ISLAMABAD: The Supreme Court has held that the grant of bail to an accused required in a cognizable and non-bailable offence before his arrest clogs the very mechanics of the state authority to investigate and prosecute violations of law designated as crimes.

“The grant of bail to an accused required in a cognizable and non-bail offence prior to his arrest is an extraordinary judicial intervention in an ongoing or imminent investigative process,” observed Justice Qazi Mohammad Amin Ahmed.

The observation came on an appeal filed by Ghulam Farooq Channa, secretary of Jamshed Town Union Council, Karachi, against the Feb 13 Sindh High Court (SHC) order of denying him the same remedy.

A two judge Supreme Court bench comprising Justice Faisal Arab and Justice Qazi Mohammad Amin Ahmed had taken up the appeal on March 3.

“To prevent arrest of an accused required by a law is a measure with far reaching consequences that may include loss or disappearance of evidence,” the judgement feared, adding that the statute did not contemplate such a remedy besides it was also judicially decided way back in 1949 in the case of Hidayatullah Khan versus the Crown.

UC secretary’s appeal against SHC order of denying him bail rejected

Such a grant of bail was always intended with a purpose sacrosanct and noble, the judgement observed, explaining that essentially such a relief was meant to provide judicial refuge to the innocent and the vulnerable from the rigours or abuse or process of law with an intention to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique.

The remedy oriented in equity could not be invoked in every run of the mill criminal case, Justice Ahmed observed, adding that prima facie the post arrest bail certainly was not a substitute in cases not supported by material and evidence, constituting a non-bailable/cognizable offence, warranting arrest which was an inherent attribute of the dynamics of the criminal justice system with a deterrent impact.

The petitioner had been avoiding arrest since Aug 28, 2019 when he was accused of having fabricated a fake death certificate of a woman namely Naseem Begum Chotani. The fake death certificate had helped his co-accused to attempt to hoodwink judicial process and grab valuable properties whose ownership vested in the woman.

When disclosed, the scam was reported to the Anti-Corruption Authorities and after an inquiry the petitioner was booked as an accused alongside with other accomplices.

Senior lawyer Ghulam Sajjad Gopang, appearing on behalf of the petitioner, argued that alleged fabrication was reported after five years and it was committed by the officials at the higher rung. But his client was being hounded as a scapegoat to save the real culprits, the counsel said, adding that co-accused in the case had since been released on post-arrest bail and thus the petitioner’s remission into custody was not likely to serve any useful purpose in the investigation process.

In the judgement, Justice Ahmed observed that the petitioner was at the helm of affairs when the bogus certificate was issued and that cognizance on belated disclosure did not mitigate the culpability nor should be equated with mala fide.

The judgement held that the view taken by the SHC and the special judge, (Central-I) Karachi in the first round of litigation was in accord with the law being consistently followed by the Supreme Court.

“Thus the petition is dismissed and the leave denied,” the judgement said, adding that the release of the petitioner on post- arrest bail would frustrate the investigation purposes.

Published in Dawn, March 15th, 2020