ISLAMABAD: The Supreme Court has observed that the job of courts, being a neutral arbiter, is to appraise the evidence dispassionately rather than embarking on a probing journey guided by emotions and sense of self-styled justice pegged on the lofty notion of societal reform.

“A judge should not enter the arena to appear that he is taking sides,” observed Justice Syed Mansoor Ali Shah in a judgement he authored to set aside the Jan 27, 2016 Lahore High Court verdict for retrial of a drugs case.

In the seven-page judgement, Justice Mansoor Shah, who was member of a three-judge SC bench also consisting of Justice Manzoor Ahmad Malik and Justice Qazi Mohammad Amin Ahmed, observed that courts could not allow one of the parties to fill lacunas in their evidence or extend a second chance to a party to improve their case or the quality of evidence presented by them.

He also explained the role of a criminal court in an adversarial system of justice which, the judgement observed, was a two-sided structure under which criminal trial courts operate that pits the prosecution against the defence.

Apex court sets aside LHC verdict for retrial of drugs case

“Justice is done when the most effective and rightful adversary is able to convince the judge or a jury that his or her perspective on the case is correct. However, in exceptional cases, our criminal courts also exercise inquisitorial powers under certain provisions of the Criminal Procedure Code (CrPC) to secure the ends of justice,” the verdict said, adding that these provisions were, however, not attracted in the facts of the present case.

“The court being a neutral arbiter has to dispassionately appreciate, appraise, examine and weigh the evidence placed before it, rather than by ignoring the evidence and embarking on a probing journey guided by emotions, sentiments and sense of self-styled justice pegged on the lofty notion of societal reform.”

The verdict stated that in an adversarial system, the role of a judge was that of a neutral umpire, unruffled by emotions, adding that a judge was to ensure fair trial between the prosecution and the defence on the basis of evidence.

The case in hand related to a raid, on the basis of secret information, which led to alleged recovery of intoxicating injections and liquid and “Phenvil” injections. After a regular trial, the appellants — Mohammad Naeem and Irfan Ali — had been acquitted of the charge as the ground that prevailed with the trial court was that since reports of the chemical examiner failed to assess the percentage of morphine in the intoxicating substance to pass it as a narcotic drug, the reports were inconclusive and unreliable and could not sustain conviction.

The trial court also held that “Phenvil” or pheniramine maleate did not fall under the definition of “psychotropic substance”.

Upon appeal before the high court, the judgement of the trial court was set aside and the case was remanded with a directive that fresh samples and fresh report of the chemical examiner be taken and a fresh verdict be passed in the case.

The Supreme Court judgement explained that the high court order for obtaining fresh samples of the alleged intoxicating substance and preparing a fresh report of the chemical examiner amounted to granting the prosecution a premium on its failure to put up a proper case in the first instance.

“Such judicial intervention is opposed to the adversary principle and offensive to the fundamental right of fair trial and due process guaranteed under the Constitution.

“Calling for fresh examination of the intoxicating substance at the appellate stage after all these years may frustrate the settled law as to safe custody and safe transmission of the recovered substance making the report of the chemical examiner suspect and unreliable,” the SC verdict said.

Published in Dawn, August 14th, 2019