ISLAMABAD: The Islamabad High Court (IHC) has emphasised upon lower judiciary the need to maintain independence at all cost by ensuring an environment and perception of fair dispensation of justice.

The observation by the high court came when it granted bail to Mohammad Shafique and Mohammad Nasir, who were denied the same by a trial court.

The accused were arrested on May 27 for “writing defamatory and critical banners” against Supreme Court judge Justice Jawwad S. Khawaja. The banners popped up in Islamabad when the apex court was hearing a case moved by Geo television network against the backdrop of a hate campaign against it.

Also read: Man behind banner plot applies for bail

During the hearing, the court had expressed its determination to find out the identity of the people behind the banners in which the judge was attacked for his relationship with the owner of Geo TV network.

The additional sessions judge (west) for Islamabad had dismissed the request for post-arrest bail of 16-year-old Mohammad Nasir, an employee of Mohammad Shafique, the proprietor of the Shafique Sign Services which produces banners, on the sole ground that the offences amounted to maligning, defaming and ridiculing the institution of the judiciary.

The accused were implicated under Section 505(2) of the Pakistan Penal Code, which deals with the non-bailable offence of conducing public mischief, but the high court said the section was not applicable in the case.

Authored by Justice Athar Minallah, the 14-page judgment said that any perception of impartiality or bias, even if it was far from reality, would prejudice the right to a free trial of any accused.

“Confidence in the court and assurance of a fair trial were a prerequisite for the dispensation of justice and pivotal for creating public confidence and trust in the judiciary.”

The high court said independence of judiciary entailed that the trial should be conducted by courts which were competent, independent and impartial.

Therefore, bias, even if it’s in favour of one’s own institution, vitiates the proceedings, as the trial is no longer fair and the judge appears to be “acting as a judge in his/her own cause”, according to the verdict.

While dispensing justice the judges of district courts must have the confidence and belief that each one of them has the same status as a judge of the Supreme Court or a high court. It is their duty to ensure fair trial without being influenced or swayed by the persons involved in the cause before them.

When presiding over a court the judges must be conscious that they are not subordinate to anyone, the judgment says.

Independence of judiciary is measured by the conduct of the presiding judge in guaranteeing the right to fair trial and giving decisions without fear or favour.

The judgment also noted that the criminal proceedings in a case of defamation could only be initiated on the complaint of the person or institution against whom the alleged defamatory material had been made public. “The offences relating to defamation are person-specific and transaction-specific, therefore FIR could not have been registered on the complaint of a sub-inspector and hence the entire proceedings are coram non-judice (without jurisdiction),” the high court observed.

Representing the petitioners, Advocate Ilyas Siddiqui argued that the ground for rejection of bail was commission of offence against the judiciary, but no such allegation was mentioned in the FIR.

In addition to citing a number of Supreme Court and high court judgments, the verdict quoted ‘Hedaya’, a compilation of opinions by Imam Abu Hanifa and other Islamic scholars in which it was stated: “The Kazi (judge) must not give judgment when he is hungry or thirsty, because such situations diminish the intellect and understanding of the person affected by them. Neither must (the) Kazi give judgment when he is in passion, or when he has filled his stomach with food, because the Holy Prophet (SAW) has said ‘Let not a magistrate decide between disputants when he is angry or full’.”

Thus the view taken and expressed by the trial judge in dismissing the bail applications had rightly raised concerns and questions regarding bias and impartiality, without realising that the trial court and all other forums under the institution of the judiciary were stakeholders in the proceedings pending against the two petitioners and, therefore, the court had prejudiced their right to a fair trial, the judgment said.

Justice Minallah ordered the trial court to proceed strictly in accordance with the principles of a fair trial and directed Mohammad Shafique to be released on bail subject to furnishing of bonds of Rs200,000 with two sureties in a similar amount.

He also ordered that Mohammad Nasir be released on bail subject to furnishing of personal bond of Rs50,000 to the satisfaction of the trial court.

The high court directed the sessions court to complete the trial within three months.

Published in Dawn, August 10th, 2014