Bail Concept Land Mark Judgments

By:
Babar Nadeem
Judge Family Court, Lahore
All About Bail
By
Babar Nadeem
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We will try to clear our concept about some section of bail by discussion in short
question, answer form. After questioning, answering, go through bare reading
of that section again, it will make your concept perfect regarding that section.
Section 496 (Bail in any case except cases of non-bailable offences):
Q.1: How will you come to know whether an offence is a bailable or non-
bail?
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Babar Nadeem
Answer: For offences under PPC: Section 04(1)(b) read with column no.05 of
Schedule II of Cr.P.C states what offences under PPC or some other
laws mentioned therein are bailable or non-bailable.
For Offences under Special Law: If some offence is defined under

some special law, that law will state whether that offence is bailable
or non-bailable. However, if non-where it is mentioned that whether
an offence is bailable or non-bailable then Note given at the end of
the Schedule II with reference of a judgment NLR 1999 Crl Lahore 01
will come into play which states that “Any offence under any law
punishable with imprisonment for a term not exceeding three years
or with fine or both, bailable unless specifically made non-bailable.”
Q.2: What is title of section 496?
Answer: “In what cases bail to be taken”
Q.3: Whether section 496 deals with bailable offences only?
Answer: It is not necessary that a person always be arrested under the

allegation of commission of an offence. For example, an accused or
witnesses was summoned but he remained failed to appear before
court. Ultimately that witness or accused was arrested and brought
before court. Court shall release that accused or witness on bail. That
is why wording “any person other than a person accused of a non-
bailable offence” has been used under section 496 instead of “any
person accused of bailable offence”.
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Q.4: “Arrested or detained without warrant”; Explain the term with
reference to certain provisions of CRPC wherein an accused may be
arrested or detained without warrant?
Answer: Section 54 to 59 deals with circumstances under which a police

officer may arrest or detain a person without warrant. Section 60
states that person arrested will be produced before concerned
Magistrate or officer-in-charge of police-station. If the offence with
which accused person is charges is bailable, bail will be granted
under section 496 and if the offence is non-bailable, bail will be
granted or refused keeping in view the principles laid down under
section 497.
Q.5: “appears before court”, explain term “appears”?
Answer: This term as been beautifully explained by Justice Cornelius through

PLD 1966 SC 1003 in the following words:
The word "appears" in sections 496 and 497 need not be construed
to include voluntary appearance, even in circumstances of grave
apprehension of arrest. This word may be taken to have been used in
sections 496 and 497, in the same sense as in section 242 or 252 of
the Code, which obviously contemplate appearance in answer to a
process issued by a Court. This interpretation will have the merit of
saving section 498 in its own right. The position that emerges then
would be that under sections 496 and 497, Criminal Procedure Code,
the Court can bail out a person only if he has been placed under
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Babar Nadeem
actual custody or appears in answer to a process issued or is brought
before the Court, presumably by the police, or by some other
arresting authority. In other words, these sections apply where there
has been an actual arrest attracting the Court's jurisdiction or the
Court is seized of the proceedings directly, in which bail is requested.
Q.6: “brought before court”, explain this term?
Answer: Obviously it means accused is under the custody of police.
Q.7: Who is authorized to grant bail under section 496?
Answer: Court or Officer-in-Charge of Police Station. One thing which is

necessary to clear here that it is the officer-in-charge as defined
under section 04 and not the police officer arresting the accused is
the person who is authorized to grant bail under section 496. That is
why, section 60 states that where a police officer arrest an accused
without warrant under any of section 54 to 59, he will produce him
before officer-in-charge who will grant him bail.
Q.8: Whether bail under section 496 is a matter of right?
Answer: To be released on bail under section 496 is the statutory right of the
person claiming bail. In other words, there is no discretion with the
officer-in-charge or court to refuse bail where person is prepared or
ready to give bail. That is why word “shall” has been used. However,
where that person has already misused the concession of bail, the
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court may refuse to give bail even in bailable offence keeping in view
his previous conduct.
Q.9: What is difference between bail and releasing a person on

executing a bond without sureties?
Answer: In case of bail, third person called surety will be responsible to

produce the accused before court when desired by the court
whereas in case of person bond without sureties, it will be of
undertaking of accused himself to appear before court as and when
directed by the court.
Q.10: Can court discharge a person under section 496 instead of taking
surety?
Answer: Section 496 empowers the officer-in-charge of police station or court

to discharge the person on executing a bond without sureties instead
of taking bail.
Q.11: What is meant by “Provided that nothing in this section shall be

deemed to affect the provisions of section 107(4) or section 117(3)?
Answer: Section107 stated that when any person is likely to commit a breach
of peace, disturb public tranquility, the Magistrate of 1st Class may
required such person to show cause why he should not be ordered to
execute a bond for keeping peace. Show cause notice will be issued
under section 112.
Section 107 is the power of a magistrate of 1st Class. Now section

107(3) & 107(4) states that when person who is likely to breach
peace is produced before a magistrate who is not 1st class or who is
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not empowered to proceed under section 107, he will forwarded that
person to the magistrate competent to proceed that person under
section 107. Obviously, not the magistrate to whom accused is
referred under section 107(4), will have to proceed that person by
issuing show cause notice under section 112 and not to grant him
bail under section 497, that is why, above said proviso has been
inserted in order to remove any ambiguity.
Similarly, when a person is arrested under any of section 107 to 110,

he will be given a show-cause notice under section 112 as to why he
may not be ordered to furnish security. After show-cause notice
under section 112, court will hold an inquiry under section 117 as to
truthfulness of the allegations against the accused. After inquiry, if
court is satisfied that security is required, under section 117(3), court
will detain accused under custody unless he furnishes security as
required. Now, accused will not be allowed to defeat provision of
section 117(3) for submission of security for maintaining the peace
etc by taking bail under section 496 which is only to ensure presence
of the accused person.
Section 497
Answer: “When bail may be taken in case of non-bailable offence”
Q.13: With which type of offences, section 497 deals with?
Answer: Non-bailable
Q.14: S.497(1): “Arrested or detained without warrant”; Explain the term

with reference to certain provisions of CRPC wherein an accused
may be arrested or detained without warrant?
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By:
Babar Nadeem
Answer: Section 54 to 59 deals with circumstances under which a police
officer may arrest or detain a person without warrant. Section 60
states that person arrested will be produced before concerned
Magistrate or officer-in-charge of police-station. If the offence with
which accused person is charges is bailable, bail will be granted
under section 496 and if the offence is non-bailable, bail will be
granted or refused keeping in view the principles laid down under
section 497.
Q.15: S.497(1): “appears before court”, explain term “appears”?
Answer: This term as been beautifully explained by Justice Cornelius through

PLD 1966 SC 1003 in the following words:
The word "appears" in sections 496 and 497 need not be construed
to include voluntary appearance, even in circumstances of grave
apprehension of arrest. This word may be taken to have been used in
sections 496 and 497, in the same sense as in section 242 or 252 of
the Code, which obviously contemplate appearance in answer to a
process issued by a Court. This interpretation will have the merit of
saving section 498 in its own right. The position that emerges then
would be that under sections 496 and 497, Criminal Procedure Code,
the Court can bail out a person only if he has been placed under
actual custody or appears in answer to a process issued or is brought
before the Court, presumably by the police, or by some other
arresting authority. In other words, these sections apply where there
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Babar Nadeem
has been an actual arrest attracting the Court's jurisdiction or the
Court is seized of the proceedings directly, in which bail is requested.
Q.16: S.497(1): “brought before court”, explain this term?
Answer: Obviously it means accused is under the custody of police.
Q.17: S.497(1) Under what categories a non-bailable offence may be

divided?
Answer: As per landmark judgment PLD 1995 SC 34 (Tariq Bashir etc vs The
State), non-bailable offences for the purpose of bail may be divided
into two categories:
 Offences falling under prohibitory clause

 Offences falling under non-prohibitory clause
Q.18: S.497(1) What is meant by offences falling within prohibitory
clause?
State), offences falling under prohibitory clause are the offences
punishable with death, imprisonment of life or imprisonment for ten
years.
Q.19: S.497(1) What is meant by offences falling within non-prohibitory

clause?
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State), offences falling under non-prohibitory clause are the offences
for which punishment is imprisonment less than 10 years.
Q.20: S.497(1) What is principle for grant of bail under section 497(1)
where an offence falls within prohibitory clause?
State), where the prosecution satisfies the Court, that there are
reasonable grounds to believe that the accused has committed the
crime falling in the category of offences punishable with death, or
imprisonment for life, or imprisonment for ten years; the Court must
refuse bail. On the other hand where the accused satisfies the Court
that there are not reasonable grounds to believe that he is guilty of
such offence, then the Court must release him on bail.
Q.21: S.497(1) What is meant by “reasonable grounds to believe that”?
Answer: Land mark judgment 1995 SCMR 387 explains said term in the
following way:
"Reasonable grounds" is an expression which connotes that the

grounds be such as would appeal to a reasonable man for connecting
the accused with the crime with which he is charged, "grounds"
being a word of higher import than "suspicion". However, strong a
suspicion may be, it would not take the place of reasonable grounds.
Grounds will have to be tested by reason for their acceptance or
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rejection. The reasonableness of the grounds has to be shown by the
prosecution by displaying its cards to the Court, as it may possess or
is expecting to possess as demonstrating evidence available in the
case both direct and circumstantial.' If such grounds exist tending to
connect the accused with the crime, bail should be refused, without
the need to go into a deeper appreciation of the merits of those
grounds and the evidence on which they are rested, which functions
are to be assumed at the trial stage. However, if it is found that the
charge is groundless, that is, to say unsupported by any evidence or
instead of the grounds being reasonable, their absurdity stands
exposed on a plain view, or the charge on its face value is reduced to
a minor one which is not punishable with death or transportation for
life, as for example where it is a case of accidental and unintended
death caused by simple hurt, the limitation on the Courts' discretion
is removed which must then be freely exercised in favour of the grant
of bail. Similarly where reasonable grounds are not disclosed but the
grounds do exist for a further investigation and inquiry into the guilt
of an accused person, the case will fall under section 497(2) of the
Cr.P.C., in which case again bail should not be withheld.
Q.22: S.497(1) What may be examples constituting “reasonable grounds

to believe that”?
Answer: Following may be some examples making court to believe that

reasonable grounds exist:
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 Nomination in F.I.R
 Specific attributed in F.I.R
 Prompt F.I.R
 Arrest at the spot
 Recovery effected
 Medical Evidence is in line with ocular account as well as
prosecution story narrated in F.I.R
 Confession made by accused
 Previously convicted
Q.23: S.497(1) What is basic principle to conclude that whether
“reasonable grounds” exist or not?
State), for arriving at the conclusion as to whether or not there are
reasonable grounds to believe that the accused is guilty of offence
punishable with death, imprisonment for life or imprisonment for ten
years, the Court will not conduct a preliminary trial/inquiry but will
only make tentative assessment, i.e., will look at the material
collected by the police for and against the accused and be prima facie
satisfied that some tangible evidence can be offered which, if left
unrebutted, may lead to the inference of guilt. Deeper appreciation
of the evidence and circumstances appearing in the case is neither
desirable nor permissible at bail stage. So, the Court will not minutely
examine the merits of the case or plea of defence at that stage.
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Q.24: S.497(1) What is principle for grant of bail under section 497(1)
where an offence falls within non-prohibitory clause?
State), where an offence fall within a non-prohibitory clause, the
grant of bail is a rule and refusal an exception. “bail is a rule” means
in normal circumstances court will exercise its discretion in favour of
accused by granting bail.
Q.25: S.497(1); What may be exceptions where court may refuse bail
despite the fact that offence fall within prohibitory clause?
State), following are some examples of exceptions where court may
refuse to grant bail though offence fall within non-prohibitory clause:
(a) where there is likelihood of the abscondence of the accused;

(b) where there is apprehension of the accused tampering with the
prosecution evidence;
(c) where there is danger of the, offence being repeated if the
accused is released on bail; and
(d) where the accused is a previous convict.
Q.26: S.497(1): “he may be released on bail”, what is meant by “may”?
Answer: “may” is about discretion of the court. Whereas court concludes that
reasonable grounds to believe that accused is guilty of commission of
an offence and that offence fall within prohibitory clause, court will
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refuse bail. No question of discretion. But where offence falls within
non-prohibitory clause, it will be the discretion of the court to grant
bail by keeping in view the principle that “grant of bail is a rule and
refusal is an exception”.
Q.27: S.497(1): “he may be released on bail”, Explain term “bail” here?
Answer: As per landmark judgment PLD 1953 FC 170, here “bail” means
release of a person from the custody of the police and delivery into
the hands of the sureties who undertake to produce him in the court
whenever required to do so.
Q.28: First proviso to S.497(1): Provided that the court may direct that
any person under the age of sixteen years or any woman or any sick
or infirm person accused of such an offence be released on bail”;
what is meant by this?
Answer: Its first proviso to the section 497(1), meaning thereby, whether
offence fall within in prohibitory clause or not; whether reasonable
grounds exist to believe that accused has committed that offence or
not , by virtue of first proviso, court has discretion (“may”) to grant
bail if accused is minor, a woman, sick or infirm person. However,
said proviso cannot be read in isolation. In other words, while
exercising discretion under said proviso, court will also consider all
principles laid down under section 497(1). For example
 Nature of offence and its effects on society

 Severity of punishment
 Chances of abscondance of the accused
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 Apprehension of tempering evidence if released
 Conduct of the accused regarding his treatment and
proceedings in court
 Nature of illness and availability of medical facilities to the
accused
 Condition of health in the past and its comparison with
presence condition
Q.29: Second proviso to S.497(1): “Provided that a person accused of an
offence as aforesaid shall not be released on bail unless the
prosecution has been given notice to show-cause why he should
not be released “; Explain it.
Answer: This proviso provides a rule of procedure that before making an

order, notice to the prosecution is mandatory. Superior courts have
interpreted word “prosecution” in the way that it does not only
mean “state”. It also include complainant of the case. Notice to
complainant is mandatory in Hurt and Qatl cases.
Q.30: Third Proviso to S.497 (1): What is meant by bail on statutory

grounds?
Answer: When trial of an accused is not concluded within prescribed time, he

is entitled for bail as matter of right subject to certain terms and
conditions. It is called bail on statutory grounds or statutory delay.
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Q.31: Third proviso to S.497(1): What are the statutory periods for grant
of bail?
Answer:
Trial not concluded but detained for a continuous

Nature of Offence period of:
Male Accused Female Accused
Not punishable with
One year six months
death
Punishable with death Two years One year
Q.32: Third proviso to S.497(1): What are the pre-requisites for claim of
bail on statutory grounds?
Answer: The condition precedent for grant of bail on statutory ground is that
delay has not been occasioned by an act or omission of the accused
or any other person acting on his behalf.
Q.33: How court will conclude that delay in the trial of the accused has or
has not been occasioned by an act or omission of the accused or by
an act on behalf of the accused? Can you give certain examples?
Answer: It is the order sheet from where court will conclude whether delay
was occasioned by an act or omission of the accused or by an act on
behalf of the accused. For example
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 Learned counsel for the accused remained failed to cross-
examine prosecution witnesses present in court on several
dates of hearings.
 So many miscellaneous and unnecessary applications moved
by the accused.
 Accused remained failed to record statement u/s 342 for so
many dates.
 Accused absconded due to which trial was delayed.
Q.34: Fourth proviso to S.497(1):: Who is disentitled for grant of bail on
statutory ground?
Answer: Following persons will be disentitled for grant of bail on statutory

grounds:
 Person previously convicted for an offence punishable with

death or imprisonment for life.
 Person who in the opinion of the court is
 Hardened
 Desperate or
 Dangerous criminal or
 Person who is accused of an act of terrorism punishable with
death or imprisonment for life.
Q.35: S.497(2): Explain section 497(2)
Answer: Firstly; this section says that courts as well as officer-in-charge of

police station both are competent to grant bail under this section.
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Secondly; bail under said section may be granted at any stage of the
investigation, inquiry or trial.
Thirdly; Most important thing is that following two conditions must

co-exist for grant of bail under section 497(2):
i. There are not reasonable grounds for believing that the

accused has committed a non-bailable offence, but
ii. That there are sufficient grounds for further inquiry into his
guilt
Superior courts have held that every case is almost of further inquiry,
so, bail cannot be granted merely on the ground of further inquiry
unless first condition fulfilled i.e. there are not reasonable grounds
for believing that the accused has committed a non-bailable offence.
Fourthly; Once above said two conditions fulfilled, bail will be

granted has matter of right. No question of discretion.
Fifthly; Court or officer-in-charge of the police station or court may in

its discretion release the accused on bail or release him subject to
execution of bond without sureties for his appearance.
Q.36: Explain term “further inquiry”
Answer: That matter which creates doubt in the mind of the court regarding
commission of the offence by the same accused who is praying for
bail and which needs evidence in order to dig out truth.
Q.37: What may be examples of “matter of further inquiry”?
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Answer:
 Inconsistency between ocular account and medical evidence.

 Accused not attributed any role in the F.I.R.
 Civil litigation on the same subject matter is pending between the
parties.
 Delay in lodging F.I.R or recording of statements u/s 161
 Nomination through supplementary statement but no
identification parade held
 Unseen occurrence
 Allegation of sharp injury with blunt weapon.
 Free fight and question of aggression is question of evidence
So many instances. If you are preparing some bail, I suggest to go

through cr.p.c by M.Mahmood or Shoukat Mahmood to find out
relevant grounds constituting matter of further inquiry
Q.38: S.497(3): What is condition precedent of an order for grant of bail?
Answer: If a court is going to release an accused on bail:
 Bail order must be in writing

 Consisting of all reasons for grant of bail
Infact it means an order regarding bail must be speaking order

showing application of mind by the court. Justice should not only be
done but should be seen to have been done. The discretion vested in
the court should be exercised in a judicious manner in accordance
with the principles laid down by the law and the superior courts.
Q.39: S.497(5): Which court may cancel a bail?
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Answer: Though at the same time, application for cancellation of bail may be
moved to:
 Session Court against bail order of a Magistrate

 High Court against bail order of court of session
 Court granting bail originally
But as general practice, when cancellation is sought on the ground of

misapprecaiton of law, higher forum is approached usually and when
cancellation is prayed for on the ground of misuse of bail, usually,
court granting bail originally is approached.
Q.40: S.497(5): What are parameters and grounds for cancellation of bail?
Answer: Grounds for grant of bail and cancellation of bail are entirely
different. Usually bail is not cancelled unless strong and exceptional
grounds are shown for cancellation of the same. Following may be
some ground for cancellation of bail:
 If accused misuses the liberty of bail

 If accused has committed some offence while remaining on bail
 If accused tried to tamper with the evidence brought on record
during investigation
 If bail granting order is patently illegal, erroneous, factually
incorrect and has resulted in miscarriage of justice.
 Some fresh facts or material has been collected by police during
investigation which may tend to establish or point out guilt of
accused.
 If accused interferes with the course of investigation
 If accused threatens complainant or prosecution witnesses
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Q.41: What is the latest judgment which says that issuance of non-
bailable warrant means bail is ipso facto cancelled?
Answer: 2019 SCMR 1641 by Hon’ble Justice Asif Saeed Khosa
Q.42: What are basic principles regarding grant of bail laid down by
superior courts?
Answer: Most of those principles have already been discussed. Again, some
principles are enlisted as under:
i. Bail cannot be withheld as punishment

ii. Only tentative assessment is to be made; deeper appreciation is not
allowed.
iii. Rule is bail and not jail
iv. Benefit of doubt even at bail stage should be given to the accused
v. Ipsi Dixit of police is not binding on court
vi. Investigation is completed and corpus is no more required by the police
vii.
Q.43: What are landmark judgments on bail?
Answer: We have already discussed most of those judgments. However some

of those judgments are as under:
1- Tariq Bashir Case (PLD 1995 SC 34)
In bailable offences the grant of bail is a right and not favour, whereas in non-
bailable offences the grant of bail is not a right but concession/grace. Section 497,
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Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences
punishable with death, imprisonment of life or imprisonment for tee years; and
(ii) offences punishable with imprisonment for loss than ten years. In non-bailable
offences falling in the second category (punishable with imprisonment for less
than ten years) the grant of bail is a rule and refusal an exception. So the bail will
be declined only in extraordinary and exceptional cases for example ---
(a) where there is likelihood of the abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution
evidence;
(c) where there is danger of the, offence being repeated if the accused is
released on bail; and
(d) whore the accused is a previous convict.
Many under-trial accused of bailable offences and preventive offences i.e.-

offences under suctions 1(l7,1Q9 and ILtI, Cr.P.C. are sent to or confined in jails
for want of surety bonds although they, at the discretion of the Court, could be
released on execution by chum of bond (personal bond) without surety for their
appearance before the Court, Even in petty cases the Courts/subordinate Courts
remand the accused to ,jail on their failure to produce sureties with the result
that hundreds of under-trial accused who could have easily been released on
personal bond are ratting in the jail for a long time. Supreme Court, therefore,
directed that in bailable cases while remanding the accused to jail on his failure to
furnish surety/bail bonds, the trial Court shall consider, the propriety of his
release on execution of personal bond. Not only 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. Instead of being severe to an
under-trial accused carrying presumption of innocence with them, it is bettor that
the Court should be lenient in the matter-of bail, food and medical facilities.
Under section 32 of the Prisons Act, an under-trial prisoner is entitled to

have clothes and food privately. These facilities should liberally be provided to
them till they are convicted. The jails are over-crowded. The detention of under-
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trial prisoners, food and medical facilities and their transportation from jail to the
Court heavily burden public exchequer. It would be in consonance with the law of
bail and in the fitness of things that accused in bailable offences, petty offences
and offences punishable with imprisonment for less than ten years should not
unnecessarily be detained in the jail.
As regards offences, punishable with death, or imprisonment for life, or

imprisonment for ten years the provisions of section 497(1) are not punitive in
nature. There is no concept of punishment before judgment in the criminal law of
the land. The question of grant/refusal of bail is to be determined judiciously
leaving regard to the facts and circumstances of each case. Where the
prosecution satisfies the Court, that there are reasonable grounds to believe that
the accused has committed the crime falling in the category of offences
punishable with death, or imprisonment for life, or imprisonment for ten years;
the Court must refuse bail. On the other hand where the accused satisfies the
Court that there are not reasonable grounds to believe that he is guilty of such
offence, then the Court must release him on bail. For arriving at the conclusion as
to whether or not there are reasonable grounds to believe that the accused is
guilty of offence punishable with death, imprisonment for life or imprisonment
for ten years, the Court will not conduct a preliminary trial/inquiry but will only
make tentative assessment, i.e., will look at the material collected by the police
for and against the accused and be prima facie satisfied that some tangible
evidence can be offered which, if left unrebutted, may lead to the inference of
guilt. Deeper appreciation of the evidence and circumstances appearing in the
case is neither desirable nor permissible at bail stage. So, the Court will not
minutely examine the merits of the case or plea of defence at that stage.
The bail order must be carefully balanced and weighed in scale of justice
and requirement of relevant law. Reasonable grounds mean grounds which
appeal to a reasonable and prudent man.
There is no legal compulsion to cancel the bail of the accused who allegedly have
committed crime punishable with death, imprisonment for life or imprisonment
for ten years. Question of benefit of reasonable doubt is necessary to be
determined not only while deciding the question of guilt of an accused but also
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while considering the question of bail because there is a wide difference between
the jail life and a free life. So, benefit of reasonable doubt 'about occurrence
itself, identity of the accused, part allegedly played by him in the occurrence, his
presence on the spot and on the question of his vicarious liability, would go to
him even at bail stage. There is a tendency to involve innocent persons with the
guilty. Once an innocent person is falsely involved in a serious case then he has to
remain in jail for considerable time. Normally it takes two years to conclude the
trial. When a person is detained in the jail, all his dependents also suffer
hardships. The ultimate conviction and incarceration of a guilty person can repair
the wrong caused by a mistaken relief of interim bail granted to him, but no
satisfactory reparation can be offered to an innocent man for his unjustified
incarceration -at any stage of the case, albeit his acquittal in the long run. So,
whenever reasonable doubt arises with regard to the participation of an accused
person in the crime, he should not be deprived of the benefit of bail. The bail can
neither be withheld nor cancelled as punishment.
In the present case, one Judge of the High Court on examination of the
F.LR., statements recorded under section 161, CrP.C. and the material collected
during investigation was of the opinion, that there were no reasonable grounds to
believe that the accused were guilty of the offences alleged against them,
whereas on the same material on record, another Judge of the same High Court
had come to a totally different conclusion that there were reasonable .grounds to
believe that the accused persons had committed the alleged crime. The contrary
conclusions arrived at by the two Judges of the High Court had made the
existence of reasonable grounds to connect the accused with the crime doubtful,
entitling the accused to benefit of doubt at such stage. In any case, the contrary
views/opinions of the two Judges of the High Court about the guilt of the accused
had made out a case of further inquiry within the meaning of subsection (2) of
section 497, Cr.P.C.
2- Zubair Case (PLD 1986 SC 173):
It is the duty of the counsel to mention in a bail application filed by him the fact of
having filed an earlier bail application; also stating the result thereof. Failure on
the part of the counsel to do so would, in fact, amount to professional misconduct
because the concealment of the fact of the dismissal of the earlier bail application
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of the accused or the co-accused and getting a subsequent bail application
decided by another Judge of the same Court may result in conflicting judgments
and disharmony in the Court.
Subsequent bail application must be placed for disposal before the same learned
Judge who had dealt with the first bail application and also that the counsel must
disclose the fact of having filed a previous application and to state the result
thereof.
If at the relevant time the first Judge is holding Court at a Bench other than the
one where the first bail application was filed, it can always be transferred to that
Judge, wherever he is sitting There would, of course, be cases where it is
absolutely impossible to place the second or the subsequent bail application
before the same Judge who had dealt with the earlier bail application of the same
accused or in the same case. In such cases, the Chief Justice of the concerned High
Court, may order that it be fixed for disposal before any other Judge of that Court.
The second or the subsequent bail application to the same Court shall lie only on
a fresh ground, namely a ground which did not exist at the time when the first
application was made. If aground was available to the accused at the time when
the first bail application was filed and was not taken or was not pressed, it cannot
be considered as a fresh and made the basis of any subsequent bail application.
The mere fact that the Judge who had rejected the first bail application with the
observation that as far as the remaining petitioners are concerned no case had
been made out for their release on bail, does not mean that the application had
not been disposed of on merits. It must be assumed that he had considered all
the pleas or grounds raised by the applicants counsel before him and that the
same had not found favour with him. The notion that each contention raised
before the Court in a bail application must be dealt with separately or repelled by
recording elaborate reasoning, is totally misconceived.
Subsequent bail application-Second or sub sequent bail application by same

accused in same case heard or dealt with by a Judge other than the one who had
heard previous bail application, held, would tantamount to embark on a review of
order of Judge who had earlier dealt or decided first bail application-Practice
disapproved by Supreme Court.
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Babar Nadeem
3- Muhammad Shakeel Case (PLD 2014 SC 458)
Shorter format for deciding a bail application that was to be adopted by all courts
below provided by the Supreme Court.
Supreme Court observed that in future, unless the necessities of the case
warranted otherwise, the following shorter format for deciding an application for
bail may be adopted by all the courts below:
(i) Without reproducing the particulars and contents of the F.I.R. in detail an
order should state directly and briefly the allegation levelled by the prosecution
against the accused-petitioner. The details and particulars of the F.I.R. would
already be available in the application for bail itself or the same could be gathered
from a copy of the F.I.R. attached with such application.
(ii) The details of the arguments addressed by the learned counsel for the
parties may not be recorded in the order. It is to be presumed that the court
concerned must have heard and attended to all the arguments addressed and the
submissions made before it and if one was to look for such arguments the same
may be found mentioned in the application for bail. It may be well to remember
that an order granting or refusing bail was merely an interim order and the same
was not to be equated with a judgment.
(iii) The order should state the reasons for granting or refusing bail to the
accused-petitioner as briefly and clearly as possible in the following format:
(a) -------
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Babar Nadeem
(b) -------
(c) -------
(d) -------
(iv) The order should record the terms of bail, if applicable.
Supreme Court emphasized that brevity was the soul of wit. In the present
case, Judge had indulged in the luxury of writing as many as twelve pages for
dismissing the petitioner's application for bail which matter was merely an
interim matter pertaining only to regulating custody of the petitioner during his
trial. The matter could have been
decided by the Judge through a much shorter order saving the Court's
precious time for attending to other similar matter of urgency.
Landmark Judgments...
4- The State vs Rafiq Ahmad Case (2010 SCMR 580)
Points to be considered by Court while dealing with bail application enumerated.
While granting bail or otherwise, the Court is required to consider the following
facts:---
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(a) Whether there is or is not a reasonable ground for believing that the accused
has committed the offence with which he is charged?
(b) Whether the case requires further enquiry into the guilt of commission of non-
bailable offence within the scope of section 497(2), Cr.P.C.?
(c) Whether the accused is minor, woman, sick or infirm person?
(d) The nature and gravity of the charge.
(e) The severity or degree of the punishment which might follow in the
circumstances of the case on conviction.
5- FAWAD ALI Case( 2019 SCMR 641)
When an accused person admitted to bail was subsequently declared a

proclaimed offender or non-bailable warrants for his arrest were issued then such
declaration or issuance of non-bailable warrants ipso facto amounted to
cancellation of such accused person's bail.
6- THE CROWN VS KHUSHI MUHAMMAD (PLD 1953 FC 170)
A person cannot be admitted to bail against whom a report has been lodged at
the police station but who has not been placed in custody, or under any other
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form of restraint, or against whom no warrant for arrest has been issued. In the
case of a person who is not under arrest, but for whose arrest warrants have been
issued, bail can be granted under section 498 if he appears in Court and
surrenders himself.
The basic conception of the word "bail" is release of a person from the custody of
police and delivery into the hands of sureties, who undertake to produce him in
Court whenever required to do so. This is the meaning which has been given to
the word "bail" in Standard English Dictionaries as well as in Wharton's Law
Lexicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond
and bail bond given Schedule V of the Cr. P. C. This basic conception of the
meaning of the word "bail" has not been adverted to in the Full Bench judgment
in the case of Hidayat Ullah Khan.
7- NLR 1999 Crl Lahore 01
Any offence under any law punishable with imprisonment for a term not
exceeding three years or with fine or both, bailable unless specifically made
non-bailable.
8- SIKANDAR CASE (1995 SCMR 387)
Following are the principles of grant of bail in non-bailable offences:-
The first is that bail should never be withheld as a punishment. In cases of

non-bailable offences coming before the Courts, grant of bail is a relief resting
primarily in the discretion of the Courts to be exercised with due care and caution
as a fundamental incident of exercise of judicial power, taking into account the
facts and circumstances of each case. Orders on bail application should not be
considered as routine orders. Involving as they do the liberties of the citizens,
they must be carefully balanced and weighed in the scales of justice and the
requirement of relevant law, as contained in sections 496--498 of the Cr.P.C.
There is however a further limitation on the Courts" discretion in regard to cases
of offences which are punishable with death or transportation for life, which is
that the accused shall not be released on bail in such cases if there are reasonable
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grounds for believing that he has committed such an offence. "Reasonable
grounds" is an expression which connotes that the grounds be such as would
appeal to a reasonable man for connecting the accused with the crime with which
he is charged, "grounds" being a word of higher import than "suspicion".
However, strong a suspicion may be, it would not take the place of reasonable
grounds. Grounds will have to be tested by reason for their acceptance or
rejection. The reasonableness of the grounds has to be shown by the prosecution
by displaying its cards to the Court, as it may possess or is expecting to possess as
demonstrating evidence available in the case both direct and circumstantial.' If
such grounds exist tending to connect the accused with the crime, bail should be
refused, without the need to go into a deeper appreciation of the merits of those
grounds and the evidence on which they are rested, which functions are to be
assumed at the trial stage. However, if it is found that the charge is groundless,
that is, to say unsupported by any evidence or instead of the grounds being
reasonable, their absurdity stands exposed on a plain view, or the charge on its
face value is reduced to a minor one which is not punishable with death or
transportation for life, as for example where it is a case of accidental and
unintended death caused by simple hurt, the limitation on the Courts' discretion
is removed which must then be freely exercised in favour of the grant of bail.
Similarly where reasonable grounds are not disclosed but the grounds do exist for
a further investigation and inquiry into the guilt of an accused person, the case
will fall under section 497(2) of the Cr.P.C., in which case again bail should not be
withheld.
Even for the purpose of bail the law is not to be stretched in favour of the
prosecution and any benefit of doubt arising in the case must go to the accused.
Decision on bail application is tentative in nature and any positive expression of

opinion is likely to affect the trial of the case one way or the other.
9- AMIR MASIH CASE (2013 S C M R 1524)
Where an earlier (bail) application was dismissed as withdrawn, the

second/subsequent (bail) application could only be filed on any fresh ground and
not on the same grounds which were available at the time of disposal of earlier
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(bail) application. Grounds which were available at the time of withdrawal of
earlier (bail) application shall be deemed to have been considered and dealt with
and second (bail) application could only be filed on fresh ground(s).
10- NAZIR AHMAD CASE (PLD 2014 SC 241)
Supreme Court enunciated the following principles of propriety and

practice regarding filing, entertaining and deciding applications for bail,
cancellation of bail or suspension of sentence and release on bail during the
pendency of an appeal in criminal cases:
(i) At the bottom of every application for bail it was obligatory to attach a
certificate regarding non-filing of any such application before the same court
previously and, in case of a repeated or successive application, a certificate
disclosing filing of any such application previously by the same accused person,
any other accused person, the State or the complainant party before the same
court in the same criminal case or its cross-case and such certificate must also
disclose the number of the previous application, the date of its decision and the
name of the Judge dealing with and deciding the same. No subsequent bail
application was to be entertained unless the same was accompanied by copies of
the earlier bail applications and copies of the orders passed thereon.
(ii) All repeated or successive applications for bail must be fixed for hearing
before and heard and decided by the same Judge(s) who had dealt with and
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decided any earlier application for bail unless the Judge or one or some of the
Judges dealing with and deciding the earlier application(s) was/were not available
at the relevant station of posting/Principal Seat/Bench.
(iii) Dismissal of an application for bail after attending to the merits of the case
amounted to rejection of all the grounds available or in existence till the time of
such dismissal whether such grounds were actually taken or urged or not and
whether such grounds were expressly dealt with in the order of dismissal or not.
(iv) In case of dismissal of an earlier application for bail on the merits of the
case a subsequent application for the same relief could be filed and entertained
only if it was based upon a fresh ground, i.e. a ground which was not available or
in existence at the time of decision of the earlier application.
(v) Withdrawal simpliciter of an earlier application for bail before addressing

or hearing of any argument on the merits of the case does not preclude filing of a
subsequent application for the same relief before the same court and its decision
by such court on the merits of the case. In all cases of withdrawal of such an
application the court must faithfully record in its order as to whether withdrawal
of the application had been requested and allowed after addressing and hearing
of some or all the arguments on the merits of the case or withdrawal of the
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application had been requested and allowed before addressing and hearing of any
argument on the merits of the case.
(vi) In a case of withdrawal of an earlier application for bail after addressing

and hearing of some or all the arguments on the merits of the case no subsequent
application for the same relief could be filed before or entertained by the same
court unless such subsequent application was based upon a fresh ground, i.e. a
ground which was not available or in existence at the time of disposition of the
earlier application.
Q.44: Enlist all documents annexed to a post-arrest bail petition?
Answer: A post arrest-bail petition usually consists of following documents…..
1. Index (Optional)
2. Bail Certificate (Mandatory)
3. CNIC of accused (If available) or Photo if CNIC not available
4. Bail Petition (Mandatory)
5. FIR (Mandatory)
6. Copy of Supplementary Statement if nominated through supplementary
statement. (Optional otherwise will be verified through police file)
7. Better copy of FIR (Optional)
8. Other documents if required…
a. Medical record in hurt or death cases……
b. Previous bail orders of petitioner or other co-accused
c. All documents referred in the bail petition
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Babar Nadeem
9. Power of attorney duly attested by jail superintendent (Mandatory)
10.Copy of Bail petition (Optional)
Section 498 (Pre-arrest Bail)
Answer: “Power to direct admission to bail or reduction of bail”
Q.46: What is other name of pre-arrest bail?
Answer: Anticipatory Bail
Dear Members…..Protective bail though a type of pre-arrest bail but

it is not synonymous to “pre-arrest bail”… Adding to that “Ad-interim bail” is also
something different in the way that it is first phase of a pre-arrest bail, explaining
soon…
Q.47: Court empowered to grant anticipator bail?, where it is written?
Answer: It is written in section 498 that “the high court or court of session
may……direct that any person be admitted to bail”….
Clear? Next question is very interesting?
Q.48: When pre-arrest bail is to be moved before “High Court” and when
before “Court of Sessions”?
Answer: As per section 498, jurisdiction of High Court and Court of Session is
concurrent but as per interpretation of superior courts, as rule of
propriety, firstly court of session is to be approached and in
exceptional circumstances, pre-arrest bail may be directly filed in HC.
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Babar Nadeem
Dear Members…..Your answer in the way that if dismissed by Court
of Session, then move to High Court is also correct but my question
was where to move in first instance…..
Q.49: What is difference between “ad-interim pre-arrest bail” &

“confirmation of pre-arrest bail”?
Answer: Infact a pre-arrest bail has to phases……First one is “ad interim bail”
and second one is confirmation of that ad-interim bail.
“Ad interim pre-arrest bail”/ Aboori Zamanat/ Kachi Zamanat is
granted at the very first date, prior to notice to state, on the day pre-
arrest bail petition is filed. Said ad-interim bail is till bail is confirmed
or refused. When after notice to prosecution and after hearing both
parties, that ad interim pre-arrest bail is confirmed, it is called
confirmation of pre-arrest bail”. It is till the final decision of the case
unless cancelled by court..
End of discussion.
Q.50: What are the principles laid down under section 498?
Answer:
i. The amount of every bond executed shall be fixed with due regard
to the circumstances of the case.
ii. The amount of every bond must not be excessive
iii. The High Court or Court of Sessions may admit any person to bail
iv. The High Court or Court of Sessions may reduce bail required by a
police officer or Magistrate
Q.51: What is nature of section 498?
Answer: This section is supplementary to section 496 & 497. In other words,
Section 498 must be read with section 496 & 497 while granting pre-
arrest bail. In other words, for grant of pre-arrest bail, not only
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Babar Nadeem
requirement of section 498 are to be fulfilled but grounds under
section 496 or 497 are also be established in order to claim pre-arrest
bail.
Q.52: What is Scope of Section 498?
Answer: Though High Court and court of sessions have wider powers under
section 498 but said powers no doubt normally exercised in a
reasonable and judicial manner taking into account the limitations
placed by other provisions of CRPC. Adding to that, all conditions laid
down by superior courts from time to time are also to be fulfilled.
Q.53: What object & purpose of pre-arrest bail?
Answer: To protect innocent citizens if there are chances of their false

implication and case is found to have been registered against them
with mala fide intention
Q.54: What is difference between sentences “shall be released on bail”

used under section 496 & 497 and “be admitted to bail” used under
section 498?
Answer: As per Hidayat Ullah Case, Released on bail means the person to
whom bail was grated was infact under custody. In other words, it is
section 496 &497 which talk about post arrest bail. Admitted to bail
means that person was present before court but was not under
custody, meaning thereby, it is section 498 which talks about pre-
arrest bail.
Q.55: What are the grounds to grant a pre-arrest bail?
Answer: As per Hidayat Ullah Case, if accused is present before court, pre-
arrest bail may be granted if following conditions are fulfilled:
i. Apprehension of arrest
ii. Apprehension of arrest for some Ulterior Motive
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iii. Ulterior motive on the part of police by joining hands with
complainant is for political consideration in order to humiliate and
harass the accused
iv. Apprehension of irreparable injury to the reputation and liberty of
the petitioner
v. Otherwise, case is a fit case for grant of bail under section 496 or
497
Q.56: V.Imp What are the pre-requisites to grant a post or pre-arrest
bail?
Answer:
i. Registration of an FIR
ii. Written bail petition
iii. Presence of the accused before court granting bail
iv. Notice to the state (complainant)
v. Summoning of Record (Police File)….Optional
vi. Hearing of the Parties….
Q.57: Which section says that Registration of FIR is pre-condition for grant
of post arrest or pre-arrest bail?
Answer: Section 498-A
Q.58: What is your knowledge about a protective bail?
Answer:
When an accused against whom an F.I.R has an apprehension to be

arrested before he might exercise right of pre-arrest bail before court
having jurisdiction to grant that pre-arrest bail, he may move to the
High Court within whose territorial limits he is residing for grant of
protective bail for the period so that that he may reach to the
concerned court and file proper pre-arrest bail. Protective bail is
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Babar Nadeem
always granted by High Court. It is for a limited period. It has no
statutory law rather the same is judge made law. It is a type of ad
interim pre-arrest bail. While granting a protective bail, merits of the
case are not to be discussed. What to establish that a criminal case
has been registered and there is an apprehension of arrest while
approaching the concerned court for grant of pre-arrest bail.
I have gone through your answer…..Remember no question, whether

apprehension is from one province to another province or from one
district to another district within a province, he has to move
concerned High Court. Session Court has no power to grant a
protective bail.
Q.59: What is your knowledge about rule of consistency?
Answer: Rule of consistency means where bail to one accused is granted, bail
will be granted to the other co-accused as matter of right subject to
certain conditions which are as under:
1. The offence with which co-accused seeking bail is charged is

the same or less heinous than the accused to whom bail is
granted. For example, the accused seeking bail is charged with
offence u/s 337-A(ii) whereas co-accused to whom bail has
been granted was charged with S.302.
2. The role of the co-accused claiming bail is the same or less
heinous to the role of accused to whom bail has been granted.
For example, the role of the accused seeking bail is “Lalkara”
whereas the role of the accused to whom bail is granted is
“firing”.
Grant of bail to one co accused does not justify grant of bail to

person if he is not otherwise entitled for bail ..i e hardened
desperate dangerous criminal ...proclaimed offender etc
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Babar Nadeem
Rule of consistency cannot be applied in negative sense, meaning
thereby, court will not reject bail of one accused simply on the
ground that bail of co-accused having identical role was also rejected.
Q.60: What is object and purpose of a pre-arrest bail?
Answer: To protect innocent citizens if there are chances of their false

implication and case is found to have been registered against them
with mala fide intention.
Q.61: What is effect of opinion of I.O on bail?
It is a settled principle of law that ipsi dixit of police is not binding on

court. In other words, court is not bound by opinion of the
investigation officer, however, court may consider the same in order
to dig out the truth.
Q.62: What principles are laid down under Hidayat Ullah Case?
Answer:
the High Court has power under section 498, Criminal Procedure Code, to make
an order' that a person who is suspected of an offence for which he may be
arrested by a police officer or a Court, shall be admitted to bail. The exercise of
this power should, however, be confined to cases in which, not only is good prima
facie ground made out for the grant of bail in respect of the offence alleged, but
also, it should be shown that if the petitioner were to be arrested and refused
bail, such an order would, in all probability, be made not from motives of
furthering the ends of justice in relation. to the case, but from some ulterior
motive, and with the object of injuring the petitioner, or that the petitioner would
in such an eventuality suffer irreparable harm.
Q.63: What principles are laid down in Murad Khan Case (PLD 1983 SC 82)
Answer:
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By:
Babar Nadeem
"The criteria laid down in Hidayat Ullah Khan's case has not
undergone any change so far. The three principles laid down
therein have to be strictly followed. This power should
aparingly be exercised in appropriate cases. The Courts
should strictly avoid the exercise of this power at random,
which is likely to embarras the prosecution in investigation
as usually is the general complaint. The balance has to be
kept and each case has to be dealt with on its own merits
......... The Court should seriously apply its mind before
passing the order of pre-arrest bail. I must, however, make it
clear that Courts are the guardians of liberty, of citizens. The
abuse of power by the police to rope in innocent persons in
order to humiliate them and to cause irreparable loss to their
reputation should be equally kept in view. The golden
principles in Hidayat Ullah Khan's case must strictly be
followed."
Due to shortage of time, it is not possible to discuss other

sources of law regarding bail like High Court Rules and
Orders, however, you may go through my following audio
lecture on bail for two hours, it will clear your all concepts
regarding bail……
https://drive.google.com/open?id=1CIcD1C2-
CtgYD0lv05s8ew3MEoVUdyqX
To share knowledge is Sadqa Jaria….so must share to all your

friends and whatapp groups..
Always remember me in your prayers…Thanks
Babar Nadeem, Judge Family Court, Lahore

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Following research work on “bail” is outcome of our discussion on various

You may download anything (notes, audio lectures, solved propositions,

You may download anything (notes, audio lectures, solved propositions,

Section 496 (Bail in any case except cases of non-bailable offences):

For Offences under Special Law: If some offence is defined under

Q.2: What is title of section 496?

Answer: “In what cases bail to be taken”

Q.3: Whether section 496 deals with bailable offences only?

Answer: It is not necessary that a person always be arrested under the

Answer: Section 54 to 59 deals with circumstances under which a police

Q.5: “appears before court”, explain term “appears”?

Answer: This term as been beautifully explained by Justice Cornelius through

Q.6: “brought before court”, explain this term?

Answer: Obviously it means accused is under the custody of police.

Q.7: Who is authorized to grant bail under section 496?

Answer: Court or Officer-in-Charge of Police Station. One thing which is

Q.8: Whether bail under section 496 is a matter of right?

Q.9: What is difference between bail and releasing a person on

Answer: In case of bail, third person called surety will be responsible to

Answer: Section 496 empowers the officer-in-charge of police station or court

Q.11: What is meant by “Provided that nothing in this section shall be

Section 107 is the power of a magistrate of 1st Class. Now section

Similarly, when a person is arrested under any of section 107 to 110,

Q.12: What is title of section 497?

Answer: “When bail may be taken in case of non-bailable offence”

Q.13: With which type of offences, section 497 deals with?

Q.14: S.497(1): “Arrested or detained without warrant”; Explain the term

Q.15: S.497(1): “appears before court”, explain term “appears”?

Answer: This term as been beautifully explained by Justice Cornelius through

Q.16: S.497(1): “brought before court”, explain this term?

Answer: Obviously it means accused is under the custody of police.

Q.17: S.497(1) Under what categories a non-bailable offence may be

 Offences falling under prohibitory clause

Q.19: S.497(1) What is meant by offences falling within non-prohibitory

Q.21: S.497(1) What is meant by “reasonable grounds to believe that”?

"Reasonable grounds" is an expression which connotes that the

Q.22: S.497(1) What may be examples constituting “reasonable grounds

Answer: Following may be some examples making court to believe that

(a) where there is likelihood of the abscondence of the accused;

 Nature of offence and its effects on society

Answer: This proviso provides a rule of procedure that before making an

Q.30: Third Proviso to S.497 (1): What is meant by bail on statutory

Answer: When trial of an accused is not concluded within prescribed time, he

Trial not concluded but detained for a continuous

Answer: Following persons will be disentitled for grant of bail on statutory

 Person previously convicted for an offence punishable with

Answer: Firstly; this section says that courts as well as officer-in-charge of

Thirdly; Most important thing is that following two conditions must

i. There are not reasonable grounds for believing that the

Fourthly; Once above said two conditions fulfilled, bail will be

Fifthly; Court or officer-in-charge of the police station or court may in

Q.36: Explain term “further inquiry”

Q.37: What may be examples of “matter of further inquiry”?

 Inconsistency between ocular account and medical evidence.

So many instances. If you are preparing some bail, I suggest to go

Q.38: S.497(3): What is condition precedent of an order for grant of bail?

Answer: If a court is going to release an accused on bail:

 Bail order must be in writing

Infact it means an order regarding bail must be speaking order

Q.39: S.497(5): Which court may cancel a bail?

 Session Court against bail order of a Magistrate

But as general practice, when cancellation is sought on the ground of