Magazine

An accused person is said, at common laws, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as sureties, who are bound to produce him to answer at specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted.[1]

BASIC CONCEPT

The basic concept of bail is to release a person from the custody of police and deliver him into the hands of sureties, who undertake to produce him in Court whenever required to do so.[2]

The main concept of keeping the accused detained involves the objective to prevent him from repetition of the offence for which he is charged or some other offence. But this objective has to be achieved without violating the right to liberty of man. Right to liberty is one of the cherished human rights guaranteed under the Constitution.[3] Detention in custody is deprivation of such right. Therefore, law of bail is made flexible. Only tentative assessment of the prosecution story or bird’s eye view is allowed at bail stage considering the contents of the First Information Report, statements of eye witnesses under section 161 Code of Criminal Procedure (V of 1898) and the defence version.[4]

PHILOSOPHY OF BAIL

The term “bail” itself visualizes some control vesting in the surety who makes himself responsible for the appearance of the accused. The term ‘bail’ connotes transferring the accused from the judicial or police custody to that of the surety.[5]

The philosophy underlying the concept of bail is that accused person until and unless found guilty and convicted must be presumed to be innocent. Bail cannot be withheld as punishment because in case an under-trial prisoner is ultimately found innocent and is acquitted, no compensation whatsoever can be offered to him either by the State or by the society for the period for which he has been unnecessary remained in jail.[6]

PURPOSE OF BAIL

The Constitution of Pakistan 1973 guarantees the right to liberty, save in accordance with law under Article 09. It is a settled law that accused unless proved guilty is presumed to be innocent. The rationale behind it lies in the question left answered as to how the accused shall be compensated for all the agony and, physical and mental torture during the period of his detention in police or judicial custody, if he is finally acquitted.

The purpose of bail is to ensure the return of the accused at subsequent proceedings, while allowing him liberty and protecting him for unnecessary detention. Hence, while granting bail, the sureties or conditions should be such as sufficient to make sure the accused attends next hearing. Also, it should not be out of place to mention that the same should not be excessive or cumbersome as may probably turn out to be a punishment, instead.

Purpose of releasing accused on surety bond is to ensure his attendance on each and every date of hearing before Trial Court till conclusion of trial for compliance thereof. Person who stands surety executes bond in required sum or money and undertakes to produce on each date of hearing.[7]

BAIL IN BAILABLE OFFENCES

Perusal of Section 496 Code of Criminal Procedure (V of 1898) suggests that when accused is arrested or detained without warrant by police in a bailable offence, he shall be released on bail against surety as determined by the Court. The Court cannot refuse bail in the offences that have been designated as bailable in the 2^nd schedule of the Code. Only the question of surety is to be determined. Even the officer-in-charge of the police station is also empowered to grant bail in respect of bailable offences.

Former Judge High Court of Sindh, Mr. Justice Ali Saeen Dino Metlo during one of his lectures at Sindh Judicial Academy at Karachi to the batch 51 of the Civil Judges and Judicial Magistrates opined that the word ‘bailable’ is misleading; it should rather have been the words ‘bailed out’. He also suggested that no application in black and white is required for grant of bail as the statutory provisions of the Code of Criminal Procedure (V of 1898) are silent about it.

The superior Courts held in several occasions that the bail in bailable offence is right of the accused and Court or police officer has no authority or discretion to refuse bail, because in such cases accused has indefeasible right.[8]

Also, the policy of the Code of Criminal Procedure (V of 1898) seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of subject whose liberty is regarded as precious assets to be preserved undiminished.[9]

BAIL IN COMPLAINT CASE

The statutory provisions of Section 496 Code of Criminal Procedure (V of 1898) cover the question of bail in a complaint case. Although the person against whom complaint is made is not accused in literal sense but is a witness summoned by the Magistrate to ascertain truth of the complaint and after directing the police inquiry under section 202 of the Code, Magistrate can order him to furnish bail pending inquiry and is empowered to demand bail under section 496 of the Code.

Again where accused person is summoned under section 204 Code of Criminal Procedure (V of 1898) in a complaint case, the Sessions Court would be obliged to proceed under section 91 of the Code and direct the accused to execute bond with or without sureties for appearance in the Court. Further, the section 91 of the Code also empowers Court to commit the accused if he fails to give security for his appearance.[10]

BAIL IN NON-BAILABLE OFFENCES

In non-bailable offences, accused can be granted bail under the provisions of Section 497 Code of Criminal Procedure (V of 1898) subject to condition that the Court from perusal of material placed before it thinks that no reasonable grounds exist to believe that the accused is guilty of a non-bailable offence. Such grace shall be granted at the discretion of the Court which must be used judicially and not arbitrarily.

The provisions of Section 497 of the Code provide that where a person is accused of a non-bailable offence, he may be released on bail. The practice encouraged, again, is to grant and not refuse bail.

However, bail shall not be granted in the cases where the offence is punishable with death, imprisonment for life or imprisonment for a period of ten years.

The exceptions attracting this provision, as a general rule, are where the offence is allegedly committed by a person under sixteen years of age or by a person who is sick or infirm or by a woman, such person shall be released on bail.

However, where age of the accused was yet to be determined by the Trial Court, it was held that minority was not the sole consideration for the purposes of bail in heinous offences as each case had to be considered in the light of its own reasons.[11]

It must be kept in observation that deeper appreciation of merits of case and detailed scrutiny of minor discrepancies in the statement of prosecution witness could not be undertaken at bail stage.[12] By the same token, one cannot be kept in custody on the basis of mere suspicion.[13]

Not to forget, notice to prosecution must be extended and they must be heard in all cases of non-bailable offence.

The Honourable Supreme Court of Pakistan vide the celebrated judgment of Tariq Bashir and 5 others versus the State was pleased to observe that,

“Grant of bail in bailable offence is a right while in non-bailable offences, the grant of bail is not a right but concession / grace. Grant of bail in offences punishable with imprisonment for less than 10 years and refusal an exception.”[14]

CASE OF FURTHER INQUIRY

The provisions of Code of Criminal Procedure (V of 1898) provide that where the Court finds that a further inquiry is necessary before it could be determined that the accused is guilty of a non-bailable offence he shall be released on bail. The reasons for such doing must be recorded by the Court in the order.

Essential pre-requisite for grant of bail by virtue of sub section (2) of S. 497 of the Code of Criminal Procedure (V of 1898) is that the Court must be satisfied on the basis of opinion expressed by the police or the material placed before it that there were reasonable grounds to believe that the accused was not guilty of an offence punishable with death or imprisonment of life or imprisonment of ten years.[15] Accused is entitled to bail as a matter of right when his case calls for further inquiry. Such right cannot be denied on the ground that his trial is either likely to commence shortly or has already commenced.[16] Even in a case falling within prohibitory clause, an accused is entitled to concession of bail, if his case comes within purview of “further inquiry”.[17]

Some instances of ‘further inquiry’ may be referred as follows;

a) Enmity between parties, injuries inflicted with a blunt weapon;[18]

b) Role attributed, contradicted during investigation;[19]

c) Ocular evidence not supported by medical evidence;[20]

d) Case a counter-blast to a civil suit;[21]

e) No independent witness associated with raid;[22]

f) Six months delay in lodging First Information Report;[23]

g) Accused not previous convict;[24]

h) Nothing recovered from the accused to connect him with the commission of crime; [25] and,

i) Accused not present at the time of alleged occurrence.[26]

PRE-ARREST BAIL

The Section 498 of the Code of Criminal Procedure (V of 1898) deals with the bail before arrest. Any accused against whom a case is registered under a non-bailable offence, may apply to the High Court or the Court of Sessions for grant of pre-arrest bail. In this regard, the circumstances should be extraordinary or exceptional. Bail before arrest is an extra-ordinary relief. It ought not be granted to an accused, who approaches Court with unclean or tented hands, or with ulterior objects or unholy intention.[27]

Pre-arrest bail can only be claimed where on the face of First Information Report, it discloses no commission of an offence or where a bailable offence is disclosed but the executive arm of the State is using the process more to harass and disgrace the named accused than pursue a genuine case. Similarly it can be claimed in a case where positive mala fides is alleged against the police or prosecutor and where there is a prima facie support for it on record.[28]

Bail before arrest is granted in a case where Court feels that perhaps accused has been falsely involved in a case and he is likely to suffer irreparable injury to his dignity, honour or reputation by his arrest.[29]

BAIL AFTER ARREST

Bail after arrest in a non-bailable offence can be claimed when the material placed before the Court discloses that the case is made out for further inquiry into the guilt or innocence of the accused before finding a prima facie case.

SURETY

As a Judicial Magistrate, I have had first-hand exposure of visits to jails wherein it is sometimes found that prisoners don’t get released despite being bailed out by competent Courts of law due to their inability to furnish solvent surety to the satisfaction of the Court concerned. Unquestionably, such transpires to be a direct result of fixing huge sum of sureties by the Courts in different cases. It shall not be out of place to state and neither shall it be any exaggeration that such act is not warranted by the theme of law of bail.

Amount of surety cannot be used to penalize accused persons or deprive them from concession of bail in appropriate cases. Object of calling upon accused to furnish surety is not to penalize them but to ensure their presence in Court. Amount of surety must be fixed with regard to nature of offence and means of accused.[30] Each and every case is to be decided on its own peculiar facts and circumstances.[31]

GROUNDS FOR REFUSING BAIL

Bail can be declined only in extraordinary and exceptional cases, such as,--

a) Where there is likelihood of absconding of accused;

b) Where there is apprehension of the accused tempering with the prosecution evidence;

c) Where there is danger of the offence being repeated if the accused is released on bail; and

d) Where the accused is a previous convict.[32]

Mere heinousness of allegations should not stand in the way of grant of pre-arrest bail to accused if he is otherwise qualified for the grant of the same on facts and circumstances of the case.[33]

Abscondence of accused disentitles him grant of bail.[34]

CANCELLATION OF BAIL

The High Court or the Court of Sessions or a Court which has released an accused on bail for a non-bailable offence, may order his arrest and remand in custody. Such act shall be subject to circumstances where for instance, there is apprehension that he may abscond or that he has breached the terms of his bail or has committed other offences like interfering with witnesses or the administration of justice.

Once bail is granted by Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof.[35]

GUIDELINES FOR BAIL

While considering the request for grant of bail, the Court should consider the following reasons / points;

a) Whether there are grounds for believing that the accused has committed the offence;

b) Nature and gravity of the charge;

c) Severity of punishment in case of conviction;

d) Apprehension of abscondence when released on bail;

e) The character, the means and the standing of the accused;

f) Danger of witnesses being tempered with;

g) Opportunity to the petitioner to prepare his defence;

h) The period for which the petitioner has been in jail and when the trial is likely to conclude;

i) Whether the petitioner is named in the First Information Report;

j) Time taken in lodging the First Information Report, whether prompt;

k) Whether the accused is a previous convict;

l) Whether reasonable possibility of false implication of accused/petitioner cannot be ruled out.[36]

m) Every accused should be presumed not to be guilty;

n) Process of trial should not be allowed to be defeated;

o) Possibility of commission of further offences to be safeguarded.[37]

In offences punishable with death, imprisonment for life and imprisonment for period up to ten years, the Court should consider the following reasons / points at bail stage;

a) Benefit of reasonable doubt;

b) Identity of the accused;

c) Part allegedly played by the accused in the occurrence;

d) Presence of the accused at the spot;

e) Question of vicarious liability.[38]

f) Allegations made in FIR;

g) Statements made in the FIR;

h) Other incriminating material against the accused; and,

i) Plea raised by the accused.[39]

CONCLUSION

The theme of the entire criminal justice is to consider the accused innocent until proved guilty. For this reason and keeping in view, the probable acquittal of the accused when and if he is not proved to have committed offence, law of bail is made flexible. It is left to the discretion of the Trial Court to decide for grant of bail, for the most of part. Supreme Court normally does not interfere in the judicial exercise of discretion in the bail matter unless the same is either shown to be perverse, arbitrary or capricious.[40]

The scheme of law is crystal clear that bail cannot be withheld as punishment. Hence, lenient view is to be taken by the Courts in this regard. Deeper appreciation of evidence is not required at bail stage. Precisely, law encourages bail, not jail.

[3] See Article 09 of the Constituion of Pakistan, 1973