Balancing the right to liberty with the requirements of “law” is challenging for courts. In a case titled Umer Khan v. State (2022 SCMR 216), the honourable Supreme Court of Pakistan confronted this challenge while hearing a post-arrest petition for the grant of bail.
The petitioner was alleged to have shared child pornography on Facebook through his mobile phone. The First Information Report No.21/2021 dated 06.07.2021 was registered against the petitioner under Section 22(1) of the Prevention of Electronic Crimes Act, 2016 (producing, distributing, or transmitting pornographic material). The petitioner's post-arrest bail petition was later refused by the Peshawar High Court (PHC), so he approached the honourable SC against the order of PHC.
To appreciate the legal analysis of the honourable SC, it is necessary to reproduce Section 497 (1) of the Code of Criminal Procedure, 1898 (Cr.P.C.). It provides, "When a person accused of a non-bailable offence is[…]brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years […]”
The grant or refusal of bail in non-bailable offences (n.b. non-bailable offences are considered more serious) is at the discretion of the courts. However, that discretion is subject to law. For example, Section 497 (1) provides that a person accused of a non-bailable offence shall not be released at the discretion of the court if there appear 'reasonable grounds' for believing that 1) he has been guilty of an offence punishable with death 2) or imprisonment for life or 3) imprisonment for ten years. It means the courts can refuse the grant of bail to an accused if the accused has committed an offence falling in the prohibitory clause/these three categories. In all other cases, courts are supposed to take a lenient view and release the accused on bail considering the value of the right to liberty for human life, provided this release does not affect proceedings of the trial or pose a danger to the society.
The SC in the cases of Tariq Bashir, Zafar Iqbal and Muhammad Tanveer etc. has illustrated such circumstances that may bring a case under the exceptions to the rule of granting bail. Such circumstances include the likelihood of running away to escape trial, tampering with prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice, or repeating the offence keeping in view previous criminal record or the desperate manner in which an accused had prima facie acted in the commission of offence alleged.
With due respect, the reasons provided by the honourable Court for the refusal of bail to the accused such as the nature of the accusation, its impact on the society, and the material collected are not prescribed under the law (Section 497 Cr.P.C.). A rigorous legal analysis is a must for jurisprudential guidance for subordinate courts
In the case of Umer Khan, the honourable SC held that "[a]lthough the offence with which the petitioner has been charged does not fall within the prohibitory clause of Section 497 Cr.P.C. and the maximum punishment for the same is seven years, but keeping in view the nature of the accusation, its impact on the society, and the material collected so far merits the case to fall within the exception of granting bail when the offence falls with the non-prohibitory clause." I am afraid the reasons provided in this case for refusal of bail to the accused do not squarely fall in the circumstances explained in the aforementioned cases. In any case, the main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial for its expeditious disposal or to protect the society, if there is an apprehension of repetition of offence or commission of any other heinous offense by the accused. Refusing release on bail to an accused in the absence of such circumstances goes against the principles of law enunciated by the SC itself.
In effect, the honourable Court took a strict view and refused to release the accused on bail, arguably against the details of the written law and the principles enunciated by the SC for grant or refusal of bail in offences falling in non-prohibitory clause of Section 497 (1) Cr.P.C. The honourable Court explicitly holds that "the offence with which the petitioner has been charged does not fall within the prohibitory clause of Section 497 Cr.P.C.” Moreover, the honourable Court chose not to discuss and distinguish the SC cases on the subject.
The honourable Court emphasised that "we have noticed that one of the most alarming social evil prevailing in the society is child pornography. It has created havoc in society as it contains a great threat to morality and the future of children." The concern of the honourable Court for morality and child pornography is appreciated. While being sensitive to morality and the future of children, however, courts are custodians of the basic rights of the people such as the right to life and liberty. The courts are also subject to law. With due respect, the reasons provided by the honourable Court for the refusal of bail to the accused such as the nature of the accusation, its impact on the society, and the material collected are not prescribed under the law (Section 497 Cr.P.C.). A rigorous legal analysis is a must for jurisprudential guidance for subordinate courts.
Such an exercise of discretion by courts not only challenges the existing provisions of law and the legal principles on bail but also create new grounds for the refusal of bail. Is it the mandate of courts to create/legislate these new grounds? Does this practice of stretching discretionary power not endanger the fundamental rights of the people? Does it not offend the constitutional theory of separation of powers, namely, that legislators are responsible for drafting new legislation? The executive, the legislature, and the judiciary are obliged to act within the limits prescribed under the constitution.
In a constitutional democracy, judges should not act beyond their constitutionally provided sphere of authority. One cannot be deprived of a fundamental right to life and liberty on grounds such as a judge’s view regarding the impact of a particular crime on society. It is a constitutional right of individuals to be dealt with in accordance with law (Article 4). When Section 497 Cr.P.C enumerates specific legal grounds (an accused has been guilty of an offence punishable with death, or imprisonment for life or imprisonment for ten years) for the refusal of bail in non-bailable offences, there is rationality behind this provision of the law—that is to protect the right to liberty of the accused during the pendency of a trial.
If courts are allowed to refuse the release of the accused on bail beyond the grounds provided under the law, that creates uncertainty in the law which is a hallmark of any justice system. Given conflicting judgments on a same subject and critical questions of law—such as the interpretation of Section 497 Cr.P.C. (involving fundamental rights of the people)—should be decided by a larger bench.