Crl. Misc. No.233/2021 The end of law is not to abolish or restra in, but to preserve and enlarge freedom. For in all the states of created beings capable of law , where there is no law , there is no freedom. -- John Locke, 1689 Tariq Saleem Sheikh, J. The Petitioner , Maqbool Ahmad, was tried by the Additional Sessions Judge, Chichawatni, in case FIR No.238/2013 dated 1.5.2013 registered at Police Statio n Saddar Chichawatni and was convicted and sentenced as under vide judgment dated 08.1 1.2016: i) Convicted under section 376 PPC and sentenced to rigorous imprisonment for 10 years with fine of Rs.50,000/- and in default thereof to undergo simple imprisonment for a further period of six months. ii) Convicted under section 496-A PPC and sentenced to rigorous imprisonment for four years with fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of three months.
Both the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was extended to the Petitioner .
2. The Petitioner filed Crl. Appeal No.969/2016 in this Court against judgment dated 08.11.2016. While the said appeal is still pending he moved Crl. Misc. No.1/2017 for suspension of his sentence which was accepted by this Court vide order dated 22.10.2019 and he was directed to be released on bail subject to his furnishing bail bond in the sum of Rs.200,000/- with two sureties in the like amount to the satisfaction of the Deputy Registrar (Judicial) of the Bench. Through this application under section 561-A Cr.P.C. the Petitioner seeks reduction of the amount of his bond.
3. Learned counsel for the Petitioner submits that the Petitioner is an indigent labourer and could not arrange the requisite bail bonds despite his best efforts. This Court accepted Crl. Misc. No.1/2017 as far back as 22.10.2019 but he could not benefit from it even after more than one year and three months because of his impecuniosity . He prays for indulgence.
4. The learned Deputy Prosecutor General has vehemently opposed this application. He contends that the Petitioner is involved in a heinous offence. He is a desperate criminal and would abscond if he is released without sufficient sureties.
5. Arguments heard. Record perused.
6. Merriam-W ebster Online Dictionary defines "bail" as "the temporary release of a prisoner in exchange for security given for his appearance at a later hearing." According to Black's law Dictionary , bail means "a security such as cash, a bond, or property; esp., security required by a court for the release of a criminal defendant who must appear in court at a future time". In short, bail refers to the practice of releasing a person from custody , awaiting trial or an appeal, on payment of money or pledge of property to ensure his appearance before the legal authority concerned at the stipulated time.
7. The concept of bail dates back to 399 BC when Plato tried to create a bond for the release of Socrates.
However , the modern bail system evolved in the middle ages. In England, magistrates used to go from one county (shire) to another to decide cases. The sherif f was charged with the duty to hold the accused till the magistrate arrived. This led to widespread abuse of power and corruption. Furthermore, the conditions in which the accused were kept used to be very unhygienic and inhumane and spread diseases. The Parliament took stock of the situation and while passing the first Statute of Westminster , which assembled and codified 51 existing laws - many originating from the Magna Carta - also laid down the criteria for bail. In 1486, the Parliament mandated that approval of two Justices, rather than one, would be required to release a prisoner . In 1554, the Parliament ordained that the bail bond decision should be made in an open session. Some judges would detain a person indefinitely by fixing an unusually high monetary amoun t of a bail bond. The English Bill of Rights 1969 addressed this foible and stated that "excessive bail ought not be required."
8. The US Constitution does not define which crimes are bailable but the Eighth Amendment expressly prohibits "excessive bail". This provision is based on old English Common Law and the English Bill of Rights. The Congress has enacted the Bail Reform Act of 1984 which presently governs the right to bail in federal criminal cases.
Although bail practices in the United States vary from state to state, most of them have provisions preventing excessive bail.
9. Stack v. Boyle, 342 U.S. 1 (1951), is the seminal case of the US Supreme Court regarding administration of bail. The District Court had set bail at $ 50,000 for each of the petitioners which was much more than what was generally fixed in other cases involving serious offences. They moved for reduction of that amount claiming that it was excessive and violated the Eighth Amendment and in support of the motion submitted proof of their financial resources, family ties, health and prior criminal record. The government did not controvert those documents but opposed the motion on the ground that four other persons previously charged with the same offences in another district had forfeited bail. Chief Justice V inson, who delivered opinion of the Court, wrote: "The traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker , 156 U.S. 277, 156 U.S. 285 (1895).
Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
"The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, 9 Pet. 704, 710 (1835). Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is `excessive' under the Eighth Amendment ... Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in the Federal Rules of Criminal Procedure are to be applied in each case to each defendant."1 2 3
10. In his concurring opinion, Jackson J. wrote: "Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice. We know that Congress anticipated that bail would enable some escapes, because it provided a procedure dealing with them ... In allowance of bail, the duty of the judge is to reduce the risk by fixing an amount reasonably calculated to hold the accused available for trial and its consequence ... But the judge is not free to make the sky the limit, because the Eighth Amendment to the Constitution says: `Excessive bail shall not be required.'"
Reiterating that bail should be based on "individualized assessment" of each accused, Jackson, J , further said: "It is complained that the District Court fixed a uniform blanket bail chiefly by consideration of the nature of the accusation and did not take into account the difference in circumstances betwe en different defendants. If this occurred, it is clear violation of Rule 46 (c). Each defendant stands before the bar of justice as an individual. Even on a conspiracy charge defendants do not lose their separateness or identity . While it might be possible that these defendants are identical in financial ability , character and relation to the charge elements Congress has directed to be regarded in fixing bail I think it violates the law of probabilities. Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them. The question when application for bail is made relates to each one's trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance."
11. In the United States the excessiveness is now understood in terms of overall reasonableness. "Excessive bail", writes Timothy , "is now, in fact, a misnomer , because bail more appropriately defined as a process of release does not land itself to analysis for excessiveness. Instead, since it was first uttered, the phrase excessive bail has always applied to conditions of bail or limitations on pretrial release." In United States v. Salerno, 481 U.S. 739, (1987) , the US Supreme Court ruled: "The only arguable substantive limitation of the Bail Clause is that the Government's proposed conditions of release or detention not be "excessive" in light of the perceived evil. Of course, to determine whether the Government's response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal and no more. Stack v. Boyle , supra. We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail."
12. In Galen v. County of Los Angeles, 477 F.3d 652, the United States Court of Appeals, Ninth Circuit, explained: "To determine whether the Excessive Bail Clause has been violated, we look to the valid state interests bail is intended to serve for a particular individual and judge whether bail conditions are excessive for the purpose of achieving those interests. The state may not set bail to achieve invalid interests (affirming a finding of excessive bail where the facts established the state had no legitimate interest in setting bail at a level designed to prevent an arrestee from posting bail), nor in an amount that is excessive in relation to the valid interests it seeks to achieve".
13. In India, there is no constitutional provision like the Eighth Amendment in the US Constitution but the purpose is served by section 440(1) of the Indian Criminal Procedure Code, 1973, which says that "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." In Moti Ram and others v. State of Madhya Pradesh (AIR 1978 SC 1594) the Supreme Court granted bail to the petitioner during the pendency of his appeal "to the satisfaction of the Chief Judicial Magistrate" without spelling out the details. The Magistrate ordered surety in the sum of Rs.10,000/-. The petitioner's brother offered the surety but he rejected it on the ground that his assets were not situated in his territorial jurisdiction. The petitioner approached the Supreme Court again for modification of the origina l order praying for release on execution of a personal bond or furnishing surety to the tune of Rs.2000/- The Court examined the issue in the human rights perspective, the fundamental right to liberty and the rights of the prisoners and allowed his petition. It held:4 5 "Social justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of social justice ... The victims, when surety-ship is insisted on or heavy sums are demanded by way of bail or local bailors alone are persona grata , may well be the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of our country with its vast diversity . In fact the grant of bail can be stultified or made impossibly inconvenient and expensive if the court is powerless to dispense with surety or to receive an Indian bailor acros s the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. The problem is plainly one of human rights, especially freedom vis-a-vis the lowly ."
The Supreme Court further held that bail covers release on one's own bond with or without sureties. The court's approach in this regard should be judicious. Relevant excerpt is reproduced hereunder: "Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigent's rights, we hold that bail covers both - release on one's own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.
"Even so, poor men - Indians are, in monetary terms, indigents - young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances - put whatever reasonable conditions you may ."
14. In Pakistan, the powers of the police/court to take bond from a person accused of bailable/non-bailable offences is covered by Chapter XXXIX (sections 496-502) of the Code of Criminal Procedure, 1898. Section 498 of our Code is similar to section 440 of the Indian Criminal Procedure Code of 1973 discussed above. It reads:
498. Power to direct admission to bail or reduction of bail.-- 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 Sessions may, in any case, whether there be an appeal on conviction or not direct that any person be admitted to bail, or that the bail required by a police of ficer or Magistrate be reduced.
15. Our jurisprudence is consistent that while stipulating the amount of surety bond the court must always take into consideration the financial position of the accused. In Mian Abdul Wahid v. The State (1989 MLD 4731 ) the Singh High Court held that if it is beyond his capacity it would amount to refusal of bail. In Rana Muhammad Siddique v. The State (1994 PCr.LJ 118) this Court held that the amount of surety from Rs.1,500,000/- fixed by the Special Judge (Central), Lahore was "harsh, excessive and unreasonable" and reduced it to Rs.100,000/-. More recently , in Saeed Zaman v . The State & another ( 2020 SCMR 1855 ), the Hon'ble Supreme Court of Pakistan held: "The survey of above provisions clearly demonstrates that in case the court consider it expedient to release an accused on bail pending conclusion of his trial, it can certainly require him to execute a bond either personally or through sureties, setting conscionable amounts therein, having regard to the facts and circumstances of each case with a view to ensure future attendance and may proceed to forfeit such bond in the event of default/non- compliance as contemplated by section 514 of the Code. The Code does not envisage cash deposit except for an undertaking for good behaviour within the framework of section 513 thereof."
16. The right to a reasonable bail is now considered to be closely related to the right of fair trial. According to Encyclopedia the rights and privileges of an accused which guarantee him a fair trial were "initially (generally from the 18th century on) confined primarily to the actual trial itself, but in the second half of the 20th century many countries began to extend them to the periods before and after the trial ... Certain very general rights are attached to the process. An accused must not be allowed to languish indefinitely in jail but must be given a speedy trial. Involved with this issue are the rights to a reasonable bail and prohibitions against being detained for more than a specified time without bail." The same thought was echoed in Crimin al Petition No. 801-L/2020 titled "Shahzada Qaiser Arfat @ Qaiser v. The State etc." decided on 3.2.2021 in which the Hon'ble supreme Court of Pakistan observed: "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 ... protection against arbitrary arrest and detention is part of the right to liberty and fair trial."
17. In the light of the jurisprudence discussed above, the right to a reasonable bail inter alia means that -6 Britannica,7
(i) the court should fix the amount of the bond having due regard to the circumstances of the case, including the nature of the offence charged, the weight of evidence against him, the financial capacity of the accused and his character/criminal history;
(ii) the amount of the bail bond should not be excessive, harsh or unreasonable but should be such as in the judgment of the court would ensure presence of the accused;
(iii) if there are more than one accused in a case, the court may stipulate different amounts for their bail bonds because each one of them stands before the bar of justice as an individual; and
(iv) in a case where the Government's only interest is in preventing flight, the court must set the bail at a sum designed to ensure that goal.
18. Albeit the above principles have been discussed with reference to pretrial and undertrial persons, they apply equally to cases where a convict's sentence is suspended and he is released on bail. There may be a debate as to what should be the considerations for bail before the conclusion of the trial and after conviction but section 426(1)
Cr.P.C. does not make any distinction in respect of the bond. Section 426(1) Cr .P.C. reads:
426. Suspension of sentence pending appeal; Release of appellant on bail.- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail or on his own bond.
19. The language of section 426(1) Cr.P.C. is plain and unambiguous. It is by now well settled that where the statute is clear and definite the court cannot look for and impose another meaning.
20. Let us now turn to the case in hand. This Court suspended the Petitioner's sentence on 22.10.2019 and directed him to be released on bail subje ct to his furnishing bail bond in the sum of Rs.200,000/- with two sureties in the like amount. Neither the State nor the Complainant assailed that order before the Hon'ble Supreme Court so it still holds the field. Admittedly , the Petitioner has not benefited from the aforesaid order and is in jail even after more than one year and three months because he could not furnish the requisite surety . The State has not controverted the Petitioner's contention that he is indigent and not in a position to arrange it. Although it is alleged that the Petitioner is a desperate and hardened criminal, there is no evidence to that effect on record. In the circumstances, it is just and reasonable that the surety amount be reduced. The following observations of the Sindh High Court in Abdul Jabbar v . The State (1998 PCr .LJ 1465) are instructive: "In my humble view once an accused is granted bail and in spite of all possible effort he is unable to furnish surety in the required amount then keeping in view the facts and circumstances of the case a reasonable reduction in the surety amount may be made so that the applicant/accused may not suffer unnecessarily for reasons beyond his control. Bail is not to be withheld as punishment. Likewise after the bail is granted, since the liberty of the accused is involved, if reasonable grounds are disclosed then the surety amount may be reduced having due regard to the facts of the case so that the very object of granting bail is not defeated."
21. In view of the foregoing, this applicat ion is allowed . It is directed that the Petitioner shall be released on bail subject to his furnishing bail bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Bench. Tenth Edition, p. 167 Timothy R. Schnacke et al., The History of Bail and Pretrial Release, Pretrial Justice Institute (September 24, 2010). Available at: https://b.3cdn.net/crjustice/2b990da76de40361b6_rzm6ii4zp.pdf ibid. Timothy R. Schnake, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform , (September 2014). Available at: https://www .supremecourt.gov/DocketPDF/1 8/18- 814/82015/20190128162620726_W alker%20v .%20City%20of%20Calhoun%20Cato%20amicus%20brief.pdf Internal citations omitted.8 1 2 3 4 5 Mian Abdul Waheed' s (case) was followed in Javid Iqbal v. The State (1995 P Cr.LJ 1839), and Qasim and another v. The State (1996 MLD 108). Also see: Abdul Jabbar v. The State (1998 P Cr.LJ 1465) and Khurrum Ghani v . The State ( PLD 2010 Kar 200 ). Britannica.com/topic/rights-of-accused. American Jurisprudence, V ol. 50, p. 204-206.