NEGLECTED PARTS OF NATIONAL JUDICIAL POLICY
By:
MUHAMMAD
ABUBAKAR DAR
Advocate
National
judicial policy was architected with high aims and many of them particularly
speedy disposal of cases is noteworthy in this regard. “The people of
Fraternity from
both bench and Bar were involved in this process. Now
it is the test of all stake holders, how they meet with the objects settled in
national judicial policy, as it was carved out in the context of High
aspirations of people regarding rule of law in the country.
Pakistani nation
has high hopes after the promulgation of the Policy as to them it may work as
an antidote to the rotten system of justice of the country. "Main thing is
the will of people and people have confidence on their judiciary. May the rays
of hope available in every line of this noble policy bring justice blended with
mercy throughout the beloved homeland! May Allah almighty bless our judiciary
at all tiers with courage and fortitude to keep the balance even between the
rich and the poor, the high and the low, without any fear of favor in a manner
whereby dignity of mankind is maintained and the rule of law is preserved"[2]
National
judicial policy is no doubt is a comprehensive document that provides solution
of almost every problem prevalent in our judicial system. The policy has not
only highlighted weak areas of judicial system of
It is the most
salient feature of the national judicial policy that it has focused on already
available provisions of law rather than providing any new perposal. This
article focuses on the fourth part of the Policy, Expeditious disposal of the
Cases, and provisions that may be utilized for this purpose. Mainly these
provisions are penal in nature that provide penalty for those who try to misuse
the machinery of justice system of the country. The then Chief Justice of the
country remarked "The policy seeks to achieve its objectives, by efficient
utilization of existing resources. We have to operate by remaining within the
given legal/procedural framework. Laws are indeed time tested. Given earnest
effort by bench and the bar, I am confident of achieving positive
results".[3]
My aim in this
article is to discuss the practical value of those provisions and to highlight
the loss that settlers of national judicial policy have to face as a result of
ignoring the implementation of these provisions. The policy has first discussed
criminal litigation and following provisions from Pakistan Penal Code, 1860 and
Code of Criminal Procedure has been discussed in this regard.
• Section 166 of PPC.
• Section 182 of PPC 1860.
• Section 211 of PPC 1860.
• Section 249 A of Cr.P.C.
• Section 265 k of Cr.P.C.
• Section 250 of Cr.P.C.
• Section 476 of Cr.P.C.
Now let us have
a detailed analysis of these sections.
First among them
is section 166 of Pakistan Penal Code, 1860 and is quoted below. "Whoever,
being a public servant, knowingly disobeys any direction of the law as to the
way in which he is to conduct himself as such public servant, intending to
cause, or knowing it to be likely that he will, by such disobedience, cause
injury to any person, shall be punished with pimple imprisonment for a term
which may extend to one year or with fine or both".[4]
In the Policy
this section has been discussed in context of submission of challan (police
report U/S 173 of Cr.P.C.) and record in Bail matters by the police. [5]
Delayed
submission of police reports cause delay in decision of a criminal matter by
the respective magistrate.
Similarly non
availability of record in Bail matters may affect the right of Bail of a
prisoner.
Now, it is very
rare that a Court of magistrate has taken cognizance of such an offence and has
prosecuted a police official under this section.
In Part D
"expeditious disposal of cases, Section 14 of NJP Sections 182 and 211 of
Pakistan Penal Code 1860 has been discussed in the scenario of giving false
information to a public servant. Before entering into detail it is better to
quote these sections.
False
information with intent to cause public servant to use his lawful power to the
injury of another person.
“Whoever gives
to any public servant any information which he knows or believes to be false, intending
thereby to cause, or knowing it to be likely that he will thereby cause such
servant?
(a) to do or
omit anything which such public servant ought not to do or omit if the true
state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury
or annoyance of any person, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may
extend to three thousand rupees or with both".[6]
and
"Whoever,
with intent to cause injury to any person, institutes or causes to be
instituted any criminal proceeding against that person, or falsely charges any
person with having committed as offence, knowing that there is no just or lawful
ground for such proceeding or charge against that person, shall be punished
with imprisonment of either description for a term which may extend to two
years, or with line, or with both, and if such criminal proceeding be
instituted on a false charge of an offence punishable with death, imprisonment
for life or imprisonment for seven years or upwards, shall be punishable with
imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.[7] It
is interesting to note that police officials in
Here, I would
like to share an experience where one of my bar members tried to persuade a
police officer regarding use of this provision. The answer of the police
official was,
“I cannot invoke
this provision as there is no FIR chalked out on the base of such wrong
information”
Trial in a Court
of magistrate is regulated by chapter XX of Cr.P.C. containing sections 241 to
249-A.
Section 249-A
says. "Nothing in this chapter shall be deemed to prevent a magistrate
from acquitting at any stage of the case, if after hearing of the prosecutor
and accused and reason to be recorded, he considers that charge is groundless
and there is no probability of accused being convicted of any offence".[8]
Procedure for
trying an accused for his conviction or acquittal needs much time. This
provision of the procedure is made with the object to save the precious time of
the Court.
Similarly, for
trial in the Court of Session same rule is provided under section 265-K of the
procedure.
Any practicing
lawyer is aware of the behavior of Courts regarding use of these sections.
Another
noteworthy provision whose, utilization is motivated in National judicial
policy is section 250 of Cr.P.C. This section empowers a magistrate to award
compensation to a person who has been charged frivolously. It is evident from
the bare illustration of this section.
"(1) If in any case instituted upon complaint or
upon information given to a police-officer or to a Magistrate, one or more
persons is or are accused before a Magistrate or any offence triable by a
Magistrate, and the Magistrate by whom the case is heard acquits all or any of
the accused, and is of opinion that the accusation against them or any of them
was false and either frivolous or vexatious, the Magistrate may, by his order of
acquittal, if the person upon whose complaint or information the accusation was
made is present, call upon him forthwith to show-cause why he should not pay
compensation to such accused or to each or any of such accused when there are
more than one, or, if such person is not present direct the issue of a summons
to him to appear and show-cause as aforesaid.
(2) The Magistrate shall record and consider any cause
which such complainant or information may show and if he is satisfied that the
accusation was false and either frivolous or vexatious, may, for reasons to be
recorded, direct that compensation to such amount not exceeding 25000 rupees
or, if the Magistrate is a Magistrate of the third Class, not exceeding two
thousand and five hundred rupees, as he may determine be paid by such
complainant or informant to the accused or to each or any of them.
(2A) the compensation payable under sub-section (2)
shall be recoverable as arrears of land revenue.
(2B) when any
person is imprisoned under sub section (2A), provisions of Sections 68 and 69
shall so for us may be apply.
I have surveyed my
respected bar and asked many senior lawyers about utilization of this provision
of procedure. All of them were unable to give any example of it.
Regarding the
utilization of Section 476 of Cr.P.C. it is written in NJP," 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 of 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"
Also
"Under
section 476 of Cr.P.C. the Court may itself take cognizance of the offence and
try it according with the procedure prescribed for the summary trials in
chapter xxii of the procedure".[9]
The policy has
taken into consideration not only criminal litigation but also civil litigation
is focused with the same level of research and use of certain provisions in
Code of Civil Procedure 1908 has been motivated through policy.
These provisions
are enumerated below
• Section
35-A of CPC
• Section
89-A read with order 10 Rule 1A of CPC
• Order 11
of CPC 1908
• Order 17
Rule 3 of CPC 1908
• Suggestions
regarding summoning of parties to the suit
Compensatory
cost in respect of false and fictitious claim or defenses if in any suit or
other proceeding (including an execution proceedings), not being an appeal, any
party objects to the claim or defense on the ground that the claim or defense
or any part of it is, as against the objector, false or vicious to the
knowledge of the party, the party by whom it has been put forward and if
thereafter, against the objector, such claim or defense is disallowed,
abandoned or withdrawn in the whole or in part, the Court, if the objection has
been taken at the earliest opportunity and if it is satisfied of the justice
thereof, may after recording its reasons for holding such claim or defense to
be false or vicious, make an order for the payment to the objector by the party
by whom such claim or defense
Provided that
where the pecuniary limits of the jurisdiction of any Court exercising the
jurisdiction of a Court of small causes under the Provincial Small Causes
Courts Act 1877, and not being a Court constituted under that Act, or less
than.
(3) No person against whom an order is made under
this section shall by reason thereof, be exempted from any criminal liability
in respective of any claim or defense made by him.
(4) The amount of any compensation awarded under
this section in respect of a false or vicious claim or defense shall be taken
into account in any subsequent suit for damages or compensation in respect of
such claim or defense.[10]
As for behavior
of Courts towards award of compensation it is sorrowful. Courts are always
hesitant to award compensation despite there is such an explicit provision of
law. Even in the cases where Courts award compensation under this section, it
is such a petty amount as litigants do not feel it as penalty.
Once, in a trail
Court I myself received a strange answer by learned civil judge when I pointed
out that I have prayed for compensatory cost in the prayer of my suit and it
may graciously be granted. The Court said there is no such practice and also
quoted a vague citation of High Court
About ADR CPC,
1908 has following provisions:
"The Court may, where it considers to necessary,
having regard to the facts and circumstances of the case, with the object of
securing expeditious disposal of a case, in or in relation to a suit, adopt
with the consent of the parties alternate dispute resolution methods including
mediation and conciliation".[11]
Adoption of this
method might have saved the precious time of the Court as well as the money of litigants, It is really rare that the Court has tried to
persuade the litigants for this less cumbersome and easy method of dispute
resolution.
Then there is
Order 11 of CPC that deals with the discovery and inspection of litigants or
parties in a suit. Civil Courts usually do not follow directions laid down in
this order. Non compliance with Ihe provisions of this order may affect parties
adversely and it is evident from the following rule of this order.
"where any
party fails to comply with any order to answer interrogatives or for discovery
or inspection of documents, he shall, if plaintiff, be liable to have his suit
dismissed for want of prosecution and if defendant, to have his defense, if
any, struck out and to be placed in the same position as if he had not defended
and the party interrogating or seeking discovery or injunction may apply to the
Court for an order to that effect and an order may be made accordingly”[12]
I have surveyed
the senior advocates of my Bar and inquired about the use of this order by
civil Courts. The answer was in negative.
Conclusion
I would like to
close discussion with an extract from the speech of Mr. Iftikhar Muhammad
Chaudry at the time while he was laying down the foundation of NJP
“The key features of national judicial policy are
strengthening the independence of judiciary by its separation from executive
and ridding the Courts of 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 sub ordinate Courts and to fix time frame for
disposal of civil and criminal cases".
Every person
having legal sense may assess the success of the policy by comparing the above
statement and present situation in country.
Moreover, if the
lines of NJP had been followed it must have lessened the burden of cases right
from lodging the FIR up to finality of trial.
Similarly it was
vowed at the time of promulgation that this policy will be supervised
effectively. The policy will be launched effective from first June 2009 and
will be actively monitored by NJPMC. I should continue to meet judges and bar
members for its smooth implementation said Iftikhar Muhammad Chaudry. Yet the NJP
suffered and ultimately our judicial system still needs a lot of struggle from
every stake holder of the system, no matter if it is Bench, Bar,
prosecution machinery or government.
[1] Said Iftikhar Muhammad Chaudhry while
addressing the National Judicial Policy Management Committee (NJPMC)
[2] Rt. Justice Dr. Munir Ahmad Mughal.
[3] Said Justice Iftikhar
Chaudhry.
[4] Section 166 of
[5] (Ch xxxix of Cr.P.C. 1898)
[6] Section 182 of PPC 1860
[7] (Section 211 of PPC)
[8] Chapter XX, Section
249-A of Cr.P.C.
[9] Part D “expeditious disposal of cases,
Section 14 of NJP
[10] Section 35-A of CPC
1908.
[11] S. 89-A read with Order Rule 1-A of the Civil Procedure Code, 1908.
[12] Order xi Rule 21 of CPC
1908.