Historical background of bail……Common law since the times of medieval England had bestowed the sole authority to release or hold the suspected criminals on the sheriffs. Where, this discretion to release the accused on bail was a useful practice, it at times was a tool of exploitation in the hands of sheriffs for their personal gains. With the passage of time this discretion was limited and The Statute of Westminster (1275) limited the discretion of sheriffs.
Although sheriffs still exercised the authority to fix the amount of bail required, the statute only provided for the list of the crimes for which the bail was to be granted or not. The time passed and the powers which were sole discretion of sheriffs were conferred on the Magistrates and in The Habeas Corpus Act 1679 it was stated, “A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate’s discretion, unless it shall appear that the Party is committed for such Matter or offenses for which by law the Prisoner is not bailable.”
The bail as defined in Black’s Law Dictionary is “A security required by a court, for the release of prisoners.”1 It is the transfer of accused from judicial custody to the sureties. With the British Colonial judicial setup in Sub-continent, the criminal law was introduced with the concept of bail. In Pakistani Law, Chapter XXXIX of The Code of Criminal Procedure, 1898 deals with the grant of conditional bail and sureties. There is only one condition where the accused can be released without the surety and this power of releasing an accused on personal bond is only conferred on the officer In-charge of the police station or Investigation Officer under section 169 of The Code of Criminal Procedure, 1898.
Conditional Bond and Bail
The conditional bail is always granted on the production of securities by surety when a third-party agrees to be responsible for the debt or obligation of the defendant. The sureties will execute a bond that a person to be released on bail will shall attend at the time and place mentioned in the bond until otherwise directed by Police Officer or court. This bail bond may be discharged in applying in a court of law by the surety and the bail bond may be forfeited upon the satisfaction of the court and the principles as laid down by Supreme Court in Dildar and another v. The State that a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward.
Principles settled in Pakistan Law
The principles regarding grant of post-arrest bails have been established through various landmark judgments. Post-arrest bail is primarily based in the nature of offence whether bail-able or non-bailable. The nature of offences is stated in Column 5 of Schedule II of the Code of Criminal Procedure. In bail-able offences, the grant of bail is right and not a favor.3 In non bail-able offences admission of an accused to bail is not a right but a concession. In non bail-able cases, for convenience, the offences are further sub-divided in the offences of 1st and 2nd category on account of severity of punishment. The offences of 1st category are punishable with death or imprisonment for life, or ten years of imprisonment or more. The rules dealing with the bail of offence falling in this category are explicitly laid down in Tariq Bashir’s Case5 and are as follows:
The question of grant of bail is to be determined judiciously, having regard to the facts and circumstances of each case. Where the prosecution satisfies the court that the accused has committed a crime falling in this category, the court must refuse bail. On the contrary, where the court has reasonable grounds to believe that the accused in not guilty of any offence it may grant bail at any stage of trial. The offences falling in the 2nd category include those which have punishment other than those mentioned in the offences of 1st category. The grant of bail in this subdivision is a rule and refusal an exception.6 So, the bail will be refused only in extra ordinary cases, for example:-
i where, there is likelihood of absconding of accused.
ii Apprehension of accused tampering with the evidence.
iii Accused is a previous convict.
For arriving at a conclusion of the guilt of accused, the court will not conduct a preliminary trial, but will only make tentative assessment. Deeper appreciation of evidence and circumstances appearing in the case is neither desirable, nor permissible at bail stage.
Section 497 provides with some categories of person, who by virtue of age, physical fitness and gender are privileged and to whom bail may be granted as favor. The specific age is 16 years and women may be admitted to bail, if the alleged offence is not terrorism, murder or financial corruption and the case is pending before a court for six months or more. The classification and prerogatives of bail to a certain group of people is in pursuance of Article 25 of the Constitution of Pakistan. The classification is purely based on intelligible differentia.
Section 497 provides for the accused that if there are no reasonable grounds for believing that he has committed a non-bailable offence and there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail at the discretion of court or judicial discretion. The principles regarding grant of bail on the grounds of further inquiry was discussed in Muhammad Zaman vs The State.7 “Accused would only be entitled to the discretionary relief of bail when on the tentative assessment of material brought before it, the Court reached the conclusion that no reasonable grounds were for believing that accused was guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for ten years—In absence of any such finding the Court was debarred to hold that case was of “further inquiry” entitling accused to bail within the meaning of S.497(2), Cr.P.C.- –Deeper appreciation of evidence at bail stage, no doubt was not the requirement of law pertaining to bail matters, but cases regarding bail could not be decided in vacuum—Court had to form a view by assessing evidence on record tentatively.” The grant of bail in non- bailable offences is generally a matter in the discretion of court. The term “judicial discretion” can be explained in following manner,
“The judge even when he is free is still not wholly free. He is not to innovate at pleasure. He is not a night roaming at will in pursuit of his own ideal of beauty, and of goodness. He is to draw his inspiration from consecrated principles. He is not yields spasmodic sentiments, to vague and unregulated benevolence. He is to exercise a discretion informed by the tradition, methodized by analogy, disciplined by system and sub-ordinated by the primordial necessity of order in social life”8 Bail can be granted by High court or Court of Session during the pendency of appeal on conviction may admit any accused into bail as well. Anticipatory bail granted under
Section 498-A is the bail granted before the arrest of accused person. The condition precedent to avail Pre arrest bail or bail under Section 498-A, an FIR or report under Section 154 of The Code needs to be registered. The conditions for grant of pre-arrest bail arrest being, for ulterior motives such as humiliation and unjustified harassment, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, motivation of Police on political consideration.9 The statute states that anticipatory bail will be granted against the offences only mentioned in First Information
National Judicial Policy 2009 and grant of bail The judicial policy tells that in bail matters, notice to State for production of record shall not exceed beyond 3 days and bail applications under section 497 of Cr.P.C. shall be decided not beyond a period of 3 days by the Magistrate, 5 days by Court of Sessions and 7 days by the High Court. No such period has been specified in the statute but the National Judicial Policy Making Commission has recommended the bail application to be disposed of in the prescribed period but the pressure of disposing a bail application in prescribed period might lead to miscarriage of justice.
Cancellation of bail Bail once allowed can be cancelled as well. The consideration for grant of bail and cancellation of bail are altogether different. Once the bail is granted by a court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof.10 To deprive a person of post arrest bail is the most serious step to be taken. The National Judicial Policy 2009 lays down that application for cancellation of bail under Sub-section (5) of section 497 Cr.P.C. should be decided within 15 days by the courts including High Court.
British Law on Bail
The Bail Act, 1976 governs the law of bail and conditional bond in British Law. It lays down the following conditions when bail can be refused; defendant charged with High treason; security of the defendant; custodial sentence for another offence; absconder in the present proceedings; where the defendant has been convicted but the court is awaiting a pre-sentence report; where the defendant has already been released on bail for the offence with which he is now accused, and has been arrested for absconding or breaching bail; where the accused has previous convictions for certain homicide or sexual offences. The Criminal Justice Act 2003 amended the Bail Act 1976 restricting the right to bail for adults who tested positive for a Class A drug and refused to be assessed or refused to participate in recommended treatment.
US Law on Bail
It has been laid down in United States Bill of Rights in Amendment VIII that Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted the national law provides in 18 USC 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.
To conclude, it can be said that bail endows its significance in diverse spectrum. Law does not want accused to suffer before allegation is proved. The grant of bail even in grave offences can be sought during the pendency of appeal in High Courts or the Supreme Court. So, to prevent abuse of process of law, minimize the burden from the jails and prisons, it is better to admit the accused on bail with the sureties to present him before the court, when required.
1 Black’s Law Dictionary
2 PLD 1963 SC 47
3 PLD 1995 SC 34
4 PLD 1995 SC 34
5 PLD 1995 SC 34
6 PLD 1995 SC 34
7 2004 MLD 2037
9 PLD 1983 SC 82
10 PLD 1995 SC 35