SC widens scope of ‘sufficient cause’ in bail matters

The Supreme Court has widened the scope of "sufficient cause” to allow the condonation of delay in post-arrest bail cases.

“The reasons to condone delay in jail petitions or criminal appeals filed against convictions apply with [the] same force to matters of post-arrest bail, as it also attracts the right to liberty, human dignity and fair trial,” read a majority judgment authored by Justice Syed Mansoor Ali Shah.

“It would be fair to assume that a person approaching a court of law for the redressal of his grievance from behind bars suffers a disability in comparison to those who enjoy liberty and freedom of movement. Therefore, [the] incarceration of the petitioner seeking post-arrest bail by itself constitutes ‘sufficient cause’ to allow condonation of delay, unless it is established that the delay was caused by the petitioner due to some ulterior motive.”

Justice Umar Ata Bandial also endorsed this view. However, Justice Qazi Muhammad Amin Ahmed gave his own reasoning on this point.

According to the facts of case, there was a delay of 72 days in filing the present petition for leave to appeal against the order of the high court whereby post-arrest bail has been declined to the petitioner. In the application for the condonation of delay, the petitioner submitted that he was behind bars and there is no male member in his family to pursue the case. The delay has occurred in contacting and engaging the counsel for filing the petition, hence it was neither deliberate nor intentional, he added.

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However, the state counsel opposed the application.

The court referred to Rule 2 of Order XXIII, Supreme Court Rules, 1980 that provided that a petition for leave to appeal, under Article 185(3) of the Constitution, in criminal matter shall be lodged within 30 days from the date of judgment or final order sought to be appealed from.

The second provision to the rule authorises the court to condone the delay, if “sufficient cause” was shown. The expression “sufficient cause” cannot be defined with any precision or exactitude; the sufficiency of the cause is, therefore, to be determined in each case on the basis of its own peculiar facts and circumstances.

"The reason for taking such a permissive view of “sufficient cause” in the said cases appears to be founded on the assumption that a person behind bars has a restricted access to the outside world; as a result he faces numerous impediments in pursuing his legal remedies before the courts. The delay, therefore, usually occurs due to constraints imposed on him for being in prison and not because of his contumacious conduct or some ulterior purpose," the judgment read.

Justice Qazi Amin Ahmed said that his agreement on the condonation of the delay in filing of criminal petitions, both by under-trial prisoners or convicts, was structured upon somewhat different reasons.

"Though the statutes provide period of limitation for filing an appeal against conviction or acquittal, as the case may be, there is no timeframe restricting an under-trial prisoner to make a motion for his release on bail before a magisterial court, court of session or the high court pending conclusion of the trial, however, his approach to the Supreme Court for interlocutory relief, through leave of the court, is subject to a statutory timeframe," he noted.

He added that the SC being the highest court of appeal ordinarily did not interfere with the discretion exercised by a high court in bail matters, if found reasonably within the remit of law.

“It is only in those extraordinary situations, manifestly requiring “further probe” into the guilt of an offender that may represent a compelling option for this court to substitute finding recorded by the high court and in so doing the court has shown a consistent generosity in condoning a belated approach beyond prescribed period of limitation.“