DELAY REDUCTION PLAN

DELAY REDUCTION PLAN <!--[if gte mso 10]> DELAY REDUCTION PLAN By Muhammad Zeb Khan, Additional District and Sessions Judge-II, Mardan During the last decade the maxim, "Delay Defeats Justice" has remained the hot buzz phrase throughout judicial circles; rather it has become a clamour that the District Courts throughout Pakistan are aloof of the idea of expeditious disposal. While appreciating the gravity of this problem many strategies were devised to counter this menace, which was turning into a stigma of District Judiciary. These methodologies include the Preparation of annual work plan, Unit policy and Time bound delay reduction plan. No doubt it had served its utility as cases pending since long were given particular attention leading to an enhanced disposal ratio as well as a downward trend in the backlog of old cases. Nevertheless it is a fact undeniable that in the endeavour to achieve the desired targets at times it was also observed that cursory disposal was carried out in a rush which on appeal got remanded to that very Court; leading to further aggravation of the delay phenomenon and enhanced agony for the litigant public. What is to be seen; is whether the strategies so adopted led to public satisfaction on the working of District Courts. If such satisfaction does not ensue the expeditious disposal, then the whole exercise was futile. Being motivated with this impulse I have attempted to devise a strategy to curtail delay in disposal of cases but with special emphasis on quality and not quantity disposal leading to public satisfaction. The corner stone of my strategy would be based upon the realization that any policy devised for combating the menace of protracted trial alien to the Civil Procedure Code or Criminal Procedure Code would never bear fruit. The solution lies within the two Codes and not extraneous thereto. With this view of the matter my proposed strategy to curtail this impending delay in conclusion of trials is based upon a diametrical shift from the Diary system to Calendar system of fixation of cases. At the District Courts the Diary System is in vogue; where the Court for each case fix a date of hearing and adjourns it to another date of hearing; while in the Calendar system at the start of the year; cases are earmarked for disposal; thus at the start of each month the Presiding Officer knows the cases to be decided. In my view both C.P.C. and Cr.P.C. work on the Calendar system. For instance, the Civil Procedure Code speaks of three types of summons. Summons for attendance of parties, summons for settling of issues and summons for attendance of witnesses. These types of summonses should be kept in foresight while viewing Order XVII, Rule 1, C.P.C.; which provides that a case once fixed for evidence the proceeding therein should be conducted day to day unless for reasons to be recorded the Presiding Officer adjourns it otherwise. From this it can be visualized that the Code provides a procedure whereby once a civil suit is instituted the Presiding Officer shall advert itself to the contents of the plaint and the appended documents in compliance of Order XIII, Rule 1, C.P.C. and thereafter issue notices of attendance to the defendants. On their date of appearance and submission of written statement the Court shall look into the matter with a view to determine; whether the parties are at issue or otherwise within the meaning of Order XV, Rule 1, C.P.C. and if the Court comes to the conclusion that in fact they are at issue; the matter should then be kept in waiting till the time sufficient gap is available to the Trial Court to fix the case in settlement of issues as henceforth while recording the statement of witnesses day to day hearing is to be conducted in compliance of Order XVII, Rule 1, C.P.C. By adopting this procedure the exalted benefit would be that the Judge shall be in a position to retain and remember the demeanour of the witness and other observations made at the time of recording of evidence. This Court observation is of paramount importance for correct and judicious appreciation of evidence. Likewise on the criminal side and with special reference to murder cases the august superior Courts in plethora of rulings had directed the expeditious trials. In the same manner, Criminal Procedure Code at Chapter XXII-A. pertaining to Sessions Trials has laid considerable emphasis on expeditious disposal of such cases. In this context the point of differentiation between the trial before the Magistrate and that before the Court of Session can properly be appreciated by highlighting the subtle distinction between sections 241A and 265-C, Cr.P.C.; as under section 241A a minimum of seven days ought to expire between the date on which the copies are delivered and the date of framing of charge. Conversely before the Court of Session section 265-C, Cr.P.C. speaks of at the maximum of seven days between such procedural matters. Likewise section 265-F, Cr.P.C. provides that at the first hearing the Court shall appraise itself of the prosecution witnesses by the Public Prosecutor or the complainant and in case it comes to the conclusion that some of those witnesses have been included with the intent of vexation, it may dispense with the attendance of those witnesses. The only reason for having this methodology is to facilitate the Judge in retaining and remembering the demeanour of witnesses while appreciating the evidence. The august Supreme Court of Pakistan being cognizant of the significance of that matter in report published under the title Roshan and four others v. The State (PLD 1977 SC 557) had formulated the following illustrious precedent:-‑ "To my mind, the primary consideration in appraising the evidence given by a witness is to determine, firstly, why has he offered to testify? Has he seen the occurrence? If so, has the witness a motive to implicate a person who was not among the culprits or to exaggerate the part played by any .of them? If a witness satisfies these two tests, then the Court should watch the general demeanour of the witness in order to judge the quality of his perception and his faculty to recall the past incidents. A witness may make contradictory statements on some of the details of the` incident in respect of which he is deposing in Court. The variation may be due to mere lapse of memory or the confusion caused in his mind by a relentless cross-examiner. Very often a witness gives an incorrect statement because he must answer every question regardless of the fact whether he knows the answer to it or not. It is not uncommon that the cross-examination puts words in the mouth of witnesses and the presiding officer is not vigilant enough to check it. It is also common experience that, without any particular intent, even educated people exaggerate when describing an event. Some witnesses may be prone to it more than others. Mere contradictions, therefore, do not lead to the result that whatever all necessary requirements for its expeditious disposal should be ensured and it is only then that the matter can be disposed off swiftly. At this juncture it is worth to mention that during the days of the erstwhile Executive Magistrates and prior to the Law Reforms Ordinance, 1972; there was a procedure for committing the cases to the Court of Session. It was during the stage of committing the case that the Magistrate was to ensure the availability of all the witnesses and only then when the date of hearing was fixed before the Court of Session all those witnesses were in attendance. Now that such committal proceedings do not exist we have to devise an innovative strategy to conduct Pre-trial preparation of cases. In this regard the most suitable way of doing would be that for each set of three Courts a Judicial Officer not below the grade of Civil Judge/Judicial Magistrate on rotation should conduct the job of Pre-trial preparation of cases. He should be duty bound to maintain the roster of cases so assigned to him; to ensure the attendance of the parties and the witnesses as well as their counsel prior to the date on which the case is fixed before the Court. He in this regard should take from the learned members of the bar a certificate to the effect that on the date proposed to be fixed for hearing before the Court there is no other case on their diary. In this way indirectly the delays caused by the learned member of the bar in expeditious disposal of the cases shall also be curtailed. As during the pre-trial preparation the Officer Incharge shall summon the accused and be directed to engage a counsel and once a counsel appears before that officer; through mutual consultation in presence of accused a date shall be fixed on which the learned counsel would have no case fixed in any other Court. It would thus be up to the sweet will of the accused languishing behind the bar or a litigant having the anxiety of his case to be decided at the earliest point in time to see for himself as to who is responsible for having a long date to be fixed for hearing in his case and it would thus be at the discretion of the accused or the litigant to replace his counsel with a one whose diary can accommodate a nearer date of hearing to be fixed in the matter. In criminal cases it should be at the discretion of the defence counsel and not the complainant counsel that a date of hearing should be fixed as the accused is the most favourite child of law. In the like manner the officer incharge for conducting pre-trial preparation will ensure that on a proposed date of hearing so fixed all the witnesses are duly served with notices and in case of any suspected absentees he should there and then bound down those witnesses under section 171 read with 173(5), Cr.P.C. In the like manner amongst the Revenue _Officer including the patwari halqa who in most of the cases does not appear before the Courts much frequently; should be summoned earlier and a bond should be taken from him for his appearance before the Court. In my humble opinion the adamancies and reluctance on part of the patwari halqa to appear before the Civil Court is mostly attributed to the non-compliance of Order XIII, Rule 1, C.P.0 as if in compliance the witness has said on the salient features of the case and which conforms to the other evidence on the record, is to be thrown overboard." It is not perceivable as to how a Presiding Officer is able to appreciate properly and to remember all the necessary details that came to his notice at the time of recording of evidence, which was recorded some six months before the date of arguments. In nutshell it is concluded that the in vogue Diary system would never work for the proper appreciation of evidence in the mode and manner enunciated by the honourable superior Courts. Having reached to this conclusion, I now advert to the objection advanced by the adversaries to this hypothesis. According to. them, owing to the gigantic pendency it is not only impracticable but also impossible to follow such principles; according to them these rules have become obsolete. I am afraid this justification is the solution simpliciter of the imbroglio. To my mind, if a murder trial is concluded within four days then during a month a Presiding Officer can dispose of at least six contested trials, which is far more than what is achieved at present of trial that lost at the minimum of two years. Similarly in the like manner six contested civil suits can also be decided during a month by a Civil Judge and on this ratio the problem of back log can be combated in the most efficient manner. Coming next to the action plan for implementation of this strategy. No doubt numerous complicated impediments are in its way. For instance, how to ensure attendance of witnesses on the date and time on which the trial is to be conducted, to ensure the attendance of the Advocates, most of whom by accepting unscrupulous number of briefs have overburdened themselves to such an extent that it is very difficult for them to conduct a trial with ease. These are some of the most realistic hurdles towards the execution of the so devised strategy. In my humble understanding no policy can be successfully implemented if the other components of the system are not consulted. In civil cases those components include the official from the Revenue department besides other Governmental officials as well as the learned Advocates practising Civil law. In criminal cases these include the police witnesses, the medical experts/doctors and the learned members of the bar practising criminal law. To resolve this complicated issue I would further emphasise on' pre-trial preparation. In fact the present daily diary system of fixation of cases is indifferent to pre-trial preparation of cases. By pre-trial preparation it is meant that before a case is fixed for hearing in. a Court, of this rule in a suit pertaining to revenue record all the documents are brought on record at the first date of presentation of the plaint, the patwari halqa would not be that much overburdened at the time of recording his statement and would have the ready copies thereof available, leading to his prompt appearance while recording his statement. In nutshell I am of the humble opinion that no solution alien to C.P.C. and Cr.P.C. would serve the purpose of delay reduction and quality disposal; the only way that this can be achieved is to implement the two Codes in letter & spirit and to have intensive pre-trial preparation by having a shift from the Diary system to the Calendar system. Based upon this methodology, I intend to prepare the proposed draft of amendments to be brought in C.P.C., Cr.P.C., High Court Rules and Orders (Civil & Criminal) and other connected laws.