ROLE OF SESSIONS JUDGE AFTER SEPARATION OF JUDICIARY*

ROLE OF SESSIONS JUDGE AFTER SEPARATION OF JUDICIARY* ROLE OF SESSIONS JUDGE AFTER SEPARATION OF JUDICIARY* By Mr. Justice Rahmat Hussain Jafferi, Judge, Sindh High Court *Paper read in the Provincial Judicial Conference held in Khursheed Mahal, Avari Towers, Karachi on Saturday 1st October, 2005. My Lord Mr. Justice Sabihuddin Ahmed, the Chief Justice, my Lord Mr. Justice Ghulam Rabbani, the Senior Puisne Judge, any Lords Companion Judges, District and Sessions Judges, the under paid, overworked and backbone of the judiciary. 2. First, I would like to congratulate my Lord the Chief Justice for arranging the Judicial Conference, which is the first of its kind in the history of Sindh Judiciary in which the Judges of subordinate Courts are directly interacting with the Judges of Superior Court. I believe and hope that this conference will pave a long way in solving the problems of subordinate Judges and will be a step forward in improving the justice system under the dynamic command of his Lordship the Chief Justice. 3. Secondly, I am thankful to my Lord the Chief Justice for providing me an opportunity to discuss with you on the "Role of Sessions Judge after separation of judicially". For that, we have to examine his role before and after the separation. 4. It is not out of place to mention here and to understand the topic, that before the creation of Pakistan, Britishers ran the country. They were in minority, therefore, they require a system to strengthen their powers to control the masses, feudal lords, head of small states, tribes, to check crime, punish offenders and curb their opponents, who were creating law and order situation and opposing their policies. 5. In this background, the Britishers require a class of loyal persons or officers to carry out their policies. They selected a class of officers from the Britishers. They were made incharge of the Districts by making them Collectors. They were made the representative of the Government in the District. The basic duty of the Collector was to collect revenue under Land Revenue Act. Through this power, they were controlling the feudal lords and big zamindars etc. 6. To control their opponents, the masses and criminals they created a system, which is known as System of Magistracy. Very wide powers were given to the Magistrates that may in some of sphere equated with the powers of High Court concerning Habeas Corpus. As on receiving a complaint, the Magistrates were given powers to, issue search warrants under section 100, Cr.P.C. to produce an illegally detained person before him. Not only they were given criminal powers but some civil powers were also given to them in the shape of section 145, Cr.P.C. They were also given powers to remove public nuisance and illegal occupation from public property in the shape of section 133, Cr.P.C. They were also given powers to prevent the commission of crime and after commission of crime to try and punish the offenders. The investigations of the cases, conducted by the police were to be carried out under the supervision of Magistrates as they used to check the investigations after 24 hours of the arrest of the accused when they were produced before them for obtaining remand and on subsequent dates. Thus, the Magistracy, was an important organ in the criminal justice system. In order to control the Magistracy, the Magistrates were made subordinate to the District Magistrate. The powers of District Magistrate were given to the Collector. 7. The District Magistrate was made so powerful that he even had rule making powers as provided under section 17, Cr.P.C. that is equivalent to the powers of the Legislature. He was also empowered to issue special orders within the scope of Cr.P.C. The Magistrates were not only made subordinate, in Judicial matters to the District Magistrate but they were also made administratively subordinate to him. He used to write A.C.R. of the Magistrates, distribute business amongst them, and assign them territorial jurisdiction. The role of Sessions Judge was only to countersign the A.C.R. of the Magistrates but subsequently that power was also taken away. The District Magistrate was also given powers to write A.C.R. of police officers. They were to be transferred initially by the District Magistrate and later on, on his recommendation. In the beginning, Sessions. Judge had some say in writing the A.C.R. of such officers but that power was also taken away. The scheme of Cr.P.C. was prepared in such away that powers of District Magistrate were increased whereas the powers of Sessions Judge were reduced to the extent, to try Sessions cases and hear Appeals only. Even the Sessions Judge had no revisional powers which powers are supervisory in nature. In that sphere the powers of District Magistrate and Sessions Judge were equal as after receipt of any information about any illegality or irregularity in the proceedings and order of any Magistrate, they were required to send the matter to the High Court. Thus, the Sessions Judge had absolutely no role to play in respect of Magistrates or in any other criminal matters except to try sessions cases and hear appeals. 8. In this background, a demand was made to separate the Judiciary from the Executive, because, the Magistracy was part of Executive. Whereas Judiciary was restricted to Civil Judges and Session Judges who were under the control of High Court. There is a checkered history of separation of Judiciary, but I will give a very brief summary. The demand of separation was increased to such an extent that every Government was forced to make statements and prepare policies to that extent, therefore every Government tried to take steps towards that direction to the extent of appointment of Commissions to examine the question to console the people through lip service. For the first time a serious efforts were made towards this end in the year, 1972. When the report of Justice Hamood-ur-Rehman Commission was taken out from cold storage and steps were taken to implement it through an Ordinance, which is known as Law Reforms Ordinance, 1972. Drastic changes were made in the Cr.P.C. A breakthrough was made by giving the revisional powers to the Sessions Judge and all the Magistrates were made subordinate to him including District Magistrate to the extent of revisional jurisdiction. A role to play was assigned to the Sessions Judge in the Criminal Justice System. The Government did not implement the Law Reforms Ordinance fully as only few of its provisions were implemented. However, large numbers of provisions were kept in abeyance and it was left with the Provincial Governments to implement the same on the date they choose, which they also did not do for a long period. Nevertheless, in the meantime Constitution of 1973 was given to the country in which a specific provision was made for the separation of judiciary in a specified period but it was also not implemented within that time as the time for such implementation was extended from time to tune. Then a legal battle started in the Courts of law. Ultimately, the battle was won as the High Court of Sindh issued direction to the Government to implement the remaining provisions of Law Reforms Ordinance, 1972 and to give financial powers to the High Court. I may point out that without providing financial powers, the judiciary cannot be made fully separate from the executive. 9.? In the year 1992, the Government of Sindh took positive steps by issuing two Notifications to implement two provisions of Law Reforms Ordinance by which sections 6 and 17 were amended. Through those Notifications, Judicial and Executive Magistrates were created. Subordinate of the Magistracy was changed from the District Magistrate to Sessions Judge. All the Judicial Magistrates were made subordinate to Sessions Judge not only in respect of Judicial matters but administratively also as such a process of reducing the powers of District Magistrate and increasing the powers of Sessions Judge started. 10. I am of the humble opinion that the discussion would not be complete if I do not mention the role of High Court during the period of 1992 and on word under the command and leadership of the then Chief Justice Mr. Justice Nasir Aslam Zahid. He was one of the bravest, boldest and strongest Chief Justices. During his leadership process of separation of Judiciary started. Under his Lordship command and the steps, which he took towards the redress of grievances of public, the Sessions Judges got strength and they tried to implement the two Notifications of the Government of Sindh by which the Judicial and Executive Magistrates were created and subordination of the Judicial Magistrates was changed from the District Magistrate to Sessions Judge. 11. The Sessions Judge Hyderabad took steps in that direction. Through a judicial order passed in revision application decided as to who Judicial Magistrate was and who Executive Magistrate was. He took over the control of Judicial Magistrates, which included all the Magistrates, what ever their nomenclature was except the then ADMs and SDMs. He started taking active role. From the very beginning of registration of F.I.R., the Sessions Judge started monitoring the process of the Criminal Administration of Justice. He used to examine the remand order passed by the Magistrates, used to modify or confirm the said orders after examining the said orders on his own accord or on an application or complaint received from the Prosecution or Police Officer. He used 'to exercise suo motu powers liberally. He used to have monthly meetings with the Magistrates to examine their work, conduct, disposal and problems faced by them after the changed situation with the result that pendency of cases reduced tremendously. The problems used to be thrashed out in the meeting, which were also serving guidance to other judicial officers confronted with similar problems and situations. He used to monitor the working and orders of the Magistrates with the help of Additional Sessions Judges. They were made in-charge of few Magistrates to examine their orders and point out the defects if any found in the orders. On the report of the Additional Sessions Judge, the Sessions Judge used to exercise suo motu powers of revisional jurisdiction by treating them as Revision applications and then used to pass judicial orders to correct the excesses or illegality or irregularity committed by the Magistrates as such a process of checks and balances started. Periodical law and order meetings were held where the problems of under trial prisoners, process serving agencies and other related matters used to be discussed. A separate police force was created with the help of the then S.S.P. to bring under trial prisoners to the Courts. No other duty was assigned to such force therefore the production of under trial prisoners was made possible to full strength. Process server agency was also created in the Sessions Court building under the supervision of the Sessions Judge as a result of which witnesses started appearing before the Court. Steps were taken to examine all the witnesses who appear before the Courts. The excesses of police were being checked by sending the Magistrates to check the police stations. They used to release illegally detained persons if they were found confined there. Appropriate actions used to be taken against the police officers indulging in such activities. The Magistrates were authorized to inspect the police stations to carry out a detailed inspection with notice to all concerned. For that, a detailed pro forma was provided to the Magistrates to have uniformity in the inspections. Such reports used to be sent to the then I.-G. Police who used to take appropriate actions on such reports. Large numbers of Magistrates came from Executive. Their language and language of police was different from the language of Judiciary, as the Judiciary's language is judgment where the language of Executive and Police is circular or notification. The said language was used to communicate with Executive Magistrates who came under the control of Sessions Judge by issuing circulars. As such, large number of circulars were issued to implement the decision of superior Courts, provisions of Cr.P.C. by exercising powers under section 17, Cr.P.C. The Magistrates were allowed to go in the market to control the lawbreakers. They used to check prices of various commodities and punish the offenders then and there. Slaughterhouses of animals were being raided. Municipal cases were being heard and decided at the spot, traffic cases were being tried on roads of the city as well as on the highways. The offenses of Minor acts were given due attention with the result that Government revenue increased tremendously and offenders were punished adequately. All the acts were done under the supervision of the High Court as all the circulars and orders issued, were used to` be sent to the High Court. Thus, a model district was created where the Magistracy was being run under the control of Sessions Judge. This was made possible only because the Session Judge was playing very active and positive role. 12. Subsequently the other Districts also started adopting and following the procedure created by the Hyderabad District. The first District which followed the pattern of Hyderabad District was District Jacababad which was headed by the then Mr. Justice (Retd.) Wahid Bux Brohi and then District Mirpurkhas which was headed by Mr. Afzal Khan as Sessions Judge and then slowly and gradually other districts followed the same pattern. 13. A model of the Role of Sessions Judge in the new situation is already available in the files of Hyderabad District therefore one can take benefit from that experience. Nevertheless, at that time only limited judicial powers were exercised. However, the present Government has taken a very bold step because the Judiciary has been made completely separate from Executive on judicial side. Still the financial powers have not been given to the High Court as such one can say that the Judiciary has not yet been separated completely from the Executive. 14. Now the Magistrates are not only responsible to try the cases but their powers and duties have increased tremendously in the shape of provisions by which crimes can be prevented through them. Previously, Executive Magistrates were exercising both the powers. Now the powers have been transferred to Judiciary, therefore, heavy responsibility lies upon the Judiciary to come up to the expectation of the people as such Judiciary has to play a positive and active role through the Sessions Judges so as to implement the provisions of law in letter and spirit. Demarcating line between the prevention of crime [executive power] and trial of cases [judicial powers] is the commission of offence. Situations before the commission of crime come within the scope of executive powers and situations after commission of crime come within the ambit of judicial powers. Therefore while exercising such powers the Magistrates should give different considerations. As such, the Magistrate is a Magistrate for 24 hours. He is in-charge of the criminal justice system of his territorial jurisdiction. 15. In this scenario without the active role of Sessions Judge who has been stepped in the shoes of District Magistrate situation cannot be controlled and criminal justice system cannot run properly, smoothly and effectively. In the end I will simply point out that state of affairs cannot be checked, powers cannot be exercised properly unless the basic principle of Criminal Justice System "No offence should go unchecked and no offender should go unpunished" is given due attention. Entire Criminal Justice System revolves around this single sentence. Therefore, all the Judicial Officers while performing their duties should keep the above principle in mind and pass orders accordingly. If the basic principle of Criminal Justice System is given due attention and implemented in letter and spirit I think and believe several problems concerning the system can be properly addressed and solved. This will ultimately improve the law and order of the country benefit the masses particularly. Thank you very much and God bless you. ***