#BAIL

 #OVERVIEW OF BAIL IN THE CRIMINAL PROCEDURE CODE OF PAKISTAN

by Hasan Raza Khan Advocate High Court,

CC No.23933

&

Mrs. Yasmeen Yasin Sandhu Advocate High Court

CC No.49547

Bail is a legal mechanism that allows an accused person to be released from custody while awaiting trial, ensuring they appear in court when required. The Criminal Procedure Code (Cr.PC) of Pakistan provides a comprehensive framework for bail, balancing the rights of the accused with the need to protect public safety and ensure justice. Bail provisions in Pakistan are guided by both statutory law and judicial principles, reflecting the fundamental rights enshrined in the Constitution.

 

#Types of Bail and Relevant Sections in the CR.PC

 

The Criminal Procedure Code (Cr.PC) outlines several types of bail:

 

1. *Bail Before Arrest (Pre-Arrest Bail) - Section 498*

   - Pre-arrest bail is sought when a person anticipates arrest on a charge that may not be bailable. This bail is discretionary and is typically granted in cases where there is fear of false implication, undue harassment, or the abuse of process by law enforcement.

 

2. *Bail After Arrest (Post-Arrest Bail) - Section 497*

   - Post-arrest bail is granted to an accused person who is already in custody. Section 497 Cr.PC deals with the conditions under which this type of bail can be granted, usually focusing on non-bailable offenses. The court considers the nature of the offense, the evidence available, and the likelihood of the accused appearing for trial.

 

3. *Bail by Magistrate - Section 496*

   - Section 496 Cr.PC pertains to bail in bailable offenses, where granting bail is almost mandatory. If the accused is charged with a bailable offense, they are entitled to bail as a right, and the magistrate must grant it.

 

4. *Interim Bail*

   - Interim bail is a temporary form of bail granted until the court decides on the application for pre-arrest or post-arrest bail. It is usually granted when immediate arrest is anticipated, giving the accused temporary protection from custody.

 

# Judicial Procedure for Granting Bail

 

The process of granting bail in Pakistan involves a few key steps:

 

1. *Filing the Bail Application*

   - The accused or their counsel files a bail application in the appropriate court. For pre-arrest bail, the application is typically filed in the Sessions Court or High Court, whereas post-arrest bail is usually filed in the court where the trial is to be conducted.

 

2. *Hearing the Bail Application*

   - The court schedules a hearing to review the application. Both the prosecution and defense present their arguments. The court examines factors such as the severity of the offense, the accused's criminal record, and the likelihood of the accused tampering with evidence or absconding.

 

3. *Granting or Denying Bail*

   - Based on the arguments presented and the evidence available, the court may either grant or deny bail. If bail is granted, the court may impose conditions such as surrendering the passport, regular attendance in court, or providing surety bonds.

 

4. *Conditions of Bail*;-

   - When bail is granted, the accused must comply with certain conditions. Non-compliance can lead to cancellation of bail. The surety provided may include monetary deposits or guarantees by other individuals.

 

#Principles of the Criminal Justice System for Bail in Pakistan

The principles guiding the grant of bail in Pakistan’s criminal justice system emphasize:

 

- *Presumption of Innocence*

  - The accused is presumed innocent until proven guilty, which underpins the right to bail. Courts are cautious not to punish the accused prematurely by denying bail without just cause.

 

- *Balancing Rights*

  - The courts strive to balance the rights of the accused with the interests of society. This involves ensuring the accused appears for trial while preventing harm to the public or interference with the judicial process.

 

- *Non-Punitive Nature of Bail*

  - Bail is not meant to be punitive. It is a means to secure the accused’s appearance at trial without infringing on their liberty unnecessarily.

 

- *Judicial Discretion*

  - The courts exercise discretion based on the merits of each case. Factors like the nature of the crime, the evidence, the accused’s background, and the likelihood of fleeing are crucial in the decision-making process.

 

#Landmark Judgments by the Supreme Court in Favor of Accused/Petitioner

 

1. *Asfandyar and Another v. The State (2003 SCMR 203)*

   - The Supreme Court emphasized the principle of presumption of innocence and reiterated that bail should not be denied merely on the gravity of the charge unless the prosecution provides substantial evidence to justify the denial.

 

2. *Sajid Mehmood v. The State (2006 SCMR 1421)*

   - The Court held that bail should be granted where there is no likelihood of the accused fleeing or tampering with evidence, especially when the prosecution’s case is doubtful or weak.

 

3. *Ayub Masih v. The State (PLD 2002 SC 1048)*

   - The Supreme Court underscored that in cases of doubt, the benefit should go to the accused, leading to the granting of bail. The Court highlighted the importance of judicial scrutiny in ensuring that bail is not unjustly denied.

 

# Landmark Judgments by the Supreme Court in Favor of Complainant/Respondent

 

1. *Nadeem Asghar v. The State (PLD 2021 SC 623)*

   - The Court refused bail, noting that in serious offenses like terrorism, where there is strong prima facie evidence, the courts must be cautious in granting bail to prevent public harm and ensure justice.                                                

2. *Zubair Ahmad v. The State (2020 SCMR 2129)*

   - The Supreme Court held that bail should be denied where there is a reasonable apprehension that the accused may abscond, tamper with evidence, or pose a threat to the complainant or witnesses.                                       

3. *Liaquat Ali v. The State (PLD 2016 SC 738)*

   - The Court denied bail, emphasizing the need for judicial restraint in cases involving heinous crimes, where granting bail could undermine public confidence in the justice system.

·  Nadeem Asghar v. The State (PLD 2021 SC 623)

• Seriousness of the Offense: The Supreme Court refused bail, emphasizing the gravity of the offense, which involved terrorism charges. The Court underscored that in cases involving severe crimes, particularly those threatening public safety, the judiciary must exercise caution. Bail should not be granted where there is strong prima facie evidence of guilt, as it may jeopardize public security and hinder the administration of justice.

 

• Public Interest and Safety: The Court prioritized public interest and safety, noting that releasing an accused in such cases could lead to further crimes and undermine public confidence in the justice system.

 

Zubair Ahmad v. The State (2020 SCMR 2129)

Principle of Law:

• Likelihood of Absconding: The Supreme Court denied bail on the grounds that the accused was likely to abscond if released. The Court highlighted that the risk of flight is a significant consideration, especially when the accused has the means or history of avoiding legal proceedings.

 

• Tampering with Evidence: The Court also considered the possibility that the accused might tamper with evidence or influence witnesses if granted bail. In such cases, protecting the integrity of the trial is paramount, and bail should be denied to prevent any obstruction of justice.

 

• Threat to Complainant or Witnesses: The potential threat posed by the accused to the complainant or witnesses was a key factor in the decision. The Court emphasized that the safety of the complainant and witnesses is crucial, and bail should not be granted if there is a reasonable apprehension of harm or intimidation.

Liaquat Ali v. The State (PLD 2016 SC 738)

Principle of Law:

• Judicial Restraint in Heinous Crimes: The Supreme Court denied bail, stressing the importance of judicial restraint in cases involving heinous crimes such as murder or rape. The Court reasoned that the nature of the crime itself warrants a careful approach, as granting bail in such cases could erode public trust in the legal system and embolden criminal behavior.

 

• Preservation of Public Confidence: The Court highlighted the need to maintain public confidence in the justice system. When dealing with serious offenses, the judiciary must ensure that decisions do not appear to favor the accused unjustly, thereby undermining the community’s sense of justice and security.

Muhammad Tanveer v. The State (PLD 2017 SC 733)

Principle of Law:

• Consistency of Judicial Precedent: In this case, the Supreme Court emphasized that decisions on bail must be consistent with judicial precedents, particularly in cases involving similar circumstances. The Court denied bail, aligning with earlier rulings that stressed the non-entitlement of bail in cases where the accused faces serious charges with substantial evidence against them.

 

• Discouraging Abuse of Process: The Court also underscored the need to discourage the abuse of the judicial process. Granting bail in cases with clear evidence of guilt or in situations where the accused has previously attempted to manipulate the legal process could set a dangerous precedent, encouraging others to exploit the system.

Muhammad Shakeel v. The State (2021 SCMR 1584)

• Evidential Threshold: The Supreme Court denied bail, focusing on the strength of the prosecution’s case. The Court noted that when the evidence against the accused is strong and likely to result in a conviction, bail should not be granted. The decision was based on the principle that a high evidential threshold can justify the denial of bail to ensure that justice is served.

• Protection of the Judicial Process: The Court also highlighted the importance of protecting the judicial process from interference. In cases where there is a risk that the accused might disrupt the trial or intimidate witnesses, bail should be refused to uphold the integrity of the legal proceedings.

Hassan and Others VS The State (PLD 2019 SC 163)

• Role of Aggravating Circumstances: The Court denied bail, taking into account the aggravating circumstances of the case, including the brutal nature of the crime and the accused's criminal history. The decision emphasized that when such factors are present, they weigh heavily against the granting of bail, as they indicate a higher risk of re-offending and a greater threat to society.

• Public Confidence in the Legal System: The judgment reinforced the idea that the public’s confidence in the legal system must be preserved. In high-profile or particularly heinous cases, granting bail can send the wrong message to the community, suggesting that justice can be circumvented, thus eroding faith in the judicial process.

Principle of Law:

·  Role of Aggravating Circumstances: The Court denied bail, taking into account the aggravating circumstances of the case, including the brutal nature of the crime and the accused's criminal history. The decision emphasized that when such factors are present, they weigh heavily against the granting of bail, as they indicate a higher risk of re-offending and a greater threat to society.

·  Public Confidence in the Legal System: The judgment reinforced the idea that the public’s confidence in the legal system must be preserved. In high-profile or particularly heinous cases, granting bail can send the wrong message to the community, suggesting that justice can be circumvented, thus eroding faith in the judicial process.

 

This Blog page provides a comprehensive overview of the bail provisions in Pakistan’s Criminal Procedure Code, aiming to offer clear and practical information. Understanding these provisions helps both legal professionals and the general public navigate the complexities of the criminal justice system effectively.

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