THE WEARINESS OF
JUDICIAL SYSTEM IN
By:
MUHAMMAD
DANYAL KHAN
Lecturer, Department of Law,
The Islamia
Abstract
Justice delayed
is justice denied" is a legal maxim meaning that if legal redress is
available for a party that has suffered some injury, but is not approaching in
a timely fashion, it is effectively the same as having no redress at all. This
principle is the basis for the right to a speedy trial and similar rights which
are meant to expedite the legal system, because it is unfair for the injured
party to have to sustain the injury with little hope for resolution. The phrase
has become a rallying cry for legal reformers who view courts or governments as
acting too slowly in resolving legal issues either because the existing system
is too complex or overburdened, or because the issue or party in question lacks
political favor.[1]
In this work the
reader will come to know the outcomes of delay in providence of justice that is
ultimately resulting in discontent among masses about the judicial system. Like
it is an important saying that “justice delayed is justice denied” and if a
justice is denied to a common man, the ultimate result is taking the law in
hand by the common man to get himself remedied against the wrong inflicted upon
him. The very mechanism of our judicial system that evolves around trail court
in first instance and than the first court of appeal, High Courts, and after it
the matter is raised to the second court of appeal, the Supreme court of
Pakistan and this is not the end once again the matter of simplest form are
bounced to the stage of revision. Generally it takes a man his whole life to
get the justice through this arrangement of judicial system. The tedious system
of lower courts and a number of other factors like the ‘professionalism’ of
lawyers and the court men make the attainment of justice approximately
impossible as the justice should be at its proper time. The numbers of cases
are bearing testimony where the justice seeker was awarded a remedy that is
priceless as compared to the time one needed it. So this tradition is creating
distrust among the common men that for seeking ‘speedy justice’ they can strive
by hook or by crook. Now it is the time to seek the solution and introduce a
speedy mechanism to solve the matters of simple form.
Judicial system
of
Now we will try to take a
look in accordance with the forums in the judicial system a case goes and is
decided. The important thing over here is to see the long structure and its
tedious working that makes the attainment of justice a myth.
Subordinate
Judiciary
In Pakistan, the most lower court
available for the providence of justice are known as lower courts those are
also known as courts of first instance or subordinate judiciary in the civil or
criminal matters. The subordinate judiciary may be broadly divided into two
classes; one, civil courts, established under the West Pakistan Civil Court
Ordinance 1962 and two, criminal courts, created under the Criminal Procedure
Code
Civil &
Criminal Courts
The provincial governments
appoint the civil and criminal judges and their terms and conditions are
regulated under the provincial civil servants acts/rules. The High Court,
however, exercises administrative control over such courts. The civil courts
consist of District Judge, Additional District Judge and Civil Judge Class I,
II & III. Similarly, the criminal courts comprise of Session Judge,
Additional Session Judge and Judicial Magistrate Class I, II & III. Law
fixes their pecuniary and territorial jurisdictions. Appeal against the
decision of civil courts lies to the District Judge and to the High Court, if
the value of the suit exceeds specified amount. Similarly, in keeping with the
quantum of penalty, appeals against criminal courts lie to Session Judge or
High Court.[2]
The research shows that in the subordinate judiciary,
High Courts
Each province has a High Court headed by a Chief Justice and
other judges. The strength of Lahore High Court is fixed at 50, High Court of Sindh at 28, Peshawar High Court at 16 and High Court of Baluchistan at 9.[4]
The Chief Justice is appointed by the President in consultation with the Chief
Justice of Pakistan and other judges, in consultation with the Chief Justice of
Pakistan, Governor of the Province and the Chief Justice of the concerned High
Court. The Court exercises original jurisdiction in the enforcement of
Fundamental Rights and appellate jurisdiction in judgments/orders of the
subordinate courts in civil and criminal matters. A large number of cases are
pending in various High Courts. In the Lahore High Court, a total of 75,195
cases, in the High Court of Sindh, 27,291 cases, in
Peshawar High Court, 13,610 cases and in the High Court of Balochistan,
2445 cases were pending on
Supreme Court
It is the highest court in the land having original,
appellate and advisory jurisdiction and is headed by the Chief Justice and
other judges. The total number of judges is
Factors involved
in providence of justice
Overburdened
judges and court staff
Judges
|
Supreme Court of |
|
|
High Court of Sindh |
|
Balochistan High Court |
|
Chief Justice & Judges |
19 |
08 |
50 |
28 |
16 |
08 |
|
Administrative Staff |
567 |
216 |
1861 |
970 |
346 |
308 |
|
Pendency |
10,914 |
3,316 |
75,195 |
27,291 |
13,610 |
2,445 |
|
Distt &
Sessions Judges/ Addl Distt
& Session Judge/ Senior Civil Judge/ Civil Judge |
- |
- |
939 |
508 |
277 |
197 |
|
Administrative Staff |
- |
- |
10330 |
|
3317 |
1450 |
|
Pendency |
- |
- |
110,546 |
123,663 |
37,000 |
8,377 |
Afore-mentioned table is taken from the official
site of Supreme Court of
Current population of
Police system in
criminal cases
Numerous efforts have been done to re streamline the sluggish
system of police in the country but still it needs redress. It is duty of
police to prevent ad detect the crime but due to a number of factors it is a
dream to be achieved. According to Criminal Procedure Code, the police after
the occurrence of crime are responsible to submit its report in the form of Challan to the court in a specific time[9].
But it is evident in numerous cases that police in its own vested interest of
under influence of influential people keeps on delay tactics.
Lack of
education
A report released recently by the Society for the Protection
of the Rights of the Child (SPARC) gives a gloomy picture of education in
Uneducated person is like a straw in the air at the stake of
circumstances and can be misled by anyone. The one educated is well informed
than an uneducated. Awareness of rights and duties should be communicated to
the children from the grass root as the first step to justice is being aware of
rights and duties.
Delay tactics of
Lawyers
It is evident by the practice of the lawyers to delay the
case especially in civil matters where it is most likely to delay it for the
sake of their own interest and to keep their work going on. There are number of
cases on the record where the case was delayed for the unnecessary time. Thanks
to the national judicial policy which aims to
ensure speedy justice, eliminate corruption and ensure independence of the
judiciary. Under the heading of corruption it says that Action should be
initiated against those judicial officers/staff that carry persistent
reputation of being corrupt or have their life style beyond ostensible means
and income.[11]
Academic
structure
The influx of lawyer is every year in
burden upon the judicial system as the intake is greater than the need. In
Delay in
providence of justice and its implications on common men
“A true
revolution of values will soon cause us to question the fairness and justice of
many of our past and present policies. On the one hand, we are called to play
the Good Samaritan on life's roadside, but that will be only an initial act.
One day we must come to see that the whole
Newspapers in Pakistan are full of the news of events where
the common men tried their own way to get the remedy as it is general principle
of jurisprudence that “ubi jus ibi remedium”
that means that for every wrong there is remedy. Now it is the responsibility
of the state to provide the remedy for the wrongs inflicted on its citizen and
if the state is unable to do it than the common men will try to get “justice”
for them by one way or another and it will certainly lead to the chaos and
hegemony and ultimately it will lead to the collapse of the entire system of
state.
According to a vernacular newspaper 1.7 million cases are
pending in superior and lower judiciary and while the courts are over burdened
by the cases as the total number of judges is 1,750 and more upon this they are
not facilitated with the staff they needed to tackle the cases[12].
Criminal cases are generally delayed because of late
submission of final police investigation reports, non-production of the
accused, failure of witnesses to turn up and record testimony, inefficient
process service, an impractical cause list and the dilatory tactics of lawyers.
Sometimes, witnesses who turn up in court to record evidence leave unexamined.
Without eliminating the root causes of delay, it will be difficult for judges
to conclude trials within the given timeline and they are likely to resort to
Section 249-A or 265-K of the Criminal Procedure Code, acquitting the accused
instead of taking the trial further. This outcome is most likely in cases where
the evidence against the accused is weak.
The need for the reformation in the judicial system is the
need of the time and National Judicial Policy 2010 is an effective document to
take the judicial system of Pakistan on strong patterns but it will need both
administrative and bar and bench co-operation.
----------------------------
[1]. Available on “http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied”,
last accessed on 6th of March, 2010
[3]. Masood,
Rehman,” Measures
suggested to prevent delay in murder cases”,
Daily Times, Tuesday, May 05, 2009
[4]. Hussain,
Faqir, Dr. (n. 2)
[5]. Constitution of
Islamic
[6]. Hussain,
Faqir, Dr. (n. 2)
[7]. Constitution of
Islamic
[8]. Hudood
are those laws wherein the punishment is fixed
either by the Quran or the Sunnah
and court has no discretion like Tazir cases.
[9]. Code of Criminal
Procedure, Section 173
[10]. Editorial, Dawn,
[11]. National Judicial policy
2009, available on “http://www.supremecourt.gov.pk/njp2009/njp2009.pdf”
accessed on
[12]. Abdul, Shaikh, Khaliq, “Is speedy
justice possible?”, Dawn,