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Opinion News
March 12,2016

The bail process

Mudassar Farooq

Bail is a fundamental component in the administration of the criminal justice system of Pakistan, yet it has been neglected by the bench and the bar in recent years. The indicative sequence of bail adjudication is that a post-arrest bail application is filed and fixed for urgent hearing and, consequently, notices are sent to the state/complainant.

The complainant then appears and seeks time to engage counsel – and the counsel seeks time to prepare the case. Thereafter, arguments are heard, records are perused and a bail application is decided on the fourth or fifth day of the hearing. Sometimes, it takes more time when the case is left over due to a heavy work load, expiration of court time or the non-production of the record of the case etc.

Normally, a bail application is decided within a couple of months. Sometimes it takes more time when one of the counsels uses different tactics to prolong the proceedings and wastes court time in futile exercises. However, this procedure of bail adjudication comes from customary practice and is not protected by the high court rules and orders. But this practice triggers despondency in the litigants and enhances their agony, which subsequently leads to the loss of their trust in the legal system.

It is worth mentioning that after the issuance of notices to the state, an investigating officer from the concerned police station brings records to the court on every date of hearing. However, no TADA is allocated from the police station’s budget for this purpose. Resultantly, the travel expenditures are borne either by the litigants or the investigating officer.

If a petitioner/accused is entitled to be released on bail but his or her application is not decided due to the procedural complexities and culture of adjournments, he or she remains behind bars for a longer period of time. In this case, the accused is not only deprived of his or her liberty, but his or her ability to defend himself is also substantially curtailed. His or her constitutional fundamental rights of life, liberty and fair trial are denied, causing grave injustice to him or her. In view of the principle of presumption of innocence and constitutional rights, no accused should languish in jail until tried and convicted.

Like Pakistan, India inherited its judicial system in a similar context, but it has introduced drastic changes in the disposal of the bail plea. The Punjab and Haryana high court has abolished its archaic and lengthy procedure of bail adjudication. They introduced a convenient, stress-free, applicant-centric and complainant-friendly procedure, in which all regular bail applications and applications for suspension of sentence will be decided on the first date of the hearing. According to this new procedure, an application for bail or suspension of sentence is fixed exactly a week after filing. Meanwhile, the prosecution and complainant are given time to prepare their brief and on the first date of the hearing the application is heard and decided.

But in Pakistan, the bail application is decided on the fourth or fifth date of hearing. The earlier hearings are just a waste of time, money and resources. To seek justice, one must walk through the procedural corridors of the judicial system, which is an exorbitant but unavoidable process to knock at the doors of honourable courts. As a result, there is an inordinate delay in the disposal of cases because of a very time consuming and procedure. The number of pending cases in the courts is also increasing day by day and the performance of the judicial system is not satisfactory. The ‘common law’ is outside the reach of common people, in terms of time and money, since the citizens cannot afford the expensive lubricant that is needed to set the judicial machinery in motion. Justice is delayed and consequently loses its very purpose, worth and significance.

As a matter of fact, the judicial system that Pakistan inherited was originally put in place by the colonial masters to channel the grievances of the subjects, instead of dispensing justice to them. Moreover, Pakistan’s judicial and legal history has witnessed only a few sporadic amendments and efforts to depart from the congenital patterns. However, it has grown and requires such reforms that suit our needs and convenience.

The procedure of bail adjudication in Pakistan requires serious considerations in order to protect the fundamental rights of the accused; to minimise the anguish, agony and suffering of litigants; to save time and resources; to avoid unnecessary hearings; to end the adjournment culture; and to reduce the burden of courts. Therefore, amendments in this procedure are required to ensure the deliverance of justice, so that the people can have faith in the legal system.

The writer is an advocate, and works for the Foundation of Law and Governance (FLAG).

Email: mudassar.flaggamil.com


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