Wrong Judgment of lower Court Judge should be a charge-sheet from the Higher Court Judge

            The Supreme Court and the High Courts are trying their best to bring reforms in the disposal of cases and quick dispensation of Justice but the situation at the lower Courts is not so encouraging rather it is deplorable.

The law gives protection to a Judge that whatever a Judge said or done during the proceeding of a case in the Court is exempted from any liability.

It is very easy for a Judge to hear both the sides and then without applying his mind and sustaining any burden on his brain to dismiss the case and in the majority of the cases this trend is developing. If the cases at the upper Courts are analysed then one can see easily that the majority of the cases are either of misreading or non-reading.

It is also necessary for the higher Judiciary to see the date-sheets of the files in order to find the unnecessary adjournments from the lawyers, parties or Judges.

If the Government passed a law or if the Supreme Court along with the High Courts made such rules that if in the decision gross misreading or non-reading was detected or any party was condemned unheard by the Superior Court then the Judge shall be prosecuted for that Judgment which is decided wrongfully.

The PLJ 2012 Karachi 23 (DB) among other rules has the following two rules which are directly related to the topic of my discussion and I have got inspiration/inference from these two rules and have brought these rules for justifying punishment to those Judges who intentionally overlook both the law and the evidence and decide a case according to their own parameters.

Dispensation of Justice:        Gross misreading or non-reading of Evidence—Impugned order if based on gross misreading or non-reading of evidence and reasons given are absolutely perverse, not supported by law or evidence such order cannot be merely termed as erroneous on facts or law rather such order would be an order without lawful authority. Judicial forum in dispensation of Justice had no authority to decide the rights of the parties according to its whims, caprice or imagination.

Administration of Justice:    Essential and primary obligation of doing justice—Court of law are supposed and duty bound to read, consider and conceive the evidence of the case available on record accurately—Court had to apply the correct and to justly administer the rights and remedies of citizens which duty is fundamental to and enshrined in concept of administration of Justice.

            The above two rulings are so comprehensive in their meaning that these encompass the concept of punishment of Judges, it would be a great justice not only to the present litigants in the Courts but also to the prospective litigants in the future.

            Law breaker is a criminal and a criminal is punished whether he is a beggar or the Chief Executive, or a Class IV in the Judiciary or a Judge, are liable to be punished according to the law/rule which prescribe the punishment. It is beyond the comprehension of a prudent man that a person is found guilty of violation of the fundamental duty of deciding cases according to the law, giving physical and mental torture, financial loss and discomfort to the litigants or deserved persons and then be set free because he is a Judge of a Court and no law has been made for his punishment yet!

            No, absolutely no. He is deserved to no leniency because in every illegal act, some sort of corruption is smelt. In the presence of written Constitution and law, a Judges should have no unfettered discretion. A Judge will think hundred times before deciding the case in the presence any restraint in him in shape of any law or rule for his punishment. When the Counsels of both the sides lay bare everything to the Judge then how a person can go astray in the presence of the cogent evidences. At present, the Judges treat the valuable cases of the litigants like rubbish and dismiss them putting pressure of cases on the upper Courts which, cause many troubles to the deserved persons. A wrongful Judge should also be burdened with the payment of the cost to the wronged party along with a reprimand from the upper Court and after three reprimands; he should be removed from the post of the Judge.

The Chief Justice of the Supreme Court and of the Chief Justices of the High Courts should make monitory cells for this purpose and send cases of the lower Court Judges for proper action. Mere reversing, setting aside the Judgments of the lower Courts do not fulfil the real purpose of justice until and unless the punishment of the Judge and monetary compensation of the deserved party from the pocket of the guilty Judge. The concept of damages should be equally applicable on wrongful Judges.

If a Judge does not comprehend the facts of the case or is unable to apply the law on the facts for the decision, he should straight away send the case either to another Judge of the same Jurisdiction or to the upper Court instead of deciding the case wrongly. In fear of dismissal from service or bearing the cost of the litigation of the deserved parties the Judge would become more scrupulous, conscientious and painstaking and would not be a source of putting pressure of cases on upper Courts.

            Law for the justice is there but the people have lost faith in the individuals which need to be restored and it can only be restored through stringent measures by putting bridles to the Judges in shape of punitive measures for them. Only sermons from the Chief Justices are not sufficient because since the independence of Judiciary and frequent suo motu actions, these sermons have brought no promising results.

Manzoor Ahmad Yousafzai

Wednesday, 07 March 2012.