WHAT IS BAIL?Bail means entrustment of the accused to hissureties, who are bound to produce the accused incourt whenever required.Bail means the security taken from a person toappear on a fix date before the court.Bail is the release from the custody of a personcharged with an offence, on that person signedundertaking that he will appear in court to answerthe charge.
Purpose of BailSecure the presence of accused at the trail whileallowing the accused his liberty and protectinghim for unnecessary detention.It must always be kept in mind that the accused isinnocent until proven guilty.When deciding to grant bail,any amount ofbond,the number of sureties or conditionsimposed should only be sufficient to ensure thatthe accused attends the next hearing.
The code of criminal procedure 1989The code of criminal procedure 1989 is the law ofprocedure in Pakistan and provides themechanism for the implementation of thesubstantive penal laws.Where any special procedure is provided in anyother law in force the same shall have the field.Where special law is silent the procedure given inthis code shall apply unless specificallyprohibited by that law.
Criminal justice system of PakistanThe code of criminal procedure defines the wordoffence:Any act or omission made punishable by any lawfor the time being in force,it also includes any actin respect of which a complaint may be made by anaggrieved person.The essential elements of an offence are as under:That it should be an act or omissionThat such act or omission should be madepunishable
What is an act and what is anomissionAct:An act is any doing by a human being.Omission:An omission is not doing any act. When a lawrequires an act not to be done it becomes a legalduty of the concerned subjects not to do it.But itwill be called an offence only when law alsoprescribes a punishment for its omission.
Division of offencesThe code of criminal procedure divided offencesin to two i.e bailable offences and non-bailableoffences.Bailable offences:means an offence shown as bailable in thesecond schedule or which is made bailable by anyother law for the time being in force.Non-bailable offences:Non bailable offences means any offence otherthan bailable.
Kinds/types of bailPost arrest bailPre arrest bailBail in bailable offences:In the case of bailable offences the personaccused has the indefeasible to grant of bailsubject of course to satisfactory sureties beingoffered,if sureties are considered necessary.The court or the officer in charge of policestation is bound to release the person who isaccused of bailable offence.
Conditions for grant of bailThe conditions laid down by the supreme courtfor grant of bail are as follows.If the person seeking bail has been placed underactual custody;orHe appears in answer to a process issued by thecourt;orHe is brought before the courtBy the police;orBy some other arresting authority
Authority to grant bailCourt of lawOfficer in charge of police stationBail in non-bailable offences (sec 497)Factors to be considered:The nature of accusation and prosecutionevidence in support of it,Severity of punishment,Behaviour or plea of defence
Classes of non-bailable offencesSection 497 of cr.p.c divides non-bailable offencein to two categories.Offences falling in prohibitory clause.Offences does not falling in prohibitory clause.Offences falling in prohibitory clause:Offences punishable with deathimprisonment for life and imprisonment for tenyears.
General rule in non-bailableAs a general rule bail shall not be granted in suchcases but with exceptions.Exceptions:A person under the age of sixteen years orAny woman;Any sick person;orInfirm person
Cases where court shall grant bail asa matter of rightCase of further inquiry Sec.497(2)The essential pre requisite for grant of bail is thatthe court must be satisfied on the basis of opinionexpressed by the police or the material placedbefore it that there were reasonable grounds tobelieve that the accused was not guilty of anoffence punishable with death or imprisonment often years.Case of further inquiry would only be made outwhen data collected by prosecution is notsufficient.
Reasons for bail to be recorded inwritingReleasing any person on bail shall record inwriting his or its reasons for so doing.Stage when court may grant bail Sec 497(4)At any time after the conclusion of the trail andbefore judgment is delivered.
Offences not falling withinprohibitory clauseOffences punishable with imprisonment less thanten years.RuleBail in cases falling in this category will bedeclined only in extra ordinary and exceptioncases.e.gWhere there is likelihood of abscondance;
Where there is the danger of the offence beingrepeated if the accused is released on bail;Where the accused is a previous convict.Where there is apprehension of the accusedtampering with the prosecution evidence.
Pre arrest bailObjectTo prevent innocent person from being unnecessarily harassed.ScopeRare,and very limited which could be extened instrong and exceptional circumstances which arebased on malafide/ enmity.Sec(498) cr.p.c empower high court or sessioncourt to grant pre arrest bail.in case ofexceptional nature.
Conditions for grant of pre-arrestbailFollowing conditions for the grant of pre arrestGenuine proved apprehension of imminent arrestPetitioner should physically surrender to thecourt.Apprehension of harassment and underirreparable humiliation by unjustified arrest.It should be otherwise fit case on merits.
Pre-arrest can not be claimed as amatter of rightIt can not be claimed as a matter of right but canonly be availed off where it is shown that thecause of prosecution is based on mailce andulterior motive.
Cancellation of bailThe High court or the court of Session or anyother court which has released an accused on bailfor a non-bailable offence,may order his arrestand remand in custody.This will be where there has been a change incircumstances;There is apprehension he may abscond,He has breached the terms of bail,Committing other offences.