RIZWANA ZAHOOR

LLM 2ND SEMSTER

DEPARTMENT OF LAW

Right to Bail

WHAT IS BAIL?
Bail means entrustment of the accused to his
sureties, who are bound to produce the accused in
court whenever required.

Bail means the security taken from a person to

appear on a fix date before the court.
Bail is the release from the custody of a person
charged with an offence, on that person signed
undertaking that he will appear in court to answer
the charge.

Purpose of Bail
Secure the presence of accused at the trail while
allowing the accused his liberty and protecting
him for unnecessary detention.

It must always be kept in mind that the accused is

innocent until proven guilty.
When deciding to grant bail,any amount of
bond,the number of sureties or conditions
imposed should only be sufficient to ensure that
the accused attends the next hearing.

The code of criminal procedure 1989

The code of criminal procedure 1989 is the law of
procedure in Pakistan and provides the
mechanism for the implementation of the
substantive penal laws.
Where any special procedure is provided in any
other law in force the same shall have the field.

Where special law is silent the procedure given in

this code shall apply unless specifically
prohibited by that law.

Criminal justice system of Pakistan

The code of criminal procedure defines the word
offence:
Any act or omission made punishable by any law
for the time being in force,it also includes any act
in respect of which a complaint may be made by
an aggrieved person.

The essential elements of an offence are as under:

That it should be an act or omission
That such act or omission should be made
punishable

What is an act and what is an

omission
Act:

An act is any doing by a human being.

Omission:

An omission is not doing any act. When a law

requires an act not to be done it becomes a legal
duty of the concerned subjects not to do it.But it
will be called an offence only when law also
prescribes a punishment for its omission.

Division of offences
The code of criminal procedure divided offences
in to two i.e bailable offences and non-bailable
offences.

Bailable offences:
means an offence shown as bailable in the
second schedule or which is made bailable by any
other law for the time being in force.
Non-bailable offences:
Non bailable offences means any offence other
than bailable.

Kinds/types of bail
Post arrest bail
Pre arrest bail
Bail in bailable offences:
In the case of bailable offences the person
accused has the indefeasible to grant of bail
subject of course to satisfactory sureties being
offered,if sureties are considered necessary.
The court or the officer in charge of police
station is bound to release the person who is
accused of bailable offence.

Conditions for grant of bail

The conditions laid down by the supreme court
for grant of bail are as follows.
If the person seeking bail has been placed under
actual custody;or
He appears in answer to a process issued by the
court;or

He is brought before the court

By the police;or

By some other arresting authority

Authority to grant bail

Court of law
Officer in charge of police station
Bail in non-bailable offences (sec 497)
Factors to be considered:
The nature of accusation and prosecution
evidence in support of it,
Severity of punishment,
Behaviour or plea of defence

Classes of non-bailable offences

Section 497 of cr.p.c divides non-bailable offence
in to two categories.
Offences falling in prohibitory clause.

Offences does not falling in prohibitory clause.

Offences falling in prohibitory clause:

Offences punishable with death

imprisonment for life and imprisonment for ten
years.

General rule in non-bailable

As a general rule bail shall not be granted in such
cases but with exceptions.
Exceptions:

A person under the age of sixteen years or

Any woman;

Any sick person;or

Infirm person

Cases where court shall grant bail as

a matter of right
Case of further inquiry Sec.497(2)
The essential pre requisite for grant of bail is that
the court must be satisfied on the basis of opinion
expressed by the police or the material placed
before it that there were reasonable grounds to
believe that the accused was not guilty of an
offence punishable with death or imprisonment of
ten years.
Case of further inquiry would only be made out
when data collected by prosecution is not
sufficient.

Reasons for bail to be recorded in

writing
Releasing any person on bail shall record in
writing 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 and
before judgment is delivered.

Offences not falling within

prohibitory clause
Offences punishable with imprisonment less than
ten years.
Rule

Bail in cases falling in this category will be

declined only in extra ordinary and exception
cases.e.g
Where there is likelihood of abscondance;

Where there is the danger of the offence being

repeated if the accused is released on bail;

Where the accused is a previous convict.

Where there is apprehension of the accused
tampering with the prosecution evidence.

Pre arrest bail

Object
To prevent innocent person from being un
necessarily harassed.

Scope
Rare,and very limited which could be extened in
strong and exceptional circumstances which are
based on malafide/ enmity.
Sec(498) cr.p.c empower high court or session
court to grant pre arrest bail.in case of exceptional
nature.

Conditions for grant of pre-arrest

bail
Following conditions for the grant of pre arrest
Genuine proved apprehension of imminent arrest
Petitioner should physically surrender to the
court.
Apprehension of harassment and under
irreparable humiliation by unjustified arrest.
It should be otherwise fit case on merits.

Pre-arrest can not be claimed as a

matter of right
It can not be claimed as a matter of right but can
only be availed off where it is shown that the
cause of prosecution is based on mailce and
ulterior motive.

Cancellation of bail
The High court or the court of Session or any
other court which has released an accused on bail
for a non-bailable offence,may order his arrest
and remand in custody.
This will be where there has been a change in
circumstances;

There is apprehension he may abscond,

He has breached the terms of bail,
Committing other offences.

Thank you