Updated: Tuesday October 27, 2009
National Judicial (Policy
Making) Committee
Published by:
Secretariat, Law & Justice Commission of
www.ljcp.gov.pk
National Judicial Policy
2009
CONTENTS
1. Justice at the Grassroot Level The Chief Justice of
2. Executive Summery Secretary, NJPMC 5
3. National Judicial Policy 11
a.
b. Misconduct 13
c. Eradication of Corruption 14
d. Expeditious Disposal of Cases 16
• Short Term Measures 16
I Criminal Cases 16
ii Civil Cases 23
• Long Term Measures 28
4. Annexure 31
Justice at the Grassroot
Level
The Chief Justice of Pakistan/Chairman, National Judicial
(Policy Making) Committee (NJPMC) in his introductory speeches and remarks
during the 4-day meeting (18–19 April & 16–17 May 2009) of the NJPMC, made
important observations, the substance of
which follows:
“The Meeting of the NJPMC has been convened at a critical
moment of our national history. There has occurred a gradual deterioration in
the law and order situation and parts of the country are experiencing militancy
and violence, causing the displacement of hundreds of thousands of innocent
people - men, women, children and elderly. These are difficult times. We face
existential threats. But I do not think that the difficulties are
insurmountable. We are a tenacious nation, have demonstrated, more than once,
our strength and ability to face challenges. The lawyers' movement for
restoration of independent-minded judges and supremacy of law/Constitution is a
case in point. The movement for a grand cause was thronged by enthusiastic
groups including civil society
organisations, professional groups, political parties and
students, etc. In the evening of 15 March 2009, the movement transformed itself
into a mini-revolution. It demonstrated the agility and determination of the
masses to stand by the Constitution and dispensation of power under this
supreme law. It emboldened me to say today, that together we could face
challenges and convert them into opportunities. I have full faith in the
ability of the people to rise to the occasion and chalk out a future course of
action, based on democratic values and constitutional principles.
The restoration of 3 November (2007) judiciary has ushered
in a new era: an era of hope that political dispensation in the country and
governance shall be in accordance with the constitutional principles.
The people of
They have very high expectations of the courts to settle
their disputes, restore their rights/entitlements and maintain peace in society
by sending the guilty behind bars. I thank the people for believing on us! We
must strive to meet their expectations. This is time to repay our debt to the
nation. We could do so by addressing the perennial twin-problems of “backlog”
and “delays” in the system of administration of justice. To achieve the
objective, we need to formulate new judicial policy. I had asked the
Secretariat of the NJPMC to prepare a framework of action for clearing the
backlog and expeditious disposal of cases. The draft is before you. Let us
examine it and evolve a strategy for the purpose. I want the active
participation of all stakeholders of the justice sector, essentially the
members of the bench and the bar and also related agencies viz police/prison
department and prosecution branch. The Policy that we ultimately approve would
be one that has broad ownership. That is why extensive consultations have been
carried out to get the viewpoint of judges, lawyers, litigants and others.
The Policy seeks to achieve its objectives, by efficient
utilisation of existing resources. We have to operate by remaining within the
given legal/procedural framework. The laws are indeed time-tested.
Given earnest effort by the bench and the bar, I am
confident of achieving positive results. However, keeping in view the gigantic
effort new resources would be needed. We would be very economical in the
utilization of the needed resources. I am confident that the Government will
provide the requisite funds, as our effort is to strengthen the administration
and improve governance. It is necessary for peace and security, thereby
spurring trade/commercial activities and foreign/local investment in the
economy. This is how, the industrialised countries progressed. This is how, we
can move forward. We could achieve the results by establishing a society based
on the supremacy of Constitution and rule of law. Our aim is to provide Justice
for All. I thank the members of NJPMC for endorsing my proposal to celebrate
2009, as the year for Justice at the Grassroot Level.
The key features of the National Judicial Policy are
strengthening the independence of the judiciary by its separation from the
executive and ridding the courts of the menace of corruption, thereby
presenting a clean and positive image of judiciary. In the Policy, we have set
high goals for ourselves. The goals are to initially reduce, and ultimately
eliminate, backlog at the level of superior as well as subordinate courts, and
further, to fix time frame for disposal of civil and criminal cases. The
criminal cases will get priority on account of the sub-human conditions in
which under-trial prisoners are kept in jails. Writs for protection of
fundamental rights i.e. right to life, liberty, equality, property and freedom
of thought, conscience, association, etc will also be maintained on fast track.
Furthermore, financial/rent matters and family/juveniles cases will also
receive preference, which is crucial for economic development and protection of
family values. In the ultimate analysis, the new Policy seeks to ensure that
the constitutional principles of equality before law and equal protection of
law are strictly adhered to. Adherence to law/Constitution leads to nation
building. It is a sure recipe for economic growth and social progress. Law
protects the rights/interests of poor/downtrodden segments of society. It helps
to break shackles of cruelty/injustice. It puts an end to exploitation of the
underdog by the rich/influential.
Let us strive to achieve the noble goals, set in the
Policy. Let us infuse confidence in the minds of our people that the system of
administration of justice is capable of meeting the challenges of time and
emerging realities. Let us make the judicial organ of the state as a sheet
anchor at the time of serious challenges. I have no doubt that my brother
Judges in the superior courts and judicial officers would help and support us
in our drive to steer the ship of the nation through troubled waters. I am
equally confident of the help and support of the members of the bar. We have
carried out very wide consultations with them as well as other stakeholders.
Their valuable suggestions have been incorporated in the Policy. The Policy
will be launched effective from 1 June 2009 and will be actively monitored by
the NJPMC. I should continue to meet judges and bar members for its smooth
implementation”.
Executive Summary
The National Judicial Policy Making Committee (NJPMC) in 2
marathon sessions lasting over 4 days considered and approved a uniform
National Judicial Policy. The Policy is an attempt to streamline the judicial
system in the country and make it responsive to the present-day requirements of
society. The objective is to clear the huge backlog that has accumulated over
the years at all level of judicial hierarchy. The current pendency of cases is
as follows:
Superior judiciary Subordinate judiciary
As is obvious from the above table, there is huge backlog
of cases pending before courts, at all levels of judicial hierarchy. The figure
does not include the pendency before the special courts /
administrative tribunals, which is equally high. The
backlog has accumulated due to various reasons/factors but essentially it is
due to inadequate budgetary allocation. The gradual increase in population as
well as litigation has never been addressed through appropriate development
plans for expansion in infrastructure and increase in strength and capacity of
courts. Courts have continuously suffered on account of shortage of funds. As
is manifest from the table below, budgetary allocation to judiciary is negligible.
Not even 1% of Federal/Provincial budget is allocated for the third pillar of
the State. No wonder then, the judges are overburdened.
To quote an example, in the
i. Supreme Court of
ii. Federal Shariat Court 2092 ii.
Sindh 144942
iii. Lahore High Court 84704 iii.
NWFP 187441
iv. High Court of Sindh 18571 iv.
Balochistan 7664
v.
vi. High Court of Balochistan 4160
Total 138945
Programme of the Government of Pakistan but more needs to
be done. The Government must therefore address the problem of shortage of funds
to enable the judiciary to cope with the twinproblems of “backlog” and
“delays”.
Statement Showing
Budgetary Allocation and Strength of Judiciary in
Sr.
No Name of Court Sanctioned
Strength
Working
Strength
Staff
Federal/ Provincial
Budget (In Rs.)
Allocation for
Judiciary
(In Rs.)
Percentage
of Total Rev.
/ Exp for the
Year 2008-09
BPS
1 to 16
BPS 17 &
above Total
1 Supreme Court of Pakistan CJ +
29 CJ + 27 606 145 751 4,630,292,869,000 354,500,000 0.00765%
3
4
Subordinate Judiciary:
36 36
10631 10631
i. Distt. & Sessions Judge
ii. Addl. Distt & Sessions
Judge 290 261
iii. Senior Civil Judge 37 37
iv. Civil Judge / Judicial
Magistrate 754 617
5 High Court of Sindh CJ + 39 CJ + 36 790 279 1069 180,987,200,000 1,234,504,000 0.68%
6
Subordinate Judiciary:
62 24
4242 - 4242
i. Distt. & Sessions Judge
ii. Addl. Distt & Sessions
Judge 90 78
iii. Senior Civil Judge 98 85
iv. Civil Judge / Judicial
Magistrate 200 193
7
8
Subordinate Judiciary:
24 20
3566 - 3566
i. Distt. & Sessions Judge
ii. Addl. Distt & Sessions
Judge 97 87
iii. Senior Civil Judge 24 20
iv. Civil Judge / Judicial
Magistrate 201 183
9 High Court of Balochistan CJ + 10 CJ + 4 356 58 414 65,943,525,270 470,679,870 0.36%
10
Subordinate Judiciary:
24 17
1773 - 1773
i. Distt. & Sessions Judge
ii. Addl. Distt & Sessions
Judge 27 19
iii. Senior Civil Judge 12 8
iv. Civil Judge/Jud.
Magis./Family Judges 124 69
v. Qazi/Member, Majlis-e-Shoora
42 35
-
The historical movement for restoration of
independent-minded judges, supremacy of the Constitution and rule of law,
ultimately triumphed. It led to heightened expectations of the public that the judicial
organ would promptly respond to their agonies and dispense j u st i c e to a l
l a n d s u n d r y. C o n s c i o u s o f t h e p u b l i c expectations/aspirations,
the Chief Justice of Pakistan decided to initiate the process of formulating a
new judicial policy for expediting trial proceedings. He assigned the task to
the Secretariat of NJPMC to devise an appropriate strategy and work plan for
action.
The NJPMC is a statutory body the nation's apex judicial
forum. It is headed by the Chief Justice of Pakistan and comprises Chief
Justice,
1. Improving the capacity and performance of the administration
of justice;
2. Setting performance standards for judicial officers and
persons associated with performance of judicial and qasijudicial functions;
3. Improvement in the terms and conditions of service of judicial
officers and court staff, to ensure skilled and efficient judiciary; and
4. Publication of the annual or periodic reports of the
Supreme Court,
Subordinate Courts. Copies of the draft were also
forwarded to the President, Supreme Court Bar Association, all High Courts Bar Associations,
all District Bar Associations and all Tehsil Bar Associations. Copies were also
forwarded to Attorney General for Pakistan, all Advocates General, all
Prosecutors General, Secretary, Law and Justice Division, Secretaries of 4
provincial Law Departments, all Inspectors General of Police, all Inspectors
General of Prisons, members of the Law and Justice Commission of Pakistan, etc.
The Secretary, NJPMC also gave a press briefing to share the draft report with
the media and general public. The draft was also placed on the LJCP website for
input.
The draft National Judicial Policy was subjected to
thorough analysis at various fora. The members of the bar held in-house
sessions to discuss the report. The District & Sessions Judges convened meetings
of district judiciary alongwith representatives of the District/Tehsil Bar and
forwarded their recommendations to the respective High Court. The Chief
Justices of High Court held consultations with the judges of the High Court,
District & Sessions Judges and representative of the High Court Bar
Associations.
Similarly, consultations took place in the office of
Attorney General for
The input/recommendations received from various
fora/individual members were examined and a comprehensive draft prepared. The draft
was initially discussed in a meeting, chaired by the Registrar, Supreme
Court/Secretary, NJPMC and attended by the Registrar of the
The thrust of the National Judicial Policy is to
consolidate and strengthen the independence of judiciary, thereby enabling the Judicial
Organ to exercise institutional and administrative independence and judges to
have decisional independence to decide cases fairly and impartially. In this
regard, important decisions have been made including the determination of the
Chief Justices of High Courts to decline appointments as acting Governor of the
province and recall of all judges working in executive departments of the
Federal/Provincial governments. The Policy also lays stress on proper conduct
and judicial propriety, on the part of judges, to maintain a clean image of the
judiciary. Following the repeated assertions of the Chief Justice of Pakistan
to show “Zerotolerance for corruption in judiciary”, the new Policy provides several
steps/measures to nab and punish corrupt judicial officers and court staff.
Greater vigilance will be exercised by the respective Chief Justices in
eradicating corruption in all its forms and manifestations.
The Policy provides strategy and plans for the clearance
of backlog, expeditious resolution of disputes and quick dispensation of
justice. Particular attention is given to timely disposal of criminal cases especially
the cases of under-trial prisoners, languishing in jails. Urgency has been
accorded to cases involving violation of fundamental rights and restraint on
liberty/freedom of individual. Therefore, bail matters will be quickly decided.
Certain categories of cases, having close nexus with economic development and
good governance, have been prioritized. It includes disputes pertaining to trade,
commerce, investment, taxes, duties etc. The family cases,
juvenile offences, rent matters, drugs/terrorism cases
will also be kept on fast track for quick disposal. The plan of action provides
for disposal of all pending cases within one year. Newly instituted cases in
the Supreme Court and High Courts will also be decided in one year period from
date of filing. The High Court and Subordinate Courts in the
efforts and hard work but every effort will be made to
achieve the desired goals by full and effective utilization of existing
resources. However, where new resources are required, the government will be approached
for allocation of necessary funds for the purpose.
Dr. Faqir Hussain
Secretary
National Judicial Policy
A.
1) In future no chief justice or a judge of the
superior court shall accept appointment as acting Governor of a Province.
2) No retired judge of the superior court shall
accept an appointment which is lower to his status or dignity including appointment
as presiding officer of
The Committee asked the retired judges of the superior judiciary
to maintain the highest standards of decorum and voluntarily relinquish the
charge of such posts which are lower to their status to earn respect in public
and uphold the principle of the independence of judiciary.
The Committee asked the Secretary, National Judicial
(Policy Making) Committee to write letters to the Secretary, Establishment
Division and Provincial Chief Secretaries to relieve all such judges and may
not make such appointments in future.
3) Instead of appointing retired judges/judicial
officers as presiding officers of the special court/tribunal, qualified serving
judges be appointed against these posts, in consultation with the Chief Justice
of the High Court.
4) Posting of serving judges against executive
posts in Federal and Provincial Government Departments on deputation be discontinued.
All such judges should be repatriated to the respective High Courts, where
their services are needed most for expeditious disposal of pending cases.
5) All special courts/tribunals under the
administrative control of Executive must be placed under the control and supervision
of the judiciary, their appointments/postings should be made on the
recommendation of the Chief Justice of concerned High Court.
6) In future the judiciary would avoid its
involvement in the conduct of elections, as it distracts the judicial officers
from professional duty and complaints of corrupt practices tarnish the image of
judiciary.
The reputation of judiciary is at stake during election
due to involvement of vested interests groups, etc in corrupt practices. On the
other hand, it also adversely affects the judicial functions of the courts.
Even otherwise, the Conduct of General Elections Order 2002, Representation of
the People Act, 1976 and Local Government Ordinance 2001 do not contain any
provision which requires that the elections are to be held under the
supervision of the Judiciary. Therefore, in future, the Judiciary should remain
aloof from the process of election to focus on disposal of cases. However, in
case of request from the Government, the NJPMC would decide the extent to which
and form of help to be extended to Government in the conduct of elections. The
judiciary will continue to extend support and cooperation in adjudication of election
related disputes/complaints as provided under the law.
B. MISCONDUCT
The Judges of the superior courts should follow
the Code of Conduct prescribed for judges. They should take all steps necessary
to decide cases within the shortest possible time. As provided by Article X of
the Code of Conduct: “In his judicial work a Judge shall take all steps to
decide cases within the shortest time, controlling effectively efforts made to
prevent early disposal of cases and make every endeavor to minimize suffering
of litigants by deciding cases expeditiously through proper written judgments.
A judge who is unmindful or indifferent towards this aspect of his duty is not
faithful to his work, which is a grave fault”. Hence, the Chief Justice of
concerned High Court may report cases of violation of Code of Conduct including
incidents of unusual delays/inefficient performance to the Chairman, Supreme
Judicial Council for action.
The prime duty of a judge is to present before the public
a clean image of judiciary. The oath of a judge implies complete submission to
the Constitution and under the Constitution to the law. Subject to these
governing obligations, his function of interpretation and application of the
Constitution and the law is to be discharged for the maintenance of rule of
law. To be a living embodiment of these powers, functions and obligations call
for possession of the highest qualities of intellect and character. Equally, it
imposes patterns of behavior, which are the hallmark of distinction of a judge
among his fellow-men. Therefore, the Committee asked the Chief Justices to report
the violations of Code of Conduct to the Supreme Judicial Council for
appropriate action.
C. ERADICATION OF CORRUPTION
1) The code of conduct for subordinate judiciary,
framed by the
2) The present mechanism for initiation of
disciplinary action against corrupt and inefficient judicial officers/court
staff be improved. In each High Court a Cell to be called “Cell for Eradication
of Corruption from Judiciary” may be established in the office of Registrar,
under the supervision of Chief Justice of High Court to entertain complaints
with credible evidence. Copies of such complaints may also be forwarded to the
Registrar, Supreme Court of
3) Action should be initiated against those
judicial officers/staff that carry persistent reputation of being corrupt or
have their life style beyond ostensible means of income.
4) To guard against the evil of nepotism,
favoritism, corrupt means, etc, the MITs in High Courts may examine the judgments
of the judicial officers to detect incidents of corruption/improper conduct.
All the judicial officers of the subordinate judiciary may be asked to send
copies of the judgments including bail/stay orders for scrutiny to MITs.
5) Surprise inspections be carried out by the
Chief Justices/judges of the High Courts to monitor the working of subordinate
judiciary. In this regard, Judges of the High Courts be designated for each
division/district on rotation basis.
6) The District and Sessions Judges should also
report about the corruption/misconduct of their subordinate judges.
7) The judge should himself write order sheets,
interlocutory orders and register petitions.
8) Appropriate criminal cases under the relevant
provisions of law may also be registered against the judicial officers/court staff
involved in corruption.
9) The corrupt judicial officers be made OSDs and
kept against their post for the purpose of drawing salary only and disciplinary
proceedings should be quickly finalized.
10) No judicial officer/official should be posted
in home district and those remained posted in a particular district beyond 3 years
should be transferred to other district.
11) Naib Courts having completed 3 months
attachment with a court should be sent back to their parent department instead of
transferring them to other court by rotation.
12) The complaints of corrupt practices and
professional misconduct against lawyers addressed to the Chief Justice of High
Court should be forwarded to the Bar Council for action. The Council should
take immediate action on such complaints under intimation to Registrars of the
concerned High Court.
13) Incentives should be given to the honest,
efficient and hard working judicial officers including advance increments and posting
at stations of choice etc.
D. EXPEDITIOUS DISPOSAL OF CASES SHORT TERM
MEASURES
I. CRIMINAL CASES
1) In bailable cases, grant of bail is a statutory
right of the accused; therefore, the court before which the accused appears or
is brought may immediately release him on bail, subject to furnishing of
sureties as provided under section 496 Cr.P.C.
2) Bail application under section 497 Cr.P.C. with
photocopy of the FIR, duly authenticated by the Counsel, should be accepted and
the court shall call for record of the case on its own through
3) In bail matters, notice to State for production
of record shall not exceed beyond 3 days and all the Provincial Police
Officers/Inspectors General of Police shall issue standing instructions to the
concerned officers to ensure production of record without delay.
4) Bail applications under section 497 of Cr.P.C.
shall be decided not beyond a period of 3 days by the Magistrate, 5 days by
Court of Sessions and 7 days by the High Court.
To overcome the problem of congestion in Jails, the court should
exercise powers under section 497 Cr.P.C. keeping in view the principles of
grant of bail including the principle that if the offence does not fall under
the purview of prohibitory clause, grant of bail is a rule and refusal is an
exception. In case bail is rejected, the court should take all possible measures
for disposal of the case to reduce the chances of filing of bail petitions
before the higher courts. However, where the accused desires to move the higher
court, the trial court should provide attested copies of all the relevant
documents to avoid the chance of requisitioning of original record from the
trial court which hinders the disposal of case.
5) Applications for cancellation of bail under
Sub-section (5) of section 497 Cr.P.C. should be decided within 15 days by the
courts including High Court.
Grant of bail or otherwise is the discretion of a court
and should be exercised diligently and once a bail is granted it should not be
withdrawn unless an opportunity is given to the accused.
6) In Criminal Cases it is the duty of the
police/investigating agency to submit Challan (Police Report) within a period of
14 days as contemplated in section 173 Cr.P.C. In case of non-completion of
investigation, an interim report shall be submitted and in such cases, the
court shall not grant remand beyond 15 days period.
7) Non-completion of investigation and
non-submission of Challans in statutory period is a major cause of delays in disposal
of cases. Since, Police plays crucial role in administration of justice,
therefore, the District Police Officers may be asked to ensure that the police
should conclude investigation and submit Challans within the prescribed period
of 14 days. They may be asked that the SHOs who fail to comply with this
statutory provision should be treated as inefficient officer under the Police Order
and the court may also lodge complaint under section 166 PPC against him. The
DPOs should also submit list of cases in which Challans are still pending for want
of investigation for inspection and passing appropriate orders by the District
and Sessions Judge.
8) No judge should grant remand in the absence of
accused and while granting remand should strictly adhere to the relevant
provisions of the Code of Criminal Procedure and principles laid down in the
Hakeem Mumtaz case (PLD 2002 SC 590)
9) All criminal cases punishable with imprisonment
for upto 7 years registered after 1st January 2009 be kept on fast track for disposal
within 6 months.
For disposal of freshly instituted cases within the stipulated
period and to avoid piling of cases, there may be practical difficulties but
the same can be overcome by extending court timings depending upon the
workload.
The extended time could be utilized for writing judgments,
framing of charge and other miscellaneous work.
10) All criminal cases punishable with
imprisonment from 7 years and above including death cases shall be decided within
a period of 1 year.
Chapter XX and XXII-A of the Code of Criminal Procedure 1898
prescribe detailed procedure for trial of cases by Magistrate and the Court of
Sessions to ensure fair trial for the accused. Since this procedure takes
longer time, therefore to finalize the proceedings, the following measures
should be adopted to cut short the delays:
a) On receipt of Challan, the court shall immediately fix the
case and issue production warrants/notice.
b) When the accused is brought or appears before the court
he should be provided with copies of statements and relevant documents as
provided under section 241C and 265C Cr.P.C and be directed to ensure presence
of his Counsel on the next date of hearing enabling the court to commence the
trial.
c) Under section 173 Cr.P.C, it is the duty of the concerned
SHO/ Investigating Officer to produce
witnesses and case property before the court during trial.
Therefore, the court shall take all necessary measures to bind the SHO/IOs to
procure evidence on the fixed date.
d) All efforts should be made to produce witnesses and the
case property on the first date of hearing.
E) If no case is made out or there is no probability of accused
being convicted, the accused should be acquitted of the charge under Section
249-A or 265-K CrPC, as the case may be.
f) The court shall not grant unnecessary adjournments and
if possible should proceed with the case on dayto-day basis.
g) The court shall take care that only relevant and admissible
evidence is recorded.
h) The District and Sessions Judges should hold meetings
with the jail authorities to ensue the
production of UTPs on the date of hearing to avoid delays
on account of non-production of prisoners.
i) The court should take strict action against the parties
or witnesses causing deliberate delays in
proceedings.
j) The judgments should be based on well founded reasons
and acumen so that it not only resolve the disputes but also lessen the
prospects of future litigation.
k) Delay in disposal of criminal cases is mostly due to the
non-cooperation of relevant stakeholders of justice sector namely, lawyers,
police and prison authorities; therefore, the court should ensure that they may
fulfill their legal obligations to minimize delays and expedite trials.
11) Cases relating to preventive detention under
section 107 read with section 151 Cr.P.C. should be decided as early as
possible by following the procedure as envisaged under section 112, 117 and 118
Cr.P.C.
12) Production before court for remand/trial is a
statutory right of every prisoner; therefore, the District and Sessions Judges
should ask the jail authorities to ensure that the prisoners must be produced
before the court.
The District and Sessions Judges should also
monitor that while granting remand all requisite procedural formalities are
complied with.
Sub section (3) of section 167 Cr.P.C. requires that while
granting police remand reasons should be recorded for doing so after scrutiny
of record and under no circumstances accused should be remanded to police custody
unless it is made clear that his presence is actually needed for some specific
purpose connected with the completion of investigation. Moreover, sub section
(4) of section 167 Cr.P.C. requires the Magistrate to forward a copy of remand
order with reasons for making it to the Sessions Judge. Strict compliance of
this provision would help the Sessions Judges to supervise the action of Magistrates
working under them.
Section 344 Cr.P.C. empowers the Court to postpone/adjourn
the proceedings and remand the
accused person to judicial custody upto 15 days; however, grant
of judicial remand in routine on “Robkars” in absence of accused person amounts
to violation of law.
Therefore, it is recommended that adjournments should not
be granted unless necessitated in the interest of justice and for the reasons
beyond control.
13) In criminal cases, non-representation of
accused by Counsel is also a source of delay in trial, therefore, the Chief
Justices of High Courts, in consultation with the Chairman of the Legal Aid
Committee of the Provincial Bar Councils or Pakistan Bar Council, may appoint lawyer
in such cases to avoid delay. In this regard a list of the advocates should be
maintained in each district so that they can be appointed for provision of
legal aid to accused person who cannot afford to hire the services of Counsels.
However, prior to appointing any Counsel option of selection from that list
should be given to the accused in the interest of justice.
14) To check the tendency of filing false and
frivolous cases, the court should take penal action against the party by imposing
fines under section 250 Cr.P.C. or filing complaints under section 182 and 211
of the PPC.
In cases triable by a Magistrate, if the court discharges
or acquits all or any of the accused and is of the opinion that the accusation
against them or any of them was false or frivolous, the court may acquit or
discharge the accused and may call upon the complainant/informant to show cause
as to why he should not pay compensation to the accused. After considering the
facts and circumstances of the case the Magistrate may direct the complainant
/informant to pay to the accused a compensation not exceeding rupees twenty
five thousand. The compensation payable under section 250 is recoverable as
arrears of land revenue.
If this provision of the law is enforced in its true
sense, it would certainly help to reduce the number of groundless and frivolous
complaints/ cases .However, in fixing the amount of compensation, the court
should carefully consider the status of accused as well as that of the
complainant and the nature of accusation.
Besides, if it appears to a court that forgery or perjury
has been committed in relation to any proceeding before it then the court can
proceed against the defaulter under section 476 Cr P.C. to vanish the
impression that anyone can abuse the process of law by falsehood or fabrication
and that too without any risk of prosecution. Before prosecuting
the accused it is essential for the court to consider whether there is a
reasonable probability for the conviction and is it expedient in the interest
of justice or not?
Under section 476 of the Cr.P.C. the court may itself take
cognizance of the offence and try it in accordance with the procedure
prescribed for summary trials in Chapter XXII of the Code. However, if the
court considers that the accused should not be tried summarily under section
476, it may after recording the facts constituting the offence and statement of
the accused forward the case to a court competent for trial.
15) Under the Police Order 2002, the Police
Complaints Authorities and District Public Safety Commissions are setup at
various levels for enquiring into complaints against police regarding misuse of
authority, dishonest investigation, negligence and inefficiency. Therefore, it is
needed that in appropriate cases the Presiding Officers should make references
to concerned authorities for initiation of proceedings against the delinquent
police officers/officials.
16) Transfer applications under section 526 &
528 Cr.P.C, miscellaneous applications like Supardari of vehicle and disposal
of property under chapter XLIII of the Code and other applications arising out
of interim orders should be decided within 7 days.
17) In murder references under section 374 Cr.P.C,
the practice of printing paper books be discontinued and photocopied books may
be accepted so as to avoid unnecessary delay in disposal of appeals for want of
printing of paper book.
18) To address the issue of convicts including
women languishing in jails for want of payment of Diyat, Arsh & Daman even
after serving their entire period of sentence of imprisonment, the Federal
Government has already framed Rules, called the Diyat, Arsh and Daman Fund Rules
2007. However, despite lapse of considerable time the benefits of this
legislation have not trickled down to the deserving convicts. Therefore, the
Provincial Chief Secretaries may be asked to consider the cases of such convicts
and make necessary arrangements for payment on first come first-serve basis.
The provincial government may also explore possibilities for
creating other funds through Bait-ul-Maal, provincial charitable endowment, if
any, and donations. Such funds shall be maintained under proper
accounting/auditing mechanism.
19) The Courts/Government should make use of the Probation
of Offender Ordinance 1960 as well as the Good Conduct Prisoners Probation
Release Act 1926 to extend benefits of the said laws by releasing the deserving
convicts on parole/probation in accordance with law.
For effective use of these legislations the Committee recommended
that:---
a) The Probation and Parole Officers should be activated
and be asked to visit jails frequently for
conducting inquiry and submission of reports to facilitate
the courts and provincial governments to consider the cases of deserving
convicts.
b) The Provincial Home Departments should ensure the
presence of Probation and Parole Officers in jails during the visits of the
Sessions judges and judges of the High Court.
c) The Registrar, Supreme Court/Secretary, NJPMC may
convene regular meetings of the Registrars of the High Courts and Home
Secretaries to evolve strategies for effective enforcement of the aforesaid laws.
D) In proper cases the Sessions judges should exercise powers
under Probation of Offender Ordinance 1960 or make recommendations to concerned
government to extend favour to the convicts /UTP under Good Conduct Prisoners
Probation Release Act 1926, as the case may be.
20) The Registrars of High Courts should approach
the Law and Justice Division to know about the pending mercy petitions and copy
of the list shall be submitted to the Registrar, Supreme Court, who shall
take-up the matter with the competent authority
in consultation with the Chief Justice Pakistan on priority basis. In case of rejection
of mercy petition, the Provincial Home Secretaries should ensure completion of
the process without unnecessary delay to maintain the deterrent effect of the
sentence.
21) Emphasis should be given on quick disposal of
Narcotics and Anti Terrorism cases, cases of women and Juvenile offenders etc.
For early disposal of ATA cases, the Committee recommended
that the judges of the High Courts and Supreme Court be designated to monitor
and ensure compliance of guidelines laid down in case of Liaquat Hussain vs.
Federation of
22) To clear the backlog under different
categories, special benches should be constituted at Principal seat and Branch
Registries of Supreme Court and High Court to decide current/old cases by placing
the prioritized ones on fast track.
II. CIVIL CASES
1) Writ petitions under Article 199 of the
Constitution should be fixed for 'Katchi Peshi' on the next day of institution
and be disposed of as quickly as possible.
2) Writ petitions of the following categories if
competent under the law, should be decided within 60 days:---
I. Pertaining to service disputes including
promotion, transfer and such other matters,
II. Relating to admission of students in
professional colleges and allied matters,
3) Stay matter under Order 39 rule 1&2 should
be decided within 15 days of grant of interim injunction and in case of delay,
the judicial officer should report reasons to the concerned Chief Justice of
the High Court through Registrar.
The Committee considered the issue of frequent grant of temporary
injunctions by the courts without realizing the consequences and recommended
that the following instructions should be complied with strictly:---
a) All Courts shall examine such applications critically
and ensure that the interlocutory injunctions should be granted ex-parte only
in very exceptional circumstances, unless the plaintiff can convince the Court
that by no reasonable diligence could he have avoided the necessity of applying
for unilateral order.
b) Such injunctions should be limited to a minimum time within
which a defendant can come effectively before the Court.
c) It should be noted that under Rule 2-A of Order 39,
Code of Civil Procedure, an interim injunction passed in the absence of the
defendant shall not ordinarily exceed 15 days, provided that such injunction
may be extended for failure of its service on the defendant when such failure
is not attributable to the plaintiff or when the defendant seeks time for
defence.
d) The Court should take greatest care to state exactly
what acts are restrained instead of copying the application, and if only one or
some of the acts are sought to be restrained, the injunction should be confined
to that and should not hold on other acts to which the defendant can possibly
object.
e) When the defendant appears or files his reply/affidavit
then the court should immediately dispose of the matter without any adjournment
and if it is not possible the court should take an undertaking from the
defendant to be restrained from doing any act complained about.
f) The Court should not allow the abuse of injunction by common
tactics such as non-service of process or lingering on the period by seeking
adjournments etc.
g) An order of Injunction made under Rule 1 or 2 of Order
39 after hearing the parties or after notice to the defendant shall cease to
have effect on the expiration of six months unless extended by the Court after
hearing the parties again and for reasons to be recorded for such extension and
a report of such extension should be submitted to the High Court.
4) The rent cases should be decided speedily
within a period of 4 months.
It is noticed that the provisions of rent laws are not
properly understood, appreciated and applied in proceedings by the Rent Controllers,
therefore, the Committee asked for strict compliance of guidelines given by the
Supreme Court of Pakistan in case reported in SCMR 2000 at page 556, which are
as under:---
a) Affidavits of not more than two witnesses in support of
the ejectment application shall be filed in the Court in addition to the
affidavit of the petitioner himself in support of the contents of ejectment
petition.
b) While replying to the ejectment application the respondent
shall be similarly required to submit his own affidavit and affidavits of two
other witnesses in support of his affidavit on the date fixed in the notice
served upon him.
c) The parties shall be bound to produce their witnesses
for purpose of their respective cross-examination on the day fixed by the Court.
d) A party obtaining the affidavits of the witnesses in support
of his petition / reply would be bound to produce them in the Court for
cross-examination and in case of its failure to do so their evidence shall be
excluded from consideration.
e) Appeals against the interim orders of the Rent
Controller and resort to Constitutional jurisdiction, against orders at intermediate
stages arising out of the ejectment proceedings, should be discouraged.
f) The Court should take serious view of the situation
when witnesses for cross-examination in support of their affidavits
deliberately avoid / evade appearance in Court.
g) Adjournment of ejectment petition should not be allowed
except under unavoidable circumstances on an application moved by a party supported
by affidavit. In such cases also adjournment should not be made for a period
exceeding three days. Following the above procedure in ejectment matters
appears to be necessary to achieve the goal of expeditious disposal of a case within
a period of three months particularly in respect of residential tenements.
5) Appeals, Writ Petitions and other miscellaneous
petitions pertaining to rent matters should be decided in 60 days.
6) Revision petitions under CPC arising out of
interlocutory orders i.e. interim stay orders, misjoinder and non-joinder of necessary
parties, appointment of local commissioners and non-payment of court fee should
be decided within 3 months subject to the maintainability of such petition.
7) Family cases should be decided within 3-6
months.
8) Civil appeals arising out of family cases,
custody of minors, guardianship cases, succession and insolvency cases, if competent,
shall be decided within 30 days and for any delay, reasons should be furnished
to the High Court. 9) Banking, tax, duty, levy and cess cases should be decided
within 6 months.
10) Civil Judges should decide review applications
within 30 days and the trial of new cases (instituted after 1st January 2009) should
be completed within 6 months.
11) Negotiable Instrument cases which are decided
through summary procedure as provided under Order XXXVII of the Code of Civil
Procedure 1908 should be decided in 90 days.
12) Priority should be given to women and juvenile
cases for quick disposal.
13) The Small Claims and Minor Offences Courts
Ordinance 2002 should be applied in earnest. The High Courts should designate
civil judges cum magistrates to try exclusively cases under said law. Such
judicial officers be imparted training in ADR. For this purpose a Committee of
judges of the High Courts headed by a judge of the Supreme Court would arrange
training in ADR for master trainers who would later on train the remaining
judges in provinces.
The Small Claims and Minor Offences Ordinance Courts 2002 has
been promulgated for providing exclusive forum for facilitating the resolution
of small disputes. This law also provides for ADR mechanism for facilitating
the resolution and settlement of disputes outside the court system. This could
be transformed into an excellent forum for addressing backlog of cases,
therefore, the High Courts should approach respective provincial governments
for establishment of more such courts to deal with the cases under the
provisions of Small Claims and Minor Offence Courts Ordinance 2002 exclusively.
14) In the Supreme Court and High Courts, priority
should be given to dispose off old cases, except cases in which special orders
were passed by court for fixation of the cases on specified dates.
15) To clear the backlog under different
categories, special benches should be constituted for each category on the Principal
seat and Branch Registry of the Supreme Court and High Court. There should be a
commitment of judges to decide the old civil/criminal cases (filed upto 31
December 2008) within one year.
16) Priority should be given to the disposal of
trade, commercial and investment cases. Such cases should be managed on fast track
through establishment of designated courts and by constituting special benches
by High Courts and Supreme Court.
17) Late issuance of cause lists by the High
Courts creates problems for lawyer/litigant and parties to appear in court on short
notice, which results in adjournments. Therefore, to provide reasonable time to
the parties to adjust their schedule, the Supreme Court and High Courts should
issue their cause lists one month in advance 18) The District Judges should
adopt such measures which ensure handling of 50% of cases from backlog (filed
up to 31 December 2008) and 50% from new cases (filed on 1st January,
2009 and onward).
For early disposal of cases, the courts should adopt the following
measures:---
a) To cope with the problem of increasing litigation, it
is necessary that the courts shall carefully scrutinize the pleadings, record
and dismiss/reject false, fictitious and frivolous cases as provided under Code
of Civil Procedure 1908.
b) The provision of Order 11 of the C.P.C. regarding
discovery and inspection should be applied properly to narrow down the
controversies as well as issues leading to recording of statement of fewer and
relevant witnesses.
c) The parties denying documents that may be proved later should
be burdened with costs incurred for proving that document as well as incidental
costs.
d) The courts should make use of section 89A C.P.C. to resolve
disputes through Alternate Dispute Resolution (ADR) including conciliation,
mediation and arbitration or any such other appropriate mode.
e) The plaintiff should be obligated to provide the defendant's
mailing address and telephone/ fax number.
f) The present strength of process serving agencies is inadequate
and should be appropriately increased and alternate methods of service
including courier service be used as ordinary mode of effecting service.
g) The courts should take strict action against parties or
witnesses who cause deliberate delay, through imposition of costs.
h) Execution proceedings should be completed quickly for satisfying
the decree.
i) The court should discourage frequent interlocutory applications
for concentration on disposal of cases as a whole.
19) To check filing of false and frivolous cases
the courts should impose compensatory costs under section 35-A of the C.P.C. Similarly
on the patron of High Court of Sindh, the other High Courts may also amend the
relevant rules for incorporation of a provision to impose a cost upto rupees
one lac for false, frivolous and vexatious litigation.
20) Civil and criminal functions of the court
should be bifurcated so that the judicial Officers can try criminal and civil
cases exclusively. For fuller comprehension of civil/criminal law and experience,
such judicial officers be rotated annually.
LONG TERM MEASURES
1) The judges of High Courts should carryout
inspections of prisons periodically for ensuring compliance of Prison Rules and
giving on the spot remedy/relief to the deserving prisoners in accordance with
law.
2) The High Courts should frame an equitable,
consistent and coherent policy for sending the Judges to the permanent and circuit
benches so that every judge gets equal opportunity to serve at the principal
seat and benches. A Judge may not be transferred just for hearing a particular
case and thereafter transferring him to other station, as this practice is
against the principle of independence of judiciary.
3) Necessary funds be provided by Government for infrastructure
support like construction of courtrooms, amenities for lawyers/litigants
parties. The strength of judicial officers and administrative staff should be
increased to cope with rising trend of litigation in the country. Adequate staff,
library facilities and accessory equipment like computers should also be made
available to courts.
The Committee recommended the following:---
a) The vacant posts in the subordinate courts should be immediately
filled and funds for creation of new additional posts of Civil Judges cum
Judicial Magistrates may be acquired from respective governments.
b) Presently, judicial officers are appointed through respective
Provincial Public Service Commissions which takes time. Keeping in view the
emergent need of judges to clear backlog, the High Courts should consider
making appointments on adhoc basis.
c) The High Courts should utilize the Provincial Judicial Development
Fund (PJDF) to make available the essential paraphernalia such as provision of
furniture, law books, typewriters and creating an integrating computer network
for access to information and material and effective supervision/monitoring of
the performance of the subordinate courts.
d) The respective Provincial Governments may be approached
for grant of supplementary funds for the construction of courtrooms, bar rooms,
waiting rooms for litigant parties and witnesses and residential accommodation
of judicial officers/court staff.
e) Upgrading and activation of judicial academies to
arrange pre and in-service training of the judicial officers and staff.
f) Seminars and workshop should be organized for judges to
have regular interaction and experience sharing with other judges at provincial
and national level.
4) Scattered courts are also one of the major
causes of nonappearance of lawyers as it takes hours to reach from one court to
another. Therefore, in the cities court complexes should be constructed to
accommodate all courts in one premises.
5) Presently, some judges of the High Courts are
performing additional functions like Chairman, Environmental Protection Tribunals,
Labour Appellate Tribunals etc which affects the working of the High Courts as
a whole, therefore, it is decided that the concerned Government may be asked to
appoint suitable persons against these positions instead of giving additional
charge to the High Court Judges.
6) The Government of Sindh in exercise of powers
conferred under section 59 of the Prisons Act 1894 has brought an amendment in
the Prisons Rules where-under the condemned prisoners are not kept in death
cells till final decision on their appeals. Keeping in view the agonies of the condemned
prisoners detained in death cells, the Committee directed that the Provincial
Governments of Punjab, Balochistan and NWFP should consider making similar arrangements
for taking out the condemned prisoners from death cells and keeping them in
barracks with adequate security arrangements.
7) The Provincial Governments should realize the
difficulties of under resource and over congested jails and establish new jails
at district level or enhance the capacity of existing jails by constructing new
barracks duly equipped with necessary amenities.
8) Non-production of prisoners before the Courts
for trial due to shortage of resources and cramped judicial lockups is a major
cause of delay in quick disposal of cases, therefore, the Provincial
Governments should equip the prison department with necessary resources and
increase the capacity of judicial lockups by constructing additional rooms with
necessary facilities and security so that prisoners who are brought from other
Districts should be kept there to face their trial.
9) To address the problem of medical facilities to
the inmates of various jails, the Committee recommended that the Chief Justices
of the High Courts should hold meetings with the Chief Secretaries and
Finance/Health Secretaries of the provinces to chalk out policy for providing
adequate medical treatment facilities to the ailing prisoners.
10) The capacity and functioning of process
serving agencies be improved and for this purpose, the provincial governments may
be approached for funds.
11) Computerization and networking should be
introduced at all levels of judicial hierarchy. By introducing specifically designed
software, the effectiveness of computers could be enhanced to check and monitor
the case flow and measuring the qualitative and quantitative output of judicial
officers. Therefore, all the computers of a province should be connected through
web based networking so that data transferring to MIT branch, High Court
becomes easy.
12) Installation of Video Conferencing facility
between the courts and jails will also help the courts in early disposal of
cases. Therefore, High Courts should take initiatives for introducing modern
techniques and automation in the courts.
13) In the province of Punjab, the judicial
officers of the subordinate Judiciary are drawing additional judicial allowances
equal to three times of their salaries, therefore, it is desirable that the
judicial officers of all the provinces be treated alike and disparity in their
salaries and allowances be removed.
14) The salary/allowances of court staff should
also be suitably increased.
Drafted by: Approved by:---
-
(Dr Faqir Hussain)
Secretary, NJPMC
(Justice Iftikhar Muhammad
Chaudhry)
Chief Justice of
Pakistan/Chairman, NJPMC
Annexure
Institutions/Individuals from
whom input received
1. Supreme Court of
3.
4. High Court of Sindh.
5.
6. High Court of Balochistan.
7. All District and Sessions Courts.
8. Mr. Justice Mian Shakir-ullah-Jan, Judge, Supreme Court
of Pakistan.
9. Mr. Justice Ijaz ul Hassan, Judge, Supreme Court.
10 Mr. Justice M Qaim Jan Khan, Judge, Supreme Court.
11. M r. Justice Zia Perwaiz, Judge, Supreme Court.
12. Mr. Justice Ghulam Rabbani, Judge, Supreme Court.
13. Mr. Justice Rashid Ahmed Jhalandari, Judge, Supreme
Court.
14. Mr. Justice (R) Rana Bhagwandas. Member, LJCP.
15. Professor Jawad S. Khawaja. Member, LJCP.
16. Ms. Anis Haroon, Chairperson, National Commission on
the Status of Women/Member, LJCP.
17. Attorney General for
18. Ministry of Law & Justice, Govt. of
19. Law Department, Govt. of the
20. Law Department, Govt. of Sindh.
21. Law Department, Govt. of NWFP.
22. Law Department, Govt. of Balochistan.
23. Prosecutor General,
24. Prosecutor General, Sindh.
25. Prosecutor General, N.W.F.P.
26. Advocate General,
27. Advocate General, Sindh.
28. Advocate General, Balochistan.
29. Inspector General of Police,
30. Inspector General of Police, Sindh.
31. Inspector General of Police, N.W.F.P.
32. Inspector General of Police, Balochistan.
33. Inspector General of Police,
34. Inspector General of Prisons,
35. Inspector General of Prisons, Sindh.
36. Inspector General of Prisons, N.W.F.P.
37. Inspector General of Prisons, Balochistan.
38. Director General, Federal Investigation Agency,
39. Mr. Mahmood-ul Hassan, Vice Chairman, Sindh Bar
Council,
40. Mr. Naeem Perwaiz, Secretary, NWFP Bar Council.
41. Mr. Tahir Shabbir Ch, Advocate, President, District
Bar Association, Sahiwal.
42. Mr. Niaz-ul-lah Khan Niazi, Advocate, President,
Islamabad Bar Association,
43. Mr. Haroon Irshad Jannjua, President, District Bar Association,
Chakwal.
44. Mr. Hamid Khan, Advocate, Supreme Court.
45. Mr. Ibad
46. Syed Zulfiqar Abbas Naqvi, Advocate, Supreme Court,
47. Mr. Mehmood Ahmed Ghani, Advocate, Supreme Court,
48. Dr. Tariq Hassan, Advocate, Supreme Court,
49. Mr. Rustam Khan Kundi, Advocate High Court. Dera Ghazi
Khan, NWFP.
50. Syed M. Haroon Rashid, Advocate, High Court,
51. Mr. Sabhagchand D. Matlani, Advocate. High Court,
Dadu, Sindh.
52. Professor M.Wali khan, Organizational Reform Expert,
High Court of Sindh.
53. Syed Asghar Ali Shah, ADSJ, NWFP.
54. Mian Fiyaz Rabbani, SCJ, Mirwah, District Khairpur.
55. Rana Muhammad Nawaz Khan, Civil Servant/Executive Officer,
56. Mr. Javid Mian, District Attorney,
57. Mr. Abdul Ghani, (Citizen), Sagodha.
58. Mr. M. Yaseen Malik, (Citizen), District Gujarnawala.
59. Mr. Khan Muhammad Khosa, Jampur.
60. Mrs. Zarina Shamim, Widow of Ch. Dil Muhammad Tarar, Advocate
Supreme Court,
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