ISLAMABAD: The Supreme Court has said it always views delay in filing jail petitions or applications for permission to file appeals in criminal cases by imprisoned accused through the lens of fundamental rights, particularly when the right to liberty, dignity and fair trial guaranteed under Articles 9, 14 and 10A of the Constitution are involved.

“In a criminal case where the liberty and freedom of a person is at stake, ‘sufficient cause’ is to be viewed by the court through the lens of fundamental rights guaranteed under the Constitution, in particular through the right to liberty, dignity and fair trial guaranteed to an accused under Articles 9, 14 and 10A of the Constitution,” observed Justice Syed Mansoor Ali Shah in a judgement he wrote.

A prisoner faces impediments in pursuing legal remedy, the judgement explains

Justice Shah was a member of a bench, also consisting of Justice Umar Ata Bandial and Justice Qazi Mohammad Amin Ahmed, that had taken up an application by one Mohammad Arshad Nadeem seeking condonation of delay in a post-arrest matter against the Dec 14, 2020 Lahore High Court (LHC) order.

The judgement noted that there was a delay of 72 days in filing the application for leave to appeal against the LHC order whereby post-arrest bail was declined to the petitioner.

In the application for condonation of delay, the petitioner had said that he was behind the bars and there was no male member in his family to pursue his case that was why delay occurred in engaging a lawyer for filing the petition, hence it was neither deliberate nor intentional.

The judgement explained that Rule 2 of Order XXIII of the Supreme Court Rules, 1980 provided that a petition for leave to appeal, under Article 185(3) of the Constitution, in a criminal matter should be lodged within 30 days from the date of judgement or the final order against which the appeal was to be filed.

The second proviso to the rule authorised the court to condone the delay, if “sufficient cause” is shown, the order said, adding as the expression “sufficient cause” could not be defined with any precision or exactitude, the sufficiency of the cause was, therefore, to be determined in each case on the basis of its own peculiar facts and circumstances.

The judgement said the “sufficient cause” primarily translated into providing the accused, who was behind bars, with equal access to court and proper opportunity to defend and avail remedies allowed by law, as were available to a free person.

It had been a consistent practice of the Supreme Court to lean in favour of deciding on merits the petitions, including jail petitions, applications for leave to appeal and appeals filed by or on behalf of the imprisoned persons against their convictions and sentences by condoning the delay with a lenient and liberal approach, in the interest of justice, the judgement said.

The reason for taking such a permissive view of “sufficient cause” in such cases appeared to be founded on the assumption that a person behind bars had restricted access to the outside world and as a result he faced impediments in pursuing legal remedies before the courts, it noted.

The delay, therefore, usually occurred due to constraints imposed on him for being in prison and not because of his contumacious conduct or some ulterior purpose, the judgement said.

The reasons to condone delay in filing jail petitions or appeals against convictions applied with the same force to matters of post-arrest bail, as it also attracted the right to liberty, human dignity and fair trial, it said.

It would be fair to assume that a person approaching a court of law for redressal of his grievance from behind bars suffered a disability in comparison to those who enjoyed liberty and freedom of movement, the judgement said.

Therefore, it explained, incarceration of the petitioner seeking post-arrest bail by itself constituted “sufficient cause” to allow condonation of delay unless it was established that the delay was caused by the petitioner due to some ulterior motive.

In the end, the court accepted the application as it found “sufficient cause” for condoning the delay, in the facts and circumstances of the present case, by following the practice of taking a lenient and permissive view in cases of imprisoned persons, for the above reasons. “We, therefore, allow the application and condone the delay,” the judgement said.

Published in Dawn, September 19th, 2021