Law dictionary:
Bail means to procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself the jurisdiction and judgment of court.

Tenure Bail:
Bail means the provision of one person who is under arrest to another person, who is responsible before the court of law, as and when so required.

Legal effect of bail:
The legal effect of bail is not to set a person at authorization but to release him from the custody and entrust him to custody of surety.

Historical context:
It has been traced back to 399BC when Plato tried to create a bond for the release of Socrates. And the modern bail system emerges from Britain, and the relative laws were:

1)      Magna Carta 1215
2)      Habeas corpus Act, 1677
3)      English bill of rights, 1689
4)      Bail Act, 1976

Provision in the Constitution:
1)      Article 4
2)      Article 10

Article 4:
Rights of individuals to be dealt in accordance with law

Article 10:
Safeguard to arrest and detention

Bail Theory:
1)      PLD 1998 S.C 1, PLJ 1998 S.C 658:
Thought of bail emerges from conflict between police powers to restrict liberty of a person who is alleged to have committed a crime and presumption of innocence in favour of alleged criminal.

2)      PLD 1953 FC 170:
The basic concept of bail is release of a person from the custody of police or delivery into the hands of sureties, who undertakes to produce him in court as when required.

Bail Types;
Essentially, there are two types of Bail provisions:
1)      Pre-arrest bail
2)      Post-arrest bail

Offences:
These are either;
1)      Bail-able offences
2)      Non-bail able offences

Law Provisions
Section 496 to 502

Bail before arrest:
Section 498 CrPC provide that:
The section provides such opportunity of bail which is allowance to the accused on his appearance before court and before court / his arrest by the parties.

1991 SCMR 599;
The High Court and Session Court have the power to grant bail before arrest.
A) Conditions for pre-arrest bail:
1)      Reasonable apprehension or fear of arrest by the police.
2)      Apprehension of illegal harassment and humiliation and attack on good name, good will, honor and popularity.

Pre-arrest bail may be decided if the court is satisfied;
1)      Accused is old person.
2)      Tender age
3)      Women
4)      Sick person
5)      Infirm person and extremely weak person
6)      The case alleged against accused is based on hostility or political rivalry or enmity
7)      The police are malafide
8)      False case
9)      Alleged F.I.R do not constitute an offence

Bail may not entertain;
1)      Accused is habitual offender
2)      Previously convicted
3)      Court considers that accused will abscond

The matters which are consider by court granting bail;
1)      Contents of F.I.R
2)      Delay in lodging F.I.R
3)      The nomination of accused
4)      Role of accused
5)      Nature of allegation
6)      Relation of accused and complainant
7)      Evidence
8)    Medical report
9)      Statement of witnesses
10)  Investigation of police
11)  Plea of alibi (if taken)
12)  Previous enmity between parties
13)  Previous friendship of relationship
14)  Any other relevant material

Authority to permit bail;
1)      Court of law
2)      Officer in-charge of police station

Exception;
Second proviso of section 496 CrPC;
1)      Section 107 (4)
2)      Section 117 (3)

Provision of after arrest:
Section 497 CrPC deals with it.
In non-bail able offences when a person is arrested without warrant and is brought before court, then court has discretion to release him in bail.
A) The bail will not be granted;

If he has been guilty of an offence punishable with
a) Death

  1. b) Imprisonment for life
  2. c) Imprisonment for 10 years

Rule;
As a general rule, bail is shall not be granted in such cases.
C) Exception as below;
1)      Person under age of 16
2)      Women
3)      Sick person
4)      Infirm person

The second proviso of section 497 puts a condition that accused shall not be released on bail,
Unless; Prosecution has been given notice to show cause why such accused not be so released.
The object of accused proviso is to give due importance to the right of the complainant side. And through this court can have a tentative assessment of prevailing situation.

Sub-section 2 of 497;
If it appears to police officer or court, that
a) There is noh reasonable ground for believing accused has committed an offence.
b) And sufficient grounds for further inquiry.

Inquiry;
A case is of further inquiry when the court comes to conclusion, that for the accused guilty of non-bail able offence, no reasonable grounds are available. And accused offence does not fall within the prohibitory clause.

Tentative assessment;
Case of further inquiry pre-supposes that there is some evidence which a tentative assessment may create a doubt with respect to involvement of accused.

  1. G) Examples of further inquiry;
    1)      On spot accused is empty handed
    2)      Not named in F.I.R
    3)      Counter F.I.R
    4)      No eye witness
    5)      Identification is doubtful

CONCLUSION:
The release on bail of accused is crucial to the accused as the consequences of pre-trial detention are known. And, if the is release is refused it means he is subjected to the psychological and physical deprivation of jail life.
So, There are no risks involved in the release of a person on bail. And it would be cruel and unjust, to deny him bail..

 

Written/Composed by:
Sheraz Khan Advocate
High Court Islamabad.