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ch-4 by Syed Ijaz Hussain

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From Mr. Syed Ijaz Hussain
(LLM-D-D-E) (M. Phil Thesis 2017 (B))

Processed on 23-Dec-2017 20:20 PKT
ID: 899204005
Word Count: 2915


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< 1% match (Internet from 24-Jun-2017) http://www.fja.gov.pk/fja_bulletin/2014/april_june_2014.pdf 5 < 1% match (Internet from 12-Jun-2014) http://www.thenetwork.org.pk/Resources/Legislations/PDF/16-8-2011-20-52-57-275-Judicial%20system%20in%20pakistan.pdf 6 < 1% match (publications) "Law reform", Commonwealth Law Bulletin, 01/1998 paper text: CHAPTE NO.4 ROLE OF GOVERNMENT IN INEXPENSIVE AND SPEEDY JUSTICE The Pakistani criminal justice system and civil rights administration of justice has given many reasons for the delay and also placed blame for the delayed trials due to higher crime ratio and shortage of officials as a reason also for delayed trials both in civil and criminal cases. Resultantly, the accused or suspect has to suffer the consequence of being incarcerated for lengthy and uncertain periods and the normal litigant either plaintiff or defendant spends much time in courts and usually becomes court bird in our existing system of law. The problem of delay in cases 1it has been under discussion for many times by several authorities, exchange of ideas also great efforts of law experts, lawyers and different bodies made on behalf of state for finding   solutions for avoiding the challenges in delay of cases. Hence, the objectives remained in vain.  From the year 1956, successive governments constituted a large number of Commissions and Committees for this solution in form of changes in court system, some of the points includes:- • Commission on Marriage and Family Laws, 1956; • Law Reform Commission, 1958; • Law Reform Commission, 1967; • High Powered Law Reform Committee, 1974; • Law Committee for Recommending Measures for Speedy Disposal of Civil Litigation, 1978; • Secretaries' Committee set up by the President to Examine the Recommendations of the Law Committee set up for Recommending Measures for Speedy Disposal of Civil Litigation, 1979; and • Committee to Formulate Concrete Proposals for Simplifying the Present Legal Procedure In 1981. The government set up a permanent Pakistan Law Commission (PLC). The Pakistan Law Commission also recorded, published court facts figure in Law Journal of Pakistan (PLD), and its impactnot  brought any radical change in 3the nature of administration of justice. Few of the suggestions and recommendations of these commissions pertaining to the Family Laws Ordinance, the constitution and establishment of the Federal Judicial Academy, the Pakistan Law Commission and separation of the executive from the judiciary were implemented by the Government after some delay. Substantive and main issues concerning day-to-day administration of justice, such as those pertaining to facilities provided to the court staff, buildings and infrastructure, salaries and other facilities to 4 judicial officers, up gradation and improvement in court staff process agency, bringing and procurement of witnesses, facilitation in the  use of modern devices 1of interrogation proceedings and proceedings in the administration of criminal justice till final adjudication, the application in law, procedure, regulations to reduce the problems of delay as well as betterment in under trial and convicted prisoners suggested time by time have not been executed despite several attempts were made 1in suggestions offered in results of research. The people of Pakistan  took interest and has come with new strategy of court reforms. The best plan was to increase in the salaries of judges, and other facilities including, case flow management, as well as other improvements regarding current ideas. The research shows  the government and its effort in  bringing  reforms requires the guidance to  motivate the judges in the form of better incentives, other necessary facilities and appointment through the recruitment  of Federal Public Service Commission, in an excellent way the proper and through better way the command and control system and also audit by introducing the new procedure as well as the members of jury procedure as well  the reference with regard to the protection of rights secured by parliamentary commission and liabilities, and also reforms in the conventional system regarding the mechanism of court staff, calculation of case numbers, the facility of legal  books and other facilities that are helpful in the process of adjudication and as well as the skills are also developed in writing the judgments for the judicial officers the facilitation of and refresher courses, training for judges which would also needs improvement in the syllabus that is taught to the students of law in the law colleges . There should be no hesitation in saying 1the reality of delay in the cases also causes a serious problem and a hindrance that also , reflects the main problem in the way of justice and also in delivering the complete justice to the people of Pakistan, who are the main stake holders in the justice system of Pakistan. We also know the reality that the problem of delay is suffered by the International community but, in our state, the situation is very worst. The Pakistan, Law Commission observed and concluded that the problem of delay in the cases both the civil rights cases and as well as criminal cases is causing much problem in Pakistan and the courts are also not delivering justice timely to the people of Pakistan and there is also a usual delay in the trial of cases and it also takes much time including the several years up to the Supreme Court of Pakistan.  . The usual delay in litigation of both civil and criminal cases has become much chronic and dangerous proverbial. The serious threat is not to the extent of Pakistan; it is also historical and international problem. It is found in every judicial system of the world which necessarily protects against any unjust proceedings being dealt by any individual against him, either in a civil case or in criminal proceedings. A universally admitted principle of the criminal administration of justice system is that an accused person is granted conviction when his case is proved beyond any shadow of reasonable doubt. On the other side, it is also a golden principle of civil administration of justice pertaining to civil cases; the dispute are adjudicated keeping in view the laws of land and also on the basis of golden principles that have been settled by the Honourable Superior Courts of Pakistan and as well as keeping in view the golden principles of Islam. Theses universally admitted principles are found in the 6injunctions of Islam as in the Holy Quran it has been said that Muslims should not do injustice, unjust, coercion, nepotism and suppression". In Pakistan, one serious problem of the justice system is, delay. A delay usually occurs in the decision of cases both the civil and criminal cases and also in the trial of both these cases and cases of also other categories. Now, it has become a routine for a civil case to be proceeded for   one decade,  the other fact is also very sad that in the execution process, almost the maximum time is spent in the process of executing the decree and the decree holder also faces much problem and the maximum hindrance is created by the judgment debtor in the way of executing the decree of court of law. In the adjudication of process of criminal cases, the situation is faced same as in the process of civil cases. Delay without any plausible cause and undefined usually occurs and mainly without any sufficient reasons in the trial of cases by the courts of law. An illustration of delay is shown from the statically figure and   calculation, currently, there is a huge number of including 2/3, majority of the under trial prisoners in the jails, who are waiting for their trial. Such fact lacks the trust of the general public in the justice system. Unusual delay in civil cases, other than 1are becoming the main reason of  frustration among the general public, and as well reduces the economic well being of the people of Pakistan and the other stake holders who become part of the litigation process . It also causes a serious loss to the companies and other corporations who participate in the  foreign country based investment in Pakistan, as well  also cast a negative impact on our business system and as well with foreign countries/ and international companies. There are different reasons of delay, some of them are inside and others are outside the courts, and there are also legal/procedural gaps/lacunae. It is also a famous saying that 1The Justice delivery  delayed is justice also denied. Resultantly, it is now and in fact has become the demand of modern civil society to get rid from the problem of delayed justice and also suggesting the ways for its solution. It would not be pertinent to say that the problem of delay in the cases has been neglected by the government in the past. Every Government also tried its best to solve the problem. Various Law Reform committees and commissions were made to examine and investigate on scientific basis the causes and reasons of delay and to suggest best measures for better reforms. These committees and commissions examined deeply the procedural and codel laws and rules and approved various reforms. Some of the recommendations were accepted by the Government and were made part of different laws. The Apex courts of Pakistan also reviewed their rules for the purpose of quick and inexpensive justice in the light of the guidelines and suggestions given by the commission and committees. In different times, the High Court's also issues directions and guidelines to their subordinate's courts for the inexpensive and speedy justice. The procedural law always has been a main subject of reforms continuously with the passage of time. Laws always need to be changed and reformed keeping in view the changing circumstances, facts and realities of the time. The quick disposal of the cases no doubt, always is and has been the main objective of every welfare state. But, it is also a fact that the cases should be decided according to law and after giving proper opportunities to the parties respecting the production of their evidence. It is also a fact that usually normal delay that is beyond the control of human being occurs in a case, and in stricto senso it does not matter so much, but it should not be an improbable and unjustified delay, and this kind of delay needs to be checked and properly supervised. While adjudicating a case, usually delay occurs, but it is a good test of good judicial officer that it should be managed with proper tolerance and without being biased and it should be normally ignored for the larger interest of justice. On the other side also, the ratio of quick deciding cases without proper application of mind should be strictly checked as it is grave unjust, arbitrary, unfair and against the golden canons of justice. The problem of delay in cases was examined by various committees and commissions formulated by the Government from different points but, no radical changes were brought in form of solutions in the existing judicial system of Pakistan, some of the suggestions are given briefly that were requested to be implemented by the Government:- i) ii) iii) Amendment in the concerned Laws. The number of Judicial Officers be increased. There should be proper court rooms for the judicial officers and their residence problems should be solved. iv) Investigation should be based on scientific basis and prosecution agency should perform active role in the criminal administration of justice process. v) vi) The Judicial Officers should be given proper training facilities. The role of the Process Serving Agency should be active and strict supervision should be made upon their duty. vii) viii) The retirement age of the judges should be enhanced. The police reports/ Challan should be submitted in time by the police and investigation wing ought to be independent and powerful and the adequate facilities must be given to them and their other problems must be solved and  Forensic Science Agencies, their role, facilities and also the number must be maximum increased throughout the Punjab and the judicial system must be be vigilant regarding the late submission of police reports. ix) x) The court should not allow usual adjournments in the process of trial. The civil and criminal cases should be bifurcated among the judges at District level. xi) The High Court should keep a proper control and supervision 1upon the control and working of the District courts and their should be a proper system to keep the check and balance among the courts, and regarding the complaint of  corruption, negligence, not sufficient work, a proper punishment should be awarded by the High Court to its subordinate judicial officers. It is also a fact that unusual delay in cases builds 1an equal and on same footing the system of  justice that has the bad pressure upon the society and government, and usually it seems no hesitation to say   that in such situation, the people take the law in their own hands rather to let the court to decide their cases in accordance with law. The system of taking the law in hand is not only restricted to FATA, but, in Punjab also, there are number of cases that were reported, wherein the people took the law in their hands, a prominent case of Mukhtiaran Mai is also in the mind of our people, where people decided the case according to their own wishes. The main reasons are of high level of illiteracy and unawareness, a feudal mindset and not deciding of the cases in time by the courts of law. The Government should, in addition to providing health and education facilities to them, also ensure the justice system in the rural areas and they should be not left on the discretion and sweet will of the different committees constituted by the loacal bodies of different types. It is  very important that the official authorities should discourage the justice system that is based on the discretion and sweet will of the people locally managed by different organizations and pressure of feudal mindset and tribal sardars should be decreased upon the police officials while discharging their duty in accordance with law and the rights of the women should also be protected. Another important factor for the delay in the cases is that there is shortage of number of judges that are required in deciding the cases and this matter should be tackled seriously but it is also very important that no serious step was taken in this regard by the Government except a talking point. The review of the existing laws is also very mandatory that have been suggested in the reforms that opined by the committee. It is also the duty of the state counsel and the counsel who represents the accused to perform duty more vigilantly and they should leave no room for the delay in the case and they should ensure that their client's case should be adjudicated in time. It is also a very important factor that the number of under trial prisoners is increasing day by day and this factor is adding the problems of jail authorities. History reflects that due to these reasons, the people develop their poor perception about the system of law and they are restrained to contact to the Jirga system or panchayat system that is clearly forbidden by law. It is also the prime duty of the Government to work with the judiciary and lawyers for the betterment of the judicial system, so that the judiciary may appear as an independent body that delivers the justice in time and according to law. It is also pertinent to mention here that the ADB launched a programme named "Access to Justice" that was started in 1999, and was known a tool to help speedy justice, but, it does not apparently seems to be much helpful does not seem to have much helpful. It is also not clear that to what extent its proposals were implemented and what were its results and to what extent the proposed results were achieved. It is also a fact that the required results could not be achieved without bringing any substantial, drastic amendments and reforms in the legislation, judiciary and police organization to decide the cases expeditiously. This is the last way that may help us in the restoration of confidence and trust of the republic of Pakistan in our existing judicial system and that confidence and trust, which has been eroded for the last many years due to various reasons. It shall also be suitable to say that a new, and easily approachable, efficient, not much time consuming system shall discourage the prevailing parallel judicial system particularly in the rural areas that is existing in the form of Jirga and Panchayat. The ongoing judicial reforms process should be continued and shortage of resources pertaining to finance should be reduced and substantial steps should be taken by the State to provide the justice to the people of Pakistan.. The other main reason for delay and as well in the increase of cases is the institution of fictitious and without cause of action cases and this practice is motivated for the lust of money by the lawyers that is easily attainable the matters regarding the getting of interim injunctions should be dealt keeping in view the overall case of the parties and the facts and circumstances are not put before the court accurately and on the basis of bogus and fictitious urgencies and  on account of these reasons, these cases a considerable number of general public indulge themselves in such cases through the process of litigation as professional litigant. The result of such like cases that have been instituted without proper cause of action 1is enhancement of pendency and large number of suits are increasing with the rapid passage of time, and in addition to it, the delay is being caused in the adjudication of cases. The existing backlog and pendency of cases and continuous addition of such like cases an outcome of non genuine cases but it is manifest of fictitious and fraudulent cases. The justification and encouragement of such like cases is also the main reason for the delay in the adjudication process. This kind of practice is not only depriving the genuine litigants from their cases pertaining to enjoyment of their properties or their rights of adjudication of cases timely but is also decreasing the moral values of the Republic of Pakistan. In simple words, we can say that the existing situation not only enhancing the courage but also negating the golden principles of Islamic identity. The principles of Islamic system are that it insists for justice and a person who is stronger must be dealt in accordance with law and he should be compelled to change his ways. On the other side these are also the Islamic principles that a person who is weak, he should consider himself strong and no one get courage to deprive him from his rights. But, on practical side, in our existing system, a person who is stronger is not only flourishing but is also depriving the poor persons with the help of legal process and law, and its simple reason is that the cases take too much time in decision and they take support and help from this weakness of law or judicial system. The powerful point of this discussion is that in such state of affairs facing our society there is no one  that shall support such current state of affairs but, very surprisingly it is flourishing. The very crucial point for determination of this issue and question is how this problem can be solved and the society is enabled to get quick and inexpensive justice without any difficulty and hindrance. No doubt, it is a very complex problem, and in case of failure for any reason, then it shall benefit to those people who have instituted false cases. One of the best remedy that has been suggested by the judges and advocates is that, the number of judicial officers should be increased.