Independence of Judiciary means that judiciary must be free from the intrusions of the other organs of the State i.e. Legislature and Executive. Early Political Thinkers Montesquieu in his book “Espirit De Lois” stated that “there is no liberty if judicial organ is not separated from Legislative and Executive Organ” and Alexander Hamilton in his ‘Federalist Paper No. 71’ seconded the concept of judicial independence from other organs and considered it as “an essential for limited government”. In pursuance of these political theories, practices, and expediencies, the Constitution of Pakistan and Courts of Pakistan have established that the Independence of the Judiciary shall be secured, which essentially means that the judiciary shall not be transgressed by private, partisan or political interests. But the Political commentators as well as Judges failed to concentrate on curtailing judicial power which rests in the hands of the Judiciary itself and the consequences thereof.
One of the recent developments in the judicial scenario of Pakistan can be quoted as an example of such an intervention by the judges of the apex court in the controversial acquittal of Shah Hussain in the Khadija Siddique Case. The accused was allegedly involved in repeatedly stabbing his class fellow. The trial and daily proceedings of this case were being conducted on the directions of then Chief Justice of the Lahore High Court, Mansoor Ali Shah. After the evidence was recorded, the Judicial Magistrate convicted the Accused (Shah Hussain) with 7 years of rigorous imprisonment on July 29, 2017. However, the District and Sessions Court in March 2018 commuted the rigorous imprisonment by two years and set aside other minor Penalties. On the revision made by the convict, Shah Hussain, His Lordship Sardar Ahmed Naeem, through the Short Order acquitted Shah Hussain, the detialed verdict of which is yet to be delivered.
Consequently, overwhelming condemnation of this verdict was seen on social media in support of the victim, Khadija Siddique. This led the Honorable Chief Justice of Pakistan, Mian Saqib Nisar to take suo-moto notice of the acquittal and to call for a hearing on Sunday. This Suo Moto Notice and requesting records, without an official appeal being filed (though the constitutional remedy of filing Appeal by Aggrieved Person under Article 185 exists) and without a detailed verdict disclosing the ratio upon which the acquittal was based, in the absence of the powers of the Supreme Court to revise verdicts, is nothing but sabotage and undermining of the jurisdiction of the High Court. This would ultimately adversely affect the decisive powers of the Judges of High Court.
This Case is one of the many examples wherein the Supreme Court is trespassing the jurisdiction of High Court. Even if the matter is taken up by the Supreme Court pursuant to article 184(3) of the Constitution and its interpretation in PLD 2017 SC 265 wherein it was held that “Jurisdiction of the Supreme Court under Article 184(3) was an independent and original jurisdiction which was not affected by pendency of any matter on the same subject before or any other court or forum or even by a prior decision of the same issue by any other court or forum below.” The query will remain unanswered that whether a normal/usual occurrence of offence supported by media campaigns will satisfy the prerequisites of Article 184(3) i.e. Public Importance with reference to enforcement of Fundamental Rights? The answer to the question will decide the fate of the jurisdiction of High Courts and exercise of judicial powers independent of the influence and pressure of their superiors.