Delay In Disposal Of Criminal Cases*

DELAY IN DISPOSAL OF CRIMINAL CASES* DELAY IN DISPOSAL OF CRIMINAL CASES* By Mr. Justice Rahmat Hussain Jafferi, Judge, High Court of Sindh My Lord Mr. Justice Ghulam Rabani, My Lord Mr. Justice S.Ali Aslam Jafri, Mr. Saleem Tariq Lon R.P.O Sukkur, Mr. Imdad Ali Awan President High Court Bar Association Sukkur and my dear under-paid, overworked and backbone of the judiciary. *Above is the test of the speech made be Mr. Justice Rahunai Hussian Jafferi. Judge, High Court of Sindh in the workshop. on the topic of "DELAY REDUCTION AND JUDICIAL ETHICS", sponsored by the Canadian and International Development Agency CIDA I. organized at Sukkur, in collaboration with the High Court of Sindli. Sukkur Bench; the Commonwealth Judicial Education Institute Halifax-Canada and Federal Judicial Academy Islamabad, held on December1/8. 2004 at Hotel Forum Inn, Sukkur. The participants were Sessions Judges. Additional Sessions Judges. Assistant Sessions Judges, and Judicial Magistrate a of Districts Sukkur. Khairpur, Ghotki. Noushahro Feroz. Shikarpur, Jacababd and. Larkana. On today's topic "Delay Reduction", I have been asked to speak on "DELAY IN DISPOSAL OF CRIMINAL CASES". It is not a new topic, but it is agitating in the mind of the concerned quarters since very long. The topic, under discussion was, is, and will be the subject matter of discussion, because, it is a continuous process as the causes of delay varies from time to time. The Topic was discussed before commissions, in Workshops, Seminars, Articles, Print media, Television Debates and Radio discussions. The topic is also under discussion by public at various places, even at the smallest places like barbershops, restaurants hotels and cabins, etc. Thus, the topic has acquired a status of problem. We received this problem by inheritance when our-country was created. This problem varies from time to time as grounds for delay in disposal of cases are being changed due to various circumstances, conditions and new developments. When Pakistan was created, at that time the problem was before the lower judiciary, particularly before the Magisterial Courts. From the discussions, two causes were made, mainly responsible for the delay in disposal of the cases: (i) committal proceedings, (ii) the then executive magistrates. Previously there were committal proceedings, which were being conducted by the Magisterial Courts. The said proceedings used to continue for about two or three years and then the cases used to be committed to Sessions Court for trial. It was agitated that delay in disposal of the cases was due to the jurisdiction of trial of cases given to the Executive Magistrates. Previously all the Magistrates, whether judicial or executive were subordinate to the then District Magistrate. He had the jurisdiction to distribute the business of trial of cases to the Magistrates. The District Magistrate used to assign the jurisdiction of the committal cases to the Civil Judges, F.C.M (hereinafter referred to as the Judicial Magistrates), and the remaining jurisdiction of trial of the cases was given to Executive Magistrates. The complaints were that the Executive Magistrates were busy in executive duties; therefore, very little time was left with them to sit in the Courts to try the cases. The problem became so serious that the people started campaign for separation of judiciary from Executive. This problem is not faced by Pakistan only but a large number of the countries around the world faces it, as such, it is a global problem which is being tackled with by each country according to its own resources and conditions prevailing in that country. Our country also faced with the same situation; therefore, the Governments at the time took several steps to coup up with this menace but were unable to do so as no serious efforts were made to rectify the problem for various factors including the opposition from bureaucrats. At last, the problem was tackled by the parliament while framing the Constitution of 1973. A provision was made in it under Article 175 to separate the judiciary from the executive in a required time but the time was extended from time to time, which went to beyond fourteen years. Ultimately, the said time also expired. However, the judiciary was not separated from the executive. Before the Constitution, the then Government had established a commission to examine the above question. The commission was headed by the then Mr. Justice Hamood-ur-Rahman, who submitted his report, which is known as "Hamood-ur-Rahman Report. In that report, the Hon'ble Judge recommended that the judiciary should be separated from the executive and certain measures were required to be taken, but the report was kept in the files of the Government. Ultimately, for the first time, in the year 1972, the then Government, took up the matter in hand and implemented the said decision by promulgating an Ordinance known as "The Law Reforms Ordinance, 1972". Under which the committal proceedings were abolished. The work of Judicial Magistrates was separated from the Executive Magistrates. In that, way the judiciary was required to be separated from the Executive. Through that scheme, the powers of Judicial and Executive Magistrates were demarcated. The Executive Magistrates were given the powers of preventive measures to curb the commission of offences, whereas the Judicial Magistrates were given powers of trial of cases. The demarcating line between the Judicial and Executive Magistrates was commission of offence. The circumstances existing before the commission of offence were to be dealt with by the Executive Magistrates and the circumstances prevailing after the commission of offence were to be dealt with by the Judicial Magistrates. However, the then Government implemented some of the provisions of Law Reforms Ordinance under which the committal proceedings were abolished and some other provisions of Cr.P.C were amended. The remaining provisions of Law Reforms Ordinance were required to be implemented by the provincial Governments on the date to be notified by them. After the abolition of committal proceedings, all the cases pending before the Magistrates under the then committal proceedings were sent up to the Courts of Session with the result that a large number of cases were brought on the files of the Courts of Session. Previously, the Court of Session used to fix a case in the court for trial, that case used to be proceeded with on day-to-day basis, and the same used to be completed within three days depending upon the number of witnesses. The people were getting inexpensive and expeditious disposal of the cases from the Courts of Session. This was possible, because the police officials used to bring all the witnesses and all the required material before the Court of Session for trial of the case and a senior police officer used to be present before the Court for any further compliance of the Court's order, in case, any eventually emerged. Further there was no conception of adjourning the sessions cases because once a sessions case was fixed for trial it was proceeded with on all costs. The advocates also used to give preference to the sessions cases than to other cases including the matters of appellate Courts. When the number of cases was increased, the judges were not able to coup up with the said work. The preliminaries, which used to be completed by the Court of Magistrate, were required to be completed by the Court of Session that resulted frequent adjournments of the cases for the compliance of the formal requirements. The situation has aggravated to such an extent that presently we are in a state of limbo and fresh efforts are being made to coup up with the situation. I am of the view that if at that time adequate and emergent steps would have been taken for dealing with the large number of cases and completion of formalities then a situation presently available would not have occurred. However, we have received, the said cases with the above difficulties; therefore, some steps are required to be taken to overcome the said problem. Still it is not too late; if we take some adequate and positive efforts then the said difficulties can be eliminated. After the experience of the trial of the cases before the Courts of Session, it was found that the causes of delay, which were prevailing before the Law Reform Ordinance, were the apparent causes of delay. The real and genuine causes were camouflaged under the above two causes. The root causes of the delay of the cases were quite different from those apparent causes. It was further noticed that the some of the root causes were: inadequate number of judges, non -cooperation of police, delaying tactics adopted by the accused and advocates, seeking adjournments on valid or artificial grounds, non production of prisoners from jail and so on and so forth. As such, a fresh waive of discussion started in various seminars, workshops, commissions, print media, T.V., Radio discussions and by public at all places. The parliament also took cognizance of the above problem and made a provision in the Constitution in its Part II under the heading "Principle of Policy". Under Article 29, it has been directed that the State, its organs and its officers should perform their functions in accordance with the Principle of Policy. Certain ditties and obligations have been imposed upon them to achieve the objectives of the Principles of Policy. One of the principle of policies is mentioned under Article 37(d) of the Constitution under which it has been provided that it should be ensured that inexpensive and expeditious justice should be provided to the citizens. Thus, the Constitution makers were also conscious that people were not getting expeditions disposal of cases because the cases were being delayed for various reasons in the Courts, therefore, they directed the State to take steps for providing inexpensive and expeditious justice. No doubt, the principle of policy mentioned in the Part-II of the Constitution cannot be enforced through the writ of the High Court, but the State, its organs and their officers are morally obliged to implement the said policy, therefore, the judiciary and its offices should also ensure that inexpensive and expeditious justice should be provided to the parties. Taking the above problem as aground for creating new courts, the Government tried to create new courts with a view to take away the powers of trial of cases from the judiciary. For that purpose, special courts were created to deal with a separate class of cases but the problem remained there. Even, the civilian Government created Military Courts to try a class of cases. The said courts started functioning. The cases were tried, the accused were convicted and executed. Efforts were also made to associate some outsiders to sit with the judges to try the cases. These steps were direct attack on the Judiciary. However, with the timely intervention of the Hon'ble Supreme Court of Pakistan in a case of Liakat Hussain v. State, PLD 1999 SC 504 decided by nine honorable Judges, the said efforts were frustrated. The Military Courts were declared unlawful. The Government implemented the said decision therefore the said courts were abolished. The outsiders were not allowed to sit with the Judges to try the cases as all concerned objected the same therefore the Government had to take back the amendments made by them in the relevant law. Thus, all the cases again started being tried by the Courts headed by judicial officers. In recent past another and new attack has been made on the judiciary. This time not from the Government's side but it is from the side of feudal lords of few districts of the province as they started deciding the cases by themselves through Jirgas. Previously the feudal lords were deciding the cases secretly and discreetly at their Places. The newspapers noticed the above actions of the feudal lords. Because of the freedom of the press, the newspapers highlighted this problem by publishing news items and photographs showing feudal lords deciding the cases that were pending in the courts of' law. They also showed the pictures where the supporters of the parties duly armed with licensed or unlicensed weapons were shown to be present outside the said places. Under these aggressive circumstances, the feudal lords were deciding the cases through Jirgas. The matter was so aggravated that the people had to approach the High court of Sukkur Bench to challenge the validity of Jirgas. The High Court of Sindh Sukkur Bench headed by me took up the matter in a case of Mst. Shazia v. Station House Officer 2004 PCr.LJ 1523 and held the Jirgas as unlawful and unconstitutional. When the press contacted the feudal lords, they supported the holding of Jirgas by arguing that they were providing. inexpensive and expeditious justice by deciding the cases quickly as the people have lost faith in the judicial system of the country because their cases are not being decided expeditiously by the courts. It is pointed out that under the Principle of Policy and Article 37 [d] of the Constitution the State, its organs and its officers have been directed to provide inexpensive and expeditious justice. Such direction has not been given to any private individual. As such, the feudal lords are clearly violating the above Principle of Policy of the constitution. It is not out of place to mention here that previously the Sardars of their tribes were deciding the cases under System of Sardari. The Parliament took notice of it and abolished the said system by enacting a law known as "System of Sardari (Abolition) Act, 1976 (Act XL of 1976)". The preamble of the Act which is essence of any Act reads, "Whereas, the system of Sardari, prevalent in certain parts of Pakistan, is the worst remnant of the oppressive feudal and tribal system which, being derogatory to human dignity and freedom, is repugnant to the sprit of democracy and equality as enunciated by Islam and enshrined in the Constitution of the Islamic Republic of Pakistan and opposed to the economic development of the people;". Under this law, the practice of deciding case, which can be done through Judicial powers, has been made an offence, which is punishable up to three years. In view of above Act, in the year 1976 the Govt. of Pakistan, before the decision of the High court in the case of Shazia (supra) has already banned the Sardars from exercising judicial powers, violation of which has been made an offence punishable up to 3 years. The scheme of the lawmakers through substantive and adjective laws is that no offence should go unchecked and no offender should go unpunished. Therefore, the Magistrates have been given powers to take cognizance of an offence on a police report, on a private complaint, and on his personal information received from any source. It is one of the duties of the Magistrate to implement the will of the Parliament and scheme of the law. Thus, the Magistrates are required to take appropriate action within their powers to achieve the scheme of the law. If any offence is reported to the police but the police do not take any action, then the complainant has been given right to file a direct complainant before the Magistrate. If neither the police nor the private person reports the matter to -the Magistrate then the Magistrate can take action on the information received by him through any source or through press and prosecute the person who committed the offence so that the offence? should not go unchecked and punish the offender who has committed the offence so that the offender should not go unpunished. This is the requirement of a civilized society, which should be adopted by the Courts. When the law gives such wide powers to the Magistrates then the Magistrates should perform their duties in accordance with law so that the scheme of the law should be implemented. It is wrong to say that the Magistrates can perform their duties during their Court hours only. However, if the Criminal Procedure Code, Police Rules and the present powers given to them through the separation of judiciary are examined then the Magistrate is a Magistrate for 24 hours. He is responsible for curbing the offences within his territorial jurisdiction because he has to perform dual functions by taking steps to prevent the commission of offences and then trial of cases. The Magistrates should look into their files and see as to how many cases were initiated on their personal knowledge received from any source including Press reports. I am sure if such situation is looked into the files and registers of the court then no case can be round which is initiated on the own information of the Magistrate. Apparently, it shows the lack of supervision of the Magistrates within their territorial jurisdiction. The Magistrates should play their due role to perform their functions in accordance with law. In this view of the situation, it is now being propagated that the judiciary is not playing its due role. A new slogan has emerged that the executive should be separated from the judiciary. For creating the special courts and holding Jirgas, one of the grounds was taken that the people are loosing faith in judicial system. The ground appears to be unfounded, as it will be noticed that thousands of people are attending the Courts daily. They are pursuing their civil/criminal cases in the Courts of law. It will not be out of place to mention here that through Qisas & Diyat Ordinance, the Pakistan Penal Code has been amended and several offences have been made compoundable including the murder cases. In spite of that, very few cases are being ended through such mode. It will be further noticed that very few cases of only few districts of the province are being referred to outdated, unlawful and unconstitutional Jirgas, which clearly demonstrates that even very large number of people prefer their cases to be decided by the Courts of law knowing fully well that some delay might be caused in decision of their cases. It further shows that people have not lost faith in the judicial system. However, they want improvement in the system so that their cases should be disposed of expeditiously. Thus, the problem requires adequate attention so that positive steps may be taken to overcome the delay in disposal of the cases and eliminate the so-called above impression. The present government has taken a very bold step of completely separating the Judiciary from the Executive as drastic amendments have been made "in the Cr.P.C under which the post of Executive Magistrate has been abolished and the judicial officers have been made responsible to take action to prevent the commission of offences and to try all the cases. In these circumstances, heavy responsibility lies upon the judicial officers to, take adequate steps to curb this menace. Under the present circumstances, the Judicial Magistrates are not only performing the judicial functions but also doing the executive work as both the powers, which were used to be exercised by the Executive Magistrates, have been assigned to the judicial Magistrates. Nevertheless, it is being propagated, that the subordinate judiciary is not playing its due role. Because in the present scenario, no adequate steps are being taken by the judicial officers to deal with the cases of minor offences, as apparently the Judicial Magistrates are not considering them as offences with the result that such offences are going unchecked and the offenders are going unpunished, that is against the scheme and sprit of the law. As such, some emergent steps' are required to be taken to remove the said impression. As the situation and circumstances have changed, therefore, the grounds of delay in the disposal of cases have also changed. Some of the people are of the view that the Courts are solely responsible for this delay. Some sections of the people advocate that the prosecution is causing the delay and some people are holding the police responsible for such delay and so on and so forth. A large number of the people are making the courts solely responsible for the delay in the disposal of the cases. In fact, in the circumstances, their apprehension might be correct as apparently when the accused is challaned the case remains on the file of the court till its disposal, therefore, they are holding the Court sole responsible for the said delay. If it is examined minutely then the situation is otherwise because, the function of the Court is to decide the cases on the evidence of the witnesses produced by the parties. The parties are required to produce all the evidence and other relevant material before the Court in support of their- respective cases. Then the Court is required to give its decision. When an offence is committed, it is committed against the society; therefore, the State is the main party in the criminal cases as such it is responsible for the prosecution of the cases. It has been noticed that after submission of police report or challan by the police, the police forget about the case, though they are required to produce all the material and complete the formalities of the case so that the case may reach at the stage of trial. After submission of challan, the Court is being made responsible for procuring the police papers. Even the Public Prosecutors complain that the police are, not sending the police papers to them. The court is indulged in calling for police papers though it is the responsibility of the prosecution and police to place all the material before the Court. The police do not produce the case property, chemical analyzer and ballistic reports before the Court, which are essential steps for reaching the case at the stage of trial, but again the Court is being involved in this regard The Court issues process for calling the property, chemical analyzer and ballistic reports, therefore, sufficient time is being spent in completing these formalities. Even, when the case reaches at the stage of final hearing, the process is being issued to produce the witnesses. Even then, the police do not care to serve the process upon the witnesses, with the result that the cases are being delayed for want of witnesses. If the witnesses are produced and the Court does not examine them then the Court can be held responsible for such lapse. But it has been noticed that all the functions which were required to be performed by the prosecution and police to complete the case, the Court has been involved in them to do the functions of the prosecution and the police resulting in delay in disposal of case. Thus, it is the prosecution and the police who are, to some extent responsible for such delay but for the responsibility of the prosecution and police the court is being blamed. The fault of the court is that it is helping the prosecution and the police in performance of their duties. For that, the court is paying a very heavy price. Therefore, the Courts cannot be held sole responsible for such delay. The impression carries by the public in this regard appears to be unfounded. Efforts should be made to eliminate the said impression from the public. However, one should not defend himself blindly but to examine the real causes of delay in disposal of cases. Ii it is found that, the court is also a contributory factor in that direction then the court must admit its fault and steps should uc taken to redress the said deficiency. After examining the entire scenario of the criminal cases, I am of the view that no single factor is responsible for causing the delay, but it is a combination of several factors and the acts of several authorities, which are causing the delay. Apart from other causes, in my view, there are seven main causes, which arc contributory factors in causing the delay. The said causes are is under: (1) Courts: such as large number of pending cases, less number of judicial officers, in adequate infrastructures and staff, unfavorable working conditions, non-examination of witnesses, liberal grant of adjournments, inadequate knowledge of procedural and other laws, time and case management, etc. (2) Accused: such as their abscondence, non-engagement of advocates, pressure to the complainant party for compromise etc., arrangement with jail personnel for not producing them in Court, so that statutory period expires and case should be delayed, giving direction to their advocates not to appear before the court when witnesses appear, etc. (3) Advocates: such as taking large number of cases, not preparing the cases for various reasons, engagement in other cases or superior Courts, seeking frequent adjournments, etc. (4) Prosecution: such as inadequate number of prosecutors, their staff, no liaison between them and police, non. co-operation of police with them, inadequate knowledge of procedural and other laws particularly Qamm-e-Shahadat Order, etc. (5) Police: such as non-execution of process of the Courts, non production of property, chemical analyzer and ballistic reports in courts, non-cooperation with Courts, taking no interest after submission of challans in Courts, no follow-up of cases, non attendance in Courts, etc. (6) Jail authorities: such as, less number of vans_ for transporting the prisoners, non availability of police personnel for transporting the prisoners, transfer of prisoners from one jail to another, non-production of prisoners in Courts for various reasons, genuine and artificial, etc. (7) Government: such as non sanctioning of sufficient number of posts of judicial officers, insufficient budget to the Courts and other departments involved in the administration of justice, etc. The superior courts have also discussed this problem in various judgments pointing out various causes for the delay in the disposal of the cases. Very recently, the High Court of Sindh has also taken up this problem in a case Hussain Ahmed v. State, 2004 PCr.LJ 669. In the said 'judgment, which was authored by me, above-mentioned seven causes of delay have been emphasized. When a decision is reported in a Journal then it means that it has been brought to the notice of all concerned. Therefore, all the officers of the organs of the State are required and obliged to perform their functions so as to achieve the objectives of the Principle of Policy of providing inexpensive and expeditious justice to the citizens mentioned in the Constitution. It appears that no due attention has been given to the said judgment or other judgments of the Superior Courts to remove the causes of delay in the disposal of the cases. I request to all concerned to take emergent and adequate steps to implement the will of the constitution. In the end, I will simply say that the delayed justice is denied justice. In my view, the worst form or denied justice is delayed Justice. Thank you and God bless you. ***