ISLAMABAD: The Supreme Court has reiterated that pre-arrest bail in a cognisable or non-bailable offence is an extraordinary remedy, extended for the sole purpose of protecting reputation and honour of an innocent citizen being hounded through abuse of process of law for sinister purposes.

This judicial protection is based on equity and cannot be extended in every run-of-the-mill criminal case founded upon incriminatory evidence, warranting custody for investigative purposes, observed Justice Qazi Muhammad Amin Ahmed in a judgement he wrote.

Justice Ahmed was a member of the three-judge bench that had taken up an appeal moved by Maqbool Ahmed Mahessar, Hafiz Suhail Ahmed, Muhammad Pariyal Solangi and Nasrullah against the National Accountability Bureau (NAB). The appeal had sought to challenge different Sindh High Court (SHC) orders of March 2021.

Through separate orders the Sukkur bench of the SHC had allowed pre- as well as post-arrest bails in different NAB references but subject to deposit of amounts allegedly embezzled by the petitioners at the cost of public exchequer.

Facility should be extended only for protecting an innocent person being hounded through abuse of process, says judgement

On Nov 29, 2019 as well, Justice Ahmed, while deciding a number of appeals against the SHC orders, had held that a pre-arrest bail, being rooted in equity, was an extraordinary remedy and should be exercised cautiously only to protect innocent persons from the horrors of abuse of process of law.

Referring to the present case, Justice Ahmed cited the Tallat Ishaq versus NAB case of 2019 and observed that directives for the release of an accused on bail have since been held against the law.

An accused seeking bail desires transfer of his custody from the jail, whose superintendent undertakes his production as and when required by the court. But for that, he has to make out a case in accordance with the applicable law and cannot be allowed or required to barter his freedom, the judgement explained.

Justice Ahmed observed that in the case at hand, considerations for grant of post-arrest bail to an accused facing charges under the NAB Ordinance had clearly been illustrated. Therefore, the accused facing indictment in a NAB reference had to qualify as per the parameters set down in different cases.

“There is no other way out,” the judgement said and added that grant of pre-arrest bail in a cognisable or non-bailable offence is a remedy that’s extraordinary in the nature of judicial protection.

Such a facility is extended by diverting usual course of law for the sole purpose of protecting reputation and honour of an innocent citizen being hounded for sinister and oblique purposes.

The protection was devised in 1949 by Hidayatullah Khan and the principles laid down therein are being faithfully followed till date, Justice Ahmed said in his order, adding the high court’s orders, being inconsistent, could not be sustained.

Thus the petitions are converted into appeals and allowed, high court orders are set aside and the bail petitions filed by the appellants before the high court would be deemed as pending for fresh decision, the judgement said.

The petitioners, meanwhile, would remain on ad-interim bail upon furnishing bonds in the sum of Rs500,000 with one surety each in the like amount to the satisfaction of deputy registrar (judicial) of the Sukkur bench of the SHC before end of third week of the present month, the order said.

The petitioners would appear before the high court on a date notified by the SHC office and the case would be decided on its merits.

In the 2019 Tallat Ishaq case, Justice Asif Saeed Khosa had regretted that the original intention behind introduction of Section 9(b) of the NAB Ordinance, of ousting jurisdiction of the courts regarding grant of bail in cases, stood neutralised by opening the door for bail through exercise of constitutional jurisdiction of a high court.

Resultantly, the entire burden was being shouldered by the high courts, which was a huge and an unnecessary drain on their precious time, Justice Khosa had held.

Justice Khosa had also suggested to the legislature to consider amending the ordinance appropriately to enable an accused person to apply for his bail to the relevant accountability court in the first instance, rather than coming directly to the high court.

Published in Dawn, May 9th, 2021