Pakistan: Indefinite Pre-Trial Detention; after 2 Years In Jail, SC Grants Bail To Blasphemy Accused


Supreme Court observes merely citing the number of adjournments sought in a case is not sufficient to justify withholding of bail, rather it must show a deliberate pattern of seeking adjournments without valid reasons

Supreme Court of Pakistan has observed that the mere number of adjournments sought in a case is insufficient to justify the withholding of bail. Rather, it must show a deliberate pattern of seeking adjournments without valid reasons to push back key hearings such as examination or cross-examination of prosecution witnesses.

The top court has further observed that public interest necessitates improving the administration of justice to sustain the faith reposed by the common man in the rule of law and the justice delivery system, which are closely and inextricably linked.

These observations were made by Justice Syed Mansoor Ali Shah in a written order on a bail application filed by a man who is accused of disseminating alleged blasphemous content through WhatsApp.

Justice Shah was heading a three-judge bench in the blasphemy case, which comprised Justice Jamal Khan Mandokhail and Justice Athar Minallah.

“For an accused to be denied statutory bail, it must be demonstrated that his act or omission was intentionally aimed at prolonging the trial,” Justice Shah held.

The application of the third proviso to Section 497(1) of the Criminal Procedure Code (CrPC), when interpreted in the light of Articles 9 and 10-A of the Constitution, broadens and enhances the rights of an accused who is presumed to be innocent during a trial, the top court observed.

“The prosecution must present clear evidence that the accused or his counsel was actively trying to delay the trial through unnecessary adjournments or irrelevant applications to justify denying bail,” it added.

According to the third proviso to Section 497 CrPC, a court shall release an accused on bail in an offence that is punishable by death if he has been detained for a continuous period exceeding two years unless the delay in the trial has been caused by an act or omission of the accused or any other person on his behalf or the conditions mentioned in the fourth proviso are attracted. However, the court noted that this was not the case in this instant.

“In our view, the statutory right to be released on bail under the third proviso to Section 497 CrPC is not merely a statutory right but also stands firmly on constitutional guarantees under Articles 4, 9 and 10-A of the Constitution,” Justice Shah observed.

“Under the said Articles, the accused, like any other citizen, enjoys the protection of law and to be treated in accordance with law; the accused cannot be deprived of liberty, except in accordance with law; and in the determination of any criminal charge against him the accused shall be entitled to a fair trial and due process.”

The court said these basket of rights are available to an accused who enjoys a presumption of innocence in his favour and understandably cannot be subjected to indefinite pre-trial detention and, therefore, cannot be denied bail under the third proviso to section 497(1), CrPC, unless there is convincing material that the delay has been occasioned by the act or omission of the accused himself or if his case falls under any of the exceptions under the fourth proviso to section 497 CrPC.

The top court noted that the counsel for the complainant, as well as the Deputy Attorney General (DAG), had failed to establish that a delay in the trial was caused by the act, or omission of the accused. Rather, the court record showed that the acts of the court caused the delays.

The case

FIA Cyber Crime Lahore Chapter had registered a case against the accused under Section 11 of the Pakistan Electronic Crime Act (PECA) 2016, and Sections 295-B, 298-C (blasphemy), 120-B (criminal conspiracy), 34 (acts by several people In furtherance of common intention) and 109 (Punishment of abetment if the Act abetted committed In consequence and where no express provision is made for its punishment) of the Pakistan Penal Code (PPC) on May 26, 2020. The suspect was arrested the same day.

During proceedings in the trial court, the petitioner moved an application under Section 265-C, CrPC, for providing him with documents mentioned in the police report, which was dismissed on May 28, 2021.

The petitioner challenged the order before the high court through Criminal Revision, and the high court suspended further proceedings in the trial court on September 7, 2021.

The Criminal Revision is still pending, and the stay order continues.

“In this case, the trial has been suspended by the High Court on the filing of the Criminal Revision by the petitioner and during the continuum of the said suspension, the statutory period of delay, i.e., a continuous period exceeding two years under clause (b) of the third proviso to Section 497(1) CrPC has lapsed.”

“We have gone through the order sheet of the proceedings in the Criminal Revision, which is still pending before the High Court, and it has been over three years since the petitioner was arrested,” the Supreme Court noted in its order.

“The Criminal Revision has not progressed for no fault of the petitioner; there is nothing on the record that the delay has been occasioned by the act or omission of the petitioner,” the court noted.

“While the high court enjoys the authority to order a stay or suspend the proceedings in a criminal trial, in a deserving case, it is equally important that such an exercise of authority must be carried out with caution and circumspection, ensuring expeditious disposal of the case after the grant of injunctive relief,” the top court observed.

The Supreme Court ruled that the high court should not lose sight of the case where it has exercised its extraordinary power of staying or suspending the proceeding of a criminal trial but should make it a point of finally disposing of such proceedings as early as possible.

With these observations, the top court granted bail to accused subject to furnishing bail bonds worth Rs100,000 with two sureties in the like amount to the trial court’s satisfaction.

The top court has also directed the office to dispatch a copy of the order to the Registrar of the Lahore High Court so that it can be placed before the LHC chief justice for improving the administration of criminal justice in such matters.__The Friday Times Pakistan