The Law of Bail in Pakistan
Definition of Bail:
Bail refers to the release of an individual from the custody of police or judicial custody and his delivery into the hands of sureties who undertake to ensure the individual’s appearance in court whenever required. This principle was established in the case of Crown v. Khushi Muhammad (PLD 1953 FC 170).
Role of Surety:
The court may require the surety to submit a bail bond, a financial guarantee to ensure the accused’s presence in court. If the accused fails to appear, his warrant for arrest are released and afterwards the bail bonds are forfeited, and the accused is declared an absconder.
Legal Framework:
The primary statutes and laws governing bail in Pakistan include:
The Constitution of Pakistan, 1973.
The Code of Criminal Procedure, 1898 (CrPC)
The Case Law.
Types of Bail
Bail in Pakistan can be categorized into these four types:
1. Pre-Arrest Bail:
Pre-arrest bail, also known as anticipatory bail, is a bail that is sought by an accused of a criminal offence before his arrest by the law enforcing agencies. This is sought by an individual who anticipates arrest on accusation of an offense. It is granted to prevent harassment or undue arrest. The pre-arrest bail is granted by the court of sessions or higher courts under section 498 of the code of criminal procedure (CrPC).
2. Post-Arrest Bail:
Post-arrest bail is sought after the accused has been taken into custody by the police. The post-arrest bail is firstly sought from the trial court under sections 496 and 497 of the code of criminal procedure (CrPC).
Bailable Offenses: Bail is granted as a matter of right for less serious crimes.
Non-Bailable Offenses: Bail is granted at the court’s discretion for more serious crimes.
3. Transitory Bail:
Transitory bail is granted to an accused to ensure their safe transit from one jurisdiction to another, where they might face arrest. This type of bail is temporary and provides protection during transit. This bail is generally granted by the high courts.
4. Bail After Conviction:
This bail is granted by the appellate court when the accused has been convicted by the trail court on being found guilty after the completion of trial. When an accused aggrieved of the judgment of conviction appeals against the that judgment in the appellate court he may apply for the grant of bail after conviction under section 426 of the code of criminal procedure (CrPC).
Types of Offenses for Grant of Bail
Bail is categorized based on the nature of the offense into two types:
1. Bailable Offenses:
In bailable offenses, bail is granted as a matter of right. These are typically less severe crimes where the law permits bail without extensive judicial discretion.
2. Non-Bailable Offenses:
In non-bailable offenses, bail is not a right but rather a privilege granted by the court. The court exercises its discretion based on the severity of the crime, the accused’s criminal history, material on the record that associate the accused to the offence and other relevant factors.
Prohibitory and Non-Prohibitory Clauses:
Within non-bailable offenses, the law further categorizes them into the the offences that fall in prohibitory and non-prohibitory clauses:
Prohibitory Clause: Offenses that carry a potential sentence of death, life imprisonment, or imprisonment for more than ten years are the offences that fall in prohibitory clause. In these offences generally the bail is not granted to the accused unless there are no reasonable grounds to believe that the accused is involve in the offence leveled against his.
Non-Prohibitory Clause: Offenses with a lesser degree of punishment than the imprisonment for the term of ten years. As per the precedence of the apex courts, for offences falling in non-prohibitory clause, the grant of bail is rule and refusal shall be an exception for which cogent reasons should be recorded. Reliance on the case with citation PLD 1995 SC 34.
Principles Governing Bail
1. Presumption of Innocence:
The presumption of innocence until proven guilty is a cornerstone of criminal justice. Bail ensures that an accused person is not deprived of their liberty unnecessarily and can prepare their defense effectively.
2. Right to Liberty:
The Constitution of Pakistan guarantees the right to liberty and security of person under Article 9. Denial of bail affects this fundamental right, and thus, courts must balance individual liberty with the interests of justice.
3. Non-Interference with the Trial:
While granting bail, courts ensure that the accused’s release does not interfere with the trial process. The risk of absconding, tampering with evidence, or influencing witnesses is carefully assessed.
Grounds for Granting Bail
The grounds for granting bail are determined by various factors, including:
1. Nature and Gravity of the Offense: The severity of the crime plays a crucial role. Courts are more cautious in granting bail for serious offenses.
2. Likelihood of Absconding: The court assesses whether the accused is likely to flee to avoid trial. Bail is less likely to be granted if the risk is high.
3. Tampering with Evidence or Influencing Witnesses: If there is a possibility that the accused might tamper with evidence or influence witnesses, bail may be denied.
4. Previous Criminal Record: An accused with a prior criminal history might face more stringent conditions for bail or outright denial.
5. Delay in Trial: Inordinate delay in trial proceedings can be a valid ground for granting bail, as prolonged detention without conviction goes against the principles of justice.
6. Further Inquiry: It is the assessment that may create doubt in the involvement of accused in the alleged offences. The accused is granted the concession of bail if he provide sufficient material to prove his case of further inquiry.
7. Malafide on Part of Prosecution: If there is enough material to show the malafide of the police or complainant in leveling the offences against the accused the accused become liable to the concession of the bail.
Procedures for Applying for Bail
1. Pre-Arrest Bail Application: An application for pre-arrest bail is filed in the High Court or Sessions Court. After receiving the application the court generally grants the interim bail subject to the deposit of surety, and notice is issued to the prosecution. On next date, the court hears the arguments from both sides. The accused must demonstrate that they are being falsely implicated or face undue harassment. If the court is satisfied, the pre-arrest bail is granted, either on previous surety or fresh surety.
2. Post-Arrest Bail Application: Post-arrest bail applications are filed before the magistrate, Sessions Court, or High Court, depending on the nature of the offense. The court examines the application, hears arguments from both sides, and decides based on the merits of the case, and if the bail application is accepted, the accused is ordered to submit the surety before the court and after the surety is received by the court, the accused is released from the judicial custody.
3. Bail After Conviction: Applications for bail after conviction are typically filed in the appellate courts during the pendency of an appeal. The court considers the grounds of the appeal and the circumstances of the case before granting bail.
Conclusion
The law of bail in Pakistan aims to balance individual liberty with the interests of justice. While bail serves to uphold the presumption of innocence and right to liberty, it is granted based on careful judicial discretion to ensure that the trial process is not compromised. The principles and procedures governing bail continue to evolve through statutory provisions and judicial interpretations, reflecting the dynamic nature of Pakistan’s legal system.