Bail and Non-Bailable Offences:

Introduction:
The concept of bail is not new. Basic Philosophy behind the concept of bail is that accused
should be released from the custody of law enforcing agency into the custody of sureties. This is
an interim order which can be withdrawn by the court at any stage according to circumstances.
The provisions of the Code of Criminal Procedure (V of 1898) are self-explanatory to the fact
that the grant of bail and not the refusal of it is the scheme of law. The scheme is defeated only
under extreme and extraneous circumstances in order to prevent violation of law.

Relevant Provisions:
Section 496, 497 and 498 of Cr.P.C is a relevant provision.

Bail:
Bail is release of a person from custody of the police and delivering such person into the hands
of sureties who undertake to produce such person in court as and when required by it. The word
bail has been derived from old French verb bailer which means to “Give” or “Deliver”.
Bail in English common law is freeing or setting at liberty an arrested person upon any condition
or surety taken for his appearance on certain day and place.
Basic concept of bail are contained in Articles 4 and 10 of the Constitution of Pakistan, 1973.
The philosophy behind the concept is the widely celebrated principle professing that an accused
person must be presumed to be innocent until and unless proven guilty.

PURPOSE OF BAIL:

The Constitution of Pakistan 1973 guarantees the right to liberty, save in accordance with law
under Article 09. It is a settled law that accused unless proved guilty is presumed to be innocent.
The rationale behind it lies in the question left answered as to how the accused shall be
compensated for all the agony and, physical and mental torture during the period of his detention
in police or judicial custody if he is finally acquitted.

The purpose of bail is to ensure the return of the accused at subsequent proceedings, while
allowing him liberty and protecting him for unnecessary detention. Hence, while granting bail,
the sureties or conditions should be such as sufficient to make sure the accused attends next
hearing. Also, it should not be out of place to mention that the same should not be excessive or
cumbersome as may probably turn out to be a punishment, instead.

Purpose of releasing accused on surety bond is to ensure his attendance on each and every date
of hearing before Trial Court till conclusion of trial for compliance thereof. Person who stands
surety executes bond in required sum or money and undertakes to produce on each date of
hearing.

Kinds of Bail:
1. Bail in Bailable offences
2. Bail in Non-Bailable Offences
3. Pre Arrest Bail
4. Protective Bail

1. Bail in Bailable offences:

The second Schedule of Cr.P.C. divides offences in bailable and non bailable. Section 496 of the
Code deals with grant of bail in bailable offences and provides that accused shall be released
against surety determined by Court on bail in bailable offences when he is arrested or detained
by police. Bail cannot be refused by Court in such offences. In order to avail of the concession of
bail it has to be established firstly that the offence with which the accused is charged is shown to
be bailable under the code or any other law so applicable.

Conditions for grant of Bail:

1. Offence must be Bailable.
2. Apprehension of detention without warrant.
3. Appearance before the court.

2. Bail in Non-Bailable Offences:

Grant of bail in Non-Bailable offences is a concession and the accused can not claim bail as
matter of right. Section 497, Cr.P.C. deals with non-bailable offences. As a general rule, the
Court shall release a person accused of non bailable offence and who is in police custody.
There are three exceptions to this rule in which court should not ordinarily admit accused to bail,
where the Court has reasons to believe that the accused is guilty of offence punishable with death
or life imprisonment or imprisonment for ten years. Then the provision also provides for bail if
the accused is under sixteen years of age, or is a woman, or is sick or infirm.

Ground for granting of bail in Non-bailable offence:

Following are grounds upon which bail can be taken or granted in non-bailable offence

i. Personal enmity
When it is proved that there exists personal enmity between accused and complainant, bail can
be taken in non-bailable offence.

ii. Rule of Consistency

If co-accused of some non-bailable offence has already been granted bail, bail of petitioner /
other co-accused can be taken. It reveals that rules of consistency can be ground for granting
bail.

iii. Child or Woman

when accused / petitioner is child or woman, bail can be taken in non-bailable offence.

iv. Sick or Infirm Person

When accused / petitioner is sick or infirm person, bail can be granted in non-bailable offence.

v. Insufficient evidence
If insufficient evidence is available against commission of alleged non-bailable offence, bail can
be taken.

vi. Doubt or Recovery

When facts and circumstances of criminal case of non-bailable offence are like those that such
case become doubtful or nothing is recovered from accused, bail taken in non-bailable offence.

vii. Delay in Registration of FIR or Trial

When there is delay in registration of FIR and no sufficient ground is present for such delay and
delay in trail, bail can be granted in bailable offence.
Pre-arrest Bail: Law of anticipatory bail in Pakistan is not a statutory law. It seeks its inference
from Sec. 498, Cr.P.C. (Ref. PLD 1972 Lahore 722). The provision empowers High Court and
the Court of Sessions to grant this extra ordinary relief to the accused in extra ordinary and
exceptional circumstances such as where Court comes to belief that perhaps accused was falsely
implicated in a case and he was likely to suffer irreparable injury to his dignity, honour or
reputation by his arrest.

Surrender before Magistrate for bail:

A practice is being observed that an accused allegedly involved in some bailable offence
surrenders himself before a Magistrate and procures bail from his Court. It is generally perceived
that Magistrates seek sanction for such grant from the word “appears” used in Section 496,
Cr.P.C. and 497(1) of the Code permits an accused person to appear before a Magistrate, even
before his physical arrest and after surrendering himself to the “judicial custody” of the Court, to
seek bail under section 497 or 498 Cr.P.C., as the case may be. It is anti-thesis of the basic
concept of post arrest bail which is to release a person from the custody of police and deliver him
into the hands of sureties; while it is crystal clear from the scheme of law that a Magistrate is not
competent to grant bail before arrest.

In State versus Mohammad Ayoob vide PLD 2008 Karachi 492, the Honourable High Court of
Sindh was pleased to observe that Magistrate cannot grant bail unless the matter falls under one
of the following categories.
1. if the person seeking bail has been placed under actual custody.
2. he appears in answer to the process issued by the Court.
3. he is brought before the Court by the police or some other arresting authority.

Protective bail: Protective bail is granted to accused to enable him to approach the concerned
Court of other provinces for the purpose of obtaining pre-arrest bail. It is granted without
touching merits of the case. It can be entertained by High Court direct when accused had
political background, without approaching Sessions Court. Sessions Court has no jurisdiction to
grant interim pre-arrest bail or protective bail to the accused of an offence registered through
F.I.R., outside the District where it is situated because the jurisdiction of Sessions Court is
limited to his District only and not outside it.

Subsequent Bail:
Second or subsequent bail application should be heard and dealt with by the same Judge; the rule
applies in cases when the other accused of the same case or even cross-case files bail application.
It shall be the duty of the counsel to mention in a bail application filed by him fact of having
filed an earlier application also stating result thereof.
Further, unless second bail application after rejection of first application was made on grounds
other than those available at the time of first bail application, matter should not be opened up for
reconsideration.
Case Laws:
Anticipatory Bail : It would be seen that the prevalent law of anticipatory bail is the result of
judicial law making, i.e. judge-made rule of law by judicial interpretation of Section 498,
whereas in India it is statutory one. Section 438 has been specifically introduced for the first time
in the new Indian Cr.P.C, 1973, conferring similar powers on High Court and Court of Sessions.
"When Section 497 and 498 Cr.P.C. were enacted probably the framers of the Code did not
clearly visualize anticipatory bail. It is however, through precedent law which has now the force
of statutory law that a petition for anticipatory bail under section 498 read with section 497 can
competently be made. Khalid Rasheed v. State PLD 1972 Lahore 722
Case law on Bail in bailable offences: Remand on failure to furnish surety/bailbond. Held,
where remanding the accused to jail on his failure to furnish surety/bail bond the trial Court
should consider the propriety of his release on execution of his personal bond and not only on the
first order of Judicial remand but also each subsequent order must show that the Court had really
considered the propriety of his release on personal bond. PLD 1995 SC 34,Tariq Bashir etc.
Under trial Prisoners, accused of bailable offences; petty offences and offences punishable with
less than 10 years should not unnecessarily be detained in jail, and they should have clothes and
food privately provided to them. PLD 1995 SC 34