The Supreme Court has held that the grant of bail to an accused required in a cognizable and non-bailable offence prior to arrest is an extraordinary judicial intervention in an ongoing or imminent investigative process.
It clogs the very mechanics of the state authority to investigate and prosecute violation of law designated as crimes. To prevent arrest of an accused, where it is so required by law, is a measure with far reaching consequences that may include loss or disappearance of evidence.
The statute does not contemplate such a remedy and it was judicially way back in the year 1949 in the case of Hidayat Ullah Khan vs The Crown (PLD 1949 Lahore 21) with the purpose sacrosanct and noble, essentially to provide judicial refuge to the innocent and the vulnerable from the rigours of abuse of process of law; to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique.
The remedy oriented in equity cannot be invoked in every run of the mill criminal case, prima facie supported by material and evidence, constituting a non-bailable/cognizable offence, warranting arrest, an inherent attribute of the dynamics of Criminal Justice System with a deterrent impact. It is certainly not a substitute for post-arrest bail.
A two-judge bench comprising Justice Faisal Arab and Justice Qazi Muhammad Amin Ahmed decided this in bail application of Jamshed Town Union Council (Karachi) Secretary Ghulam Farooq Channa. Channa was accused of having fabricated a fake death certificate of a woman, Naseem Begum Chotani, on the basis, his co-accused attempted to hoodwink judicial process to grab valuable properties vesting in the lady.
Since, August 28, 2019, he was avoiding arrest in the wake of dismissal of his bail. The anti-corruption authorities, in their investigation arrayed the accused along with others.
The petitioner, Channa's counsel had pleaded that the alleged fabrication was reported after five years, and in fact was committed by the officials at the higher rung and that the petitioner was being hounded as a scapegoat to save the real culprits.
He argued that the co-accused had since been at large on post-arrest bail and, thus petitioner's remission into custody is not likely to serve any useful purpose, relative to investigation. The bench noted that the petitioner was at the helm of the affairs, when the bogus certificate was issued; cognizance on belated disclosure does not mitigate the culpability nor can be equated with mala fide. The court maintaining the verdicts of the Sindh High Court, and the Special Judge (Central-I) Karachi dismissed the petition.