Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
In a landmark ruling addressing both prison overcrowding and constitutional safeguards, the Supreme Court urged courts across the country to decide bail applications with increased sensitivity and ensure speedy outcomes of trials, warning that the country’s prisons are operating well beyond capacity.
The observation came in a five-page judgment written by Justice Muhammad Hasham Kakar, while granting post-arrest bail to two accused in a case related to the alleged illegal transfer of Rs24 billion through hawala channels.
The ruling also places the issue in the broader context of the crisis facing the criminal justice system.
A five-page judgment written by Justice Muhammad Hasham Kakar granted post-arrest bail to two accused in a case related to the illegal transfer of Rs24 billion through hawala channels.
“We find it extremely necessary to state here that prisons in Pakistan are facing extreme overcrowding with most of the jails functioning beyond their official capacity,” the judgment observes.
According to the report on prison data for 2024, the prison population would be over capacity on average by 152.2%.
“What is more worrying is that prisoners under trial represent almost a quarter of prisoners, or 73.41% of the total prison population. In such circumstances, courts must decide bail applications with increased sensitivity to these figures and prioritize the speedy outcome of trials.
“Such measures are imperative to overcome unprecedented prison overcrowding and preserve the sanctity of the criminal justice system in Pakistan.”
One petitioner, in his capacity as Accounts Manager, was involved in the concealment and attempted destruction of incriminating documents. Similarly, the other petitioner was identified as the main operator and conductor of Hawala, who allegedly facilitated the overseas settlement of large-scale cash withdrawals in contravention of the provisions contained in the 1947 Act.
The court noted that the main offense for which the petitioners were named is Section 23 of the 1947 Act, where the offense is currently punishable with rigorous imprisonment for a term which may extend to five years, or with fine, or with both.
It is pertinent to clarify that earlier the punishment for the said offense was simple imprisonment which may extend to two years, or fine, or both, and the same was amended in the year 2020 by Act No.
The date of occurrence according to the FIR is between the years 2007 and 2015, which is before the 2020 amendment.
“In accordance with the protections guaranteed by Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, no law shall authorize the punishment of any person for an offense by a punishment greater than or of a different nature than that prescribed by law for that offense at the time the offense was committed.”
“At first glance, the protection against retroactive sanctions provided for in Article 12 of the Constitution may appear to be a notion relating to procedural requirements, but this is not the case as such.”
The judgment highlights that Article 12 of the Constitution does not provide for any normal procedural requirements, but rather it is a highly protected fundamental and substantive right which should not be taken lightly. “This doctrine regarding ex post facto laws is well recognized in almost all jurisdictions in the administration of criminal justice.”
“According to the well-known legal encyclopedia of American law, namely Corpus Juris Secundum, an ex post facto law is a law which makes criminal and punishes an act which was committed before the adoption of the law and which was innocent when committed, aggravates a crime or makes it more serious than it was at the time of its commission, modifies the punishment and imposes a more severe punishment than that which was prescribed when the crime was committed, or modifies the rules legal evidence and receives fewer or different testimonies than those required to convict at the time the offense was committed.
Furthermore, an ex post facto law may be a law which, while purporting to regulate only civil rights and remedies, actually imposes a penalty or deprivation of a right for something which, when committed, was lawful, deprives persons accused of a crime of a legal protection or defense previously available to them, such as the protection of a previous conviction or acquittal, or of a proclamation of amnesty, or, of generally speaking, with respect to the offense or its consequences, modifies the situation of an accused to his material disadvantage.
“Protection against such criminal legislation is also provided by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed by members of the Council of Europe in 1950 and subsequently ratified by the United Kingdom.”
“Convictions and sentences which are required to be recorded before the criminal court under ex post facto law are also prohibited under Article 12 of the Constitution and well recognized by this Court in its various judgments. The benefit of the said interpretation must also be extended to an accused not only at the trial stage but also at the bail stage,” the judgment further noted.
“Clearly, in the present case, the offense would have been committed between 2007 and 2015, therefore, the punishment for the offense under Section 23 ibid would be considered to be two years or a fine, or both. »
The order further stated that the next important aspect was the nature of the offense which, although not bailable under Section 23 ibid., for the purposes of the present case, attracts a sentence of two years or a fine, or both. The principles laid down by the court regarding grant of bail for non-bailable offenses are well settled.
The judgment notes that bail will only be refused in extraordinary and exceptional cases – for example, where there is a risk of the accused absconding, a fear of tampering with evidence against him, a risk of repetition of the offense if the accused is released on bail, or where the accused is an ex-convict.
“The said principles have been reiterated and reaffirmed by this court in various judgments. In the present case, the offense is punishable with a punishment of two years or fine or both, which does not fall within the prohibition clause of Section 497 of the Code.”
“Similarly, no extraordinary or exceptional circumstances have been brought before us to deny bail. In addition to this, we have also noted that the prosecution case is based on documentary evidence and no valid reason has been placed before us to show that the petitioners are personally required for further investigation. In such circumstances, grant of bail is the rule and denial an exception.”
