Bail In The Light of English and Islamic Law

Bail In The Light of English and Islamic Law

Bail:

Bail means procurement of release from prison, of a person awaiting trial or an appeal, by the deposit of a security to ensure his or her submission at the required time to the relevant legal authority. The monetary value of the security, known as bail or the bail bond, is set by the court having jurisdiction over the prisoner. The surety may be in cash, or in the form of papers giving title to a property, or the bond of private persons of means or of a professional body or financial institution. Failure of a person released on bail to surrender himself or herself at the appointed time results in the forfeiture of security. Bail can also be defined as the security for the appearance of the accused person. This security is what the accused is released for, pending trial or investigation. Courts have great discretion to grant or deny bail in case of persons under criminal arrest, for example, bail is often unavailable when the accused is charged with homicide.

Historical Background of Bail:

The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system has evolved from a series of laws originating in the middle ages, in England. The concept of circuit courts existed during the medieval times in Britain. Judges used to periodically go on circuit to various parts of the country to decide cases. The term ‘sessions’ and ‘quarter sessions’ are thus derived from the intervals at which such courts were held. Those persons facing trial were kept in prison until the date of their trial. These prisoners were kept in very unhygienic and inhumane conditions, which also caused the spread of a lot of diseases. This agitated the persons who were awaiting their trial and were thus separated from the accused. This led to their release on securing a surety, so that it was ensured that the person would appear on the appointed date of hearing. Gradually, monetary bail came into existence and a monetary bond could be given, which was liable to get forfeited on non-appearance.

Constitution of Pakistan and the Concept of Bail:

Article 4 and 10 of the Constitution deal with the basic concept of bail.

Article 4 of the Constitution Of Pakistan:

RIGHT OF INDIVIDUALS TO BE DEALT WITH IN ACCORDANCE WITH LAW:

(1) To enjoy the protection of 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.

(2)(a) No action detrimental to the life,liberty,body,reputation or property of any person shall be taken except in accordance with law

(b)No person shall be prevented from or to be hindered in doing that which is not prohibited by law and

(c)No person shall be compelled  to do which the law does not require him to do.

Article 10 of the Constitution Of Pakistan:

It is provided in this article that no person who is arrested shall be detained in custody without being informed, nor shall be denied the right to consult. Every such person shall be produced before the magistrate within the period of twenty four hours. When any person is detained in pursuance of an order under any law providing for preventive detention, the authority making the order shall within fifteen days from such detention communicate to such person the grounds on which the order has been made.

Criminal Justice System of Pakistan:

The Code of Criminal Procedure 1898 in section 4(1) (b) defines bailable offences and non-bailable offences:

“Bailable offence 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, and non bailable offences means any other offence.”

Bail in Bailable Offences:

In case of bailable offences, the person accused has the indefeasible right to grant of bail, subject to satisfactory sureties being offered, if sureties are considered necessary. The provisions of the section are mandatory and the court or the officer in charge of a police station is bound to release the person in custody if the accused is brought under a bailable offence and is prepared to give bail.

Conditions for Grant of Bail:

The conditions laid down by the Supreme Court for the grant of bail are as follows:

  • (a) If the person seeking bail has been placed under actual custody.
  • (b) The person appears in answer to a process issued by the court.
  • (c) The person is brought before the court by the police or by some other arresting authority.

Authority to Grant Bail:

  1. Court of law.
  2. Officer in charge of the police station.

Conditional Grant of Bail:

While granting bail in bailable offences, the court has no power to impose any condition except the demanding of security with sureties.

Section 497 and 498 of the Code of Criminal Procedure (Kinds of Bail):

Accordingly, there are two types of bail:

  1. Bail after arrest.
  2. Bail before arrest.

Bail in Non-Bailable Offences (Section 497):

The factors to be determined are:

  • the nature of accusation and prosecution evidence in support of it,
  • the severity of the punishment, and
  • the behaviour and plea of the defence.

Section 497 of the Code of Criminal Procedure 1898 divides non-bailable offences into two categories:

  • (a) the offences falling into prohibitory clause and
  • (b) offences not falling in prohibitory clause.

The offences not falling within the prohibitory clause are the ones punishable with imprisonment of less than ten years. The principle in this category is that, the grant of bail is a rule and refusal is an exception, but it cannot be claimed as a right. Bail in this category will be declined only in extraordinary and exceptional cases, for example, where there is a likelihood of abscondence by the accused.

On the other hand, the offfences falling within the prohibitory clause are punishable with death or imprisonment for life. As a general rule, bail shall not be granted in such cases, but there are exceptions for persons under the age of sixteen years, women, sick persons or infirm persons.

Cases Where Court Shall Grant Bail As A Matter Of Right

Case of Further Inquiry (Section 497(2)):

The essential requirement for grant of bail by virtue of subsection (2) of section 497 is that the court must be satisfied on the basis of opinion expressed by the police, or 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 for life or imprisonment of ten years. Cases of further inquiry would only be made out when the data collected by the prosecution is not sufficient to provide reasonable grounds for believing that a prima facie case exists against the accused.

Pre-Arrest Bail (Anticipatory Bail, Section 498):

Pre-arrest bail is very rare and limited. It can be extended in very strong and exceptional circumstances either based on mala fide intention or enmity. Section 498 of the Code of Criminal Procedure throws light on the topic of pre-arrest bail. This section empowers the High Court or Session Court to grant pre-arrest bail in cases of exceptional nature. These powers have to be exercised according to the rules and guidelines laid down by superior courts. According to the Supreme Court, the following conditions must be fulfilled:

  • the arrest is for ulterior motives,
  • prosecution motivated to cause irreparable injury to the reputation and liberty,
  • motivation of police on political consideration, etc.

Islamic Perspective on Bail

Kafalah:

Kafalah is one of the age-long transactions evolved to bridge the gap that may exist in financial dealings as a result of a party’s lack of confidence, suspicion and lack of detailed knowledge of one another. On the other hand, it gives assurance that a particular person would discharge his or her obligation in certain relationships without being constrained for the lack of such assurance. Literally, kafalah means surety, bail, guarantee, responsibility, etc. It was in this real sense that Allah used the term in the Holy Quran, where He says, “So her Lord (Allah) accepted her with godly acceptance. He made her grow in a good manner and put her under the care of Zakriya….” The term kafalah as used in the verse was a reference to the upbringing of Maryam (the mother of Prophet Isa), under the responsibility of Prophet Zakriya. In the same manner, Prophet Muhammad (peace be upon him) used the term where he was reported to have said, “I and whoever takes responsibility of the orphans are companions in the garden of Eden.”

Legally, the term surety is defined as the conjoining of a guarantor’s dhimma (faculty by which a person bears liabilities) to that of the guaranteed, in a way that the debt or any other responsibility of the original bearer is established as joint liability of the two of them. It may relate to a person, finance or act (performance). Kafalah relating to persons involves the production of the person for whom the kafalah (bail) has been given. Kafalah relating to finance implies an obligation. Kafalah relating to an act or performance ensures the performance of a certain act, the failure of which may render the surety liable and responsible.

Elements of Kafalah:

  • (A) Makuf anhu (principal debtor or obligor or guaranteed)
  • (B) Kafeel (surety or guarantor)
  • (C) Makful lahu (creditor or obligee)
  • (D) Makuful bihi (object of guarantee)
  • (E) Sigah (expression)

Legality of Kafalah:

Contract of surety finds its basis from the Quran, Sunnah and consensus of Muslim jurists. In the Quran the event of Prophet Yusuf and his brothers, where the former feigned the loss of the king’s measure and stood guarantor for a reward for whoever retrieved it, gave validity to the contract under the Islamic law. They said, “We have lost the bowl of the king and for him who produces it is a camel-load, and I will be bound by it.” The word za’eem used in the verse signifies being bound by obligation and was said to have been interpreted by Ibn Abbas to mean kafeel, that is the guarantor. In further validation of the contract, the Prophet (PBUH) was reported to have gone for the funeral of a man to pray for his soul. He asked those present at the funeral, “Did he leave any wealth?” They replied, “Yes, he owed two dinars.” The Prophet (pbuh) was about to leave when he said, “Then pray for your companion.” Abu Qatadah interceded and said, “I guarantee his debt, oh Messenger of Allah,” and the Prophet (PBUH) then prayed for his soul.

Muslim jurists have also unanimously validated the contract of guarantee because it is essential for a flow of commercial dealings. It gives protection to the debtor and assurance and confidence about repayment to the creditor. In financial transactions, guarantee is intended to secure obligations and protect the amount of debts from being uncollectible or in default.

Composition of Contract of Surety or Kafalah:

A majority of jurists from the Maliki and Shafi schools of thought and some views in Hanafi schools agree upon some components of a contract of surety:

  • (a) the guarantor with the capacity to transact in his or her own property,
  • (b) a right susceptible to representation,
  • (c) the form,
  • (d) the principal bearer of the liability dead or alive.

Conditions for the Validity of Kafalah Contract:

Several conditions are stipulated for the validity of a kafalah contract. The conditions relate to the guarantor, the guaranteed, object of the guarantee and details of the language of guarantee contract. As for the guarantor, Muslim jurists have consensus on the requirement that the guarantor must have the legal capacity to enter into gratuitous contracts relating to his or her property and must be free from restriction to enter into such contract. These two conditions exclude children, persons who are insane and slaves from being guarantors. However, these conditions are extended by the Maliki jurists to exclude a woman from guaranteeing a liability that covers more than 1/3 of her property without the consent of her husband. Different views have emerged as to the conditions for being a guarantor. Abu Hanifa excludes a bankrupt deceased person from eligibility to guarantee, as according to him, all liabilities on the juristic personality of deceased persons must have perished with his or her death. However, jurists of Maliki and Shafi schools have different views on this. They rely on the hadith of Abu Qatadah to insist that the debt of a deceased person whose estate cannot repay his or her debt can be guaranteed. Shafi and Hanbli jurists also held contrary views to Hanafis’ insistence that a debtor to be guaranteed must be known to the guarantor. This, the former said is unnecessary since the debtor’s acceptance is not required to form the contract and guarantee, as a charitable act can be directed to anyone. A person’s surety will be valid only when the guarantor makes the creditor understand by words or conduct, that he or she undertakes to produce the debtor in person as and when demanded by the creditor, and the creditor also accepts this arrangement.

As a precaution, the debtor’s consent is also necessary for the validity of such a guarantee, in fact, as a matter of precaution, both the debtor and the creditor must accept the kafalah. It is necessary for the kafeel to be an adult, be sane, not have been under any coercion or pressure, and be able to produce the person whose guarantor he or she becomes. Similarly, he or she should not be a feeble-minded squanderer or a bankrupt, particularly if he or she has to spend his or her wealth in order to be able to produce the debtor before the creditor.

Types of Kafalah:

As it is obvious from the definition, kafalah is of two types: kafalah bi al-nafs (physical) and kafalah bi al-mal (financial). Physical guarantee or surety for the person is also known as daman wajh. This is an assumption of liability for the appearance of the debtor or of his or her agent in a lawsuit. Under this guarantee, it is permissible for a person to guarantee the safe delivery of another for a specified period of time. Where this is done, it is the view of the majority jurists that the guarantor is required to deliver the guaranteed person at the end of the specified period and is not responsible for immediate delivery. However, Abu Yusuf of the Hanafi school opined that the guarantor may be required to deliver the guaranteed person at any time and would continue to be responsible until the expiration of the specified time.

Modes of Kafalah:

A guarantee may either be unrestricted, restricted by description, suspended pending a condition, or deferred. A guarantee is unrestricted when it is given plainly in the same term as the original debt for which it was created. No new condition or description different from the terms of original debt is introduced for the convenience of either the guarantor or the principal debtor. The creditor only needs to wait for the due date of the debt to lay claim to either the debtor or the guarantor. A restricted guarantee is restricted by its description, either as current or deferred guarantees. A current guarantee operates within the terms of the original debt, but it is also permitted to restrict the operation of guarantee through deferment to a specified date. It makes no difference whether or not the terms of the deferred guarantee coincide with the terms of deferment of the guaranteed debt. This right of the demand remains with the creditor, who has the freedom of contract to enter into different agreements with both the debtor and the guarantor. On this basis, jurists of the four schools of Islamic jurisprudence allow deferred guarantee of current debt and current guarantee of deferred debt.

Legal Effects of Kafalah

Seeking Compensation from the Guarantor:

Guarantor can be one or many. If many, some jurists opine that all should contribute equally due to the joint guarantee to the debtor. According to Majella, unless specified, the debtor may choose from amongst the guarantors. One of the two opinions of Imam Malij is that the creditor should exhaust his or her options of demanding from the principal debtor first, and can make demand to the guarantor only if recovery is otherwise impossible.

Termination of Bail Guarantee:

Any of the following five things will terminate the personal surety (bail guarantee):

  1. When the guarantor hands over the debtor to the creditor, or if the debtor himself surrenders to the creditor.
  2. When the creditor himself forgives the debt, or transfers it to someone else.
  3. When the debt of the creditor has been discharged or when the debtor or the guarantor dies.
  4. When the creditor absolves the guarantor from his or her personal surety.
  5. If a person forcefully releases a debtor from the hands of his or her creditor, and if the creditor does not have access to the debtor. The person who got the debtor released should hand him or her over to the creditor or pay his or her debt.

 

Relevant caselaw:

SCMR  1392 2007 Supreme Court
YLR 2071 2007 Lahore High Court

References:

Rules of Kafalat by Al-Sayyid Ali Al-Husseini-Al-Sistani
Suretyship in Islamic Law by Iou
Fiqh Al-Mu’amalat by Ibn Abdullah
Islam-Wa-Sunnah

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Zulqarnain Ali Raja

The writer holds a B.A. LLB (hons) degree and is a Shariah & Law Scholar at the International Islamic University Islamabad. He is also the Chairperson of the Law Students Council, Pakistan.



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3 Comments

  1. Syed ihsan shah said:

    A very good and informative piece.

  2. ibrahim Khan said:

    well written and the historical perspective was very interesting.

Comments are closed.