Successive Bail Applications And Lawyers’ Role

Lawyers, no doubt, have great responsibility in defending their clients. Sometimes, however, in pursuing their duties, some lawyers are not concerned about the repute of the institution they assist, the noble profession they undertake, or the sacredness of the organ of the state in which they plead as lawyers. My contention is not based on any dispute between a judge and a lawyer but regarding certain acts by some lawyers which, though giving relief to their client, are at the expense of making the judicial organ a laughingstock in the eyes of some.

One such aspect of this is filing successive bail applications in the same court. The Peshawar High Court in a recent judgment reported as PLD 2017 Pesh 10 noted the following:

The menace of filing successive applications for bail by the petitioner is uprising day by day and rapidly turning the values and norms of legal ethics, code of conduct and etiquettes of the legal profession. In such an eventuality, only the members of the lawyer fraternity are expected to come forward for curbing the imperil and threat to the legal profession, because the Advocate is under a laden duty to maintain the dignity and high standard of the legal profession as well as his own dignity as a Member of the legal fraternity.”

The judgment authored by Justice Rooh-ul-Amin Khan further states the following:

“I have fearful expectation and virtually having an apprehension, rather it is pinching that such a practice shall tend to encourage malpractice by the accused persons and to bring the judicial system into disrepute, because in the event of a conflicting order being given by another single bench in a subsequent application, an impression, though false, may be created that the second order was based on extraneous considerations.”

Even though such ploys are not always effective and are finally caught for being very myopic in essence, especially when the other side is also pursuing its case, they overburden the judicial staff and sometimes create confusion for other state institutions as well. The least effect of such contrivances is that both parties tend to take the courts as either corrupt or gullible in not catching such tricks. Such lawyers, therefore, are not only without any real benefit to the client but also bring “disrepute” to their institutions and their own selves as propounded by the excerpt of the above judgment.

The discussion cannot be complete without referring to another landmark judgment reported as PLD 2014 SC 241. The judgment, authored by Justice Asif Saeed Khan Khosa, addresses the issue by making the following rules and making all the other courts “scrupulously and meticulously adhere to and follow the same” (which are also binding on them as per Article 189 of the Constitution). The rules made by the judgment are as follows:

  • “At the bottom of every application for bail, it is obligatory to attach a certificate regarding non-filing of any such application before the same court previously and, in case of a repeated or successive application, a certificate disclosing filing of any such application previously by the same accused person…No subsequent bail application is to be entertained unless the same is accompanied by copies of the earlier bail applications and copies of the orders passed thereon.

  • All repeated or successive applications for bail must be fixed for hearing before and heard and decided by the same judge(s) who had dealt with and decided any earlier application for bail…

  • Dismissal of an application for bail after attending to the merits of the case amounts to rejection of all grounds available or in existence till the time of such dismissal whether such grounds were actually taken or urged or not and whether such grounds were expressly dealt with in the order of dismissal or not.

  • In case of dismissal of an earlier application for bail on the merits of the case a subsequent application for the same relief can be filed and entertained only if it is based upon a fresh ground, i.e a ground which was not available or in existence at the time of decision of the earlier application.

  • Withdrawal simpliciter of an earlier application of bail before addressing or hearing any argument on the merits of the case does not preclude filing of a subsequent application for the same relief before the same court…

  • In a case of withdrawal of an earlier application for bail after addressing and hearing some or all the arguments on the merits of the case no subsequent application for the same relief can be filed before or entertained by the same court unless such subsequent application is based upon a fresh ground…”

In light of the above, it would really be “distressing” for the courts to deal with such issues and all of this might be overlooked where the other party is either not interested in pursuing its case or under the impression that the state prosecution and the police would always fulfil their duties to bring the culprit to book.

The courts have rightly addressed the issue and made rules regarding it to eliminate such practice. This is bound to be further eliminated with the help of a digitalized case-flow management system. The incumbent Chief Justice of the Lahore High Court has rightly pointed out that the monitoring of cases of 2400 judicial officers and 60 judges of the High Court is a difficult task and “there is no other way than to shift our normal procedure to smart technology” (The Nation, August 30, 2016). After pointing out the loopholes, he has taken a lead to leap in the right direction.

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

Ahmed Ozaif

Author: Ahmed Ozaif

The writer is a law graduate with two Masters and a distinction from Sydney Business School, UoW. He is a Co-editor and the Program Manager at Courting The Law.