The right to liberty and law of bail in Pakistan

The right to liberty is considered a basic human right and the pre-trial detention curtails this right before the guilt is proven. The right to liberty is a basic human right. It is universally acknowledged and embodied in several international, regional, and national legal statutes.

Depriving an individual of this right has numerous and serious implications for the individual, his family, and society as a whole. However, at the same time, the peace of society requires that individuals who may cause disturbance and convulsion, be deprived of this precious right. Therefore, despite the sanctity of the right to liberty, every society has to have a mechanism to prevent and control crimes through arrest and detention.

As Justice Chandrachud puts it “Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of [and not by] law. Yet, much too often, liberty is a casualty when one of these components is found wanting. Liberty is not a gift for the few.

“Deprivation of liberty even for a single day is one day to many. It is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The State should not be allowed to use criminal law to harass citizens. Courts were the first line of defense against deprivation of citizens’ personal liberty.

“Deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon. Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.”

Defining the right to liberty in the ICCPR, the UN Human Rights Committee has said, “detention pending trial must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances.”

Pakistan’s bail laws and jurisprudence, however, make a mockery of the right to liberty.

Criminal Offences in Pakistan are divided into two categories; bailable and non-bailable offenses. For bailable offenses, bail is an accused person’s right, whereas, in non-bailable cases, bail may only be granted at the discretion of the court.

Defining the term ‘bail’: A concept in itself

The term ‘bail’ is derived from the old French verb “baillier” which means to give or deliver. Bail in English Common Law is the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance on a certain day and a place named.

The basic concept of ‘bail’ is the release of a person from the custody of the police or delivery into the hands of sureties, who undertake to produce him in court whenever required to do so. The concept of bail emerges from the conflict between the police power to restrict the liberty of a man who is alleged to have committed a crime and the presumption of innocence in favor of the alleged criminal.

The state in its anxiety to protect its subjects from the onslaughts of criminals have vested the police with the power of arrest and approaching the criminal Court with a prayer for keeping the accused in custody.

The concept of bail has a long history and deep roots in English and American Law. In Medieval England, the customs grew out of the need to free untried prisoners from disease-ridden jails while they were waiting for the delayed trials conducted by traveling justices. Prisoners were bailed, or delivered to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial.

The law of bail being 25 not static grew all the time molding itself with the exigencies of time, as in times of war and crisis it leans in favor of the society and the Government, while in times of peace it leans in favor of the individual and the subject.

The legal landscape

The Code of Criminal Procedure, 1898 (Act V of 1898) defines the word Offences in clause (o) of subsection (1) of section 4 as, “Offence means 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 under section 20 of the Cattle Trespass Act, 1871.”

The Code of Criminal Procedure, 1898 in clause (b) of subsection (1) of section 4 also defines Bailable offence and Non-Bailable offence as under:

“Bailable offence means an offence shown as bailable in the second schedule, or which ism de bailable by any other law for the time being in force, and non-bailable offences means any other offence”. Examples of bailable offences include kidnapping, assault, accidental homicide. Whereas; examples of non-bailable offences include hurting religious sentiments, sedition, and promoting enmity between different groups.

“Cognizable offence” means an offence for, and cognizable case means a case in which a police officer, may, in accordance with the second schedule or under the law for the time being in force, arrest without warrant.

“Non-Cognizable offence” means offences for and the cases in which a police officer may not arrest without a warrant from Magistrate.”

Most offences under special laws such as the Anti-Terrorism Act, 1997, and the National Accountability Ordinance, 1999, also fall under the category of non-bailable offences.

Bail in bailable offences

Section 496 of the Criminal Procedure Code 1898 prescribes the procedure for bail in bailable offences. The grant of bail in bailable offences is a right while in non-bailable offences it is not a right but a concession.

As per the language of Section 496 of the Criminal Procedure Code 1898 “When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appear or is brought, before a Court, and is prepared at any time while in the custody of such officer or at: any stage of the proceedings, before such Court to give bail, such person shall be released on bail, Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as; hereinafter provided: Provided, further that’ nothing-in this section shall be deemed to affect the provisions of Section 107, sub-section (4), or Section 117, sub-section (3).

The grant of bail on statutory grounds

Section 497 of the Criminal Procedure Code 1898 deals with the cases of bail in non-bailable offences. A bail under Section 497 of the Criminal Procedure Code 1898 is also known as “bail after arrest” or “post-arrest bail”.

As per the language embodied in Section 497 of the Criminal Procedure Code 1898, “When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years; 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, provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given the notice to show cause why he should not be so released.

“If it appears to such Officer or Court at any stage of the investigation, inquiry or trial, as the case may be that there are not reasonable: grounds, for believing that the accused has committed a non-bailable offence; but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution, by him of a bond without sureties for his appearance as hereinafter provided.

“An officer of a Court is releasing any person on bail under sub-section, (1) or sub-
section (2) shall record in writing his or its reasons for so doing.

“If, at any time after the conclusion at the trial of a person accused of a non-bailable
offence and before judgment is delivered, the Court is, of opinion that there are
reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

“A High Court or Court of Session and, in the case of a person released by itself any,
other Court may cause any person who has been released under this section to be
arrested and may commit him to custody.”

Grant of bail is a right and refusal is an exception

It is trite law that bail cannot be withheld as punishment. The grant of bail in a bailable offence is a right and refusal is an exception. Reference in this regard can be made to the celebrated judgment of Tariq Bashir & 5 others Versus The State reported as PLD 1995 SC 34.

Post arrest bail or bail after an arrest can be granted on the ground of delay in conclusion of trial i.e. statutory ground of delay, where there is no chance that the accused might abscond, where there is no chance that the accused might tamper with the prosecution’s evidence, where the case is one of further inquiry, where the petitioner is not required for any further investigation by the police, where no private witnesses have been associated with the alleged recovery, a case of cross-version, plea of alibi, delay in lodging of FIR, rule of consistency.

One of the grounds for the grant of post-arrest bail comprises ‘statutory ground of delay’ at the conclusion of the trial. Where a Reference is not filed within the prescribed period of limitation the accused is entitled to be granted post-arrest bail or bail after arrest. In the case titled Adnan Prince Versus The State through P.G., Punjab, and another reported as PLD 2017 SC 147, a Full Bench of the Supreme Court of Pakistan was pleased to grant post-arrest bail to the accused on the ground of delay in conclusion of the trial.

Another ground for the grant of post-arrest bail comprises ‘bail on the ground of abscondence of the accused’. It is trite law that bail to an accused cannot be denied on the ground of abscondence. Even if the accused is an absconder this would not be a ground for declining bail to an accused.

In the case titled Ehsanullah Versus The State reported as 2012 SCMR 1137, a Two Member Bench of the Supreme Court of Pakistan was pleased to grant bail to an accused on the ground of abscondence. A similar view has also been taken by the Supreme Court of Pakistan in the case titled Qamar alias Mitho Versus The State & others reported as PLD 2012 SC 222.

Another ground for the grant of post-arrest bail to an accused is where the case is one of ‘further inquiry’ in terms of Section 497 (2) of the Criminal Procedure Code 1898. In the case titled as Mst. Maria Khan Versus The State reported as 2013 SCMR 49 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant bail to an accused as her case was one of further inquiry. Likewise, in the case titled as Ikram-ul-Haq Versus Raja Naveed Sabir reported as 2012 SCMR 1273 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant bail to an accused whose case was one of further inquiry.

Another ground on the basis of which an accused could be entitled to the grant of post-arrest or bail after an arrest is where there is no chance of tampering with the prosecution’s evidence and the entire documentary evidence is in the possession of the prosecution. In the ceremonial judgment titled as Saeed Ahmed Versus, The State reported as 1996 SCMR 1132 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant post-arrest bail to an accused on the ground that the entire documentary evidence was in the possession of the prosecution and there were no chances of tampering with the same.

Bail on the ground of cross-version

Another ground on the basis of which an accused may be entitled to the concession of post arrest bail is where it is a case of ‘cross version’. In the case titled as Ghulam Abbas Versus The State reported as 2016 SCMR 2048 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant post arrest bail to an accused on the ground that the case involved cross versions or cross First Investigation Reports (FIRs).

However, in a recent change and development a Seven Member Bench of the Supreme Court of Pakistan in the case titled as Mst. Sughran Bibi Versus The State reported as PLD 2018 SC 595 while interpreting the provision of Section 154 of the Criminal Procedure Code 1898 was pleased to hold that, “No separate FIR was to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case.”

Another ground on the basis of which an accused could be entitled to the grant of bail after arrest or post-arrest bail is his plea of alibi. In the ceremonial judgment titled as Khalid Javed Gillan Versus The State reported as PLD 1978 SC 256 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant post-arrest bail to an accused on his plea of alibi.

Another ground on the basis of which an accused could be entitled to the grant of post-arrest bail is the inordinate delay in the lodging of the First Information Report (FIR). In the case titled Farmanullah Versus, The State through Additional Advocate General and another reported as 2020 SCMR 1687 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant post-arrest bail to the accused on the ground that there was inordinate delay in the lodging of the FIR.

Another ground on the basis of which an accused may be entitled to the grant of post-arrest bail on the basis of the ‘rule of consistency’. In the case titled Abid Versus, The State reported as 2016 SCMR 907 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant post-arrest bail to the accused on the principle of ‘rule of consistency’. A similar view was also taken by a Full Bench of the Supreme Court of Pakistan in the case titled Mitho Pitafi Versus The State reported as 2009 SCMR 299.

Cancellation of Bail according to the Criminal Procedure Code 1898

Bail whether it be pre-arrest or be it post-arrest can be canceled under Section 497 (5) of the Criminal Procedure Code 1898. It is however settled law that the grounds for the grant of bail and its cancellation are entirely different.

Very strong and exceptional grounds are required for the cancellation of bail. For example, bail can be canceled if the bail granting order is perverse, patently illegal, erroneous, factually incorrect, and had resulted in miscarriages of justice; if the accused had misused the concession of bail in any manner if the accused had tried to tamper with the prosecution’s evidence if there was the likelihood that the accused might abscond, if the accused attempt to interfere in the smooth course of an investigation if the accused misused his liberty while indulging into a similar offense, and where some fresh facts and material had been collected during the course of investigation establishing the guilt of the accused.

In the case titled Rana Abdul Khaliq Versus, The State & others reported as 2019 SCMR 1129 a Full Bench of the Supreme Court of Pakistan was pleased to cancel the pre-arrest bail granted to the accused. Likewise, in the case titled as Chairman NAB through PGA NAB Islamabad Versus Muhammad Khalid reported as 2016 SCMR 676 a Full Bench of the Supreme Court of Pakistan was pleased to hold that, “Bail could not be canceled merely on the ground of abscondence.”

Recent cases pertaining to the grant of post-arrest bail

More recently, a Full Bench of the Supreme Court of Pakistan (authored by Mr. Justice Syed Mansoor Ali Shah J) vide its order dated 14^th July 2021 in the case titled Iftikhar Ahmed Versus The State bearing (Criminal Petition No 529 of 2021) was pleased to grant post-arrest bail to the accused subject to furnishing of bail bonds to the tune of Rs/- 500,000/- with two sureties in the like amount to the satisfaction of the trial court.

Similarly, a Full Bench of the Supreme Court of Pakistan vides its order dated 17^th May 2021 (authored by Mr. Justice Syed Mansoor Ali Shah J) in the case titled Muhammad Sarfraz Ansari Versus The State bearing (Criminal Petition No 435 of 2021) was pleased to grant post-arrest bail to the accused subject to furnishing of bail bonds to the tune of Rs/- 500,000/- with two sureties in the like amount to the satisfaction of the trial court.

In the case titled Saleem Khan Versus, The State & others reported as PLD 2020 SC 356 a Two Member Bench of the Supreme Court of Pakistan (authored by Mr. Justice Syed Mansoor Ali Shah J) was pleased to grant post-arrest bail to the accused on the ground of statutory ground of delay i.e. delay in conclusion of the trial subject to furnishing of bail bonds to the tune of Rs/- 200,000/- with one surety in the like amount to the satisfaction of the trial court.

Pre-Arrest & Post Arrest Bail in the words of the Apex Court

The concept regarding the grant of pre and post-arrest bail has been eloquently dilated upon by Honorable Mr. Justice Syed Mansoor Ali Shah J in some of the recent pronouncements authored by his Lordship. While dilating upon the concept on the grant of pre arrest bail and while laying down the Constitutional grounds for the grant of pre arrest bail and by granting the same his Lordship in the case titled as Shahzada Qaiser Arafat alias Qaiser Versus The State and another reported as PLD 2021 SC 708 was pleased to hold that “The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre arrest bail was in the nature of a check on the police power to arrest a person. The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary by a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there was sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention was required during investigation or trial of the case, and their insistence only on showing mala-fide on part of the complainant or the police for granting pre-arrest bail did not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10A of Constitution. Protection against arbitrary arrest and detention was part of the right to liberty and fair trial.
In many cases, accused persons were granted pre-arrest bail after the court found that there were no reasonable grounds for believing their involvement in the commission of the alleged offences and the court did not require independent proof of mala-fide on part of the police or complainant before granting such relief. Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the police to arrest him were the circumstances which by themselves indicated mala-fide on the part of the complainant and the police, and the accused need not lead any other evidence to prove mala-fide on their part. Present case was a fit case for exercise of discretion to admit the accused to pre-arrest bail to save him from unjustified arrest, consequent humiliation and the curtailment of his right to liberty. Petition for leave to appeal was converted into appeal and allowed, and accused was granted pre-arrest bail”.

Likewise, while dilating upon the concept on the grant of post-arrest bail to an accused his Lordship in the case titled as Muhammad Sarfraz Ansari Versus The State was pleased to hold that “We are fully cognizant of the well-settled principle that at the bail stage the court is not to make deeper examination and appreciation of the evidence collected during investigation or to conduct anything in the nature of a preliminary trial to determine the accused’s guilt or innocence. However, for deciding the prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in vacuum. The court, for answering the said question, has to look at the material available on record when the bail is applied for and be satisfied that there is, or is not, prima facie some tangible evidence which, if left unrebutted, may lead to the inference of the guilt of the accused. No doubt, it is the practice of this Court not to intervene in bail matters ordinarily, leaving them to the discretion of the courts inquiring into the guilt of the accused persons. However, in cases where the discretion is found to have been exercised arbitrarily, perversely or contrary to the settled principles of law, this Court does not hesitate to interfere with that wrong exercise of discretion, in the interest of justice”.

Similarly, while dilating upon the concept of the grant of post arrest bail his Lordships in the case titled as Iftikhar Ahmed Versus The State was pleased to hold that “What concerns us, in the present case is that the courts below have not exercised their discretion while declining bail to the petitioner, under sub-section (1) of Section 497 CrPC, in accordance with the principle of law enunciated by this Court regarding grant of bail in offences not falling within the prohibitory clause of that subsection. They have viewed the case against the petitioner under sub-section (2) of Section 497 CrPC and simply relied, for declining bail, on the incriminating material available on the record to connect the petitioner with the commission of the offences alleged. All the offences alleged against the petitioner do not fall within the prohibitory clause of subsection (1) of Section 497 CrPC and thus attract the principle that grant of bail in such offences is a rule and refusal an exception as authoritatively enunciated by this Court in several cases.

The main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguard the society, if there is an apprehension of repetition of offence or commission of any other untoward act by the accused. Therefore, in order to make the case of an accused person fall under the exception to the rule of grant of bail in offences not covered by the prohibitory clause of Section 497 (1) CrPC, the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused is released on bail. This Court in the cases of Tariq Bashir, Zafar Iqbal, and Muhammad Tanveer has time and again illustrated such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. They include the likelihood of (i) his abscondence to escape trial; (ii) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice or (iii) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of of offence alleged. A court which deals with an application for grant of bail in an offence not falling within the prohibitory clause of Section 497 (1) CrPC must apply its judicious mind to the facts and circumstances of the case and to the conduct of the accused person, and decline to exercise the discretion of bail to him in such offence only when it finds any of the above circumstances or some other striking circumstances that impinges on the proceedings of the trial or poses a threat or danger to the society, justifying his case within the exception to this rule, as the circumstances mentioned above are not exhaustive and the facts the circumstances of each are to be evaluated for application of said principle.

In the present case, neither the courts below, including the learned High Court, have mentioned any circumstance that may bring the case of the petitioner under the exception of declining bail in offences not falling within the prohibitory clause of Section 497 (1) CrPC nor the learned counsel for the State and the learned counsel for the complainant could show us any such circumstance or conduct of the petitioner that would bring the case of the petitioner under exception to the rule of granting bail in such offences. The courts below, including the learned High Court, have failed to adhere to the principle of law enunciated by this Court for exercise of discretion to grant bail in offences not falling within the prohibitory clause of Section 497 (1), CrPC”.

Section 498 of the Criminal Procedure Code 1898 deals with “pre-arrest bail” or “bail before arrest”. As per the language embodied under Section 498 of the Criminal Procedure Code 1898 “The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall, not be excessive and the High Court or Court of Session may in any case, whether there be an, appeal on conviction or riot, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced”.

Grounds for the grant of Pre-Arrest Bail

The grounds for the grant of pre-arrest bail or bail before arrest were laid down by a Larger Bench of the Supreme Court of Pakistan in the ceremonial judgment titled Meeran Bux Versus The State reported as PLD 1989 SC 347.The grounds for the grant of pre-arrest bail comprise of the pre-conditions that the accused person had to show that his arrest was intended by the prosecution out of mala-fide and for ulterior considerations.

In the case titled Rana Muhammad Arshad Versus Muhammad Rafique and another reported as PLD 2009 SC 427, a Two Member Bench of the Supreme Court of Pakistan was pleased to lay down the conditions for the grant of pre-arrest bail.

In the case titled as Khalid Ahmed Soomro and others Versus The State reported as PLD 2017 SC 730 a Full Bench of the Supreme Court of Pakistan was pleased to lay down the criteria and the grounds for the grant of pre-arrest bail or bail before arrest. The Full Bench of the Supreme Court of Pakistan was pleased to admit the accused to pre-arrest bail upon satisfaction of the grounds for pre-arrest bail.

More recently, a Full Bench of the Supreme Court of Pakistan in the case titled as Shahzada Qaiser Arfat alias Qaiser Versus The State and another reported as PLD 2021 SC 708 while following the law laid down in PLD 2017 SC 730 was pleased to lay down the criteria for the grant of pre-arrest bail and was pleased to grant the accused pre-arrest bail subject to furnishing of bail bonds to the tune of Rs/- 100,000/- with one surety in the like amount, to the satisfaction of the trial Court/Illaqa Magistrate within fifteen days.

Anticipatory or transitory bail

There are numerous cases in which the Courts have been pleased to grant anticipatory or transitory bails to the accused under Section 498 of the Criminal Procedure Code 1898. In the case titled Hassan Javed Versus The State and another reported as 2020 SCMR 670, a Two Member Bench of the Supreme Court of Pakistan was pleased to grant the accused anticipatory bail as his case came within the ambit of Section 497 (2) of the Criminal Procedure Code 1898.

Likewise, in the case titled Muhammad Gul Versus, The State reported as 1998 SCMR 576 a Full Bench of the Supreme Court of Pakistan was pleased to grant anticipatory bail to the accused subject to furnishing of bail bonds in the sum of Rs/- 50,000/- with one surety and P.R. bond, in the like amount to the satisfaction of the trial court.

In the case titled Ajmal Khan Versus Liaqat Hayat and another reported as PLD 1998 SC 97, a Two Member Bench of the Supreme Court of Pakistan was pleased to lay down the parameters for the grant of anticipatory bail.

Bail on medical grounds

There has been and there still is a great debate as to whether could bail be granted to an accused on ‘medical grounds’. There has been a difference of opinion of the Superior Courts of Pakistan whether to grant bail to an accused on ‘medical grounds’.

The first of such instances comprises of the case titled Khawaja Anwer Majid Versus National Accountability Bureau through Chairman NAB and another reported as PLD 2020 SC 365 a Two Member Bench of the Supreme Court of Pakistan was pleased to grant post-arrest bail to the accused on ‘medical grounds’.

The second case involving the grant of bail to the accused on ‘medical grounds’ is the case titled Mian Muhammad Nawaz Sharif Versus The State and others reported as 2019 SCMR 734 wherein a Full Bench of the Supreme Court of Pakistan was pleased to grant bail to the accused on ‘medical grounds’ for a period of “6 weeks”.

However, in the case titled Sharjeel Inam Memon Versus National Accountability Bureau reported as 2018 SCMR 2023 a Full Bench of the Supreme Court of Pakistan was not inclined to grant bail to the accused on medical grounds, and the Petition seeking leave to appeal was dismissed.

In the case titled as Asif Ali Zardari Versus The State bearing (Writ Petition No 4186/2019) a Division Bench of the Islamabad High Court was pleased to grant bail to the accused on ‘medical grounds’.

Likewise, in the case titled as Dr. Asim Hussain Versus Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and others reported as YLR 2018 (Sindh High Court) Note 154 a Division Bench of the Sindh High Court was pleased to grant bail to the accused on ‘medical grounds’.

Grant of bail while dilating upon the merits of the case

Another great debate that has evolved over the past many years pertains to whether an accused could be granted bail while dilating upon the merits of the case. It is trite law that “Deeper appreciation of evidence at bail stage is not permissible and only a tentative assessment can be made at bail stage”. However; there has been a difference of opinion of the Courts as to whether could the Courts look into the merits of the case while granting bail to an accused.

More recently, a Two Member Bench of the Supreme Court of Pakistan in the case titled Khair Muhammad and another Versus The State through P.G. Punjab and another reported as 2021 SCMR 130 was pleased to hold that “While granting pre-arrest bail even the merits of the case could be touched upon”.

Likewise, in the case titled as Muhammad Jahangir Khan and others Versus The State and others reported as 2020 SCMR 1270 a Full Bench of the Supreme Court of Pakistan was pleased to hold that, “the Court while granting pre-arrest bail to an accused can consider the merits of the case in addition to the element of malafide, ulterior motives.”

In the case titled as Anti-Narcotics Force through its Regional Director/Force Commander, A.N.F. Rawalpindi reported as 2019 SCMR 1928 a Full Bench of the Supreme Court of Pakistan was pleased to set aside the order of the High Court and remanded the matter to the High Court to attend merits of the case.

However; in the case titled as Chairman National Accountability Bureau, Islamabad through Prosecutor-General Accountability, Islamabad Versus Mian Muhammad Nawaz Sharif and 2 others reported as PLD 2019 SC 445 a Larger Bench of the Supreme Court of Pakistan was pleased to hold that “While deciding an application seeking bail merits of the case were not to be adverted to or commented upon in any detail.”

Likewise, in the case titled as Ch. Muhammad Ashfaq Versus The State and others reported as 2015 SCMR 1716 a Two Member Bench of the Supreme Court of Pakistan was pleased to set the notion that, “while granting bail to an accused the merits of the case could not be looked into by the Courts and this was not a permissible practice.”

In the case titled as Muhammad Shakeel Versus, The State reported as PLD 2014 SC 458 a Two Member Bench of the Supreme Court of Pakistan was pleased to hold that “The order granting bail should be short and the order should state the reasons for granting or refusing bail to the accused-petitioner as briefly and clearly as possible.”

The concept of bail under the NAB Ordinance 1999

Under the National Accountability Bureau Ordinance 1999, there is no provision with regard to the grant of bail. In order to seek bail be it pre-arrest or post-arrest bail, an accused has to file a Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 before the High Court. The National Accountability Bureau Ordinance 1999 is a special law. A matter pertaining to the provisions of the National Accountability Bureau Ordinance 1999 is heard by a Bench of two Judges of the High Court.

Initially, in cases pertaining to NAB, a Larger Bench of the Supreme Court of Pakistan in the ceremonial judgment titled Khan Asfandyar Wali Khan Versus Federation of Pakistan reported as PLD 2001 SC 607 was pleased to hold that “The High Court and the Supreme Court have the power to grant bail to an accused under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as S.497, Cr. P.C.”

The law laid down in Khan Asfandyar Wali Khan Versus Federation of Pakistan reported as PLD 2001 SC 607 was re-iterated by a Full Bench of the Supreme Court of Pakistan in the case titled as Anwar Saifullah Khan Versus The State reported as 2001 SCMR 1040.

Then in the year, 2018 came the judgment titled Olas Khan Versus Chairman NAB reported as PLD 2018 SC 40 wherein a Two Member Bench of the Supreme Court of Pakistan was pleased to re-iterate the law laid down in the case of Khan Asfandyar Wali Khan Versus Federation of Pakistan reported as PLD 2001 SC 607with regard to the High Court’s and the Supreme Court’s power to grant bail to an accused in NAB cases.

However, it was not until the year 2019 that a Five Member Larger Bench of the Supreme Court of Pakistan in the case titled Tallat Ishaq Versus Chairman NAB reported as PLD 2019 SC 112 while dilating upon the provisions of the National Accountability Bureau Ordinance 1999 was pleased to limit the jurisdiction of the High Courts to grant bail to an accused in NAB cases by holding that “The High Court can grant bail to an accused in NAB cases only if the case involves extreme hardship or if it is a case one involving extra-ordinary exceptional circumstances and not in a run of the mill case or not as a matter of course or as a matter of routine or right.”

The law laid down by a Larger Bench of the Supreme Court of Pakistan in Tallat Ishaq’s case was re-iterated by a Full Bench of the Supreme Court of Pakistan in the case titled as Murad Arshad Versus Chairman NAB reported as PLD 2019 SC 250 wherein a Full Bench was pleased to hold that “The High Court can grant bail to an accused in NAB cases only if the case involves extreme hardship or if it is a case one involving extra-ordinary exceptional circumstances and not in a run of the mill case or not as a matter of course or as a matter of routine or right.”

As of today, the position regards the grant of bail by the High Court and the Supreme Court in matters pertaining to NAB is still the same and unless the accused is able to establish that his case is one of “extreme hardship” or involves “extra-ordinary exceptional circumstances” he shall not be entitled to the grant of bail.

Article 4 of the Constitution of the Islamic Republic of Pakistan says; individuals have the right to be dealt with in accordance with the law; to enjoy the protection of the law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan; no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law; no person shall be prevented from or to be hindered in doing that which is not prohibited by law, and no person shall be compelled to do that which the law does not require him to do.

Article 10: Precautions regarding arrest and detention

No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

No law providing for preventive detention shall be made except to deal with the person acting in a manner prejudicial to the integrity, security or defense of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.

Sindh Police Act 1861: Recent developments

In a landmark judgment by a Seven Member Bench of the Supreme Court of Pakistan in the case titled as Mst. Sughran Bibi Versus The State reported as PLD 2018 SC 595 the Supreme Court of Pakistan was pleased to hold that “the arrest of an accused cannot be made merely on the basis of the registration of a First Information Report (FIR) without there being cogent and solid incriminating evidence against the accused”.

Against this backdrop, the Sindh Government has decided to amend the Sindh Police Act 1861 in terms of the powers of the police to arrest the accused. As per this proposed amendment now the police officers shall not be entitled to arrest an accused unless they have cogent, reliable, confidence-inspiring evidence in their possession against the accused.

As per this proposed amendment, now the police would need to show that they have credible, reliable, confidence-inspiring evidence against the accused before they can arrest the accused failing which the arrest cannot be made. The power to arrest an accused by NAB i.e. Section 24 of the National Accountability Bureau Ordinance 1999 has been subject to judicial scrutiny time and again.

In numerous cases, the Superior Courts have gone on to hold that the power to arrest an accused should not be exercised arbitrarily. Reference may well be made to the case titled Khawaja Salman & Saad Rafique Versus National Accountability Bureau through its Chairman reported as 2020 SCMR 456.

The way forward

The right to liberty and personal freedom is universally recognized as a basic and fundamental right of every individual. It is acknowledged under international as well as Pakistani law that this right cannot be limited or denied except in accordance with law and the state is bound to protect this and other basic rights of people along with its responsibility to establish and maintain peace and tranquility in the society.

Arrest and detention of an accused is warranted only if there exists some material evidence in the shape of reasonable suspicion or credible information indicating his involvement in the alleged offences. The state is under the obligation to ensure non-discrimination, rule of law, and fair trial while prosecuting the accused against the alleged offence.

It is also asserted under international law that an accused may be arrested and detained only in exceptional circumstances as “a last resort” in criminal proceedings and thus alternative measures to pre-trial detention (such as bail, cognizance) are encouraged to employ.

An accused must be brought to justice without unreasonable delay and his trial should be concluded as early as possible. The arrest and detention of the accused must be under judicial supervision or observation and the same should not be prolonged or excessive as “the justice delayed is justice denied” though no strict limit is defined in this regard in international human rights law.

However, the status and condition, treatment of the accused should reflect the presumption of his innocence until proved guilty and he should be preferred with the benefit of the doubt.

The law of bail in Pakistan meets the international norms and the requirements of a modern understanding of the subject. Not only the Constitutional guarantees have been provided but also laws are so enacted to make the human rights of a person more certain to avoid any ambiguity on that behalf.

To ensure the liberty of a person the law has given the power to Police and Court to bail out a person immediately in bailable offences while the discretion has been left with the Court to bail out a person in a suitable case where he has been arrested in the non-bailable offence. It is also important to mention that each case is to be seen on its own facts and circumstances.

May Allah help and guide us all!

The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1.The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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