Conflict of interest: Top court comes down hard on IHC judge

SC questions sitting judge over not granting bail on bailable offence.

Hasnaat Malik July 18, 2014


The apex court took strong exception to an Islamabad High Court’s sitting judge’s decision, where he refused to grant bail to two persons accused in bailable offences, deeming it to be in conflict with the judge’s interests.

Admitting the bail applications of the two accused, Alam Zeb and Shakeel Khan in a drug case, the top court has directed its office to bring this order to the notice of Chief Justice of Pakistan as well as IHC’s chief justice.

The two-judge bench of the apex court, headed by Justice Asif Saeed Khosa found that the, “petitioners (accused) had been refused bail by the learned judge in chamber of the Islamabad High Court on the basis of grounds which were neither reasonable nor legally tenable and that the case against the petitioners is a case calling for further inquiry into their guilt within the purview of sub section (2) of section 497 Cr P C”.

Earlier, last month IHC judge Justice Shaukat Aziz Siddiqui refused to grant bail to two accused persons observing that “although the offences with which petitioner  has been charged are bailable in nature but heinous in nature and fatal against the whole society, therefore, I am not inclined to grant bail to the petitioner at this stage”.

The Supreme Court, in its seven-page order, observed that each of the consideration was irrelevant or was vitiated by misunderstanding of facts or was a misapplication of law. Copy of the court’s order is available with The Express Tribune.

The bench also noticed that the IHC judge had initially ordered the arrest of the two accused and later refused to grant them bail in the case.

“Such maligning of the roles of an investigator and a judge by the learned judge in chamber has been found by us to be sufficient to raise many an eyebrow as such duplicity of roles neither behooved the learned judge in chamber nor suited the exalted office of a judge”, the order says.

The court also lamented that it had not been realised or appreciated by the learned judge in chamber that the system of coroners, investigating magistrates or judicial investigators in vogue in some other countries is not a part of our justice system and separation of the judiciary from the executive is a cornerstone of our constitutional dispensation.

“If the learned judge in chamber had himself ordered and caused the arrest of the present petitioners then minimum standards of justice required that his lordship ought not to have taken upon himself to sit in judgment over the matter so as to exercise his discretion for the purposes of refusing bails to the petitioners”.

The court said that IHC’s judge misread the record, while observing that a raid had been conducted on the house of Alam Zeb and some spurious drugs had been recovered during the investigation of the present criminal case.

The bench said that the record shows that the said raid and recovery were in connection with some other criminal case and bail was granted to him in it.

The bench has also expressed surprise over the judge’s observation that he did not grant bail because some co-accused of the petitioners were gangsters involved in similar cases.

Published in The Express Tribune, July 18th, 2014.


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