Accused should not be deprived of bail if there is reasonable doubt in prosecution’s case: SHC

The Sindh High Court (SHC) has said that an accused person should not be deprived of the benefit of bail whenever reasonable doubt arises with regard to the participation of an accused person in a crime or about the truth or probability of the prosecution’s case and the evidence proposed to be produced in support of the charge.

“The accused should not be deprived of the benefit of bail, and in such a situation, it would be better to keep him out on bail than in jail during the trial,” the SHC’s division bench headed by Justice Mohammad Ali Mazhar said in a recent judgment issued on the bail petition of a person accused of being involved in the Modaraba scam.

Petitioner Mufti Abdullah Shaukat, head of a religious seminary, had filed a post-arrest bail petition in the SHC after he was named as co-accused in the multi-billion-rupee Modaraba scam reference filed by the National Accountability Bureau (NAB).

The object of the trial is to make an accused person face the trial and not to punish an under-trial prisoner [UTP], the court said pointing out that the basic idea is to enable the accused person to answer the criminal prosecution against him rather than to make him rot behind bars.

The bench said that to make out a case for the refusal of bail to an accused person, the prosecution is primarily supposed to place on record the material on the basis of which he is believed to be involved in a non-bailable offence.

But, added the bench, in the absence of such material, the court, for the purpose of releasing the accused on bail, instead of dilating upon the facts of the case in detail, can dispose of the matter by holding that his detention is unjustified or unreasonable.

The court said that it has already held that further inquiry is a question that must have some nexus with the result of the case, for which a tentative assessment of the material on record is to be considered for reaching a just conclusion.

The bench said that the case of further inquiry presupposes the tentative assessment that may create doubt with respect to the involvement of the accused in the crime.

The court said the accused is entitled to expeditious access to justice, which includes a right to fair an expeditious trial without any unreasonable and inordinate delay.

The bench said that the intention of law is for a criminal case to be disposed of without unnecessary delay, as it is not difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on the one hand, while on the other, it is bound to create a sense of helplessness, despair, feeling of frustration and anguish, apart from adding to their woes and miseries.

The petitioner’s counsel Khawaja Naveed Ahmed argued that the name of the petitioner was not mentioned in the original reference, but he has been implicated in the supplementary reference filed by NAB before the accountability court on June 16, 2016.

He said the allegation against the petitioner was that he was the head of the Darul Ifta department of Jamia Binoria in Karachi and had issued a fatwa with co-accused Maulana Mufti Saifullah Jameel and Nadir Jan.

He also said that the main accused in the case is Shafiq-ur-Rehman, who was already out on bail, while two other persons who had signed the fatwa with the petitioner — Maulana Mufti Saifullah Jameel and Nadir Jan — were also out on bail, claiming that under the rule of consistency, the present petitioner is also entitled to the same treatment.

He argued that the petitioner was arrested on January 1, 2019 and the prosecution has cited 102 witnesses, out of which only 16 witnesses have been examined so far.

He also argued that according to the investigation report, some amount was credited in the bank account of the petitioner from the account of main accused Shafiq-ur-Rehman and some amount was already in the bank account of the petitioner, which needs to be thrashed out during the course of evidence, and for all intents and purposes, the role of the present petitioner requires further inquiry.

According to the anti-graft watchdog, Shafiq-ur-Rehman and other accused had cheated the public at large by collecting Rs7.2 billion under false promises of investment and profits.

NAB’s special prosecutor argued that during the investigation, it was revealed that on the basis of the fatwa signed by the petitioner, the public at large was lured into investing huge amounts.

He argued that some amount was also transferred from the account of the main accused to the account of the petitioner, who himself is a beneficiary of that amount, but he admitted that the matter is still pending and only 16 witnesses have been examined, while he is unaware as to when the proceedings will be concluded due to the long list of witnesses.

After hearing the arguments, the court said that in the investigation report, some amounts are shown to have been in the account of the petitioner, but besides that, a sum of Rs11,625,000 was directly transferred in the bank account of the petitioner from the account of main accused Shafiq-ur-Rehman.

The bench said that whether the petitioner was directly the beneficiary of the rest of the amount in his bank account or the account of his own receipts or earnings, which all require further inquiry, and at this juncture it cannot be decided as to whether the petitioner, in league with the other co-accused, misappropriated or benefitted from any amount of the investors in the alleged Modaraba business.

The court granted bail to the petitioner, subject to furnishing solvent surety in the sum of Rs500,000. Besides, the petitioner will also furnish tangible security in the sum of Rs11,625,000 in the trial court.

The bench directed that the petitioner will also deposit the original valid passport in the trial court and will not leave the country without the permission of the trial court.