The Supreme Court has ruled that to err in granting bail is better than to err in declining it.
“Where two opinions can reasonably be formed on the basis of the same material, the courts should prefer and act upon that which favours the accused person and actualises his fundamental rights to liberty, dignity, fair trial and protection against arbitrary detention,” observes Justice Syed Mansoor Ali in a detailed four-page order authored while hearing the National Accountability Bureau’s (NAB) petition seeking cancellation of bail granted to accused persons in Pakistan Peoples Party (PPP) leader Khursheed Shah case.
Earlier in February, the apex court had dismissed the NAB’s appeals seeking revocation of bail of all co-accused in Khursheed Shah’s case. The top court had stated that the leader was granted bail on the basis of lack of evidence. “How can the co-accused be arrested when the prime accused has been granted bail,” stated Chief Justice of Pakistan Umar Ata Bandial.
Justice Mansoor Ali Shah ordered the anti-graft watchdog to desist from arresting Khursheed Shah’s wives, children and relatives, stating that “it is not right to make a case against anyone without solid evidence”.
Fleshing out its rationale for the ruling in a detailed judgement, the apex court remarked that to err in granting bail was better than to err in declining, adding that the ultimate conviction and sentence of a guilty person can repair the wrong caused by a mistaken relief of bail, “but no satisfactory reparation can be offered to an innocent person on his acquittal for his unjustified imprisonment during the trial”.
The fundamental right to liberty
A three-member bench of the apex court led by Chief Justice of Pakistan (CJP) Umar Ata Bandial noted that needless to mention that in NAB cases, the standard of “reasonable grounds” for making a tentative assessment of the material available on record to decide in constitutional jurisdiction under Article 199 of the Constitution, the question of detaining an accused in prison or admitting him to bail during his trial for the alleged offence under the NAB Ordinance is not borrowed from Section 497 CrPC (when sufficient grounds exists for further inquiry).
Rather, he said, the question emanated from the fundamental rights to liberty, dignity, fair trial and protection against arbitrary detention guaranteed by the Constitution under Articles 9, 10, 10-A and 14 and from the operational scheme of the NAB Ordinance.
The judgment said that the NAB has invoked the appellate jurisdiction of this court for the cancellation of bail granted by the high to the respondents, adding that the scope of any such interference, in matters like such, is well settled and hardly needs reiteration.
“This court usually interferes on two grounds: (i) when the impugned order is perverse on the face of it, or (ii) when the impugned order has been made in clear disregard of some principle of the law of bail.”
“A perverse order is the one that has been passed against the weight of the material on the record or by ignoring such material or without giving reasons; such order is also termed as arbitrary, whimsical and capricious,” the judgement said.
The judgement added while it is one of the elementary principles of the law of bail that courts are not to indulge in the exercise of a deeper appreciation of material available on record at the bail stage and are only to determine tentatively, by looking at such material, whether or not there exist any “reasonable grounds” for believing that the accused person is guilty of the alleged offence”.
“The allegation against some of the respondents is that they have abetted the co-accused, Syed Khursheed Ahmad Shah, a former public office holder, in the commission of the alleged offence of corruption and corrupt practices, being his benamidars and ostensibly owning certain properties, while some respondents are alleged to have offered illegal ratification/kickbacks to the main accused.”
The SC, in its judgement, said that the high court has granted them bail mainly on the ground that the material available on record is not sufficient to connect them with the commission of the alleged offence and the case against them is one of further inquiry.
The court noted that in the present case, the high court has granted the relief of post and pre-arrest bails to the respondents, by considering the alleged role attributed to each of them and the material collected during the investigation in support thereof.
“As to the respondents who are alleged to be the benamidars of the main accused, the high court has observed that whether they were benamidars of the main accused or had purchased the properties from their own sources would be determined after recording evidence in the trial,” the judgement noted.
The top court said: “We find this observation of the high quite reasonable, for there is no sufficient material available on record, at this stage, as to the necessary elements of benami transactions. Further, the respondents who are the family members of the main accused are not alleged to have played any role in the offence of corrupt practices allegedly committed by the main accused, nor are they alleged to have knowledge of such alleged corrupt practices.
About the respondents who are alleged to have offered illegal gratification/kickbacks to the main accused, the high court has observed by making a tentative assessment of their version in the light of the material available on record that the real purpose of making payment of certain amounts by them to the main accused can be determined only after recording evidence in the trial.”
‘NAB failed to show sufficient incriminating material’
Lastly, the judgement said, but most importantly, the NAB was not able to show sufficient incriminating material on the record of the case to connect the main accused with the commission of the offence of corruption and corrupt practices.
Therefore, he was granted post-arrest bail by the court, where the main accused has been granted bail, there remains little justification to decline the same relief to his co-accused who are alleged to have merely abetted him in the commission of the offence, as the case against such co-accused is at a lower rung than that against the main accused.
The court noted that the counsel for NAB has thus not been able to show that the impugned order is either perverse or against any settled principle of the law of bail, warranting interference by this Court. The petitions for leave to appeal are found meritless; they are therefore dismissed and leave to appeal declined.