Bail order

February 2, 2014

Bail order

As visitors pass through the overcrowded verandas of the sessions court, they see people with agony writ large on their faces. They lurk around the court rooms, in the midst of some apathetic lawyers and try to read the cold faces of the naib courts. These ‘readers’ readily -- and openly -- ask for and get money judges take money openly and do not worry whether any one would take notice.

There is an entire network which is in action and offers the clients services such as getting bails, arranging witnesses and preparing fake documents.

Fake property documents are prepared by some corrupt officials sitting in ‘patwar khanas’ headed by patwaris. These patwaris have close ties with professional groups and prepare fake registries of land (ownership documents) on which the judges grant bail to the accused.

These documents are considered genuine because there is no proper and quick system to check their genuineness. Judges have to rely on the document and the CNIC produced by the guarantor. According to reports, there is a mafia which has bundles of registries in their hands.  It moves from to and fro in the court premises. This mafia recognizes the bail seeker by his worried face and offers their services for bail granting. Surety bond (machalka) is the first and foremost requirement for bail.

A surety bond is submitted in the form of Defence Saving Certificates, property papers, lease papers and vehicle papers by a guarantor who appears in the court with his CNIC. These documents stay with the court to ensure that the guarantor makes every effort to produce the accused in the next hearings. He can also be approached if the accused disappears. If these documents are fake, the accused and the guarantor will both be untraceable.

A surety bond is submitted in the form of Defence Saving Certificates, property papers, lease papers and vehicle papers by a guarantor who appears in the court with his CNIC. If these documents are fake, the accused and the guarantor will both be untraceable. 

In any case, an accused may get bail by furnishing guarantee that he will appear during all the hearings of the case. The main purpose of his release from the police custody is that an accused should be given a chance to find proof of his innocence. It is the right of every accused in bailable cases that he proves himself innocent. Actually, it is the transfer of custody from court to the bail guarantor who makes the commitment that the accused will appear before the court on the given dates.

This practice has been going on in courts for ages, says Advocate Lahore High Court Muhammad Azam.

"Why can’t these records be computerised and made accessible to the courts? He asks. "The Nadra records should also be accessible in order to verify the guarantors through biometric verification."

Once the machalka is submitted in the court, the documents are ideally supposed to be sent to a bank, the revenue office or Excise & Taxation office respectively, for verification. But in our court system, verification is rarely attempted. As a result, most accused manage to run away and end up being declared absconders. The cases against them remain uncontested.

Senior Superintendent Police (SSP) Investigation, Lahore, Chaudhary Abdur Rab says that the police suffer a lot whenever a criminal is granted bail on ‘fake’ documents -- which is proved when they never appear before the honorable court for further proceedings. The court gives verdict against them and declares them absconders. Eventually, the pressure mounts on the police department to seek them out in the absence of any trace.

To put it like it is, the said practice is a crime under Section 420, cheating and dishonestly inducing delivery of property; Section 468 which involves forgery for purpose of cheating; and Section 471 of the Pakistan Penal Code for using as genuine a forged document, says Sardar Safdar Khan, an advocate at Lahore High Court (LHC).

Safdar says that in many cases the people who submit the surety bonds for the release of the accused, in connivance with the court staff, get their documents back to avoid their identification. Sometimes the original documents are produced at the time of bail but they are replaced with fake ones later.

Another loophole in the court bail process is the use of one set of documents more than once. With the connivance of the court staff, the surety can be used for many cases by avoiding the court stamp.

Maasi Zainab (name changed on request) is a middle aged woman and the only bread-winner for her four children. She is a vendor of surety bonds at the Lahore district courts for the past many years. She says that once she used a surety bond for fifty accused.

Zainab says that when the bail is in progress, if the papers are not stamped they can be reused.

In order to save them from being stamped, Zainab has to pay the ahalmand, the clerk, the reader and the naib court. "If a person belongs to remote areas and does not want to come back again, he just has to inform us and make a deal which costs hardly more than a lakh rupees."

Zainab says she can prepare all the documents -- right from identity card to registry. She claims that she can prepare fake property documents showing price worth Rs50 lakhs for any kind of case.

Justice (retd) Fakhr unNisa Khokhar says, "Bail is a legal right of the accused and it must be awarded to the accused so that he can defend himself.

"Bails need not be abandoned. However, the loopholes in the bail process should be addressed."

She says, "We are living in the 21st century and the practice of fake surety bonds can easily be eliminated with the help of technology. Computer software ought to be linked with the district and sessions courts through which the status of the persons who arrange the surety bonds can be cross-checked against their CNICs.

"Such a system should be linked with Nadra, our revenue department and excise department," she says.

Sajid Bashir, former president Lahore Bar Association, confirms the practice is being carried out in our lower and higher courts which are a hurdle in the way of justice. He says that the Bar has done a lot against the mafia according to law and submitted a large number of FIRs against fake guarantors and professional surety bond providers.

He adds that such punitive actions have improved the situation but a lot more still needs to be done in order to check the malpractices in bail-seeking process.

Bail order