PLJ 2023 SC (Cr.C.) 318
[Appellate Jurisdiction]
Present:
Syed Mansoor
Ali Shah, Amin-ud-Din Khan and
Jamal Khan Mandokhail, JJ.
ZAFAR
IQBAL--Petitioner
versus
STATE,
etc.--Respondents
Crl.P. No. 497-L of 2023, decided on 31.7.2023.
(Against
the order of Lahore High Court, Lahore dated 04.01.2023, passed in Crl. Misc. No. 8873-B of 2022)
Supreme Court Rules, 1980--
----O. XXIII, R. 2--Limitation in filing petition for
pre-arrest bail--Supreme Court Rules provides that a petition for leave to
appeal under Article 185(3) of the Constitution of the Islamic Republic of
Pakistan, 1973 in criminal matters has to be filed within thirty days from the
judgment or final order sought to be appealed from--Law of limitation is fully
applicable to petitions for leave to appeal in matters related to pre-arrest
bail like in other criminal petitions filed under Article 185(3) of the
Constitution--Condonation of delay in such petitions
is viewed leniently through the lens of fundamental rights, particularly the
right to liberty, dignity and fair trial guaranteed under Articles 9, 14 and
10-A of the Constitution, with the purpose to provide those incarcerated with
equal access to courts, and equal and proper opportunities to defend themselves
and to avail remedies available under the law--Petition is dismissed as
withdrawn. [Pp.
319 & 320] A, B & C
PLD
2021 SC 927; PLD 2020 SC 559; 1996 SCMR 308 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 498 & 498-A--Pakistan Penal Code,
(XLV of 1860), S. 379--Limitation of filing petition--Petition has been filed after a delay of 74 days from the
expiry of the limitation period and no application for condonation
has been filed to show sufficient cause for condonation
of the said delay--Petition is dismissed as withdrawn.
[P.
321] D
PLD
2021 SC 927; PLD 1985 SC 402 ref.
Mr. Zubair Afzal
Rana, ASC a/w
Petitioner.
Mr. Muhammad Jaffar, Addl.
P.G. Pb. a/w
Saadat Hussain, DSP.
Yasir Nawaz, S.I for State.
Mr. Muhammad Hassan Ali, Law Clerk,
Supreme Court for Assisted.
Date of hearing: 31.7.2023
Order
Syed Mansoor Ali Shah, J.--The
petitioner seeks leave to appeal against the impugned order dated 04.01.2023,
whereby pre-arrest bail in case FIR No. 438/2022 dated 03.11.2022, under
Section 379, PPC, registered at Police Station Mitro,
District Vehari, was denied to the petitioner.
2. At the very outset we have noted that the instant petition
has been filed after a delay of 74 days from the expiry of the limitation
period. Rule 2 of Order XXIII of the Supreme Court Rules, 1980 (“Supreme
Court Rules”) provides that a petition for leave to appeal under Article
185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”)
in criminal matters has to be filed within thirty days from the judgment or
final order sought to be appealed from. The second proviso to the said Rule
provides that the Court may condone delay if “sufficient cause” is shown.
However, to this effect, no application for condonation
of delay has been filed with the instant petition.
3. Before deciding the matter at hand,
we deem it necessary to first cater to a contention raised by the counsel of
the petitioner during his arguments. The learned counsel for the petitioner has
tried to argue that no limitation period is applicable for filing the instant
petition dealing with pre-arrest bail because the matter involves the liberty
and freedom of a person. We are not impressed by the said contention. The law
of limitation is fully applicable to petitions for leave to appeal in matters
related to pre-arrest bail like in other criminal petitions filed under Article
185(3) of the Constitution, and a delay in a petition filed beyond the
limitation period must be supported by an application for condonation
of delay which is to be examined by the Court on its own merits. Even though
sufficient cause for condoning delay in criminal matters has been interpreted
liberally and leniently by this Court while dealing with petitions and appeals
filed by those incarcerated, this view is rooted in the objective to ensure
that those incarcerated have equal opportunities of access to justice,[1]
and for safe administration of criminal justice.[2]
A person behind bars faces numerous hindrances in pursuing his legal remedies
because of restricted access to the outside world, and therefore, suffers a
disability in comparison to those who enjoy liberty and freedom. The delay,
therefore, is usually because of the constraints due to being imprisoned and
not because of any ulterior motive. As such, condonation
of delay in such petitions is viewed leniently through the lens of fundamental
rights, particularly the right to liberty, dignity and fair trial guaranteed
under Articles 9, 14 and 10A of the Constitution, with the purpose to provide
those incarcerated with equal access to Courts, and equal and proper
opportunities to defend themselves and to avail remedies available under the
law. It is for this reason that, by following the practice of taking a lenient
and permissive view in cases of those incarcerated, this Court has held that
the incarceration of a petitioner seeking post arrest bail itself constitutes
sufficient cause to allow condonation of delay,
unless the delay was caused due to some ulterior motive of the said petitioner
himself.[3]
4. However, the
above ground is not available to condone delay in a petition for leave to
appeal related to pre- arrest bail as the petitioner is not incarcerated and
therefore, suffers no such disability. Failure to surrender before the
authorities after dismissal of the pre-arrest bail petition by the High Court
and then filing a time barred petition, impugning the decision of the High
Court and seeking pre-
arrest
bail, before this Court could be indicative of an intent to remain a fugitive
from the law. Such conduct could also be considered as a deliberate attempt to
thwart the investigation, resulting in the loss of valuable evidence which is
now simply lost or is impossible to collect due to afflux of time by failing to
join the investigation.[4]
As such, failing to file a pre-arrest bail petition before this Court within
the limitation period could either be intentional with ulterior purposes or, in
the very least, due to the negligence of the petitioner, for which no reprieve
can be granted by condoning delay without any sufficient cause. This Court
should be approached promptly in a pre-arrest bail matter to avail the remedy
available under the law and to actualize the right of access to justice.
Therefore, the law of limitation is applicable to such petitions for leave to
appeal in matters related to pre-arrest bail with its full rigour
and there is no relaxation as far as the period of limitation is concerned
unless sufficient cause is shown for the delay, as required under Rule 2 of
Order XXIII of the Supreme Court Rules.
5. In the instant case, as pointed
out above, the petition has been filed after a delay of 74 days and no
application for condonation has been filed to show
sufficient cause for condonation of the said delay.
After dismissal of his pre-arrest bail petition by the High Court, the
petitioner should have approached this Court within the period of limitation.
Faced with this situation, the learned counsel for the petitioner after arguing
the matter at some length wished to withdraw the titled petition. Therefore,
with the above observations, the instant petition is dismissed as withdrawn.
(K.Q.B.) Petition dismissed