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REPLY <!--[if gte mso 10]> REPLY By Mr. Justice Aslam Riaz Hussain, Retiring Judge, Supreme Court of Pakistan My Lord the Chief Justice; Hon'ble Judges; Attorney-General of Pakistan; Advocates-General of the Provinces; Presidents of Provincial High Court Bar Associations; President, Advocates-on-Record Bar Association; Ladies and Gentlemen: 2. I am extremely grateful to you all for assembling here today to bid me farewell on my retirement from the Bench and departure from the Institution and the profession with which, not only I; but my forefathers have been associated for 3 generations. 3. I am also extremely grateful for the kind words which you have said about me, though I feel that I do not deserve them at all. 4. It is indeed a day of thanksgiving for me, and I humbly bow my head, in profound. gratitude,' before the Almighty who in His infinite grace Has enabled me to complete my tenure of office in this Highest Court of Justice in the Country. 5. It is customary on such occasions to give a solemn speech in reply, returning the compliments, but although the occasion is a formal one, I would like to strike a more personal and informal note because of my long personal association with you and with this Institution. 6. My Lord the Chief Justice first ordered my reference to be held at Karachi but I requested it to be held, instead, at Lahore, because my association with the Bar and Bench started here. It is here that I have spent the best years of my life. I have walked through ' the corridors of this graceful palace of Justice for more than 53 years since the age of about 12. Let me tell you how the Court looked to me then'. I was a student of Central Model School and every day, after school hours, I used to come to my father, Dr. Tassaduq Hussain, who was a Barrister practicing here, to drive back home with him. The years were round about 1936 to 1939. Most of the Judges, then were Englishmen. In those days the Court hours were from 10-00 a.m. to 3-00 p.m. During the winter, one could see the Judges from the Mall, sitting, in the front, lawn during the lunch hour. There was no wall then between the road and the Court. Just a gardenia hedge which was so short and patchy that one could clearly see the lawn. 7. The first time I saw Judges functioning in a Court room was in 1937. I was looking for my father, who I was told was arguing a case. I traced him in a big Court room, which is now Court Room No.2 of the Supreme Court Wing. Justice Kanwar Daleep Singh and Justice Blacker were holding Court. I went up the stairs and watched in awe, from the Balcony (which is no longer there). 8. I was enrolled as an Advocate of the Lahore High Court Bar in September, 1949, after doing my Bar from England. 9. At that time there were only 75 members of Lahore High Court Bar Association. The Bar room consisted of only one room. It used to be a very quiet place. The tea room was always empty. 'For a long time only one solitary figure used to be having tea there and that was myself. 10. Time rolled on. People came and people went and a whole generation has gone by. Sometimes when I think back, faces of Mian Abdul Aziz Maiwada, Khalifa Sbuja-ud-Din, Mr. M. Saleem, Ch. Nazir Ahmed, Syed Mohsin Shah and Sh. Maqbool Ahmed float before my eyes. So do the faces of Justice Mian Sir Abdur Rashid, Justice Mr. M Munir, Justice S A Rehman and Justice Rustam Kayani. 11. I have been a part of the legal fraternity for 40 long years from 1949 to 1989, out of which for 19 years I have been on the Bench. During this period of 40 years I have seen every facet of the profession and have known it in all its aspects. As a defence Counsel, to Addl. Advocate-General, to a Judge of the High Court right up to the Acting Chief Justice of Pakistan. I have found that life on both sides of the Bar is very tough and difficult. 12. A student has to take an examination only once a year. But a lawyer has to go through one every single day of his life. He has to do preparation at night and perform in. the morning in full gaze, not only of Judges, but also of his own colleagues. The main effort in many cases was to come out unscathed. There was one Court to which many lawyers used to go only to see who got the drubbing that morning. 13. Life on the Bench is equally, if not more, trying. While judging cases, one is always on trial oneself. You may say what you like while in the chair, but you would think twice if you know what comments would be passed about you in. the Bar room. There are bad tempered Judges, but there are also overbearing advocates. So no matter which side of the Bar you are placed, you have to be careful. 14. Speaking of our judicial system, I can say with confidence that you may be justifiably proud of your judiciary. With your help, it has endeavoured, to the best of its ability, to uphold the Rule of Law and maintain its independence, in a country which had to face 3 rigours Martial Laws, one after another and was ruled by individuals or non-representative governments, for more than half of its life. 15. In its entire history the British Judiciary had to face a crisis only once; that was when Crommwell dismissed the Parliament and pushed aside legal Government. What was the performance of the British Judiciary then? Many years after Crommwell had died and the monarchy had been firmly restored, it brought out his skeleton from the grave and put it up on trial. At the trial the Court asked the skeleton if it pleaded guilty and when the skeleton did not reply, it was recorded that "since the accused does not answer, it may be presumed that it pleads not guilty". Thereafter the Court proceeded to try the-skeleton. A finding of guilty was pronounced and the skeleton was ordered to be hanged. The requirement of law was fulfilled. Indian Judiciary also faced a crisis only once. That was when Mrs. Indira Gandhi was defeated and the succeeding Government (of Mr. Desai) initiated a number of Criminal cases against her. But when she again won the election and was restored to power, what happened to those cases thereafter, is a matter of common knowledge. In this connection an, article published in 1980, the London Economist commented on the Indian Judiciary as follows:‑ "India's judiciary is meant to be the watchdog of the country's constitution. But it may soon become Mrs. Indira Gandhi's poodle. The Judges have now cleared Mrs. Gandhi and her son Sanjay of the many charges levelled against them by the former Government. Two cases against Mrs. Gandhi, one for extorting jeeps for election purposes and the other for harassing officers who had probed into Sanjay's car' company, were dismissed last week; and the Supreme Court has upheld Sanjay's appeal against his conviction by a lower Court for destroying a satirical film on the Gandhi family." 16. I would therefore say, please be fair to your judiciary which has recorded monumental judgments in the recent past and upheld Fundamental Rights, after restoration of the Constitution in 1985 and thus enabled the elections to be held and democracy to be restored. I wonder if this would have been possible if every one had left the Court and replaced by an alien set up. Our country is currently passing through an extraordinary phase. One of my senior colleagues on the Bench, suggests that keeping in view our past history, one solution for achieving political stability can be to place greater reliance on the Superior Judiciary. Many bitter constitutional tussles between various factions, which might result in the intervention of a third force, can be got resolved through references to the Court, and whatever the decision, favourable or unfavourable, should be accepted with good grace. This would at least have one advantage, namely that the Court or the Judges acting as a 3rd party would not tend to occupy the seat of power and take over the Government. As such, if, a 3rd party has, per force to be required to intervene, the Courts would, in my opinion, be a better choice. I would add that unless otherwise warranted by circumstances, it would be more beneficial if these judgments are then construed as having 'prospective operation, and not meant to undo the existing state of affairs. The Courts would always be available and willing to perform their duty under the most adverse circumstances. They are independent and shall always remain independent, of, all external influences. Any opinion to the contrary is not justified. Similarly the view that only those judgments are correct, which correspond to one's own views or only those Judges are 'Independent' who give a decision against the Government of the day, is not justified. 17. The real challenge for the judiciary in my opinion is the extraordinary delay in disposal of cases and the accumulation of a huge backlog. Within a few months of my being elevated to the Bench of the Lahore High Court I became aware of the difference between institution of cases and their disposal. I noticed that RSAs used to come up for hearing' before the High Court after about 18 years of their having been filed. [Now 24 years]. While Rent cases, in which stay orders had been obtained, were fixed for hearing, after 7 to 8 years of their filing. Obviously, therefore, as far as the litigants are concerned the Court might as well not have existed. I had always advocated that for quicker disposal of cases we must have more judges. But then there has been sufficient increase in number of Judges, I do not know if we would want to have a still larger number. It appears that some other procedural methods may, now have to be adopted by the Courts and the Bar with mutual consultation, to curtail delays. In 1976 the pendency in Lahore High Court was 28,000 cases. Today it is about 48,000. In 1949, when I became an advocate, there were 7 Judges in Lahore High Court. When I became a Judge in 1970, there were 18 Judges. Now I am told, there are 40 Judges in the same Court. Federal Court of Pakistan began with 5 Judges. Now we have as many as 13 Judges in the Supreme Court, for a population of 100 million, whereas in the United States there are only 9 Supreme Court Judges for population of 220 million people. The House of Lords too has only 9 Law Lords. 18. As I have already stated, delay in disposal of cases is the main criticism levelled against the present judicial system. No doubt all citizens of Pakistan have access to Courts of Law. Courts, like the Awari Towers, are open to all. But can every one afford the luxury? And then again, having entered it once, it is, very difficult, indeed to get out. The general impression, with considerable justification, is that it is hardly possible for a litigant to get his suit decided within his lifetime. Obtaining justice from Courts is not only time consuming but also frightfully expensive. Even a cursory examination would show that as far as the parties are concerned, proceedings in our Courts are essentially skip to 'Trial by Combat!, where the battle is fought by proxy. The party who can afford a more skilful swordsman is most likely to win. We, the lawyers and Judges, working within the system, feel that it is functioning very well, but let us admit, that public in general is fed up with having to wait so long. And soon they may be forced to seek justice outside the Court, by extra legal methods. Neither the litigents nor the Government, can do anything. It is we, ourselves, the lawyers and the Judges, who must face the reality; accept the responsibility and try to improve matters without further delay. Time is running out. Something must be done before the system collapses under the weight of its own backlog or before someone else may find the delays to be a good excuse to sweep away the whole system with one stroke, as might well have happened. 19. The correctness of the criticism regarding inordinate delay in disposal of cases can be illustrated by a case which came up before me at Karachi, where, in a suit, arising out of a contract, the contesting party had objected that plaintiff should have first invoked the arbitration clause. This gave rise to a question regarding the meaning and effect of the arbitration clause, as contained in the contract. Issues had not yet been framed and the matter went from one Court to another. By the time it came up for hearing before the Supreme Court, 14 long years had already passed and the question whether or not the Arbitration Clause should have been invoked, was still being argued. And mind you, the issues had not yet been framed. The irony is that this happened in connection with a law, namely the Arbitration Act, which has been designed specially to curtail delays and enable the parties to get their cases disposed of quickly. 20. Delays are specially painful and unconscionable in guardianship and divorce cases. Very often little children are tossed from Court to Court, and handed over from one parent to the other, for years on end, during which period their psyche is twisted and their emotions are torn to pieces. 21. In other cases, where an unfortunate young woman is compelled to sue for divorce in a Court of law, she has to wait for relief so long that her hair become grey and she is far past marriagable age. 22. Another defect in the system is that very often innocent people suffer due to inordinate delay in investigation or trial and have to spend years in jail as under-trial prisoners. And if in the end, they are discharged or, acquitted, there is no way, in which they can be compensated for the agony and misery, the loss of respect that they have suffered and precious years that they have lost. On the other hand guilty persons stand to gain by inordinate delays in investigation or trial because with the passage of time memory of witnesses is likely to fade and in many cases eye-witnesses who initially felt morally bound to support the prosecution and depose in favour of justice, no longer feel interested in what they start regarding as involving themselves in other people's affairs and unnecessarily incurring the hostility of the accused persons. 23. Another result of such delays is the reluctance of people to invoke the law of Torts. Delays inhibit the inclination, if any, on the part of the aggrieved persons to fight for their civil rights and file suits for damages. During my 40 years' experience, I have not come across a single case of Tort, except one case for removal of nuisance. And that too on the criminal side. In Pakistan, even if you 1,se a limb through someone else's negligence, you would avoid going to Court and spending the rest of your life in attending Peshis and even if per chance, you happen to win, there is hardly any likelihood of getting even remotely adequate damages. 24. For the same reasons you would rarely find anyone caring to file a suit for damages for defamation although newspapers in Pakistan are replete with libellous and defamatory matters, tearing the reputation of respectable persons to shreds. In England and other Western Countries, the Courts keep a strict check on a misuse of liberty by the Press, by taking prompt action in redressing the grievances of the defamed persons by awarding exemplary and deterrent damages against the offending publishers. Now that the Press Laws have ultimately been repealed in Pakistan, our Courts should take up the responsibility of keeping a check on excesses committed by newspapers and Press in general and act as guardians of the reputation and honour of citizens, who have no means available to retaliate in any effective manner, except to deny the allegations which as we know, is usually printed by the concerned publication, a week or so later in small print, at an obscure place on the back page. 25. I might also take this opportunity to speak about another aspect which has always been weighing oh my mind, i.e. the tendency of either not awarding costs or awarding nominal costs. I would suggest that in order to discourage frivolous litigation, Courts should seriously consider the desirability. of awarding proper costs against the parties ultimately found guilty of having wasted public time and money and of having caused mental agony and financial loss to the other side by filing a false or frivolous suit. Such costs must always be actual costs incurred by the opposite party and not merely nominal costs as are awarded at present. In proper cases Courts should not hesitate awarding even penal costs to deter the filing of false or frivolous suits. 26. Before parting I Would like to say a few words about the adverse conditions in which our subordinate Judiciary is functioning. They shoulder the major burden of judicial work in the country. But their terms and conditions of service are pitiable. These needs to be improved urgently. Trial Courts do not only to decide legal issues but have also to record the evidence of witnesses as well as the judgments in their own hand, which is a strenuous exercise. They should be provided with Stenographers; their salaries should be enhanced, arrangements should be made for their transport and they should be provided residential accommodation commensurate with their status. District and Sessions Judges should be provided with bungalows of the same size and quality, if not better, than the Deputy Commissioners, whose judicial orders they can revise or set aside. 27. I think my monologue has already become too lengthy. However, before finishing I must add that I have had very happy 40 years with you in the field of law, both as lawyer and as a Judge. I have always respected the lawyer and got respect in return. I tried never to be loud or rude in Court and in return even Mr. Yousaf Ali Khan has always been kind to me. 28. I, therefore, thank you all, my colleagues on the Bench and friends at the Bar, and leave this great Institution with gratitude and with happy memories. Thank you once again My Lords and my friends. ***