Child abuse case: Judge had ties in lower court

Justice Aamer Farooq’s verdict explains why IHC decided to try him

ISLAMABAD: The Islamabad High Court has ruled that the fair trial of a judge and his wife, who allegedly tortured a juvenile housemaid, was not possible at the district judiciary of the capital because of the connections, relationships, and friendships he had with his colleagues there and the risk of bias of the trial judge.

This was stated in a detailed judgement of the Islamabad High Court (IHC) which decided to hold the trial of Additional District and Sessions Judge (ADSJ) Raja Khurram Ali Khan and his wife Maheen Zafar.

The judgment declaring jurisdiction has shed some light on why the trial in an impartial court is so important for justice.

“It is an adage that justice is not only to be done but must also be seen to be done,” wrote Justice Aamer Farooq in the judgment while deciding that the IHC should try the case.

“Where a judge or magistrate is connected with one or the other party to the case by relationship, friendship etc and is, therefore, likely to be partial,” Justice Farooq stated.

The ADSJ was being tried by a judicial magistrate, who is subordinate to him.

“It is unlikely that an impartial or fair trial is possible before a Judicial Magistrate,” Justice Farooq observed. He, therefore, said that it is expedient for the ends of justice that the trial should be conducted by the IHC.

Justice Farooq noted that creating and maintaining confidence that a party will not be forced to undergo a trial by a judge or magistrate whom he reasonably regards as being prejudiced against him was among the important duties of a high court.

Once the Supreme Court took suo moto notice in the case, it had voiced serious concerns over the loopholes regarding a compromise reached between the judge and the juvenile maid’s parents under questionable circumstances, handing over of the maid in a hasty manner and the suspicious role of the counsel for the legal heirs.

On January 3, the father of the child maid ‘forgave’ the judge and his wife. Following the compromise, ADSJ Atta Rabbani had handed over custody of the juvenile housemaid in a hasty manner while ADSJ Asif Mehmood approved the compromise between the parties.

In his judgment, Justice Farooq noted that the two lower court judges, who granted pre-arrest bail to the accused and ordered to recover the child from the crisis centre, were asked to submit reports to the apex court “for apparently helping their colleague”.

Justice Farooq noted that in a case where the judge happens to be connected with one or the other party, it was advisable to transfer the case to some other court. “Howsoever straightforward and impartial he [judge] may be, there is always the danger of his actions being regarded with suspicion and misinterpreted,” the verdict read.

Referring to the “Zulfikar Ali Bhutto vs State”, Justice Farooq noted that under section 526 CrPC a case can be transferred on the basis of bias.

“Inasmuch as it is a fundamental principle that no man can be a judge in his own cause or where a judge has slightest pecuniary or propriety interest in the subject matter of the proceedings then there is a real likelihood of bias,” he quoted from the judgment.

Published in The Express Tribune, April 2^nd, 2017.