ISLAMABAD: The judiciary, due to its lofty position in society, is open to criticism and “a judge is not immune from being criticised”, the Islamabad High Court (IHC) chief justice has observed in a detailed order on the post-arrest bail plea of a local politician.

IHC Chief Justice Athar Minallah had on Dec 16 granted post-arrest bail to the local leader of the Pakistan Peoples Party, Masoodur Rehman Abbasi, who had been behind bars since June for criticising Chief Justice of Pakistan Gulzar Ahmed.

Read: PPP leader says he was not in his ‘senses’ during his outburst against CJP

According to the detailed order on Saturday, “the judicial branch of the state has a pivotal role in the society. A judge is not immune from being criticised. The judiciary, because of the nature of functions assigned to it under the constitution and the lofty position it enjoys in the society, is open to criticism.”

The IHC observed that the independence of a judge was not affected in any manner because of public criticism. “But unthoughtful criticism, using strong and intemperate language or utterances that are defamatory in nature, ought to be avoided,” the court advised.

The Federal Investigation Agency had booked and arrested the PPP leader on a complaint of Mohammad Sohail Sajid registered at the FIA’s cyber crime circle police station in Islamabad under various sections of Pakistan Penal Code, 1860 and the Prevention of Electronic Crimes Act 2016 (Peca).

The case was registered on the basis of footage of a portion of a recorded speech that had been uploaded and circulated on the social media. The transcript of the speech, reproduced in the FIR, explains how Mr Abbasi had criticised the Chief Justice of Pakistan using strong and undesirable language.

The court observed in the order: “Prima facie, some portions appear to be defamatory while the language used was indeed not temperate.”

However, it was not the case of the FIA that Abbasi was involved in uploading the footage of the recorded speech on social media platforms, he had intentionally and publically exhibited, displayed or transmitted any information through any information system, knowing it to be false or to harm the repute of the complainant, the court order noted.

When the IHC asked FIA investigation officer Mohammad Ayaz to justify how, in the facts and circumstances of the case in hand, the offences mentioned in the FIR were attracted, he was unable to give any plausible explanation rather conceded that some sections could have not been invoked.

The FIA also remained unable to explain the locus standi of the complainant to file a complaint on behalf of the former CJP. There was nothing on record to show that Mr Abbasi might have said something against the complainant to justify registration of a criminal case under person-specific offences relating to defamation or causing harm to a natural person’s reputation, the court noted.

“Nonetheless, it is definitely a case of further inquiry,” Chief Justice Minallah remarked.

“It cannot be ruled out that the Agency may have been influenced by utterances made against the holder of the highest judicial officer of the country because the registration of the case, prima facie, appears to be an abuse of the offences under the [Peca] Act of 2016,” the court order stated.

As per the decision, the allegations in the case in hand were in the context of ‘objectionable’ and ‘strong language’ used by Mr Abbasi against the holder of the highest judicial office i.e. the CJP.

While granting post-arrest bail to him against Rs5,000 surety bonds, Justice Minallah cited the bail order in the case of “Mohammad Shafique Butt and another vs. The State” accused of displaying defamatory banners against the then sitting judge of Supreme Court, Justice Jawwad S. Khawaja. The relevant portions of the judgment are “Any perception of impartiality or bias, even if not a reality, would certainly prejudice the right to a free trial of any accused. Confidence in the court and assurance of a fair trial is a prerequisite for the dispensation of justice, and pivotal for creating public confidence and trust in the judiciary.”

It observed that an independent judge, despite the harshness or tone of the criticism, could not be provoked to react in such a manner that results in their becoming the subject matter of a criminal case because of the profound consequences in the context of due process and fair trial.

Published in Dawn, December 19th, 2021

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