arrested along with their personal mobile phones after serving of notice under section 171 of the Customs Act, 1969.

The court said that the petitioner was a low-paid employee like the other four persons who were granted bail by the high court. Seemingly, his role does not appear to be different than the role of the other co-accused persons, namely, Naseebo Khan, Muhammad Wafa Brohi, Amjad Ali, and Aamir Ali who were arrested with the petitioner allegedly on the spot where they all were found in commission of the offence, and on arrest, a joint recovery was made, while the petitioner was said to be the pilot, which attribution of role requires evidence.

The court noted that the petitioner, like four other individuals who were granted bail by the high court, was a low-paid employee. It appeared that his role did not differ significantly from that of the other co-accused, namely, Naseebo Khan, Muhammad Wafa Brohi, Amjad Ali, and Aamir Ali. They were all apprehended with the petitioner allegedly on the spot in the act of committing the offence, and a joint recovery was made upon their arrest. The assertion that the petitioner was the pilot, which attributes a specific role, necessitates evidence for validation. However, at present, his role cannot be found dissimilar to that of other co-accused.


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