Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
In a major ruling addressing both prison overcrowding and constitutional safeguards, the Supreme Court has urged courts across the country to decide bail applications more sensitively and ensure swift resolution of trials, warning that the country’s prisons are operating far 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 alleged illegal transfer of Rs 24 billion through hawala channels.
The ruling also placed the issue within the broader 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 illegal transfer of Rs 24 billion through hawala channels.
“We consider it extremely necessary to state here that Pakistan’s prisons are facing extreme overcrowding and that most prison facilities are operating beyond their official capacity,” the ruling noted.
According to the prison data report for 2024, the prison population is stated to have excess capacity of 152.2% on average.
“More worrying is that prisoners under trial represent almost a quarter of prisoners, that is, 73.41% of the total prison population. In such circumstances, courts must resolve bail applications with greater sensitivity to these figures and prioritize the rapid resolution of trials.”
“These measures are imperative to overcome unprecedented prison overcrowding and uphold the fundamental sanctity of the criminal justice system in Pakistan.”
A petitioner, in his capacity as an accounts director, has been implicated in the concealment and attempted destruction of incriminating records. Similarly, the other petitioner has been identified as the principal operator and conduit of Hawala, which was allegedly facilitating offshore settlement of large scale cash withdrawals in violation of the provisions contained in the 1947 Act.
The court noted that the main offense for which the petitioners have been nominated 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 relevant to note that previously the penalty for said crime was simple imprisonment extendable up to two years, or a fine, or both, and it was reformed in 2020 through Law No.
The date of occurrence according to the FIR is between the years 2007 and 2015, prior to the 2020 amendment.
“Under the protections guaranteed by Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, no law shall authorize the punishment of a person for an offense with a penalty higher than or different from the penalty prescribed by law for that offense at the time it was committed.”
“At first glance, the protection against retroactive punishment provided for in Article 12 of the Constitution might seem like a notion that deals with procedural requirements, but not as such.”
The ruling highlighted that Article 12 of the Constitution does not establish any ordinary procedural requirements, but is one of the fundamental rights and a highly guarded substantive right that should not be taken lightly. “This doctrine regarding ex post facto laws is well recognized in almost all jurisdictions with respect to the administration of criminal justice.”
“According to the well-recognized legal encyclopedia of American law, i.e., Corpus Juris Secundum, an ex post facto law is one that criminalizes and punishes an act that was done before the passage of the law and was innocent when it was committed, aggravates a crime or makes it greater than it was when it was committed, changes the punishment and inflicts a greater punishment than that prescribed when the crime was committed, or alters the legal rules of evidence and receives less or different testimony than was required for condemn at that time the crime was committed.”
Furthermore, an ex post facto law may be one which, assuming that it regulates civil rights and remedies only, imposes in fact a penalty or deprivation of a right for something that, when done, was lawful, deprives persons accused of a crime of some 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, generally, in relation to the crime or its consequences, alters the position of an accused to a material disadvantage for him.
“Protection against such criminal legislation is also provided by the Convention for the Protection of Human Rights and Fundamental Freedoms, which was signed by members of the Council of Europe in 1950 and subsequently ratified by the United Kingdom.”
“Convictions and sentences required to be registered in the criminal jurisdiction 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 such interpretation must also be extended to an accused not only at the trial stage but also at the bail stage,” the judgment further states.
“Clearly, in the present case, the offense was allegedly committed between the years 2007 and 2015, therefore, the punishment for the offense under section 23 ibid would be considered to be 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, for the purpose of the present case carries a punishment of two years, a fine or both. The principles laid down by the court regarding the grant of bail in non-bailable offenses are well established.
The ruling states that bail will only be denied in extraordinary and exceptional cases, for example, when there is the possibility of the accused absconding, fear of tampering with the prosecution’s evidence, the danger of the crime being repeated if the accused is released on bail, or when the accused is a previous convict.
“These principles were reiterated and reaffirmed by this court in various rulings. In the present case, the crime carries a sentence of two years or a fine or both, which does not fall within the prohibitive clause of article 497 of the Code.”
“Similarly, no extraordinary and exceptional circumstances have been brought before us to refuse grant of bail. Apart from this, we have also observed that the prosecution case is based on documentary evidence and no valid reason has been brought before us to show that the petitioners are personally necessary for further investigation. In such circumstances, grant of bail is the rule and denial is an exception.”
