IRSHAD HASAN KHAN, C.J.---We initiated, in consultation with the Hon'ble Judges of this Court, the Chief Justices of the Provinces, Members of Pakistan Law Commission and the leaders of the Bar, a programme to address the longstanding problems of backlog and delays in the dispensation of justice. Some progress in clearance of backlog has been made, particularly, in the cases of unprivileged classes, that is to say, widows, orphan children, distribution of estate of deceased's property, rent matte's and others.
2. In a move aimed at reducing backlog and expediting the disposal of cases, various benches of different number of Judges were constituted to attend to cases of different categories during a week/month. As a consequence, backlog came down considerably, as is depicted in the table showing institution/disposal of cases by the Court. This was achieved through the active suppon and cooperation of the Bar, despite consumption of huge time of the Court in Constitutional cases and other cases of public importance.
3. As per the following table total pendency before Court on 1st January, 2001 was 10,998. There has been an ongoing litigation explosion in the country Fresh institution of cases is on tremendous increase. The society has become litigious. During the period from 1st January, 2001 to 9th August, 2001 a total of 7831 cases including 6590 petitions and 1241 appeals were instituted thereby increasing the total pendency before the Court from 10998 to 18829 cases
4. In the supreme notional interest, the Judges of the Supreme Court had foregone their vacation last year as well as this year and have hitherto been working during vacation in oublic interest. The same has been the practice in the past as well as the Judges of the Supreme Court had been working in rotation during the summer vacation.
5. A monitoring apparatus has been set up to evaluate performance regularly. Full Court meetings are convened frequently to consider ways and means of enhancing the efficiency of the Court with a view to clearing the backlog. The above measures put in place are already going a long way in wiping Tit the pendency. As could be seen from the following table, the Supreme Court during the past eight months disposed of a total of 8314 cases thereby reducing the pendency from 18829 to 10515 cases: STATEMENT SHOWING INSTITUTION/DISPOSAL FROM 1-1-2001 TO 9-8-2001 Cases Previous pendencyInstitution Total pendencyDisposal Current pendencyRemaks Petition 5661 6590 12251 5765 6486 Increased by 825 Appeals 5337 1241 6578 2549 4029 Decreased by 1308 Grand total10998 7831 18829 8314 10515 Decreased by 483 The above statement includes disposal of 892 important criminal cases as follows: Death = 129 Life imprisonment = 292 Appeals against acquittal= 183 Others = 533 Total: = 1137 During this period the Court not only held its sitting at the principal seat but also had to work at Peshawar, Quetta and Karachi where Registries are located to provide justice to the people at their door step and keeping in view the demands of the Bar notwithstanding the fact that there is not much of work at these places. The Court also held its sittings at Lahore Branch Registry for a number of weeks/months, in that bulk of the cases originates from this Registry.
6. A total of 202 cases involving death penalty and 295 cases involving life imprisonment are currently pending in this Court. Cause Lists for these two categories of cases have been prepared and the Roster for the purpose has been issued for hearing such cases on day to day basis with a view to finally dispose them of. The Cause Lists shall be sent to the lawyers appearing in the cases listed therein so that they may make necessary adjustment and ensure their presence before the Court on the given date, when the cases are fixed for hearing for actual dates.
7. It is expected that High Courts shall also continue to follow the same course. It shall be the duty of the Advocate-General of each province to make appropriate applications to the respective Registrars of the High Courts or of this Court for listing of cases involving death penalty or life imprisonment, and cases under Anti-Terrorism Act for expeditious disposal, subject to the order of the Chief Justice.
8. The unfortunate delay occurs in the disposal of civil and criminal cases due to several reasons, and many sections of the society are responsible for the same. However, in criminal cases, which have a direct nexus with the law and order situation in the country, delay impacts negatively on maintenance of peace and security in the society and is harmful. This issue must therefore be given preference as compared to other issues. It is therefore, a fit case for initiating suo motu action under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 for issuing appropriate directions to the concerned authorities. And since we are seized of this matter in exercise of our Constitutional jurisdiction under Article 184(3) of the Constitution, we lay down the following guidelines to remedy the situation.
MISERIES SUFFERED BY UNDERTRIAL PRISONERS
9. It is complained that 2/3rd of the jail inmates comprise undertrial prisoners. Such phenomenon erodes people's trust and confidence in the system of justice. It is, therefore, he bounden duty of the Bar, litigants, witnesses and, in particular, the law enforcing agencies to cooperate with the Judiciary within the parameters of the system of administration of justice at all levels in the expeditious disposal of cases so that the people of Pakistan may live in peace and prosper.
10. An important cause for delay in the disposal of the criminal cases is that on account of the creation of the new districts in the Provinces, jails have not been constructed. Consequently, the accused are kept in the jails of a different. District. On account of inadequate or lack of transport facilities, the accused are not produced in time before the Courts.. Therefore, it is of utmost importance that in all the newly carved out districts, jails are constructed so that the accused can be lodged therein and can be produced before the relevant Court at the proper time for expeditious disposal of the cases. It is also important to note that a number of incidents have taken place where during the transit from jail to the Court, an attack was launched for release of the accused persons. Therefore, jails should be constructed in the new districts, under a phased programme, in keeping with the availability of financial resources.
DINGY. DEATH CELLS AND INHUMAN CONDITIONS OF PRISONERS
11. We also take judicial notice of the fact that there are small dingy rooms measuring 9' x 12' attached with WC in 4 corner, rounded by a wall of 3' height for the condemned prisoners. It is inhuman to keep the prisoners in death cell beyond the capacity of the cell.
12. There is tremendous congestion in jails. The prisoners are lodged therein beyond the building capacity. It is understood that the number of undertrial inmates far exceeds the number of convicted prisoners. The problem of congestion is, thus, overwhelmingly attributable to the abnormal delays due to inefficiency and casual attitude of the prosecuting agencies. We, therefore, expect that the learned Chief Justices of the High Courts will take up this issue on priority basis to take remedial measures as may be deemed fit and proper.
13. The accommodation provided in jails generally does not suit the climatic condition of the country. In winter, prison barracks are extremely cold and in summer, they are sizzling with heat.
The Government must take suitable steps in phased programmes to construct/renovate the existing jails to suit the environmental and climatic conditions. Proper flush system in toilets as well as sewerage system, electric fans and water coolers facilities should be provided to the inmates on humanitarian grounds.
14. A root cause for delay in disposal of criminal cases is the failure on the part of Investigating Officer to submit challan within the prescribed period of 14 days as provided in the Criminal Procedure Code. It has been noticed with concern that often challan is submitted after a year or a year and a half. There is no system of check and balance in the Police Department as to expeditious conduct of investigation and submission of challan in time. Senior police officers often ignore the delay on the part of the Investigating Officer in submission of challan. Another malady affecting the entire system, is the successive change of investigating officer either at the instance of the accused or the complainant, which is an example of distrust by the public on the conduct of investigation by the police. However, a superior police officer instead of scrutinizing such investigations prefers to order the change of conduct of investigation from one officer to another, causing inordinate delay in the submission of challan. There is, therefore, a need to evolve a mechanism to obviate such frequent change of Investigating Officers. We would, therefore, constitute a committee at the Provincial level consisting of Home Secretary as its head and Inspector-General of Police, Provincial Law Secretary and Advocate-General as its members. A similar committee shall be constituted at the Federal level, which will be headed by Secretary, Interior and its members will include Director-General, FIA, the Incharge of Narcotics Divisions and a Joint Secretary to be nominated by Secretary, Law.. These committees shall consider the following points:
(i) What should be the procedure and criterion for transfer of investigations from one officer to another and/or to Crime Branch.
(ii) How to determine the genuineness or otherwise of the application for transfer of investigation from one officer or agency to another either at the behest of the accused or the complainant.
(iii) The time-frame within which, even if the investigation is transferred, the same is completed.
(iv) The committees shall also lay down guidelines for initiating disciplinary action against the delinquent Investigating Officers.
' The meetings of these committees shall be held within one month from the receipt of this order and a report shall be submitted to the Registrar of this Court within two months thereafter.
15. The system for maintaining police diary should also be looked into. In the past the diary papers were numbered and signed and were given to the Investigating Officers for conducting investigation. The system has totally been destroyed by not adhering to this practice. Now the police diaries are written on simple blank papers not issued officially and can be replaced at any time. On top of it, the Investigating Officers do not know how to write the police diary and they have kept retired police officer's for writing police diaries. Similarly on the Revenue side, Tehsildars or Naib-Tehsildars are keeping retired Tehsildars/Naib-Tehsildars and Patwaris are keeping retired Patwaris for recording mutations, Jamabandis and for performance of other revenue work. In fact, in the past quota system introduced for the recruitment at the behest of MNAs/MPAs has shaken the foundation of the service structure. No inspection of police stations is generally taking place.
Copies of the F.I.Rs, and Zimnis i,e,, police diaries are not being sent to the concerned authorities. In the past it was the duty of the S.P. To read all these police diaries sent to him and, thus, he knew and could supervise as to the conduct of the cases/investigation at different police stations within his jurisdiction. Therefore, the practice of sending copies of Zimnis and F.I.Rs, to the concerned authorities should be reintroduced and a law be made for its strict enforcement.
STEPS FOR EARLY INVESTIGATION AND PROSECUTING THE CULPRITS
16. Collective efforts must be made by the citizens of Pakistan to help sustain the rule of law by preventing crime. The law enforcing agencies must take every possible measure in detecting the culprits; conducting the investigation justly, fairly, expeditiously and in accordance with law; submitting the challans in time; prosecuting the culprits before competent Courts by seeking their conviction if proved guilty and awarding them suitable punishments and acquitting the innocents.
COOPERATION OF THE BAR IN STRENGTHENING THE SYSTEM OF ADMINISTRATION OF JUSTICE
17. The Bar has a very pivotal role to play. It is our firm belief that the Bar and the Bench must work together in ameliorating the sufferings of the litigant public notwithstanding lack of needed recourses due to financial constraints. The combined efforts of the Bench and the Bar for expeditious disposal of cases is sine qua non for the maintenance and encouragement of public confidence in the system of administration of justice and to avoid replacement thereof with any other system.
18. Another important issue is the holding of the trial of the cases by the Sessions Court at Tehsil level. The members of the Bar who have to appear before the. Courts both at the district level and Tehsil level cannot conduct cases and as a result the cases are adjourned. Therefore, .All the cases triable by the Sessions Court should be tried at the district level as far as possible after creating necessary infrastructure, under a phased programme.
19. After separation of the Judiciary from the Executive, more manpower is required. A Civil Judge is not only a Civil Judge but Rent Controller as well as Family Court and he had also been burdened tremendously with the disposal of criminal cases. This is not fair and this is one of the causes of delay. Therefore, serious consideration may be given to the creation of new cadre of service in consultation with the Provincial Governments and the Chief Justices of the Provinces so that this cadre can deal with criminal cases exclusively as it was prevalent before the separation of Judiciary from the Executive. This can only be achieved by providing manpower and infrastructure as well as construction of new Courts, in consultation with the learned Chief Justices of the High Courts, under a phased programme in keeping with the availability of necessary funds.
20. Because of the backlog, the requirement of the time is to work both on long term as well as short term plans to take this problem. As far as short term measures are concerned, the immediate recruitment of Magistrates, in consultation with the Chief Justices of the High Courts, is of the utmost importance. Otherwise, the system is likely to collapse and the people would completely lose faith in the system of administration of justice leading to anarchy.
21. The Inspectors-General (Prisons) and the Home Secretaries of the Punjab, Sindh, N.-W.F.P. And Balochistan shall visit the death cells in the company of respective District and Sessions Judges on a date and time to be fixed within 60 days from the receipt of this order to ensure that the prisoners kept therein may be provided facilities according to Jail Manual. This inspection should be a regular feature in keeping with the rules in force.
22. The Inspectors-General (Prisons) and Home Secretaries shall also ensure that the prisoners kept in death cells are provided with sufficient walk time in the morning and evening according to Jail Rules. However, use of handcuffs in respect of terrorists and/or dangerous criminals, during walk, should be strictly adhered to.
23. The Provincial Governments should make arrangements for the construction of separate prison for juvenile offenders were not available, under a phased programme.
24. Proper food, training and other facilities should also be provided to prisoners including women and juvenile offenders. The Provincial Governments through Finance Ministers/Secretaries shall approach their respective Governors of Provinces for allocation of adequate funds for the purpose.
25. In situations where provincial governments are unable to procure funds from their own resources, they shall approach the Federal Government for the allocation of necessary finances.
We are sure the Federal Government will entertain such requests sympathetically.
26. Special care must be taken in respect of children accompanying their convicted/undertrial mothers. A strategy must be evolved for the maintenance and protection of children when they become of school-going age. Arrangements should also be made for their education under a phased programme subject to availability of funds.
27. Closed-circuit TV equipment should be installed in jail, as early as possible subject to availability of funds and the staff should be given gadgets for detecting escapes and imparted appropriate training for the purpose.
28. The rules for medical facilities and special diet to the patients during illness be extended to undertrial prisoners, if not already done.
29. The system of granting remission on account of acquiring education and higher qualifications should also be reviewed with a view to allow remission on the basis of certificate/degree awarded for higher education. For higher degrees, the period of remission should be greater. Rule 215 of the Pakistan Prison Rules, 1978, be suitably amended which provides for special remission schedule.
30. The Provincial Governments may also consider approaching the philanthropists and charitable institutions for obtaining donations and other assistance, in kind or cash for jail inmates.
31. The learned Chief Justices of the High Courts may also consider evolving strategies including the establishment of special Benches for a particular period to dispose of the backlog on day to day basis in respect of cases involving capital punishment i,e, terrorism and other heinous offences.
32. The learned Chief Justices of the High Courts may also consider to appoint a senior Judge/Judges to monitor the early fixation and disposal of such cases in the High Court as well as all other Courts including the Special Courts subordinate to the High Court in consonance with Article 203 of the Constitution.
33. The Interior Secretary, Inspectors-General of Prisons, District and Sessions Judges of the Provinces, Home Secrearies and Finance Secretaries of the Provinces shall submit monthly reports about the progress in the implementation of the above directions to Registrar of this Court till final disposal of the matter by this Court.
34. The case being of great public importance, shall be heard by a larger Bench to be constituted by the Chief Justice. Meanwhile, notices shall be sent to the Advocates-General of the Provinces for a date to be fixed in office at an early date. The Interior Secretary, Chief Secretaries of the Provinces, the Home Secretary, the Advocates-General and the Inspectors-General of Police of the Provinces shall appear personally and assist the Court in the resolution of the above issues.