Fatima Iqbal

25090097
Assignment II
Code of Criminal Procedure
Haider Rasool Mirza

You've to write a research-based and analytical response to the following

"GRANT OF BAIL IS A RULE AND REFUSAL AN EXCEPTION. DISCUSS IN THE

‘Grant of Bail is a rule and refusal an exception’ is one of the most important
principles in Pakistani jurisprudence. ‘Bail’ is the temporary release of the person
and handing over to his surety on the promise that he or she will be produced
before the court. The question of the bail may arise before the court before or
after conviction. Therefore, this concept is closely linked to the presumption of
innocence as the convict is detained before he is found to be guilty. Furthermore,
bail is also closely related to the fundamental rights of life and liberty since the
convict may or may not be deprived of his or her liberty depending on whether or
not they are granted bail.. The constitution is the Supreme law of the land,
therefore the rights granted by the constitution take precedence over any other
Procedural law. Besides severe offences which do not fall under the prohibitory
clause of Section 497, bail is given as a right.
Bail in Bailable offences
The Code of Criminal Procedure divides bail into Bailable and non-bailable
offences. A Bailable offence is a cognizable offence in which arrest cannot be
made without a warrant. In bailable offences bail is given as a right. According to
Section 496 bail in bailable offences is an absolute right. This means that the court
does not exercise discretion since the objective of the court is to obtain the
release of the convict once the conditions for bail are met. The accused has the
right to bail for offences covered under Section 496 CrPC, but this right must be
used in accordance with the terms of posting a bond (with or without sureties)
and meeting any reasonable requirements set by the court to guarantee their
appearance at trial. According to the Tariq Bahir vs The State case the court shall
consider the release of the accused on the execution of the personal bond. The
court may deny this right on the failure to execute the bond. Nothing else may be
used to deny them this right; the essential goal is still to ensure that they appear
in court. It is important to note that denial of bail is not meant to be punitive in
nature but is based on the requirements to furnish a bond. It is also not a final of
the innocence or guilt of the accused.

Bail in Non-Bailable offences

Section 497 CrPC

(1) When any person accused of any non-bailable offense 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 offense 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 offense be
released on bail.
(2) 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 such offense, 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.

The first subsection of Section 497 is the Non-Prohibitory clause deals with non-
bailable cases that donot fall under the prohibitory clause. This section makes an
assumption in favour of bail indicated by the word ‘’may’’. In this case the bail is a
rule and detention is an exceptional scenario. Bail is not an automatic right but
subject to the discretion of the court. In cases where the court exercises
discretion the court makes a careful decision keeping in view the right to liberty,
presumption of innocence. The burden of proof shifts to the why the Bail should
be denied not on the accused as to why they they should be granted bail. The
Supreme Court in the cases of Tariq Bashir (PLD 1995 SC 34), Zafar Iqbal (2009
SCMR 1488), and Muhammad Tanveer (PLD 2017 SC 733) is in favour of bail and
only denies it in specific circumstances when there is reason to believe that the
accused will abscond, tamper with evidence or repeat the offence.
The second subsection of Section 497 is the Prohibitory clause that deals with
non-bailable offences with severe punishments of death or life imprisonment for
more than 10 years. This section makes an assumption in favour of bail indicated
by the words “shall not”. The court shall not grant bail if there are reasonable
grounds to believe that the offence of the following nature was committed. In the
Prohibitory clause there is a strong presumption made against bail. The court will
only grant bail in exceptional circumstances related to age, gender or health.
The prosecution must prove to the court that there is reasonable ground for the
offence to be committed under the first category of the more serious offences
and therefore the court must refuse bail. The accused will however, make the
opposite case that there are no reasonable grounds and the offence falls under
the non-prohibitory clause the court must release him on Bail. According to the
Tariq Bashir v The state case the court must determine whether there are
reasonable grounds that the accused committed the offence. This is not a final
verdict on the innocence or the guilt of the accused. The court will carry out an
assessment without getting into the details which reserved for the trial stage. The
court will look at the evidence by the police. The prosecution is to form
counterarguments to the narrative of the accused that there is reasonable
ground. Whereever there is reasonable doubt the court must not deprive the
accused of the right to Bail. The court may also grant bail if there is a need for
further inquiry into the nature of offence that has been committed.
The Presumption of innocence is one of the most important concepts in Criminal
Jurisprudence. Any judgement the court makes on the guilt or innocence of the
person will have immediate impact on his life and dignity. The right to liberty of
the said person before the trial should not be infringed. Therefore, the court
while exercising its discretion on the Bail must balance out presumption of
innocence and right to liberty with its duty to abjudicate justice by ensuring the
presence of the accused when needed in court and safeguarding the community
in case of the convict roaming freely.