ISLAMABAD: Taking exception to the prosecution’s shifting stance without realising the gravity of that conduct in a case regarding expired drugs, the Supreme Court has ruled that whenever reasonable doubt arises, a suspect should not be deprived of the benefit of bail.
The object of a trial is to make an under-trial suspect answer criminal trial instead of punishing by letting him rot behind bars, regretted Justice Muhammad Ali Mazhar in a verdict published on Wednesday.
He was heading a three-member bench that on July 22 heard a criminal appeal filed by Muhammad Akbar, who was originally granted bail by the SC on April 16 in a case registered at Quetta’s New Sariab Police Station.
The SC extended the bail granted earlier on the same terms and conditions, adding that observations made in this bail order were tentative in nature and will not prejudice the case pending before the trial court of either party.
“We are of the firm view that the case of the petitioner requires further inquiry,” Justice Mazhar said in a five-page order.
“Whenever reasonable doubt arises with regard to the participation of the accused in the crime or the truth or probability of the prosecution case as well as the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in jail during the trial,” the order read.
Justice Mazhar narrated the sequence of events, noting that the original case was lodged against the suspect under Sections 379, 420, 274, 275, and 276 of the Pakistan Penal Code (PPC), as well as Sections 23 and 27 of the Drugs Act 1976, concerning transportation of expired drugs.
These sections deal with offences affecting public health and safety since they relate to drug adulteration and misrepresentation, and carry penalties up to six months of imprisonment.
Based on these sections, a two-judge SC bench on April 16 granted post-arrest bail to the petitioner on furnishing bail bonds to the tune of Rs100,000 with two sureties in the like amount to the satisfaction of the trial court.
When the SC’s bail order was sent for compliance, it emerged that the prosecution modified the first information report (FIR) by replacing the original provisions with Sections 409, 471, 468, 467, 420, 109 of PPC, read with Section 5 (2) of the 1947 Prevention of Corruption Act.
These sections outline major white-collar and financial crimes involving public servants, forgery, cheating, and abetment. Frequently combined in corruption, bank fraud and property misappropriation-related cases, the provisions spell out severe punishments, ranging from 10 years in jail to life imprisonment.
During the July hearing, when the court confronted state counsel Baqir Shah and Investigating Officer (IO) Muhammad Ajmal about why the FIR was modified by adding new sections of the PPC, they responded that these additions were made on Jan 15 but failed to offer any plausible reason why the modified FIR was not brought on record when the SC granted bail.
They could also not justify deletion of Section 23 and 27 of the Drugs Act 1976 from the FIR when the initial allegation against the petitioner was transporting the expired drugs with alleged violations of the Drugs Act.
When the court asked the IO what new evidence was brought on record which necessitated these insertions, he simply replied that four statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (CrPC). He further said the prosecuting Quetta deputy superintendent of police sought the opinion of the deputy inspector general (Legal), who opined to delete and add new sections.
“It appears from the conduct of the prosecution that to complicate the case with some ulterior motives, the prosecution acted unfairly and added certain sections without realising the effect of deleting these sections of the Drugs Act,” Justice Mazhar observed.
He said another aim may be to frustrate and deprive the petitioner of concession of bail.
Though Justice Mazhar refrained from adverse observations since the matter was still pending with the trial court, he regretted that, due to the concealment of facts, the possibility cannot be ruled out that new sections were added after court order only to deprive the petitioner of bail.
“We are sanguine that new section/offence can be inserted, provided that something was gleaned to the prosecution on investigation of crime but not on the whims of prosecution,” Justice Mazhar stated.
He remarked that the prosecution has “not acted seriously” and that if any insertion was made before the bail was granted, it should have been brought to the SC’s knowledge “for consideration without playing hide and seek”.
The judge regretted that due to “such callous conduct”, the petitioner who was earlier granted bail was still behind the bars.
Due to divergent pleas of the prosecution, as well as insertion and deletion of new and old sections of PPC in the same FIR during trial, the case has otherwise been made out to be a case of further inquiry, the judgment said.
“The prosecution is itself confused regarding the culpability of the petitioner due to changing stances,” it observed, adding the case of further inquiry presupposes tentative assessment which may create doubt with respect to the involvement of the suspect in the crime.
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