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Pre-arrest bail should be granted with caution: SC

ISLAMABAD: The Sup­r­eme Court has held that pre-arrest bail, being a judicial power and rooted in equity, is an extraordinary remedy and, therefore, should be exercised cautiously only to protect innocent people from the horrors of abuse of process of law.

Authored by Justice Qazi Mohammad Amin Ahmed, a three-page judgement on a set of appeals against a Nov 5 Sindh High Court verdict has explained that any prosecution initiated by considerations for the purpose stained with the taints of mala fide was the abuse of process of law.

The appeals were moved by Sindh irrigation department officials Tariq Hussain, Sher Mohammad, Ayaz Ahmed Soomro, Ali Gul Phull and Ghulam Nabi and contractors Ghulam Sarwar, Tariq Hussain and Mir Mohammad Sodoro to seek bail in anticipation of their arrest in a corruption reference initiated by the National Acc­ountability Bureau on the SHC directive in connection with alleged misappropriation of funds in execution of the annual development plan for irrigation in Khairpur for 2013-15.

It turned out that except for some partial work, no work was executed at all which caused a loss of Rs89 million.

The Supreme Court, while dismissing the appeals, observed that the judicial protection of the pre-arrest bail should not be extended in every run-of-the-mill criminal case, with pleas structured on bald denials and parallel stories. It was on a complaint alleging violation of rules as well as embezzlement in the project that the SHC directed a probe on the basis of physical verification by the experts who found non-execution of different plans of the project as well as partial completion of the work, much less than the required standards, it added.

Against this backdrop, the judgement said, mala fide cannot be conceivably attributed to the initiation of proceedings against the petitioners and, therefore, they cannot claim judicial protection in a prosecution that otherwise sans relief of bail.

The verdict recalled that while refusing bail to the petitioners, the SHC had directed the accountability court to conclude the trial within three months, requiring the accused to cooperate in the conclusion, an option to conveniently vindicate their position sooner rather than later.

The project was executed in 2014 and there was no occasion down the road in August 2018 when the canal ran in full swing to physically detect any flaw/deficiency in the executed work.

After an in-depth hearing, the Supreme Court dismissed the appeals with an observation that the view taken by the SHC was well within the remit of law and, therefore, does not call for interference by the Supreme Court. Thus the apex court refused to grant leave to appeal.

Published in Dawn, November 30th, 2019



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