LAHORE: Judges of a Lahore High Court (LHC) bench on Saturday finally came up with a split decision on the post-arrest bail petition of Leader of Opposition in the National Assembly Shehbaz Sharif, sending the matter to the chief justice for the nomination of a referee judge.

Justice Sardar Mohammad Sarfraz Dogar, who headed the bench, allowed the petition while its other member Justice Asjad Javed Ghural dismissed the same on merits. In his dissenting order, Justice Ghural also accused the senior judge of issuing the bail granting short order ‘unilaterally’.

“It is shocking for me to observe here that it has been mentioned in the beginning paragraph of the said order that unanimous order qua grant of bail to the petitioner was announced, which is against the ground reality,” said Justice Ghural.

“In fact after hearing the parties, when my learned brother sought my consent qua allowing the petition, I refused in the court whereupon the announcement was deferred for consultation in the chamber where I again straightaway refused but surprisingly, my learned brother unilaterally announced his decision through his naib qasid granting bail to the petitioner,” he added in his dissenting note.

Justice Ghural accuses senior bench member of issuing bail granting short order ‘unilaterally’

The judge mentioned that he had brought the situation to the notice of the LHC chief justice a few minutes later, but “my learned brother sent me the short order for signature for which he had no occasion at all”.

“This is very unfortunate and rare example in the judicial history, which could not be expected from a senior member heading the division bench,” said the dissenting judge.

After discussing the facts of the case, Justice Ghural observed: “Suffice is to say that sufficient incriminating material is available on the record to connect the petitioner with the alleged offence and thus, he is not entitled to the relief claimed for.”

Justice Dogar in his order stated a “unanimous order regarding grant of bail was announced” but when the short order for the petitioner’s release was placed before Justice Ghural for signature he disclosed that he intended to give his dissenting view.

“Therefore we are rendering separate orders and after completion of the same, matter shall be placed before the chief justice for nomination of a referee judge,” said the senior member of the division bench.

Granting bail to Shehbaz, Justice Dogar observed that from the perusal of reference, it was found that no allegation of commission of offence of corruption, corrupt practice, kickbacks, or misuse of authority for personal gains had been levelled against the petitioner and even no charge in this regard had been framed.

He also referred to a report of the trial court, which said the trial would take about 10 to 12 months to be concluded. “The petitioner is a public representative and also a leader of opposition in the National Assembly who has to perform his constitutional and legal duties in this regard. He is a previously non-convict and undergoing pre-trial incarceration in the instant case,” observed Justice Dogar.

The judge said keeping the petitioner behind bars for an indefinite period before the conclusion of the trial would not serve the ends of justice. He also relied upon a Supreme Court judgement passed in 2020 in a case of former railways minister Khwaja Saad Rafiq and his brother Khwaja Salman Rafiq.

Published in Dawn, April 18th, 2021