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 Judgment ---- what and how to write .

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THE ROLE OF TRAINING IN IMPROVING THE QUALITY OF JUDICIAL DISPENSATION

Chaudhry Hasan Nawaz

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DELAYED JUSTICE & THE ROLE OF A.D.R.

by

MR. JUSTICE TASSADUQ HUSSAIN JILLANI

Hon'ble Judge, Supreme Court of Pakistan

ACCESS TO JUSTICE AND ALTERNATIVE DISPUTE  RESOLUTION

Chuadhry Hasan Nawaz

                  The topic suggests a discussion on the role of alternative dispute resolution, in facilitating Access to Justice. However, it must be said that this construction obviously limits the scope of discussion. Therefore, Alternative Dispute Resolution apart, I propose to treat “Access to Justice” as a separate topic which has two thematic aspects. One, the quality of justice to be administered by the courts. The other is the ability of an aggrieved person to have access to that justice. This approach to the subject brings to fore that the objective in contemplation of this paper is to have an idea of how to improve the quality of justice and facilitate common man’s access to that justice, which is the core necessity of a democratic dispensation.

WHAT IS JUSTICE

2.               At the outset, we may appreciate the significance and importance of the word “justice” with reference to the people for whom the access is required to be facilitated. The word “justice” has been defined in various law dictionaries, but I will refer only two explanations. In his Dictionary of Law, Sherman has defined the word “justice” as (a) the basic value underlying a system of law, or the objective which that system seeks to attain; (b) the virtue which results in each person receiving his due (Justinian); and (c) the impartial resolution of disputes arising from conflicting claims. It is also said that "justice is the correct application of a law, as opposed to arbitrariness", and that it is the dictate of right, according to the conscience of mankind generally, or the ideas of those who may be governed by the same principles or morals, or the consent of that portion of mankind who may be associated in one goal, that is, members of the community".

3                Something, which in my considered view, controls these definitions is the famous doctrine that “justice should not only be done but also seen to have been done” by those who hold the stakes. It is obviously suggestive of the premise that the cases should not only be decided on merits after due observance of procedural formalities, but also that the deciding judge causes an impression to whosoever is concerned, by his conduct in and outside the court that his impartiality can never be a matter of doubt. The Judges must remember that just decision of a matter is not enough and their conduct must be such as would inspire confidence of litigant public.

4.               It is now universally recognized that access to justice is one of the fundamental rights and that in its absence, the exercise of other rights may not be possible. There can be no denial of the proposition that a court of law is a forum for exercise of the right of expression. Inability of an aggrieved person to have access to justice has got two aspects. One which is within, is on account of poverty, illiteracy, lack of legal awareness and consciousness of rights, social conditions, feudal system, exploitation, discrimination and deterioration of moral values. The other which is without, is the absence of rule of law, wide discretionary powers with the government functionaries, enormous court delays, judicial inertia and absence of judicial independence.

RULE OF LAW

5.               For an Access to Justice, the first requirement is the prevalence of the rule of law, which means that everything must be done according to law. It requires, if applied to the powers of the government, that every authority acting for the government must be able to justify its actions as authorized by law. Every act of governmental power, which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree.  The aggrieved persons should be put in a position to have recourse to the courts of law for the redress of their grievances and the courts must invalidate the Act if it is not found to be in order.

6.               This is the principal of legality. However the rule of law demands something more in a situation where the government authorities are given wide discretionary powers, with the result that whatever they do is within the law. They say the sovereign’s will has the force of law. I concede that it is perfectly a legal principle, but it expresses rule by arbitrary power rather than one according to an ascertainable law. The secondary meaning of the rule of law, therefore, is that the government should be conducted within a frame work of recognized rules and principles which restrict the grant and use of discretionary power.

7.               An essential part of the rule of law, accordingly, is a system of rules for preventing the abuse of discretionary power. The principle of legality is a clear cut concept, but limitations to be put upon discretionary powers are a matter of degree. Confronted with the fact that parliament freely confers discretionary powers with little regard to the dangers of abuse, I would say that the courts must attempt to strike a balance between the needs of fair and efficient administration and the need to protect the citizen against arbitrary dispensation.

EQUALITY BEFORE THE LAW – PRECEPT OF INDEPENDENCE

 8.               Yet another connotation of the rule of law is that disputes as to the legality of Acts of Government, should be decided by judges who are wholly independent of the executive. The right to carry a dispute with the government before the ordinary courts, manned by judges of the highest independence is an important element of the concept of rule of law. As Sir Guy said in the Australian Law Journal, “Independence is a precept for any judiciary operating within West Minister System of Government. This percept has been defined as the capacity of the courts to perform their constitutional functions free from actual or apparent interference. Judicial independence is an essential element of democracy and the independence of judiciary is a bastion against the absolutist theory of democracy. The separation of power doctrine, under the system in vogue, provides a mechanism of mutual checks and balances between the executive, legislative and judicial arms of the government, so that one branch of government is incapable of arrogating power to itself at the expense of the other branches. It is within this context that jurists see an imperative for an independence judiciary to act as an impartial arbitrator of disputes between citizens and the state. It must be emphasised that the law should be even handed between the government and the citizen. The rule of law requires that the government should not enjoy unnecessary privileges or exemption from ordinary law.

DOCTRINE OF ULTRA VIRES

9.               Professor Wade, an eminent jurist, held the view that it is a cardinal axiom that every power has legal limits, however wide the language of empowering Act. If the court finds that the power has been exercised oppressively or unreasonably, or if there has been some procedural failing, such as not allowing a person affected to put forward his case, the act may be condemned as unlawful. Those appearing for government department often argue that the Act of Parliament confers unfettered discretion, but I would say, with esteem, that they are guilty of constitutional blasphemy. Unfettered discretion cannot exist where the rule of law reigns. The notion of unlimited power can have no place in the system. The Ultra Vires Doctrine is, therefore, not confined to cases of plain excess of powers; it also governs abuse of power, as where something is done unjustifiably, for the wrong reasons or by the wrong procedure. The judges must remain alive to the truth that all power is capable of abuse, and that the power to prevent abuse is the acid test of effective judicial review.

NATURAL JUSTICE

10.                          In actual fact, natural justice which denounces unheard condemnation is a branch of the doctrine of ultra vires. I go along with Professor Wade in saying that lawyers are a procedurally minded race. As governmental powers continually grow more drastic, it is only by procedural fairness that they are rendered tolerable. In Shaughnessy V. United States (345 US 206.1953-Jackson J.), a judge of the United States Supreme Court has said: “Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. He went on to say that it might be preferable to live under Russian Law applied by common law procedures than under the common law enforced by Russian procedures. One of his colleagues said: `The history of liberty has largely been the history of the observance of procedural safeguards”. I hold that the rules of natural justice can be said to promote efficiency rather than impede it, provided that the courts do not let them run riot and keep them in touch with the standards which good administration demands.

LAWS  DELAY

11.                          Eversince William Shakespeare cited "law's delay" as a reason for preferring suicide to continuing life and then, in the nineteenth century William E. Gladstone said that "Justice delayed is justice denied", so much has been said about court delays that makes volumes. However much of this was about the delay in the lower dispensaries of justice and either nothing or very little was said about pendency of thousands of the cases in the superiors courts for disposal. I remember that as a Civil Judge, I was required to report one year old cases to the High Court and heavens would fall if we allowed a case to remain pending for more than two years. I believe the same judicial culture is even now obtaining in the subordinate courts.

12. Very little and that too seldom, has been said about the large number of cases pending in the High Courts and the Supreme Court. If the statistics are anything to go by, as many as 11965 petitions and 5405 appeals were pending in the Supreme Court on 31-12-2002. The total number of cases of all categories in the High Courts of Lahore, Karachi, Peshawar and Quetta was 65685, 87511, 10879 and 3079 respectively on that date. I may say this was inspite of the fact that thousands with meagre resources are unable to have re-recourse to superior courts with their grievances and they sit back home to suffer in total frustration.

FINAL DISPOSAL OF A CASE

13.                   I believe the final disposal of a case means disposal at the highest level. Strange enough, I see people crying themselves hoarse about the delay caused in the subordinate courts, but nothing is being, or seems have ever been said about cases lying for years in the cold storage of the superior courts. Hardly any serious attempt seems to have ever been made either for improvement of the system or augmentation of the superior courts, that has brought about a paradoxical situation. Even in the ongoing reform process, we hear very little about this important aspect of the matter. They are apparently concerned about delay in the subordinate courts and they speak of pilot courts, case flow management, time and stress management in the district courts and they have held delay reduction workshops. They are suggesting judicial leadership, docket control, passion for work, all about the subordinate courts, but nothing worthwhile is being said about the conditions obtaining at the higher level. I am trying to highlight that “Access to Justice Programme” is not going to yield any result, unless it addresses itself to this most important aspect of the matter. What after all will be the advantage of quicker dispatch of judicial business in the subordinate courts if the cases have to remain stuck up for years in superior courts. There can be no relief to the litigant public unless the case is finally decided. I go with the firm belief that this problem will have to be upgraded in the priority list for a sustainable solution.

PUBLIC CRITICISM

14.                   This is a period of intense critical scrutiny of the judiciary. The criticism targets mostly the performance of judicial system as a whole and on a perceived failure of the judiciary to reflect the society over which it is seen to preside. I feel there is nothing unusual about this scrutiny and it rather provides us with an important means to demonstrate its competence, while preserving the integrity of its independence. I am in no doubt that there is need for the judiciary to find out and formalize the means to enhance its performance in the light of this public criticism and to demonstrate its concern for public perception of judicial weaknesses.

 CONTINUING JUDICIAL EDUCATION

15.                   It is the judiciary’s willingness to rise to the challenge of this criticism, which establishes the relevance of continuing judicial education, for acquisition of skills that match the expectations and demands of the Bar and the litigant public. For appreciation of the role of this education in improving the quality of justice, it is necessary to recognize the overarching importance of the process of professionalization and the significance of the pursuit of competence. To underscore its importance, I would say that continuing judicial education provides a formalized process, to promote the continuing learning of judges, meant to improve judicial performance and thereby the quality of justice.

ACCOUNTABILITY

16.                   I may say that introduction of judicial education should be seen in the context of the need to demonstrate judicial accountability. I am conscious of the fact that accountability is a complex issue for the judiciary. This is so because the question is not whether it should be amenable to accountability, but how it can be ensured without any inroad into its independence. But I am of the considered view that the judiciary’s exposure to accountability is not necessarily militant against the notion of its independence: Considered in the light of Quranic philosophy that judicial power is a sacred trust and that a judge should conduct himself honestly, proficiently and to the best of his knowledge and capabilities, keeping always in mind that he is accountible to God, the concept of judicial accountability no longer remains inconsistent with that of judicial independence. This rule of judicial power being a sacred trust incidentally makes the judge accountible to the community and thus rather ensures his complete independence in every respect. This approach brings us to the recognition that judges should participate in continuing education because this, interalia, is an appropriate means to increase accountability which, in turn, consolidates judicial independence in a democratic society.

RULE OF LOCUS STANDI

17.                   The ordinary rule of jurisprudence is that an action can be brought only by a person to whom an injury is caused. I am of the view that we must depart from this view in appropriate cases because of extreme poverty, ignorance, illiteracy and absence of awareness of rights by millions of people who are constantly clamouring for justice and vindication of their rights. I may make a reference to a decision of the Supreme Court of India where in the “Judges Appointment and Transfer case” it was held that we are in need of departure from the ordinary rule of Anglo Saxon jurisprudence that only an aggrieved person can have recourse to court of law, having regard to massive poverty and ignorance of the people. It was observed where legal injury is caused to the person or class of persons who by reason of poverty or disability or socially and economically disadvantaged position cannot approach the courts for judicial redress, any member of the public or NGO may maintain an application in the court seeking judicial redress for the legal injury caused to such other person or class of persons. This widening of the rule of locus standi has introduced a new dimension to the judicial process and has opened a new avenue for public interest and social action litigation, for vindication of the rights of poor and deprived sections of the society. Although public interest litigation may have its drawbacks, it is neutralized by the fact that it gives relief to the poor and ensures the perseverance of their dignity. We must encourage it, to provide the poor and down trodden an easy access to justice.

CITIZEN-COURT LIAISON PLAN

18.                   There is no gainsaying the fact that one of the major obstacles in access to justice is lack of knowledge and information in vast majority of the population in our country, particularly those who have rural background and belong to far flung areas. They do not know even the location of the courts and how to manage the assistance of a counsel. We are obviously in dire need of working out a strategy for the preparation of a comprehensive citizen Court Liaison Plan. I strongly recommend the creation of Citizen-Court Liaison Committees at each district headquarter in the country as a means of establishing an institutionalized interface between citizens and the formal judicial system. An institutional mechanism is required to be designed to facilitate the public in accessing the judicial system in a friendly and service-oriented environment. The interaction in contemplation between the citizens and the judicial system is a logical extension of the current reforms initiatives.

19.                   It will be in place to point out an important circumstance. It is that at least in some of the cases, learned advocates know that they do not have a case. They also know that the judge knows that they know that there is nothing to prosecute or defend. In such cases, I may suggest that they must try to curtail the duration of their arguments to save not only their own valuable time, but also that of the courts to enable them to deal with other cases. I say it with full responsibility that this will facilitate the access of large number of people to justice. I must say I am conscious of the fact that the advocates do have their limitations and compulsions and that they should be accommodated to the extent of those compulsions. Even then it is in the interest of fair and speedy disposal of cases that sincere efforts should be made to save time of the court as far as possible.

LEGAL AND MORAL EDUCATION

20.                   The object of improvement in the quality of judicial work cannot adequately be achieved without raising the standard of legal assistance rendered to the lower dispensaries of justice at the district level.  It is my considered opinion, on the basis of what I learn from the quality of judicial work or out put at the lower rung of the ladder that the legal assistance rendered by the Bar is in need of lot of improvement, particularly in procedural laws and pleadings. It may be asserted that legal education is not producing lawyers, judges, legal scholars and law officers, equipped with necessary knowledge and skills to meet the legal, economic, social and cultural challenges of poverty, civil conflict, social stratification and the abuse of rights we are facing. We must improve the standard of legal education to provide relief to the common man.

21.                   I also assert that a separate subject of legal ethics and moral education should be introduced in the law colleges and it should be made a part of the syllabus. I quote Imam Ghazali who maintained that “education must not only seek to fill the young minds with knowledge, but must at the same time stimulate moral character and make it alive to the properties of social life”.  Though said in the 11^th Century, it still holds the ground and has not become a cliché.

THE QUESTION OF ACCESS

22.                   Measures to improve the quality of justice apart, the problem within, is the inability of the poor to have Access to Justice for want of necessary means. I have mentioned it before in this paper that right of access to justice is the basic human right and that it embraces all other rights such as social, legal, religious and political rights, not only guaranteed by all the Constitutions of the world, but also covered by the United Nations charter of human rights.

ALLEVIATION OF POVERTY

23.                   It is universally recognized that it is the foremost duty of the State to create a society free from human sufferings and depriviation and ensure the dignity of its citizens by providing safeguards, security and basic necessities of life, particularly in the developing countries, where poverty is widespread. In Pakistan, one third of the population lives below the poverty line and we are making efforts for alleviation of poverty for social development. The Bar and the Bench can also play a vital role in the elimination of injustice, poverty and the safeguarding of human dignity. Access to Justice can be possible only if we improve the quality of life with purpose oriented reforms in the economic field. It is gratifying that the superior courts have always been vigilant to protect human rights. The subordinate judiciary in Pakistan has also played an effective role in safeguarding the legal rights of the people.

MASS AWARENESS

24.                                Since the literacy rate is rather low and the people are not aware of their rights and obligations, we are in need of mass awareness of human rights. In pursuit of this objective the Government of Pakistan has lodged a country wide project of human rights, mass awareness in education through the Ministry of Law, Justice and Human Rights. The purpose of this Project is to spread awareness regarding Human Rights and its focus is on Mass Awareness through Media, Legal Education and Curriculum Development. I maintain that spread of education and awareness of rights can play a very important role in facilitating the access of poor masses to justice. The new millennium is the millennium of Human Rights, in which the civilization of the individual as well as that of the nation would be judged on the touchstone of human rights to eradicate social and economic injustice.

ALTERNATIVE DISPUTE RESOLUTION

25.       Last but by no means the least is role of Alternative Dispute Resolution in facilitating access to justice. It may be said that it deserves a separate treatment because of its significance and importance in the speedy dispatch of judicial work. I am afraid I will not be able to do justice to the topic in this paper. It must, however, be said that A.D.R techniques should be freely applied to expedite the disposal of cases, particularly in the subordinate judiciaries of Punjab and Sindh where the pendency of cases is enormous.

26.                          The provisions of Family Courts Act and the Shari-Nizam-e-Adal apart, optimum use of the A.D.R methods has been further encouraged by the insertion of section 89-A and Rule 1-A of Order X in the Code of Civil Procedure. Section 89-A lays down that the court may, where it considers 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 alternative dispute resolution methods, including mediation and conciliation. Rule 1-A of Order X provides that “the court may adopt any lawful procedure not in-consistent with the provisions of this code to: (a) conduct preliminary proceedings and issue order for expediting processing of the case; (b) issue, with the consent of parties, commission to examine witnesses, admit documents and take other steps for the purpose of trial; (c) adopt, with the consent of parties, any method of alternative dispute resolution including mediation, conciliation or any such other means”.

27.                                      It must be emphasized that heavy pendency of cases at all levels is a big challenge and we can come up to it only if we take the bull by the horns. We have to devise and launch a comprehensive work plan, with clear definition of our objectives and the strategies to be employed for their achievement. It should be intensive in range and ambitious in scope, putting in place the whole series of new measures for the management and clearance of the backlog.

CONCLUSION

28.                   In the context of this discussion, I have to say that my paper has a simple brief. It is to bring home the message, with all sincerity, that we need to create a landscape and an environment, viable for a regimented system of alternative dispute resolution to serve as easy access to justice, that is not only done but is also seen to have been done. It amounts to the establishment of a social order which ensures the willingness of parties involved in a dispute to accept a particular mode of dispute resolution. I must say that the achievement of this goal can be possible only with the positive participation and involvement of not only the members of legal and judicial fraternities, but also that of the government. I would, therefore, say that the submissions made in this paper may be taken by the hon’ble members of the bar and the bureaucratic set up under the government as an appeal to get together and join hands for the creation of such a landscape, where the poor and down-trodden of our country will feel that after all they too have got a place to go to for the redress of their grievances. 

Bibliography:

 1.  Administrative Law – H.W.R. Wade Sixth Edition

2.  Educating Judges – Livingston Armytage.

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ISLAMIC CONCEPT OF THE ADMINISTRATION OF CRIMINAL JUSTICE

Mr. Justice Gul Muhammad

Islam is a complete code of life and it guides its believers in every temporal and spiritual matter. The concept of justice in Islam is all pervading and has to be manifested in every sphere of human life. Like other fields of life, Islam has stressed on justice in criminal field and has laid down clear injunctions for maintaining criminal justice. The Holy Quran says, "O ye who believe! stand out firmly for justice as witnesses even against yourselves or your parents or you kin, and whether it be against rich or poor for Allah can best protect both." (4:135)

 According to the jurists the criminal law of Islam revolves around five fundamental points. These are (i) Protection of religion, (ii) Protection of the sanctity of family (iii) Protection of life, (iv) Protection of property and (v) protection of sense. (Al-Ghazali; Abu Hamid, Muhammad Ibn Muhammad, Al-Mustafa, Volume-II, page 66)

 The Holy Quran has laid down some principles for the criminal justice. Some of these are as under:-

i)                              Equality of human beings. (49:51)

ii)                             One is innocent unless proved guilty.

iii)                            No offence without intention. (33:51)

iv)                           Concealment of testimony is grave sin. (2:284)

v)                            No crime under compulsion. (16:106)

vi)                           No one can be held responsible for the acts of others. (35:18)

vii)                          Punishment in proportion to the crime. (491:17)

viii)                         Evidence must be conclusive and based on justice (28:20)

The Holy Prophet (PBUH) has established many principles for criminal justice. Some of the relevant ahadith are as under:-

  a)             The Prophet said, "Burder of proof lies on the complainant and the accused has to take oath."

  b)            The Prophet, while sending Hazrat Ali to Yamen as qazi, said to him, "don't decide on the statement of one party until you hear the other party as you have heard the first party."       

   c)          The Prophet had ordered that the case must be decided in the presence of both the parties.

   d)            The Prophet said, "the judge must maintain equality between the parties in sitting, talking and attention." (Jamiul Usul, Ibn Asir, Volume-III, pages 116-118).

Hazrat Umar in a letter to Abu Musa Ashary, writes about Islamic criminal justice, "After the praise to Allah the administration of justice is a definite religious duty and a generally followed practice. Understand the depositions that are made before you, for it is useless to consider a plea that is not valid. Consider all the people equal before you in you court and in your attention, so that the stronger will not expect you to be partial and weaker will not despair of justice from you. The burden of proof is on the claimant and the defendant may be put on oath. All Muslims are acceptable as witnesses against each other except those who have been punished with Hadd-e-Qazf (accusation of adultery) and those who have tendered false evidence and those who are suspected (of partiality) on (the ground of) accuser's status or relationship." (Al-Wakia, Akbar Al-Quzzat, Volume-1, page 70).

Hazrat Ali also in a letter to Ashtar Nakhi, writes about criminal justice "so far as dispensing of justice is concerned you have to be very careful in selecting officers for the same. You must select people of excellent character, superior calibre and meritorious record. They must possess following qualifications. Abundance of litigations and complexity of cases should not make them lose their temper. When they realize that they have committed a mistake in judgment they should not persist in it and should not try to justify it. They must exhibit patience and perseverance in scanning the details, in testing the points presented as true and in sifting facts from fiction. They should not develop vanity and conceit when compliments and praises are showed upon them. And they should not be misled by flattery and cajolery". (Abdul Hameed, Sherh Nahj Al-Badaghah, Volume IV, page 130)

  The instructions of Qazi Aby Yusuf to the judges regarding criminal justice are worth mentioning which are as under:-

"You should not accept the complaint alone as proof of the man against another in murder, theft act. He should not be punished for a hadd crime save according to clear and certain evidence or a confession free from coercion. It is impermissible to imprison a man merely as a result of another man's accusation against him. The Prophet did not question the people with accusation. But the proper manner is that you must call both the accuser and the accused together. If he (accuser) produces positive evidence in support of his allegations, the judge will rule for him; otherwise, he will set the defendant free... The friends of the Prophet were so cautious about imposing punishments, for fear they might harm the innocent that they preferred to avoid the penalties... They would say to an accused thief "Did you steal? Say "no". (Abu Yusuf, Kitab al-Kharaj, Page 190)

PERSONAL SECURITY

One of the basic principles of the criminal justice in Islam is personal security. It means that the actor himself is the only person who can be accused of a particular crime and no one else, and no one shall escape responsibility irrespective of blood ties or friendship to the victim or to the judge or ruler. A person who has taken part in a prohibited act whether he is the principle or an accomplice must be incriminated according to the rules of accountability.

The Quran says,

i)              And that man has only that for which he make efforts. (53:39)

ii)             Whose doth right, it is for His should and whoso doth wrong, it is against him. (41:46)

iii)            Each should earns on its own account. (6:165)

iv)           No one will bear the burden of others. (35:18)

v)            He who doth wrong will have the recompense thereof. (4:123)

 The Prophet (PBUH) said, " A soul is not held responsible for acts committed by his father or by his brother." (Al-Baihaqi, Volume IX, page 138)

LEGALITY

Another principle in this regard is legality of crimes and punishments which means that no person can be accused of a crime or suffer punishments except as specified by law. The Quran says:-

a)             We never punish until we send a messenger. (47:15)

b)            And never did thy Lord destroy the towns until he had raised up in their mother town a messenger reciting unto them. (38:59)

c)             Every nation had its messenger raised up to warm them. (35:25)

 Under the principle of legality applied in Islamic Law a set of penalties should be assigned to all crimes, for which the judge can select the proper penalty according to the circumstances of each case, the background and personality of the accused and his inclination towards criminal conduct. The purposes of penalty in Islamic Law are to deter criminal conduct and to reform and rehabilitate the offender. The penalty should not cause unnecessary harm to the culprit. The penalty should be proportionate to the crime. The Prophet said, "He who imposes a hadd penalty to a non-hadd crime is considered among the oppressors." (Ibn Taimiyyah, Al-Siya sah al-Shariyyah, page 134)     

PRESUMPTION OF INNOCENCE:-

An important aspect of criminal justice in Islam is that every one including an accused person is innocent unless proves guilty. The Prophet said, "Every infant is born on pure nature of Islam, it is his parents who subsequently convert him to a Jew, a Christian or a magus." The Prophet (PBUH) said, "prevent punishment in case of doubt." (Ibn Qudamah, Al-Mughni, Volume X, page 210). Since everyone is inherently innocent, only clear, conclusive and convincing evidence cab over-come this presumption.

FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE

 An right to privacy is an inherent right of everyone, Islamic Law restrains those who may violate this right and search the dwelling of the suspected persons without sound ground. The Quran says:

"O ye believe! Enter not houses other than you own without first announcing your presence and invoking peace upon the people therein. That is better for you, that you may be heedful... and if you find no one therein, still enter not until permission hath been given, and if it be said unto you: Go away, for it is purer for you. Allah Knoweth what you do. (24,27,28)

Thus according to this text, entry into the dwelling is prohibited unless by consent of the owner. This prohibition is not limited to placed actually occupied by the owner; it applies also the owner's property during his absence. This is explicit in the verse cited above which precludes entry without "permission" and requires consent. The Sunnah also is in accord, as is evident from the Prophet's saying:-

"No man who leads a group in prayer should invoke blessing solely upon himself, for if he does, he will have betrayed them. A man should not look inside a house unless he is relieved." (Al-Munziri, Al-Targhip, page 347)

This right also extends to one's clothing in that no one has the right to inspect the clothing of another person to determine what may be concealed therein, without reason and without permission. The inviolability of the dwelling is linked with the inviolability of the person, for the latter derives from the former as a manifestation of individual freedom. It is meaningless to protect the house without protecting the owner as well.

A person's correspondence is also available. It is thus unlawful to read another's private communications after a clandestine seizure. The Prophet (PBUH) says: "He who reads a letter of his brother without his permission, will read it in hell." The protection against infringing the confidentiality of letters as constituting violation of the right of privacy extends to intellectual liberties, particularly the freedoms of opinion and expression, as established under Islamic Law.

The inviolability of the dwelling is not based on a purely religious foundation; it is also partly inspired by the social policy of protecting individual security and freedom in a manner which does not interfere with the right and duty of the state to take necessary action to investigate crime. Thus, under Islamic Law the inviolability of the dwelling is not absolute but is subject to certain exceptions necessitated to maintain social order and safety. State authorities may enter the dwelling to conduct reasonable searches, and they may search the individual if such activity is reasonably related to the public interest. But the state's right is governed by conditions and guarantees aimed at preventing arbitrary and intimidating searches. (The Islamic criminal justice system by Bassiouni, pages 68,69)

The search is restricted by the rule that the warrant should not issue unless sufficient evidence of the crime is obtained, that is, unless there is probable cause that a crime was committed by the accused. Thus, for example, when a trustworthy man informs the authorities that another has tried to kill him, or if he sees a man take a woman aside to commit adultery with her, probable cause exists. The warrant also may issue when the offense becomes perceivable though not seen, as for example, when the smell of alcohol and noise of intoxicated persons emanates from inside a house.

                Finally there must be lawful discovery of sufficiently incriminating proof or existence of the offence. If the discovery is a result of spying, the evidence gained thereby cannot be used for incriminating purposes. God says: and spy not"(49:100). This is because dwellings and individuals are immune from infringement unless the offence is apparent, and they should not be violated or encroached. The Sunnah is also explicit on this issue.

                Islam from its very beginning has observed this rule as illustrated by the following incident. Hazrat Umar once found a group of men drinking wine and burning shacks. He said, "I have prevented you from drinking, but you have drunk. I have prohibited the burning of shacks, but you did." They said, "Leader of the faithful, God ordered you not to spy, but you spied. He ordered you not to enter without permission, but you did. "The Umar said, "These two of those two" and left without questioning them. Abdur Rehman Ibn Auf related another incident:                                  

"Once at night I accompanied Umar on one of his wanderings at Medina. As we traveled we saw the light of a lamp. We went toward it. When we approached it, we found a locked door concealing some people noisily reveling. Umar took my hand and said, "Do you know whose home this is? I said I did not. He said "It is the home of Rabiaa Ibn Umayyag Ibn Khalaf. They are drinking. What is to be done? I said, "I see that we did what God prohibited. God forbids us to spy. "Umar returned and disregarded them. (Tarikh Ibn Hashim, paged 282-286)

GUARANTEES OF THE ACCUSED DURING INTERROGATION

Interrogation under Islamic Law differs from simple questioning. Besides charging the suspect with a crime, interrogation requires confronting him with the established evidence against him, and discussing that evidence so that he may either refute it or confess because of it. Interrogation is thus as instrument of the investigator to find truth either through confession or denial by the accused. The evidence which is secured through interrogation is oral, whereas a search leads to tangible evidence which can be physically examined.                            

                The first guarantee during interrogation pertains to the persons responsible for conducting the interrogation. It is established that questioning of the accused should be conducted only by a designated officer. In the early days of Islam, crimes were frequently solved through the securing of confessions by the religious zeal of the believers but later it was fear of the ruler which aided in the administration of justice. Then the institution of Muhtasib developed with the defined tasks of receiving reports and investigating crimes, where upon the matter went to the Nazir-e-Mazalim who referred to it the judge to adjudicate to the facts, render his sentence or dispose of the cases by reconciling the parties to the dispute, providing that they agreed to be bound by the decision. The Muhtasib, on the other hand, besides his limited investigatory authority was charged with the prosecution of cases before the judge if the complaining parties failed to do so.

                The accused is also guaranteed in Hudood and Qisas crimes from having to take an oath or substituting for the oath by putting up money or other property as a guarantee. In these criminal accusations the investigating authority is not allowed to require an oath from the accused.

                A very crucial right of the accused in the investigation of Hudood crimes is the right to refuse questioning and the right to remain silent. An accused who exercises this right is guaranteed that his silence will not be used as incrimination evidence against him. Hudood crimes can be proved only by means of an avowal or other positive evidence and never by means of the accused's silence. Refusal to answer questions is, therefore, in admissible in evidence to convict the accused. If he is asked to make a statement or give an oath, his refusal to do so will be considered an unreliable confession, for it is no more than silence, an to the silent to statement can be ascribed, even if it would be considered as giving rise to an inference, it would be equivalent to a naked admission which in Islamic Law is deemed doubtful, and in Hudood crimes on one can be convicted on the basis of doubtful evidence.  (Al-Marghinani, Hidaya, pages 312,313)

                Islamic Law expressly prohibits torture, beating, another cruel and inhumane treatment. The Prophet (PBUH) forbade torture saying; "God shall torture on the Day of Recompense those who inflict torture on people in life. The Prophet (PBUH) also forbade the striking of Muslims. (Abu Ubaid, Kitabul Amwal, page 188). Additionally Hazrat Umar addressed his governors as follows: "Hit not the Muslims lest they be humiliated. Deny not their rights, lest they become faithless, and place them not in the jungle lest they be lost." (Ibn Hajar Asqalani, Fathul Bari Volume XII pages 172-173).      

                It has been related that Audi Ibn Arrtaa, one of Umar Ibn Abdul Aziz's deputies, sent a letter to Umar asking permission to inflict some torture on those who refused to pay duty to the public treasury. Umar sent a letter forbidding and condemning such measure, saying:

"I wonder at your asking permission from me to torture people as though I am a shelter for you from God's wrath, and as if my satisfaction will save you from God's anger. Upon receiving this letter of mine accept what is given to you or let him give an oath. By God, it is better that they should face God with their offenses than I should have to meet God for torturing them. (Abdu Yusuf, Kitabul Kharaj, page 115)

                The Prophet (PBUH) set forth a factual example for creating the accused fairly and humanely and thereby enabling him to speak freely and encouraging him lest he give a false and misleading confession. A man accused of theft was brought before the Prophet. He addressed the accused gently saying, "I do not think you stole. Did you. "(Abu Yusuf, Kitabul Kharaj, page 176)

                Islamic Criminal Justice system guarantees that the accused shall not be coerced into incriminating himself. Any confession by the accused given as a result of coercion, torture or unlawful detention cannot be used to sustain a conviction. A confession must be free and of voluntary conduct and it is nullified by interference with the will of the accused. Hazrat Umar said, " A man would not be secure from incriminating himself if you made him hungry, frightened him or confined him.

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THE ROLE OF CRIME INVESTIGATION IN SECURING EFFECTIVE,

EFFICIENT AND FAIR ADMINISTRATION OF CRIMINAL JUSTICE

Chaudhry Hasan Nawaz

                The address of this paper is to the current problems in securing effective, efficient and fair administration of criminal justice; which, amongst other things, is in direct acknowledgement of the consideration that the solution of those problems is necessary to bring about such healthy social conditions, as would be conducive to the achievement of multi directional progress, relevant for the spiritual elevation of man-kind. We must contrive a system of criminal administration of justice, as would ensure a speedy relief from such cases to people, so that they may be able to play their roles in other constructive fields as healthy members of the society. I regard it a matter of great significance and importance that those involved in such cases as parties should be saved from wasting their time and energy in their conduct and be able to prove their worth in their avocations, which will be productive of positive, useful and visible results.

2.             This is also in acknowledgement of the fact that the nature of crime in many parts of the Asian region has undergone a radical change on account of socio-economic development, especially in the wake of rapid industrialization and consequential urbanization, such has been exerting a greater strain on our system of the criminal justice. The crime situation is deteriorating both in terms of quantum and the forms and dimensions in which it is manifesting. Without derogating any thing from the importance of other measures to improve the situation, it must be admitted that improvement in the quality of services for the administration of criminal justice will play a vital role in ameliorating the situation.

3.             Administration of criminal justice involves three stages which are investigation, prosecution and judgment. I have had the advantage of presiding over subordinate criminal courts as a Magistrate and then appellate criminal courts as a Sessions Judge for a number of years. My experience is that the basic malady giving rise to all kinds of problems including growth in the commission of crime, emanates from delay in the disposal of criminal cases. Therefore, we must strive for ensuring such measures as would result in speedy dispensation of criminal Justice. This can be possible only if substantial improvements are made in the methods of investigation and trial.

4.             Investigation in my country belongs exclusively to the police department which was set up long before independence by the then rulers of the country mainly for executive administration, with a special emphasis on law and order situation. In addition, their main duty is to prevent the commission of offences, which we call under the Code of our Criminal Procedure as the preventive police jurisdiction. In exercise of this jurisdiction, the police department are mainly responsible to prevent the commission of crime by having recourse to detention and such other measures. Even a perfunctory application to the relevant provisions of the Code would justify a surmise that wide powers have been given to the police department for putting the preventive measures into effect.

5.             This apart, the police department assists the Magistrates in exercise of their magisterial preventive jurisdiction under the Code. In their capacity as executive Magistrates they deal with the security cases, unlawful assemblies, public nuisances and disputes with regard to immovable property. It is through the police agency that they exercise their executive powers including maintenance of law and order within the local limits of their jurisdiction. In addition, it is also the business of the police agency to serve processes on the witnesses issued by the courts in criminal cases. Execution of warrants of search and arrest is also one of their duties.

6.             This is not all. In addition to their multifarious duties emanating from the Code, those responsible for investigation of cases, are frequently called upon to perform functions in connection with the offences under numerous local laws. We have a Penal Code, but there are various other enactments, under which certain omissions and commissions have been declared by the legislature as offences. No separate machinery having been devised for those offences, the police department have been entrusted with the task of dealing with them, which occupies much of their time.

7.             The same department is responsible for investigation under different provisions of the Code of Criminal Procedure after the commission of offences; whence it necessarily follows that amongst other more important responsibilities, they just happen to be the investigators. Therefore, I would venture to record the undesirable accumulation of responsibilities requiring different qualities, methods and approach, in one person as our main and basic problem. Evidently, I do not consider it necessary to emphasis that performance of these different functions requires absolutely different qualities and mental aptitudes; to say nothing of the fact that engagement of police officers with law and order situation and the exercise of preventive jurisdiction, leaves very little time for devotion to the investigation of cases, vast majority of police stations are under staffed and the occupation of police officers in connection with law and order situation and various other connected duties adversely affects the investigation of crime business, which directly results in mal-functioning of the agency, entrusted with the most important business of tracing and apprehending an accused and then collecting satisfactory evidence in support of his guilt before the case is taken to a dispenser of justice.

8.             Investigation is an art which requires the employment of a highly trained and educated agency, such as should have the element of in-tuition or felicity of inspiration in the choice of methods to be applied to the treatment of a case. If it be regarded even though by fiction, a complete science with general principals and special theorems, the investigator will have to operate in harmony with certain rules for the solution of a case. It is necessary for the success of an investigation that the police officer engaged in this business should be well versed in this art, which can hardly be possible if he is called upon to perform other duties like maintenance of law and order and the prevention of crime.

9.             The main function of a criminal investigator is the collection of facts to accomplish a three fold aim:

namely to identify and locate the guilty party and to provide evidence of his guilt. The methods he ordinarily presses into service to achieve this end are information, interrogation and instrumentation, for which a great deal of perseverance is required. In addition, he must have a certain native ability, an intelligence which enables him to acquire information easily and rapidly and which also makes him capable to use it to his advantage.

                He should have the capacity to think through situations which is all the more necessary in view of the ingenuity of a present day offender.

10.           The factor of intelligence would embrace the willingness and desire to continue to learn and be susceptible to experience. He should be alive to new ideas, techniques and suggestions which will put him on the path of discovery and revelation. He must be watchful to avoid low spirits crated by mental passiveness. He may not accept every new thing or idea, but it is essential that he gives the new concept at least recognition, thought and trial before rejection, which must be based on factual grounds and not emotional.

11.           Another important quality of an investigator is honesty in the sense of personal integrity and incorruptibility. He is subjected to all kinds of temptations: physical, emotional and natural. In the present day social atmosphere, where he is called upon to perform his duties as an investigator, he can have many temptations for personal gains, which he is in a position to accomplish, on the strength of his position, by merely failing to do a particular thing, which is to say the least. Personal integrity includes a multitude of factors involved in individual character and a primary factor of this integrity is a sincere desire to arrive at a conclusion based upon facts.

12.           An understanding of the people and the environments in which they live is an additional qualification for an investigator to achieve a measure of success. He must know what prompts people to act as they do in a particular way in various situations. He must know their weaknesses and strength to be able to use them to his advantage, particularly during interrogations. A knowledge of psychology of human behavior is essential with appropriate knowledge of the society they form. He should be aware of the factors within the social pattern which contribute to the kinds of behavior exhibited by the individual.

13.           In a system such as ours, where a investigator is charged with multifarious duties of different natures, it is extremely difficult to make him the repository of aforesaid qualifications necessary for the success of an investigation. An investigator requires a propensity of mind, which is impossible to achieve in the case of a police officer who is called upon to perform duties in connection with the maintenance of law and order and prevention of crime. It exposes him to weaknesses which are fatal for effective and successful practice of the art of investigation. Therefore, in so far as we are concerned, the system of investigation requires a total reformation for a substantial contribution towards the administration of criminal justice.

14.           We require a segregation of the investigating agency from all other agencies connected with various other tasks; which we can accomplish by ensuring different methods of recruitment and by providing the members of this agency with training facilities in recognized and efficient institutions. We must also see that the members of investigating agency are well paid, so that the possibilities of temptation to monetary gains may be possibly minimized. It is also necessary to ensure for them a proper place in our social structure, so that they sheer themselves off the complex of inferiority, which is frequently the main cause of in competency, lack of integrity, obtuseness and mal-practices.

15.           This was the problem within the investigating agency; but there are other numerous problems, which are without. The emanate from those whom the investigator is called upon to deal with during the performance of his functions. The nature of these difficulties depends largely upon and is necessary wedded with the nature of different offences. It is not infrequent that the investigator would come across people who are interested in misleading him to wrong and perverse conclusions and for the achievement of this end, they do not hesitate to apply every available method, including offers of illegal gratification. Further, there are offences against human body as also property where attempts are made, some times successfully, to destroy all possible evidence leading towards the identification, discovery and arrest of the criminal. In such situations, the job of an investigator becomes all the more difficult and he cannot exonerate himself of his responsibilities without the employment of a special skill.

16.           Further, under the prevalent social conditions, it has become extremely difficult to collect evidence in support of the commission of a crime, as can stand the test of a trial. The problem is that nobody is prepared to offer himself as a witness, which is partly because of fear from the accused and partly because of either the system of trial or the typical conditions which prolong a litigation, thereby entailing a wastage of time, which a witness can ill afford under the present circumstances of all embracing socio-economic progress. Fear of the accused mostly comes from the valid apprehension that the case will fail and the culprit will go free to be able to deal with the witnesses. I realise that it is not possible for every case to succeed in a court of law because of various circumstances. Whatever be its reason, the acquittals nevertheless do have intimidating effect. Therefore, what we do require is some change in the system of administration of criminal justice, which will guarantee speedy and fair disposal of criminal cases. I am conscious of the fact that it may not be possible to achieve all the desired results, but what is important is to achieve as much as possible, and as far as I am concerned, even serious consideration and genuine efforts for amelioration will be quite enough under the circumstances, for this will establish not only an awareness of the worsening conditions, but also demonstrate the will to rise to the occasion and strive for improvements.

17.           There are certain other problems for an investigator in my country which are caused by certain provisions of the Evidence Act. Amongst other things it provides that statements made to a police officer during investigation are not admissible in evidence; unless they lead to a recovery. The result of this provision is that most of the investigators try to provide the cases with recoveries even where it is not possible. They procure false evidence by planting recoveries, thereby imparting a colour of falsehood to the entire case which may otherwise be sound.

18.           There are cases where direct evidence is not available and an investigator has to rely upon circumstantial evidence in support of the prosecution. Here he will be justified in insisting that the recoveries should be effected. As for instance, in case of culpable homicide he will have to rely upon circumstantial evidence like recovery of weapon used in the commission of the crime and other circumstantial evidence in corroboration. He has no other alternative, but be content on such evidence and then depend upon proper and successful presentation of the case before the court. But most of the investigators have a tendency for going in search of circumstantial evidence even in those cases where direct evidence is available. As a trial Judge, I have had the occasion to see that by procuring circumstantial evidence in such cases, where none in actual fact is available, they spoil the entire case; for I have no doubt in my mind that a case with direct evidence available will float on the surface or sink down to the bottom with the success and failure of the direct evidence, and the one available from circumstances would not make any different. This, of course can be avoided by modifications in the relevant rules governing the essentials of a successful investigation.

19.           In our legal system, the First Information Report plays a very important role in the outcome of a criminal case, not necessarily because of its evidentiary value, but because of the fact that it is the first version of how the crime was committed. It fixes a direction for the course of investigation. It is a very basic document, especially in cases of culpable homicide. It frequently happens that these reports are without the support of logic. Some of the reports are so unsound that they are themselves judgments of acquittal. Therefore, it requires a special skill in the investigator to be able to record a plausible report of the commission of crime.

20.           It seems rather odd that I should say so, because the First Information Report has to be a religious account of what is stated by the informant. But it must be admitted, though not without a feeling of contrition, that it is not possible in some cases. A closer and meticulous study of the local state of affairs, is quite essential in deciding how should the first report be recorded. It is extremely difficult to lose sight of the fact that those who in fact witness the commission of a crime, are usually unwilling to offer themselves as witnesses and the investigator cannot force them to testify at the trial, without inviting the risk of spoiling his case. What happens in some cases in that the genuine witnesses are interested in favour of the accused and the investigator has to rely upon the statements of others to bring home the guilt of an accused. I am afraid I should not be misunderstood and taken to advocate the propriety of padding and procuring of false evidence by the investigator. I have only pointed out an inevitable situation which requires thoughtful consideration. Whatever the merits of this assessment, it must be listed as one of the problems usually faced by the investigator.

21.           Then, in cases involving offences against human body, the usual tendency to rope in even the innocent persons, presents another serious problem, which requires vigilance and circumspection of fairly high degree on the part of an investigator. The First Information Report in such cases, is only a collection of gross falsehood. False evidence is then offered to support a false story. If accepted, the edifice of the prosecution case is built on flimsy and infirm evidence, and falls to the ground at the trial, thereby sometimes resulting in the acquittal of even those who were the real perpetrators of crime. It is, therefore, the foremost duty of the investigator to see that no innocent person is made to face the trials.

22.           There is always a motive in cases of culpable homicide amounting to murder, which is because it is always the result of a concerted attack. But sometimes it is difficult to discover that motive. In a situation like that, an inexperienced and untrained investigator often spoils the case by providing it with false motive. It should be left alone, for proof of motive is not always necessary for a conviction.

23.           In cases of culpable homicide not amounting to murder, an inefficient investigator sometimes provides them with motive, where non infact existed, in his eagerness to make it a case of deliberate murder, to procure capital punishment for the defendant. But by doing so, he makes his case inherent unsound so that it cannot stand the test of a trial. It must, therefore, be avoided in the interests of justice.

24.           Yet another problem for an investigator becomes available from the fact that after having traced and apprehended the accused and collected necessary evidence in support, he has got nothing to do with the prosecution of the case before the court; which job is entrusted in my country to the members of prosecution agency, which is quite apart from that charged with the responsibility of investigation. What frequently happens is that a prosecutor has got his own eccentricities for evaluating the evidence collected in support of a case. This apart he has his own way of presenting a case before the court, which also sometimes results in unsuccessful trial of the defendant. It can be avoided by devising a system of closer coordination between prosecutor and the investigation officer during the investigation of a case; which I am obliged to say because in view of the present system of trial in most of the Asian countries, it is not probably possible to do without the services of a skillful prosecutor.

25.           In the absence of a highly trained and competent investigation agency, the prosecutor should have unfettered powers to check the police file at any stage of the investigation and he too should make himself available for consultation to the investigator.

26.           It must be emphasized that a proper investigation is closely linked with the moral ethics of the people expected to be conscious of the civil rights and the rule of law. So long as this standard is not achieved, the ultimate burden shall remain with the judiciary to find out the truth from a heap of exaggerations.

27.           Finally, I would make the following proposals for consideration:

a)             We should have a agency exclusively concerned with the job of investigation. The investigating officers should not be called upon to perform other duties, which require a different mental aptitude and qualities.

b)            Efforts should be made to set up institutions for specialized training of investigating officers. We must procure persons of special skill and integrity to deal with the investigation.

c)             Their salaries should be such as would be sufficient to sustain the expenditure required for a comfortable and honourable life, keeping in view the present day inflation. It is of great importance to ensure that they are not exposed to temptation for personal monetary gains.

d)            They should be provided with reasonable accommodation for the members of their families.

28.           I will conclude by saying that I am indebted to the organizers of this seminar for managing my association with the subject of under discussion. They have created for me an opportunity to learn from the experiences of extent scholars and I am parting with the subject of discussion with a sense of gratitude.

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CHARGE  IN CRIMINAL CASES

Mr. Justice Nazir A. Bhatti

1.             Chapter XIX if the Code of Criminal Procedure contains provisions with regard to the charge in criminal cases. Sections 221 to 240 specify different provisions regarding charge. The subject of charge in criminal cases is of utmost importance as the entire efifice of a criminal case is built upon the framing of a correct charge.

2.             The accused should be informed with certainty and accuracy the exact nature of the charge brought against him. Otherwise, he may be seriously prejudiced in his defense. The charge should give a description of the offence. Where the law and the section of law are mentioned in the charge the omission of details is not so material as to prejudice the accused. Where there are patent inconsistencies between the charge as framed and the charge as put to the accused, the charge would be considered to be defective and the case may be remanded to the trial court for fresh decision. An accused is entitled to know with certainty and accuracy the exact value of the charge brought against him, and unless he has this knowledge he must be seriously prejudiced in his defense. This is true in all cases, but it is more especially true in case where it is sought to implicate him or acts not committed by himself, but by  others with whom he was in company. A charge should be so framed as to refer to the section of the Penal Code under which the offence charged is punishable.

3.             Where time cannot be specified in the charge having regard to the nature of the information available to the persecution, failure to mention such particulars may not invalidate the charge. Where the accused was charged with black-marketing in foreign currency but the charge did not state the exact amount of any money involved, it was held that under the circumstances it was not feasible or necessary for the prosecution to give the dates and the charge was not bad. A charge should be framed separately for each offence even if more than one offence are tried at one trial.  

4.             In determining whether any error, omission or irregularity has occasioned a failure of justice, the Court should have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings and to the manner in which the accused person has conducted his defense.

5.             A charge can be amended or altered or added to at any time before judgment is pronounced. Where originally different charges were laid against two accused in a case and subsequently the charges were amended so that the two accused were charged with the same offence, it was held that the two accused could be said to be tried for the same offence within section 30 of the Evidence Act and that, under that section, the confession one of the co-accused could be taken into considering against the other. Where it is doubtful whether or not proceeding immediately with the trial will prejudice the accused, the Court must lean in favour of holding that such procedure will prejudice the accused. Where the Magistrate's order shows that the previous charges were cancelled and the prosecution witnesses were summoned a new, a new trial is directed in terms of section 229.

6.             When two offences have been committed and each of these two offences has no connection with each other they are distinct offences. Where the accused is alleged to have committed three if not four dacoities in the course of the same night and the charge against them was to the effect that they on or about the said night committed dacoity at a certain place and thereby committed an offence punishable under section 395,P.P.C., it was held that the conviction was unsustainable, as the charge ought to have specified each alleged dacoity separately and the omission cannot be said to be a mere irregularity, even if the dacoities were also connected together as to form part of the same transaction. Accused cannot be charged at one time with more than three dacoities in all and the dacoities must be particularly specified.

7.             There is nothing in the Code which directs that where an accused person is alleged to have done two or more acts, each of which may fall within the definition of an offence under one or another section of the Pakistan Penal Code, the section or sections in either case being the same, the joinder of the charges under those sections is illegal. Substantially the acts amount in such a case to offences punishable under the same sections of the Pakistan Penal Code and therefore they are offences of the same kind.

8.             Joint trial of different offences (under different enactments) does not vitiate proceedings in the absence of prejudice to the accused.

9.             The burden of proof is on the prosecution to show that the case falls within the exceptions to the general rule.

10.           When two or more offences when combined form a different offence, the accused may be tried jointly for the separate offences as well as for the offence which those acts constitute when combined. It must however be noted that where several acts of which one or more than one would, by itself or themselves constitute an offence, although when combined they may constitute a different offence, there can be a trial for each of such offences.

11.           Where a charge is framed only for one offence but the offence committed is found to be some other than the one charged, provided, the same facts can sustain a charge for the latter offence, the accused can be convicted for such an offence. Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal.

12.                 Section 237 and 238, Cr.P.C. are two exceptions to the general rule that a person cannot be convicted of an offence of which he was not charged, and of which consequently he had no notice.

13.           Section 237, Cr.P.C. enables the Court to convict a person of an offence which is disclosed in the evidence and for which he might have been charged.

14.           The accused charged with a major offence may be convicted of a minor offence when the graver charge gives to the accused notice of all circumstances which constitute the minor offence but when the circumstances embodying the major charge do not necessarily, and according to the definition of the offence, constituted the minor offence also, the principle no longer applies. The notice of the graver charge does not in such cases necessarily involve notice of all that constitute the latter offence.

15.           A person can be charged for offences of the same nature not exceeding three within a year even if they were committed against several persons.

16.           The following persons may be charged and tried together namely:-

a)             persons accused of the same offence committed in the course of the same transaction;

b)            persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;

c)             persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months;

d)            persons accused of different offences committed in the course of the same transaction;

e)                                                                   persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, properly possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;

f)             persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and

g)            persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused if any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence.                                

17.           A charge can be withdrawn or stayed under section 240. If it is not withdrawn or stayed the Magistrate is bound to pass judgment on each count and pass an order either of acquittal or conviction, as the case may be. It is not open to a Magistrate to pass no order on a charge framed against an accused person. The inference which would follow from not recording a conviction would be that the accused was found not guilty and was acquitted.

18.           After giving the aforesaid general guidelines in respect of the subject of charge we can broadly distribute the subject into the following categories:

a.             Description of offence. Section 221 contains provisions regarding form of charge. Every charge shall state the offence with which the accused is charged. If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name. If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as gives the accused notice of the matter with which he is charged. The law and section of law against which the offence is committed shall be mentioned in the charged. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence was fulfilled.

b.             Particular as to time, place and person. Section 222 pertains to this subject. The charge shall contain such particulars as to the time and place of the alleged offence and the person against whom or the thing in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. However when the nature of the case is such that the aforesaid particulars do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particular of the manner in which the alleged offence was committed as will be sufficient for that purpose. If a person is accused of the theft of an article at a certain time and place, the charge need not set out the manner in which the theft was committed. But if a person is accused of giving false evidence at a given time and place, the charge must set out such portion of the evidence which is alleged to be false. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them by the law under which such offence is punishable.

c.             Effect of erroneous charge: No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of case as material unless the accused was misled by such error and it occasioned a failure of justice.

d.             Alteration of charge: Every Court is competent to alter or add to any charge at any time before judgment is pronounced but every such alteration or addition has to be read and explained to the accused. If the new or added or altered charge is such that proceeding immediately with the trial is likely to prejudice the accused or the prosecutor, the Court either direct a new trial or adjourn the trial for such period as may be necessary. Whenever a charge is altered or added to after the commencement of the trial, the prosecutors and the accused shall be allowed to recall or re summon any witness already examined and such witness may be reexamined with regard to the addition or alteration made in the charge.

e.             For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately.

f.              Doubt about offence If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts will prove, the accused may be charged with having committed all or any of such offences. Joint trial of offences under different laws is permissible when offences are committed in course of same transaction. When a person is charged for one offence he can be convicted of another when it appears in evidence that he had committed a different offence although he may not be charged with it, provided the accused is not prejudiced by his conviction for the offence for which he was not charged.

g.             Offences specified in section 239 can be tried together.                   

h.             Where an accused is charged for several offences and is convicted for any one of them, he may be acquitted or the other charges or the remaining charge may be withdrawn.

32.       The foundation of any programme of judicial education must lie in the theory of adult and professional learning. The prevailing process of providing judicial education is lacking in any consistent approach or direction and there is a need to develop a policy-based orientation to the process of judicial education, and a more useful means of assessing the value of this educational endeavour in terms of its impact on judicial performance. The challenge of Judicial education is to devise and provide a means to promote the continuing improvement of judicial competence. Once the formalizing requirements of professionalization have been met, it remains the task of educators to facilitate a process of meaningful learning. In essence, this is the challenge to promote and develop a process of continuing learning for those who are already the most expert and able in their field, who are charged by reason of this expertise and ability to both lead and reflect the community's values and yet retain their independence. We are in need of developing a more or less formalized process which retains these elements in harmony.

BACK LOG PROBLEM

33.       In most of the developing countries in particular, the biggest problem is that of heavy back log of cases which is  causing delay in disposal. Back in my country, most of the Presiding Officers of Courts have 120 to 150 cases on their daily cause lists and it hardly requires emphasis that they find it physically impossible to deal with each one of those cases. The result is that adjournments are granted for as a situational imperative and not necessarily on the request of the parties or their counsel. I would say that granting of adjournments, under the circumstances obtaining in large number of courts, is far from being voluntary. While realizing that it is one of the reasons for delay, it has to be maintained that the obtaining situation hardly offers any other option. We are, therefore, in need of a judicial culture and an environment for a sound and successful judicial administration system, involving not only the judges but also the members of the bar and litigant public.

 34.       In the context of these consideration, I am of the considered view that continuing judicial education should address itself to questions, such as caseflow management which is the conceptual heart of court management in general. We can fully understand courts as organizations, only it we understand the requirements of case flow management. The concept of continuing judicial education should, therefore, have one of its main objectives to bring about necessary skills in the judges for effective court management which may be of some help in reducing the backlog and ridding the civil society of the curse of `laws delay' which Shakespeare's Hamlet cited as a reason for preferring suicide to continue life. 

35.       A cultural of managerial judges is now well established in the Subordinate Courts. In England and Australia, the move towards judicial control is more recent, but it is equally dramatic. Both common law countries and civil law countries display a shift towards the imposition of a stronger control by judges over the progress of criminal and civil litigation. The contemporary dominant view is that the self-interest of parties and their lawyers can only be kept at bay by an active judiciary that directs the litigation process and prevents disruptive tactics. This proactive judiciary can be put in place only by purpose oriented and will planned judicial education.

 36.       In order to provide the best possible public service, the Subordinate Courts must continue to modernize judicial administration practices. Advanced information technology efforts should promote greater efficiency, economy, and convenience to the public. These include the best case management practices and systems, voice response systems, document imaging systems, records management retrieval systems and speedy access to both local and foreign cases and legal literature.

PROFESSIONALISING DISTRICT JUDICIARY  THROUGH TRAINING

Chaudhry Hasan Nawaz

 INTRODUCTION

                At the outset, I may say that the word “training” in the topic presents a problem. It seems to have been used probably because of its mention in the Federal Judicial Academy Act, which enjoins training of judicial officers as the Academy’s main function. Whatever the reason, we can find a solution, if it is taken to convey the sense of continuing judicial education which is intended to be treated as the bottom line of this presentation.

2.             The role of training and its extent in professionalising district judiciary can be properly appreciated only if we have a clear idea of what is professionalism.  The judiciary’s formative role and the transformation of judges from legal practitioners in view, I propose to explore the import and connotation of this word, with reference to what it is understood to suggest when used in relation to lawyers’ calling, because the conceptual foundation is more or less the same in both the cases.

WHAT IS PROFESSIONALISM?

 3.             The word “profession” comes from the Latin “professus”, which means to have affirmed publicly. Through a process of evolution, the term came to describe occupations such as law, medicine and the religious preaching, that required new entrants to take an oath professing their decision to the ideals and practices associated with a learned calling.

4.             Reference may also be made with advantage to the recitation by the Dean Roscoe Pound of Harvard Law School on “professionalism”: “The term refers to a group pursuing a learned art as a common calling in the spirit of public service, no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose”.

5.             The 1996 Report of the Professionalism Committee of the American Bar Association’s Section of the Legal Education and Admissions to the Bar expanded Pound’s definition and particularized it for lawyers in the follow words: A professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good.

6.             Sandra Day O’Connor of the United States Supreme Court has defined “professionalism” as a commitment to develop one’s skills to the fullest and to apply that responsibility to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and a willingness to subordinate narrow self-interest in pursuit of a more fundamental goal of public service. Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all.

ETHICS AND PROFESSIONALISM

7.             Chief Justice Clarke of Supreme Court of Georgia best explained the distinction between ethics and professionalism in an interview in May of 1990. He said: “Professionalism differs from ethics in the sense that ethics is a minimum standard, while professionalism is higher standard expected of all lawyers, and in our case the judges of course. Professionalism imposes no official sanctions. It offers no official reward. Yet, sanctions and rewards exist unofficially. So because there can be no greater sanction than lost respect and no greater reward than the satisfaction of doing right for right’s own sake.

8.             People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code. Truly ethical people measure their conduct, not by rules but by basic moral principles such as honesty, integrity and fairness. Professionalism embraces many values, such as competence, civility, ethics, integrity, respect for the rule of law and the obligation to work with passion for improvement of judicial dispensation and the quality of judicial business.

PHILOSOPHY

9.             Professional behaviour is not simply a matter of character and principle; it is a matter of choice and decision making. Thus, the issue is not, all or nothing. It is not a question of being or not being ethical. It usually is not a question of right or wrong. It is a question of doing or not doing the ethical or professional thing. In our high pressure world, it may not be possible to act professionally all the time. It is, however, possible and important to act more professionally more often.

10.           Professionalism discussions are too often framed as simple issues of rule-following or rule-violation. But the real issue facing the professionals is developing the capacity for critical and reflective judgment, and the judicial education sessions should strive to cultivate reflective judgment about the judicial business, and to assess how well current practices are serving the system of justice in the light of traditions of our practice. Professionalism with reference to those who are concerned with dispensation of justice is the pursuit and practice of the highest ideals and tenets of the judicial profession. It embraces far more than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism are character, competence, and commitment.

11.           Enough has been said about what is professionalism. However, with reference to local judicial environment, we can have the best exposition of this term from the quantification formula for performance evaluation. The High Courts have set monthly disposal target of seventy five to one hundred units for each judicial officer. This quantification has given rise to an attitude which is not commendable. After he achieves the target, the judge considers that he has exonerated himself of his duty and no further disposal is required. But a professional’s approach will be altogether different, in that he will do his best in terms of disposal, irrespective of the target. For him it is not a question of only getting the target, it will be a question of the reputation of his profession.

THE SCOPE OF DISCUSSION

12.           I am conscious of the fact that the scope of discussion in this presentation is limited and meant only to address the performance of district judiciary and eventually the need for its professionalisation. However, what I have said by way of introduction relates to the entire judiciary as the most important pillar of the State. This is because of the feeling that justice could be done to the topic only by taking the entire judiciary as an institution. That is not to say that professionlising district judiciary could not be the topic. It could certainly be so, particularly for a person who represents the Federal Judicial Academy, in the context of consideration that it is primarily concerned with the training of the members of the District Judiciary. Therefore, for precision’s sake, if not for any other reason, I will try to take care that this presentation remains confined in its aim, only to the district judiciary, in an attempt to examine how it can be professionalized through the process of continuing judicial education.

THE INGREDIENTS OF PROFESSIONALISM

13. What follows from the introduction is that process of professionalisation cannot be complete without paradigm shift in attitude and behaviour and acquisition of competence, efficiency and effectiveness of the highest possible order, judicial accountability and independence. These virtues can thus be regarded as basics of professionalism. Seen from this point of view, it becomes easier to define the role of judicial training in professionalising the district judiciary. I would say that the purpose of any programme of continuing judicial education is to provide a formalized process to promote the continuing learning of judges. The purpose of this learning is to improve the judicial performance and thereby the quality of justice.

THE PARADOX

14.           But the question is whether the precept of judicial accountability and judicial independence can co-exist; that is to say whether the judges can preserve the need for judicial independence and at the same time being accountable to the community. As Lord Hailsham put it, the problem is how to reconcile the divergent and to some extent inconsistent requirements of public accountability, judicial independence and efficiency in the administration of justice.

15.           I am of the view that, even though seemingly divergent, it should not be difficult to reconcile these notions. I would say that the obligation of accountability to the community rather ensures judicial independence from the executive and legislative arms of the government. A closer and some what deeper application to the subject would solve the problem. Judges are accountable to God through the community and the performance of judicial functions should be seen as discharge of a sacred trust. This incidentally introduces the notion of impartiality which the judges can contrive by negation of self and the total elimination of the promotion, achievement and accomplishment of their personal interests; that can be made possible by piety and character building which bereft them of needs and self interest and bring about the kind of independence that would co-exist with public accountability.

 FEDERAL JUDICIAL ACADEMY’S CHARTER

16.           As we have it from the Statute, the ultimate goal to be achieved by the Federal Judicial Academy is the improvement of judicial system and the quality of judicial work. It has been established for the proper training of judicial officers, law officers and the court personnel in order to improve the professional competence of judges and the quality of justice administered in the courts. This goal is sought to be achieved by in-service and pre-service orientation and training of judges, magistrates, law officers and court personnel, holding of conferences, seminars, workshops and symposia and publishing of journals, memoirs and research papers.

THE ACADEMY’S CURRICULUM

17.           To make the curriculum purpose oriented, different topics and subjects have been detailed under the captions impartiality, competency, efficiency and effectiveness. A detailed account is not possible for paucity of time, and it will be sufficient to say that through the successful execution of curriculum under this arrangement, the Academy undertakes the transference of judicial skills and competence from an individual to a group, which reflects evolution of district judiciary as a social institution within society and as a body of professionals rather than as public servants constituting an arm of the government. We understand that incompetence and inefficiency, stung by the effect of partiality, are diametrically opposed to professionalism and that there can be no such thing as an incompetent and inefficient professional.

 PRACTICAL SKILLS

18.           In imparting training to the members of district judiciary, what the Academy is supposed to accomplish is the conversion of raw potential into a judicial silver ware, that in terms may be the kind of professionalism, adequate enough to respond to public criticism and the expectations. This in view, we have brought about a change mainly in the method of judicial education and training. Hitherto, emphasis has been on dissemination of knowledge and information about substantive law, by way of lecturing.  But now we have employed useful and effective means of delivering educational services, with the introduction of a new professional approach to judicial training based on the theory and principles of adult education. In terms of content, this will focus not just on substantive law, but on the skills and disposition of judging. In terms of method, lecturing is heavily supplemented by the introduction of small group seminars and workshops which are built on the active participation of judges in techniques of active learning, such as problem solving case studies, scenarios and simulations, and also panel discussions to develop professional skills and judgment which will be supported by the foundation of information and knowledge. It is important to stress that this training approach is considerably more practical rather than theoretical and active rather than passive.

GROUND REALITY

19.                           But I feel no hesitation in conceding that whatever is being done in the Academy by way of pre-service and in-service training of judicial officers, is not sufficient to meet this articulation of the ideals of professionalism. As already asserted, training definitely makes a difference in competency and efficiency, which is reflected by on the job performance of trainee judges, particularly with reference to trail procedures. But this is not enough to attain the aspirational standards of professionalism, unless more attention and time are given to areas of judicial conduct and effectiveness. The first is the sum total of attitude, behaviour, outlook, character, responsibility, devotion, passion for work, accountability and impartiality. The second results from adequate acquisition of judicial skills, such as framing of issues and the charge, marshalling of facts, decision making, writing interlocutory orders, judgment writing, judicial leadership, communication and adaptability to change.

20.                           As already noticed, the curriculum does cater for these things. But our malady in the Academy is that the transfer of these skills is a tall order and it is not possible to come up to it in one to three week’s refreshers or eight weeks induction level training courses. Incidentally, when I come to think of it, the goal set by the statute for the Academy is improvement in the justice system and the quality of judicial work. It says nothing about professionalisation and it is conveniently left to the overarching influence of continuing judicial education which extends beyond the period of training.

THE ROLE OF SUPERIOR JUDICIARY

21.           We do need the help of High Courts in the quest for professionalism. It should be taken as an accepted proposition that, for successful completion of the process, we have to bring about a noticeable improvement in the work attitude of judicial officers, especially those who are freshly recruited. They can be made to take their cue from the senior judges to respond efficiently and without hesitation to all the new calls made on them because of the exigencies of time. The judges of the High Courts can make a substantial contribution to the process of evolution by regular periodical inspections of the district courts and with the application of corrective measures in exercise of their revisional and appallate jurisdiction.

22.           Positive interest thus shown by the Hon’ble Judges of the High Courts can go a long way in advancing professionalism in the lower dispensaries of justice. By simulating as role models, they can bring improvement in their conduct and attitudes and inspire a much needed passion for work, to resolve the main problem of back log, so that they may be able to pay more attention on a number of other important areas. This will bring into focus, the ever growing challenge of attaining a level of excellence and professionalism.

THE BAR

23.           The Bar can also play a meaningful role in the process of profesionalisation. In adversarial system, such as ours, they can help in expeditious disposal of judicial business. This can rid us of the chronic malady of delay, which is the root cause of all other ills. They can render assistance in improving the quality of judicial work.

However this object cannot be achieved without raising the standard of legal assistance. It is my considered opinion, on the basis of what I have learnt from experience, that the contribution made by the Bar in improving the quality of judicial work, leaves so much to be desired, particularly in procedural laws and pleadings.

24.           I take advantage of this occasion to point out an important circumstance which requires the urgent address of those who are concerned with the efficient and effective administration of justice. This is about the standard and quality of legal education now being dished out in the law colleges. It goes without saying that the collegial knowledge of substantive laws constitutes a foundation for building a proficient  justice system to come up to the expectations of people and to serve as foundation to set up the edifice of professionalism. But the quality of legal education today, whether viewed in professional or academic terms, is rather poor and it is not producing lawyers, judges and law officers, equipped with necessary knowledge and skills to meet the challenge of judicial stratification.

25.           It is suggested that continued commitment to professionalism should be made a vital part of legal education, and amendment be made in the syllabus of law colleges, as would make it compulsory for them to offer professionalism programmes to the students. Ethics and value system must be treated as a subject in the law schools, for what is law except an expression of our values.

RISING TO EXPECTATIONS

26.           I tell you briefly what a legal practitioner of the Florida Bar in Miani said about the eyes of his sons five and two in age. During one of the morning good byes the elder looked at me, looked at the sun rising over my shoulder and shouted Look Daddy you are bigger than the sun. That is what my boys see when they look at me. I take that look to work and conquer the day with it.

27.           “There’s power in those eyes. I want to be the man they see. The one who does the right thing, not the easy thing. The one who keeps his head while those about him are losing theirs. I want to make those boys proud, to live up to their image of me. I don’t want to do any thing to make that look in their eyes wane. I’m not naïve. They will grow up, become teenagers, see me differently. I’ll look smaller in their eyes. But I’m going to do my best not to contribute to my own diminution”

28.           “Those eyes define professionalism for me. It’s not about rules, codes of conduct, mission statements or the things that are not done. It’s about being the man my boys see, the man I want to be. For me, professionalism simply begins and ends by asking the question, “Would my sons be proud of my actions?” Ask me about professionalism, about what it means to be a lawyer, and I’ll tell you about two little boys who idolize their father, who, with their eyes, push him to always be the man they see”.

29.           “Each of us has someone who sees us for more than what we are. It may be a child, a spouse, a sibling or a friend. We want to make them proud; we want to be the person they see. It is in striving to be that person that we pursue professionalism, true ethics. It’s more than following rules for the sake of following rules. It’s doing the right thing for the sake of those who matter. I try to do the right thing because my boys expect me to, and I do it to set an example for them, so that they’ll do the right thing too. Start looking deep into your loved ones’ eyes. You’ll find what it means to be a professional  in those eyes, and you’ll find the inspiration to act like one”.

CONCLUSION

30.           The attainment of high profile goal of professionalizing the district judiciary, or for that matter the judiciary as a whole, requires all systems go kind of approach and a sort of movement. Let us take the opportunity made available by the Judicial Conference and start this movement from the jurisdiction of Peshawar High Court: By accepting the challenge of growing public criticism; of heavy pending file; of judicial inertia; of change in social conditions, environment and values with consequential change in philosophical perspectives of law. Let as rise to the challenge of ever increasing expectations of the community by committing ourselves to continuing judicial education, in an attempt to take our performance to the highest possible level, thereby getting closer to the ultimate goal of professionalism, such as would enable us to exist with honour and dignity, as an institution and a body of professionals within the society and not only just as a collection of government servants.

31.           In the end, I want to say that although this presentation is meant for the worthy brothers of the district judiciary, I would n’t mind if it is taken to have addressed itself to all members of the judicial fraternity, who have watched me saying the things I have said and who have seen lines of anguish and concern sitting in my eyes staring.

Bibliography

1.                    Educating Judges – by Livingston Armitage

2.                    Continuing Learning in the Professions  - Houle

3.                    Democracy and Judicial Independence – Lord Hailsham

4.                    The Australian Law Journal, 1985.

5.                    Report and Recommendations of the Maryland Judicial Task force on Professionalism – Nov. 10, 2003.

6.                    The Florida Bar –Professionalism Hand Book.

31.           Therefore, in the context of what has been said above, what we do need is religious implementation of the recommendations made by the Commissions and the Chief Justices Committee  with total commitment to change and acceptance of judicial responsibility, necessary to restore public confidence in the judiciary as one of the organs of the State. The proposals made in this paper may also be considered, after necessary dovetailing and modifications, for acceptance and implementation, in the light of the previous reports and recommendations. 

JUDGMENT REVIEW

by

Aftab Ahmed Lone

Additional District & Sessions Judge

Director (Instructions) Federal Judicial Academy, Islamabad

PLD 2007 SUPREME COURT 202

 NAZEER alias WAZEER --- Appellant

 Precise stated facts of the case were that the appellant was convicted under

section 302 (B) PPC, death with fine of Rs. 20,000/- and in default of payment of fine to undergo R.I for one year . This was the major punishment awarded to the appellant alongwith others under section 10 (3) of offence of Zina (enforcement of Hudood ) Ordinance, 1979 and under section 201 PPC.

 An appeal was filed before Hon’ble Federal Sharait Court which was

dismissed and the appellant approach to the Hon’ble Supreme Court of Pakistan against the Judegement passed by the learned Additional Sessions Judgement Dera Ismail Khan & Hon’nble Federal Sharait Court. The main ground of conviction of the appellant was his confessional statement under section 164 Cr.P.C recorded by Judicial Magistrate. The primary arguments of learned Council for the appellant was that,

 “The Judicial confession made on oath was not admissible in evidence and having been obtained through undue influence, inducement, coercion and was not voluntary to have any evidentiry value. It was further argued that provisions of section 164 Cr.P.C and 364 Cr.P.C in variably apply to all sorts of statements. As confessional statements recorded under section 164 Cr.P.C on oath is violation of section 5 of the oath Act 1873, which prohibits the administration of oath or affirmation to an accused person.”

 The Hon’ble Supreme Court Of Pakistan considered the aspect of

recording confessional statement on oath as a primary question. The observation of the Hon’ble Supreme Court at page 210 was that,

 “The Question for consideration would be whether a confessional statement which was recorded on oath, of caused no prejudice or in justice to the accused is admissible in evidence or not.

After having the arguments from both sides an elaborate and guiding judgement was passed by holding that, 

  “There is clear distinction of the standard of evidence for proof of offences punishable as Hadd and of an offence punishable as of tazir and the combined effect of above provisions of law is that the evidence to prove an offence punishable as Hadd, must be in terms of Injections of Islam and fore an offence punishable under Tazir, proof can be in either form provided in Article 17 of Qanun-e-Shahadat Order 1984. Islam emphasizes that Muslims must speak truth and abstain from telling lie which is a sin. Allah Almighty in His Command Says in Holy Quran “O believers! Stand steadfast with justice as a witness for Allah even if it is against you or against your parents or nearer, even if he is rich or poor, Allah is more nearer than all those both.(4/35)”. The Holy Prophet said “Tell truth even if it goes against you”. The concept of English Law that an accused is not bound to speak truth, appears to be in conflict with the concept of truth in Islam that a person must speak truth and must not tell a lie. Therefore, according to the rule of evidence in Islamic Law a confession made by an accused before the Court is presumed to be based on truth and the principle of English Law that a retracted judicial confession if found confidence –inspiring can be made basis of conviction, is based on the rule of evidence of Islamic Law that a judicial confession if is not retracted by the maker, is sufficient evidence for punishment of an offence as Hadd and if a person after making a confession of his guilt before a competent Court, retracts from his confession at any subsequent stage, the punishment of Hadd on the basis of such confession cannot be enforced but it is a valid and legal evidence to sustain conviction of a person for such an offence as tazir. In the light of this rule the subsequent retraction of judicial confession by an accused would neither reduce its value nor affect the truthfulness and admissibility of confession as evidence and consequently, a judicial confession recorded on oath despite being not legal under Oaths Acts, 1873, if contained true statement of facts, may be admissible in evidence subject to the test of it being true and voluntary and can validly be used as an evidence in Hudood cases punishable as Tazir. We, therefore, without going into the question regarding the enactment of section 5 of Oaths Act 1873, on the touchstone of Injunctions of Islam or not, concentrate to the question relating to the admissibility of a confession which was recorded on oath. The rule of evidence of Islamic Law, envisages that the real test to believe or disbelieve a confessional statement is not the method in which the confession is recorded rather it is to be seen that what is stated in the confessional statement is true and the confession was made voluntarily. However, there is difference of opinion of Imam Abu Hanifa with Abu Yousaf and Imam Muhammad on the subject. According to Imam Abu Hanifa giving of oath to an accused as Hadd except in a case of theft, is not valid whereas Imam Abu Yousaf and Imam Muhammad held giving of oath is valid in all matters except in lian. (Al-Jami-ul-Saghir by Imam Muhammad Bin Hassan Al-Sheebani Kitabul Qada P 318). The recording of judicial confession on oath is certainly prohibited under Oaths Act, 1873 and a Magistrate if recorded the statement of an accused in the manner which is prohibited under the law, may have committed an illegality in exercise of jurisdiction but if the confession statement contained true statement of facts, it may not lose the status of legal evidence merely because of adopting of the procedure for recording the confession by the magistrate which is prohibited under the law unless it is shown that the accused was misled and injustice was caused to him by adopting such procedure, therefore, such procedural illegality would assume the character of an irregularity which may not render the confession inadmissible.”

Before passing of this judgement, it was patent practice and understanding

of the judicial officers that a confessional statement accorded on oath cannot be considered as a piece of evidence against the accused and so much so, if that statement is retracted by the accused during trial. It has now been settled by the Hon’ble Supreme Court of Pakistan that confessional statement recorded on oath can be taken into consideration while passing conviction against the accused. The accused can be sentenced and convicted solely on the basis of retracted confessional statement recorded on oath.

 In this particular case the death sentence awarded to the accused was

converted into life imprisonment, not on the basis of retracted confessional statement, recorded on oath but being a juvenile offend.

RES JUDICATA