Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
In a landmark ruling dealing with both prison overcrowding and constitutional guarantees, the Supreme Court has called on courts across the country to decide bail applications with increased sensitivity and ensure speedy completion of trials, warning that the nation’s prisons are operating far beyond their capacity.
The observation came in a five-page judgment penned by Justice Muhammad Hasham Kakar while granting post-arrest bail to two accused persons in a case related to the alleged illegal transfer of Rs24 billion through hawala channels.
The decision also placed the issue in the broader crisis facing the criminal justice system.
A five-page judgment authored by Justice Muhammad Hasham Kakar granted post-arrest bail to two accused persons in a case related to the illegal transfer of Rs24 billion through hawala channels.
“We find it extremely necessary to state here that the prisons of Pakistan are facing extreme overcrowding with most of the prison facilities functioning beyond their official capacity,” the judgment observed.
According to the 2024 Prison Data Report, the prison population is reported to be 152.2% overcapacity on average.
“More worryingly, the under-trial prisoners constitute almost a quarter of the prisoners ie 73.41% of the total prison population. In such circumstances, the courts must treat the bail applications with increased sensitivity to these figures and prioritize speedy disposal of trials.”
“Such measures are imperative to overcome unprecedented prison overcrowding and maintain the fundamental sanctity of the criminal justice system in Pakistan.”
A petitioner in his capacity as Director Accounts has been implicated in concealing and attempting to destroy incriminating records. Similarly, the second petitioner has been identified as the primary Hawala operator and conduit, allegedly facilitating the offshore settlement of large-scale cash withdrawals in violation of the provisions of the 1947 Act.
The court noted that the main offense for which the petitioners have been named is section 23 of the 1947 Act, under which 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 relevant to state that previously the punishment for the said offense was simple imprisonment with an extension of up to two years or a fine or both, and the same was amended in 2020 by Act No. X of 2020 with effect from 27.02.2020.
The date of occurrence under the FIR is between 2007 and 2015, which predates the 2020 amendment.
“Under the protection guaranteed by Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, no law shall permit a person to be punished for an offense with a punishment greater than or of a different nature than the punishment prescribed by law for that offense at the time the offense was committed.”
“At a glance, protection against retroactive punishment as provided in Article 12 of the Constitution may appear as a concept dealing with procedural requirements, but not as such.”
The ruling emphasized that Article 12 of the Constitution does not state any procedural requirement of ordinary course, but that it is one of the fundamental rights and a highly guarded substantive right which should not be taken lightly. “This doctrine of ex post facto laws is well known in almost all jurisdictions with regard to criminal procedure.”
“According to well-known legal encyclopedia of American law i.e. Corpus Juris Secundum, an ex post facto law is a law which makes criminal and punishes an act done before the enactment of the law which was innocent when it was done, aggravates a crime or makes it greater than it was when it was committed, changes the punishment and inflicts the crime than it was committed before than it was committed, changes the legal rules of evidence and receives less or different testimony than was required to convict at the time the offense was committed.”
Furthermore, an ex post facto law may be a law which, provided it regulates only civil rights and remedies, in effect imposes a penalty or deprivation of a right for something which, when done, was lawful, deprives persons accused of crimes of some legal protection or defense previously available to them, such as the protection of a previous conviction or acquittal in connection with a general acquittal, the offense or its consequences, changes an accused’s situation 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 later ratified by the United Kingdom.”
“Convictions and sentences to be recorded in the criminal jurisdiction under ex post facto legislation 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 stage of trial but also at the stage of bail,” the judgment further observed.
“It is clear that the offense in the present case was allegedly committed at the time between the year 2007 and 2015 and therefore the punishment for the offense under section 23 ibid would be considered as two years or fine or both.”
The order further stated that the next important aspect is the nature of the offence, which though non-bailable under Section 23 ibid, in the present case carries a punishment of two years or fine or both. The principles laid down by the Court for the grant of bail in non-bailable offenses are well settled.
The judgment noted that bail will be refused only in exceptional and extraordinary cases – for example, where there is likelihood of the accused absconding, apprehension of tampering with prosecution evidence, danger of the offense being repeated if the accused is released on bail, or where the accused has previous convictions.
“The said principles were reiterated and affirmed by this Court in various judgments. In the present case, the offense carries a punishment of two years or fine or both, which does not come under the prohibition clause of Section 497 of the Code.”
“Similarly, no extraordinary and unusual circumstances have been pointed out to us for denying the grant of bail. Apart from this, we have also observed that the case of prosecution is based on documentary evidence and no valid basis has been raised before us to show that the petitioners are personally required for further investigations. In such circumstances, denial of bail is a rule of exception and denial of bail.”
