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Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating

crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Those accused of crime have protections against abuse of investigatory and prosecution powers.

Contents
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1 Goals 2 Law 3 Criminal justice system o 3.1 Policing o 3.2 Courts o 3.3 Corrections 4 Academic discipline 5 History o 5.1 Modern police 6 See also 7 References 8 Further reading 9 External links

[edit] Goals
In the United States, criminal justice policy has been guided by the 1967 President's Commission on Law Enforcement and Administration of Justice, which issued a ground-breaking report "The Challenge of Crime in a Free Society". This report made more than 200 recommendations as part of a comprehensive approach toward the prevention and fighting of crime. Some of those recommendations found their way into the Omnibus Crime Control and Safe Streets Act of 1968. The Commission advocated a "systems" approach to criminal justice, with improved coordination among law enforcement, courts, and correctional agencies.[1] The President's Commission defined the criminal justice system as the means for society to "enforce the standards of conduct necessary to protect individuals and the community."[2] The criminal justice system in England and Wales aims to "reduce crime by bringing more offences to justice, and to raise public confidence that the system is fair and will deliver for the law-abiding citizen."[3] In Canada, the criminal justice system aims to balance the goals of crime control and prevention, and justice (equity, fairness, protection of individual rights).[4] In Sweden, the overarching goal for the criminal justice system is to reduce crime and increase the security of the people.[3] Overall, criminal justice plays a huge role throughout society as a whole in any place.

[edit] Law

Main article: Law Law[5] is a system of rules usually enforced through a set of institutions. The purpose of law is to provide an objective set of rules for governing conduct and maintaining order in a society. The oldest known codified law is the Code of Ur-Nammu, written in the Sumerian language circa 2100 BC-2050 BC. The preface directly credits the laws to king Ur-Nammu of Ur. In different parts of the world, law could be established by philosophers or religion. In the modern world, laws are typically created and enforced by governments. These codified laws may coexist with or contradict other forms of social control, such as religious proscriptions, professional rules and ethics, or the cultural mores and customs of a society. Within the realm of codified law, there are generally two forms of law that the courts are concerned with. Civil laws are rules and regulations which govern transactions and grievances between individual citizens. Criminal law is concerned with actions which are dangerous or harmful to society as a whole, in which prosecution is pursued not by an individual but rather by the state. The purpose of criminal law is to provide the specific definition of what constitutes a crime and to prescribe punishments for committing such a crime. No criminal law can be valid unless it includes both of these factors. The subject of criminal justice is, of course, primarily concerned with the enforcement of criminal law.

[edit] Criminal justice system


The criminal justice system consists of three main parts: (1) Legislative (create laws); (2) adjudication (courts); and (3) corrections (jails, prisons, probation and parole). In a criminal justice system, these distinct agencies operate together both under the rule of law and as the principal means of maintaining the rule of law within society.

[edit] Policing
Main article: Police The first contact an offender has with the criminal justice system is usually with the police (or law enforcement) who investigate a suspected wrong-doing and make an arrest, but if the suspect is dangerous to the whole nation, a national level law enforcement agency is called in . When warranted, law enforcement agencies or police officers are empowered to use force and other forms of legal coercion and means to effect public and social order. The term is most commonly associated with police departments of a state that are authorized to exercise the police power of that state within a defined legal or territorial area of responsibility. The word comes from the Latin politia ("civil administration"), which itself derives from the Ancient Greek , for polis ("city").[6] The first police force comparable to the present-day police was established in 1667 under King Louis XIV in France, although modern police usually trace their origins to the 1800 establishment of the Marine Police in London, the Glasgow Police, and the Napoleonic police of Paris.[7][8][9]

Police are primarily concerned with keeping the peace and enforcing criminal law based on their particular mission and jurisdiction. Formed in 1908 the Federal Bureau of Investigation began as an entity which could investigate and enforce specific federal laws as an investigative and "law enforcement agency" in the United States;[10] this, however, has constituted only a small portion of overall policing activity.[11] Policing has included an array of activities in different contexts, but the predominant ones are concerned with order maintenance and the provision of services.[12]

[edit] Courts
Main article: Courts of Law The courts serve as the venue where disputes are then settled and justice is administered. With regard to criminal justice, there are a number of critical people in any court setting. These critical people are referred to as the courtroom work group and include both professional and non professional individuals. These include the judge, prosecutor, and the defense attorney. The judge, or magistrate, is a person, elected or appointed, who is knowledgeable in the law, and whose function is to objectively administer the legal proceedings and offer a final decision to dispose of a case. In the U.S. and in a growing number of nations, guilt or innocence (although in the U.S. a jury can never find a defendant "innocent" but rather "not guilty") is decided through the adversarial system. In this system, two parties will both offer their version of events and argue their case before the court (sometimes before a judge or panel of judges, sometimes before a jury). The case should be decided in favor of the party who offers the most sound and compelling arguments based on the law as applied to the facts of the case. The prosecutor, or district attorney, is a lawyer who brings charges against a person, persons or corporate entity. It is the prosecutor's duty to explain to the court what crime was committed and to detail what evidence has been found which incriminates the accused. The prosecutor should not be confused with a plaintiff or plaintiff's counsel. Although both serve the function of bringing a complaint before the court, the prosecutor is a servant of the state who makes accusations on behalf of the state in criminal proceedings, while the plaintiff is the complaining party in civil proceedings. A defense attorney counsels the accused on the legal process, likely outcomes for the accused and suggests strategies. The accused, not the lawyer, has the right to make final decisions regarding a number of fundamental points, including whether to testify, and to accept a plea offer or demand a jury trial in appropriate cases. It is the defense attorney's duty to represent the interests of the client, raise procedural and evidentiary issues, and hold the prosecution to its burden of proving guilt beyond a reasonable doubt. Defense counsel may challenge evidence presented by the prosecution or present exculpatory evidence and argue on behalf of their client. At trial, the defense attorney may attempt to offer a rebuttal to the prosecutor's accusations. In the U.S., an accused person is entitled to a government-paid defense attorney if he or she is in jeopardy of losing his or her life and/or liberty. Those who cannot afford a private attorney may be provided one by the state. Historically, however, the right to a defense attorney has not always

been universal. For example, in Tudor England criminals accused of treason were not permitted to offer arguments in their defense. In many jurisdictions, there is no right to an appointed attorney, if the accused is not in jeopardy of losing his or her liberty. The final determination of guilt or innocence is typically made by a third party, who is supposed to be disinterested. This function may be performed by a judge, a panel of judges, or a jury panel composed of unbiased citizens. This process varies depending on the laws of the specific jurisdiction. In some places the panel (be it judges or a jury) is required to issue a unanimous decision, while in others only a majority vote is required. In America, this process depends on the state, level of court, and even agreements between the prosecuting and defending parties. Some nations do not use juries at all, or rely on theological or military authorities to issue verdicts. Some cases can be disposed of without the need for a trial. In fact, the vast majority are. If the accused confesses his or her guilt, a shorter process may be employed and a judgment may be rendered more quickly. Some nations, such as America, allow plea bargaining in which the accused pleads guilty, nolo contendere or not guilty, and may accept a diversion program or reduced punishment, where the prosecution's case is weak or in exchange for the cooperation of the accused against other people. This reduced sentence is sometimes a reward for sparing the state the expense of a formal trial. Many nations do not permit the use of plea bargaining, believing that it coerces innocent people to plead guilty in an attempt to avoid a harsh punishment. The entire trial process, whatever the country, is fraught with problems and subject to criticism. Bias and discrimination form an ever-present threat to an objective decision. Any prejudice on the part of the lawyers, the judge, or jury members threatens to destroy the court's credibility. Some people argue that the often Byzantine rules governing courtroom conduct and processes restrict a layman's ability to participate, essentially reducing the legal process to a battle between the lawyers. In this case, the criticism is that the decision is based less on sound justice and more on the lawyer's eloquence and charisma. This is a particular problem when the lawyer performs in a substandard manner. The jury process is another area of frequent criticism, as there are few mechanisms to guard against poor judgment or incompetence on the part of the layman jurors. Judges themselves are very subject to bias subject to things as ordinary as the length of time since their last break[13]. Manipulations of the court system by defense and prosecution attorneys, law enforcement as well as the defendants have occurred and there have been cases where justice was denied.[14] [15]

[edit] Corrections

The Huntsville Unit of the Texas Department of Criminal Justice in Huntsville, Texas is a prison, a component of a corrections system Main article: Corrections Offenders are then turned over to the correctional authorities, from the court system after the accused has been found guilty. Like all other aspects of criminal justice, the administration of punishment has taken many different forms throughout history. Early on, when civilizations lacked the resources necessary to construct and maintain prisons, exile and execution were the primary forms of punishment. Historically shame punishments and exile have also been used as forms of censure. The most publicly visible form of punishment in the modern era is the prison. Prisons may serve as detention centers for prisoners after trial. For containment of the accused, jails are used. Early prisons were used primarily to sequester criminals and little thought was given to living conditions within their walls. In America, the Quaker movement is commonly credited with establishing the idea that prisons should be used to reform criminals. This can also be seen as a critical moment in the debate regarding the purpose of punishment.

Qur'anic education for offenders at the Central Jail Faisalabad in Faisalabad, Pakistan Punishment (in the form of prison time) may serve a variety of purposes. First, and most obviously, the incarceration of criminals removes them from the general population and inhibits their ability to perpetrate further crimes. Many societies also view prison terms as a form of revenge or retribution, and any harm or discomfort the prisoner suffers is "payback" for the harm they caused their victims. A new goal of prison punishments is to offer criminals a chance to be rehabilitated. Many modern prisons offer schooling or job training to prisoners as a chance to learn a vocation and thereby earn a legitimate living when they are returned to society. Religious institutions also have a presence in many prisons, with the goal of teaching ethics and instilling a sense of morality in the prisoners. If a prisoner is released before his time is served, he is released as a parole. This means that they are released, but the restrictions are greater than that of someone on probation. There are numerous other forms of punishment which are commonly used in conjunction with or in place of prison terms. Monetary fines are one of the oldest forms of punishment still used today. These fines may be paid to the state or to the victims as a form of reparation. Probation and house arrest are also sanctions which seek to limit a person's mobility and his or her

opportunities to commit crimes without actually placing them in a prison setting. Furthermore, many jurisdictions may require some form of public or community service as a form of reparations for lesser offenses. In Corrections, the Department ensures court-ordered, presentence chemical dependency assessments, related Drug Offender Sentencing Alternative specific examinations and treatment will occur for offenders sentenced to Drug Offender Sentencing Alternative in compliance with RCW 9.94A.660. Execution or capital punishment is still used around the world. Its use is one of the most heavily debated aspects of the criminal justice system. Some societies are willing to use executions as a form of political control, or for relatively minor misdeeds. Other societies reserve execution for only the most sinister and brutal offenses. Others still have outlawed the practice entirely, believing the use of execution to be excessively cruel or hypocritical.

[edit] Academic discipline


The functional study of criminal justice is distinct from criminology, which involves the study of crime as a social phenomenon, causes of crime, criminal behavior, and other aspects of crime. It emerged as an academic discipline in the 1920s, beginning with Berkeley police chief August Vollmer who established a criminal justice program at the University of California, Berkeley in 1916.[16] Vollmer's work was carried on by his student, O.W. Wilson, who led efforts to professionalize policing and reduce corruption. Other programs were established in the United States at Indiana University, Michigan State University, San Jose State University, and the University of Washington.[17] As of 1950, criminal justice students were estimated to number less than 1,000.[citation needed] Until the 1960s, the primary focus of criminal justice in the United States was on policing and police science. Throughout the 1960s and 1970s, crime rates soared and social issues took center stage in the public eye. A number of new laws and studies focused federal resources on researching new approaches to crime control. The Warren Court (the Supreme Court under Chief Justice Earl Warren), issued a series of rulings which redefined citizen's rights and substantially altered the powers and responsibilities of police and the courts. The Civil Rights Era offered significant legal and ethical challenges to the status quo. In the late 1960s, with the establishment of the Law Enforcement Assistance Administration (LEAA) and associated policy changes that resulted with the Omnibus Crime Control and Safe Streets Act of 1968. The LEAA provided grants for criminology research, focusing on social aspects of crime. By the 1970s, there were 729 academic programs in criminology and criminal justice in the United States.[17] Largely thanks to the Law Enforcement Education Program, criminal justice students numbered over 100,000 by 1975. Over time, scholars of criminal justice began to include criminology, sociology, and psychology, among others, to provide a more comprehensive view of the criminal justice system and the root causes of crime. Criminal justice studies now combine the practical and technical policing skills with a study of social deviance as a whole. Criminal justice degree programs at four-year institutions typically include coursework in statistics, methods of research, criminal justice, policing, U.S court systems, criminal courts,

corrections, community corrections, criminal procedure, criminal law, victimology, juvenile justice, and a variety of special topics. A number of universities offer a Bachelor of Criminal Justice.

[edit] History
Main article: History of criminal justice The modern criminal justice system has evolved since ancient times, with new forms of punishment, added rights for offenders and victims, and policing reforms. These developments have reflected changing customs, political ideals, and economic conditions. In ancient times through the Middle Ages, exile was a common form of punishment. During the Middle Ages, payment to the victim (or the victim's family), known as wergild, was another common punishment, including for violent crimes. For those who could not afford to buy their way out of punishment, harsh penalties included various forms of corporal punishment. These included mutilation, branding, and flogging, as well as execution. Though a prison, Le Stinche, existed as early as the 14th century in Florence, Italy,[18] incarceration was not widely used until the 19th century. Correctional reform in the United States was first initiated by William Penn, towards the end of the 17th century. For a time, Pennsylvania's criminal code was revised to forbid torture and other forms of cruel punishment, with jails and prisons replacing corporal punishment. These reforms were reverted, upon Penn's death in 1718. Under pressure from a group of Quakers, these reforms were revived in Pennsylvania toward the end of the 18th century, and led to a marked drop in Pennsylvania's crime rate. Patrick Colquhoun, Henry Fielding and others led significant reforms during the late eighteenth and early nineteenth centuries.[19]

[edit] Modern police


The first modern police force is commonly said to be the London Metropolitan Police, established in 1829 by Sir Robert Peel, which promoted the preventive role of police as a deterrent to urban crime and disorder.[20] In the United States, police departments were first established in Boston in 1838, and New York City in 1844. Early on, police were not respected by the community, as corruption was rampant. In the 1920s, led by Berkeley, California police chief, August Vollmer and O.W. Wilson, police began to professionalize, adopt new technologies, and place emphasis on training and professional qualifications of new hires. Despite such reforms, police agencies were led by highly autocratic leaders, and there remained a lack of respect between police and the community. Following urban unrest in the 1960s, police placed more emphasis on community relations, enacted reforms such as increased diversity in hiring, and many police agencies adopted community policing strategies. In the 1990s, CompStat was developed by the New York Police Department as an informationbased system for tracking and mapping crime patterns and trends, and holding police accountable for dealing with crime problems. CompStat has since been replicated in police departments

across the United States and around the world, with problem-oriented policing, intelligence-led policing, and other information-led policing strategies also adopted.

[edit] See also

Outline of criminal justice structured list of topics related to criminal justice, organized by subject area

[edit] References
1. ^ Walker, Samuel (1992). "Origins of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey, 1953-1969". Justice Quarterly 9 (1). 2. ^ President's Commission on Law Enforcement and Administration of Justice (1967). The Challenge of Crime in a Free Society. U.S. Government Printing Office. ISBN 0306701243. 3. ^ a b "Criminal Justice - Aims and Objectives". Scottish Executive Consultations. http://www.cjsonline.gov.uk/the_cjs/aims_and_objectives/index.html. 4. ^ Schmolka, Vicki. "Principles to Guide Criminal Law Reform". Department of Justice, Government of Canada. http://www.justice.gc.ca/en/cons/roundtable/nov102/appendixb.html. 5. ^ From Old English lagu "something laid down or fixed" (Harper, Douglas. "law". Online Etymology Dictionary. http://www.etymonline.com/index.php?term=law.); legal comes from Latin legalis, from lex "law," "statute" (Harper, Douglas. "legal". Online Etymology Dictionary. http://www.etymonline.com/index.php?term=legal.) 6. ^ Harper, Douglas. "police". Online Etymology Dictionary. http://www.etymonline.com/index.php?term=police. Retrieved 2007-02-08. 7. ^ Dinsmor, Alastair (Winter 2003). "Glasgow Police Pioneers". The Scotia News. http://www.scotia-news.com/issue5/ISSUE05a.htm. Retrieved 2007-01-10. 8. ^ "History". Marine Support Unit. Metropolitan Police. Archived from the original on 2007-0716. http://web.archive.org/web/20070716200107/http://www.met.police.uk/msu/history.htm. Retrieved 2007-02-10. 9. ^ "La Lieutenance Gnrale de Police". La Prfecture de Police fte ses 200 ans Juillet 1800 Juillet 2000. La Prfecture de Police au service des Parisiens. http://www.prefecture-policeparis.interieur.gouv.fr/documentation/bicentenaire/theme_expo1.htm. 10. ^ FBI (2009). THE FBI: A Centennial History, 1908-2008. Washington,D.C.: FBI. pp. 138. ISBN 978-0-16-080954-5. 11. ^ Walker, Samuel (1977). A Critical History of Police Reform: The Emergence of Professionalism. Lexington, MT: Lexington Books. pp. 143. ISBN 0669012920. ISBN. 12. ^ Neocleous, Mark (2004). Fabricating Social Order: A Critical History of Police Power. London: Pluto Press. pp. 9394. ISBN. 13. ^ "We find that the percentage of favorable rulings drops gradually from 65% to nearly zero within each decision session and returns abruptly to 65% after a break." Shai Danzigera; Jonathan Levav; Liora Avnaim-Pessoa (11 April 2011). "Extraneous factors in judicial decisions". Proceedings of the National Academy of Sciences of the United States of America. http://www.pnas.org/content/108/17/6889. Retrieved 15 November 2011. 14. ^ Perri, Frank S. and Lichtenwald, Terrance G. (2009). When Worlds Collide: Criminal Investigative Analysis, Forensic Psychology And the Timothy Masters Case, Forensic Examiner, 18:2 NCJ # 226972 15. ^ Perri, Frank S. and Lichtenwald, Terrance G. (2010). The Last Frontier: Myths & The Female Psychopathic Killer, Forensic Examiner, 19:2, 50-67.

16. ^ "Finest of the Finest". TIME Magazine. February 18, 1966. http://jcgi.pathfinder.com/time/magazine/article/0,9171,899019,00.html. 17. ^ a b Savelsberg, Joachim J., Lara L. Cleveland, Ryan D. King (June 2004). "Institutional Environments and Scholarly Work: American Criminology, 1951-1993". Social Forces 82 (4): 12751302. doi:10.1353/sof.2004.0093. 18. ^ Wolfgang, Marvin (1990). "Crime and Punishment in Renaissance Florence". Journal of Criminal Law and Criminology (Northwestern University) 81 (3): 56784. doi:10.2307/1143848. JSTOR 1143848. 19. ^ Garland, David (2002). "Of Crimes and Criminals". In Maguire, Mike, Rod Morgan, Robert Reiner. The Oxford Handbook of Criminology, 3rd edition. Oxford University Press. pp. 20. 20. ^ Brodeur, Jean-Paul; Eds., Kevin R. E. McCormick and Livy A. Visano (1992). "High Policing and Low Policing: Remarks about the Policing of Political Activities," Understanding Policing. Toronto: Canadian Scholars' Press. pp. 284285, 295. ISBN.

[edit] Further reading


Criminal Justice: Mainstream and Crosscurrents. John Randolph Fuller. 2005. Prentice Hall. Upper Saddle River, NJ. Crime and Punishment in America. Volume 1. Richard C. Hanes and Sharon M. Hanes. 2005. Thomas Gale. Farmington Hills, MI Popular Justice: A History of American Criminal Justice. Samuel Walker. 1980. Oxford University Press, Inc. New York, NY. Crime and Punishment in American History. Lawrence M. Friedman. 1993. Basic Books. New York, NY. The Emerging System of International Criminal Law: Developments in Codification and Implementation, Lyal S. Sunga. 1997. Kluwer Law International. The Hague, The Netherlands. Criminal procedural law in France, Serge Guinchard and Jacques Buisson, Lexinexis editor, , 7th edition, september 2011, 1584 pages. Power, Politics, and Crime. William J. Chambliss. 2001. Boulder, Colo. : Westview Press. ISBN 081333487X

Criminal Justice Administration


A degree in the field of Criminal Justice Administration provides an ideal opportunity for individuals wishing to embark upon a career in law enforcement, public safety or other related areas within the criminal justice system. This highly specialized profession is suitable for anyone with a particular interest in crime and justice. In recent years, the demand for highly- talented and well-trained individuals in the fields of criminal justice and public safety has risen dramatically. Taking this into consideration, there is an ever increasing need of highly qualified criminal justice administrators in the public and private sector organizations. Criminal Justice Administrators main job is to provide oversight and supervision in matters related to crime and justice.

CRIMINAL JUSTICE SYSTEM


By Bilal Sarwari on Dec 10, 2010 with Comments 0 By: AFTAB AHMED LONE (Additional District & Sessions Judge Balochistan) Presently: Director (Instructions) Federal Judicial Academy Islamabad

The term Criminal Justice refers to an area of knowledge devoted to controlling crime through the scientific administration of Police, Court and Rehabilitation/Correctional agencies. It is an interdisciplinary field making use of the knowledge basis of sociology, psychology, law, public policy and other related fields.

Criminal Justice is essentially an agency of social control, society considers some behaviors so dangerous and destructive that it choose to either strictly control their occurrance or outlaw them outright. It is the job of the agencies of justice to prevent these behaviors by apprehending and punishing transgressors or deterring their future occurrence. While society maintains other forms of

social control, such as parental and school-based discipline, they are designed to deal with moral and not legal misbehavior. Only the Criminal Justice System maintains the power to control crime and punish criminals. A number of academic disciplines have been drawn upon to develop insights into the causes and prevention of criminal behavior. After taking information from various disciplines and consolidated as the knowledge base for a new era of study. Understanding what knowledge is represented in this field helps us to reach a working definition of Criminal Justice study. The study of criminal Justice may be defined as the use of the scientific method to understand the Administration Procedures and policies of those agencies of Government charged with enforcing the law adjudicating crime and correcting criminal conduct. The study of Criminal Justice involves analyzing how there institutions influence human behavior and how they are in turn influenced by law and society. The basic frame work of the Pakistan Criminal Justice System is found in the Legislature, Judicial and Executives Branches of the Government. The legislature defines the law by determining what conduct is prohibited and establishes criminal penalties for those who violate the law, the Courts interpret the law and determine whether it meets constitutional requirements, the executive branch plans programs, appoints personal and exercise administrative responsibility for Criminal Justice Agencies. This can be seen herein under:

Legislative Branch National Assembly Senate Appeal Judiciary Law of the land the public Validate Invalidated LEGISLATIVE BRANCH The state constitution grants authority to pass laws. The primary responsibility of legislatures in the Justice System is to define criminal behavior and establish criminal penalties. The law making function involves not only passing bills but also modifying and rejecting them. In addition to establishing definition of crimes, legislatures also pass laws governing Criminal Justice Procedures. These include rules and regulations involving the laws of arrest, search warrants, bail, trial Court proceedings and sentencing. Although the legislature enacts laws, most criminal procedures are established by the Higher Courts. The initiative to pass a law may come from a legislator, a criminal justice agency, a public official, or a group of citizens. The issue is first studied by a legislative committee. Lobbyists and interest group add their influence and knowledge to the discussion and contents of the proposed bill. The respective legislative houses are subsequently given the bill for a vote. In Congress and bicameral state legislatures, if the legislation is not passed in its initial form by both the House of Representatives and Senate, it is given to a joint legislative

committee of both houses to work out a compromise. A compromise bill is eventually voted on by both bodies. When the bill has been passed, it is given to the chief executive for his or her signatures. If signed, the bill becomes a law. If vetoed, the bill may be dropped or referred back to the legislature for reconsideration. EXECUTIVE BRANCH Executive Power is vested in such public officials as the President, Governors, Prime Minister and Chief Ministers. They are often actively involved in criminal Justice issues. They have extensive power of appointments; they appoint judges and heads of the administration agencies such as Police Officials, Commissioners and the Chief of other several law enforcing agencies. They have also the authority to remove administrative Personnel. Another important executive function involves the power to grant pardons for crimes. The President can pardon the criminal, even if appeal of a particular criminal is dismissed from the higher appellate Court. The control and prevention of criminal activity and the treatment and reform of criminal offenders are carried out by the agencies of Government. These public agencies created to maintain order, enforce the criminal law, provide emergency services keep traffic on streets and highways moving freely and create a sense of community safety. First is the Police Department, the system and process of criminal justice depends on effective and efficient police works, particularly when it comes to preventing and detecting crime

and apprehending and arresting criminal offenders. Former Chief Justice of USA Warren Burger Stressed that: The Policemen (or women) on the beat, or in the Petrol car, makes more decisions and exercise broader discretion affecting the daily lives of people everyday and to a greater extent, in many respects, than a judge will ordinarily exercise in a week. THE COURTS It is the part of the system that is most venerable, the most formally organized and the most elaborately circumstances by law and tradition. It is the institution around which the rest of the system has developed and to which the rest of the system is in large measure responsible. It regulates the flow of the criminal process under governance of the law. It is expected to articulate the communitys most deeply held, most cherished views about the relationship of individual and society. The criminal Courts regulate the process by which the criminal responsibility of defendants accused of violating the law is determined. The Court is expected to convict and sentenced those found guilty of crimes while ensuring that the innocent are freed without any consequences and burden. The entire criminal Court process is undertaken with the recognition that the rights of the individual should be protected at all times. An accused also has the right to be given due process, or to be treated with fundamental fairness. This includes the right to be present at trial, to be notified of the charge(s), to have an opportunity to examine the witness and to have favorable witness appear.

The District Courts variously called, the Civil Court, Judicial Magistrate, Senior Civil Court, Addl. District & Sessions Court and District & Sessions Courts. They often dispense routine and repetitious justice and are burden with a heavy responsibility. They are not generally equipped to fulfill characterized by cramped Courtrooms, limited personnel, limited number of Judicial Officer, large number of pending cases, different tactic of lawyers and the habitual litigants, remain a critical problem in criminal justice administration. The High Court and Supreme Court are primarily Appellate Courts that do not conduct criminal trial. Question of fact decided in the original Court are not ordinarily reviewed in the Appellate Courts. These Courts deal with procedural errors arising in the lower Courts that are considered violations of rights guaranteed by State or the constitution. The Appellate Court has the authority to affirm, modify or reverse decision of the lower Criminal Court. THE PROSECUTION AND DEFENSE. The prosecutor and the defense attorney are the opponents in what is known as the adversary system the prosecutor is the public official who represents the Government and present its case against the accused/defendant, who is charged with a violation of the criminal law. The prosecutor is known variously as a district attorney, public prosecutor and is appointed by the Government. The prosecutor is responsible not only for charging the accused with the crime but also for bringing the case to trial and to a final conclusion. The defense attorney on the other hand, is responsible for providing legal defense to the accused. This role involves two major functions.

(i) Protecting the constitutional right of the accused, and (ii) Presenting the best possible legal defense for the accused. The defense attorney represent a client from initial arrest through the trial stage, during the hearing and if needed through the process of appeal. Any person accused of a crime can obtain the service of a private attorney if he or she can afford to do so. The ultimate objection of the adversary system is to seek the truth, in this way determining the guilt or innocence of the accused from the formal evidence presented at the trial. The system ensure that the accused is given a fair trial, the relevant facts of a given case came on record and that an impartial decision is reached. CORRECTIONS Following the criminal trial resulting in conclusion and sentencing, the offender enters the correctional system. The correction involves probation, jails and parole programs for both juvenile and adult offenders. Complicating this system is the dramatic population explosion in the country, and minimum numbers of jails. Apart from that jail system suffers from an extremely poor performance record, many offenders return to crimes shortly after spending their period of sentence. This is due to the lack of effective treatment and training programmes, poor physical environment and health conditions and the fact that offenders in many institution/jails are subjected to violence from other inmates and guards. Some of the major components of correction are discussed below:

PROBATION Probation is a judicial action that allows the offender to remain in the community, subject to condition imposed by Court order, under the supervision of probation officer. It enables the offender to continue working while avoiding the pains of imprisonment. In advance countries, social services are provided to help the offender adjust in the community; counseling, assistance from social workers and group treatment, as well as the use of community resources to obtain employment, welfare and housing etc. are offered to the offender while on probation. In same countries community based correctional centers have been established for first time offenders where they live while holding a job or obtaining education. CONFINEMENT The State reserves the right through the criminal law to hold the criminals in jails. There the jail authorities classify the prisoners. The inmates are assigned to minimum, medium or maximum security classes. Maximum security cells have high walls, barred cells, and careful security measures and have the most dangerous prisoners. Medium class may physically reasonable, more guarded cells but their inmates require less control and therefore can receive more intensive treatment, Minimum security may have separate rooms and offer inmates much freedom and good correctional programmes.

PAROLE In our country the parole system is not that much established, but in other advanced countries the convicted are selected for early release on the condition that they obey a set of restrictive behavioral rules under the supervision of a parole officer. The main purpose of early release parole is to help the ex-inmate bridge the gap between institutional confinement and a positive adjustment within the community. After their release offenders are supervised by parole authorities who help them find employment, deal with family and social difficulties and gain treatment for emotional or substance abuse problems. If the offender violate condition of community supervision, parole may be revoked and the parole may be sent back to jail for completion of his confinement period. In countries like USA about 40% of all inmates receive mandatory supervised release. Related Posts:

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IMPARTIALITY, INDEPENDENCE & ACCOUNTABILITY i CHARTER OF HUMAN FREEDOM AND RIGHTSOne of the Worlds Greatest Historic Documents ii iii iv v CONDUCT OF A JUDGE Independence of Judiciary - The Final Frontier Separate and Independent Judiciary Mode of Selection of Judges and the Independence of Judiciary COMPETENCY i ii iii JUDICIAL DECISION MAKING CRIMINAL TRIAL- RECENT CHANGES IN SUBSTANTIVE & PROCEDURAL LAW Chaudhry Hasan Nawaz Mr. Justice Shafiur Rahman Hazrat Ali (God be pleased upon him) Mr. Justice Shafiur Rahman Mr. Justice Asif Saeed Khosa Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz

iv v vi vii

THE ROLE OF CRIMINAL INVESTIGATION IN SECURING Chaudhry Hasan Nawaz EFFECTIVE, EFFICIENT AND FAIR ADMINISTRATION OF CRIMINAL JUSTICE ISLAMIC CONCEPT OF THE ADMINISTRATION OF CRIMINALMr. Justice Gul Muhammad JUSTICE CHARGE IN CRIMINAL CASES Justice Nazir A. Bhatti ONE WHO CAN BE APPOINTED AS GOVERNOR THE ROE OF CRIME INVESTIGATION IN SECURING EFFECTIVE, EFFICIENT AND FAIR ADMINISTRATION OF CRIMINAL JUSTICE Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz

viii THE CRIMINAL JUSTICE SYSTEM IN PAKISTAN: CONTEMPORARY PROBLEMS IN SECURING EFFICIENT

Chaudhry Hasan Nawaz

ADMINISTRATION OF CRIMINAL JUSTICE EFFICIENCY i ii ii iii Delayed Justice & The role of A.D.R. Access to Justice and Alternative Dispute Resolution Mr. Justice Tassaduq Hussain Jillani Chaudhry Hasan Nawaz

DELAY REDUCTION WITH EFFECTIVE COURT Chaudhry Hasan Nawaz MANAGEMENT INFORMATION TECHNOLOGY: SCOPE IN Muhammad Ali COURT MANAGEMENT EFFECTIVENESS

i ii iii iv v vi vii vii

THE ROLE OF TRAINING IN IMPROVING THE QUALITY OF JUDICIAL DISPENSATION PROFESSIONALIZING DISTRICT JUDICIARY THROUGH TRAINING CONTINUING JUDICIAL EDUCATION JUDGMENT WRITING JUDGMENT WRITING PRINCIPLES OF JUDGMENT WRITING IN CRIMINAL DECISION AND JUDGMENT JUDGMENT ---- WHAT AND HOW TO WRITE .

Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Honorable Justice Roslyn Atkinson

Mr. Justice (R) Muhammad Bashir Jehangiri TRIALS Mr. Justice M. Mahboob Ahmed Mr. Justice Saleem Akhtar Mr. Justice Shafiur Rahman Mr. James C. Raymond

viii THE ARCHITECTURE OF ARCHITECTURE OF ARGUMENT

ix x

PLAIN ENGLISH A CHECKLIST FOR JUDGMENT JUDICIAL EDUCATION- GENERAL

Mr. James C. Raymond Mr. James C. Raymond

i ii iii iv v vi vii viii ix x

OF SYSTEMS AND SITUATIONS WHITHER, LAND OF THE LEAL PRAY WHAT IS A SOCIAL CONTRACT ONLY SOME OF THE TRUTHS A CONSTITUTIONAL HUMBUG A MISLEADING QUESTION EIGHTH AMENDMENT A MISNOMER FIFTEENTH AMENDMENT BILL -AN APPRAISAL
JUDGMENT REVIEW

Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Chaudhry Hasan Nawaz Aftab Ahmed Lone Aftab Ahmed Lone

RES JUDICATA

THE ROLE OF TRAINING IN IMPROVING THE QUALITY OF JUDICIAL DISPENSATION Chaudhry Hasan Nawaz INTRODUCTION The topic suggests, not as much the achievement of training in improving the quality of judicial dispensation as what can possibly be achieved. This approach certainly enlarges the scope of discussion on the subject. The word training, if understood with reference to and in the light of its ultimate goal would connote training for acquisition of judicial skills, necessary for fair and effective administration of justice. To provide the subject with a philosophical perspective, it should be said that the importance and significance of judicial training is commensurate with the role of effective

judicial dispensation in the evolution of a progressive, prosperous and truly democratic society, fully alive to its rights and obligations, not only within its own sphere, but also in relation to other such global entities. JUDICIAL DISPENSATION The importance of fair and speedy administration of justice has been given high priority emphasis at various places not only in the Holy Qur'an, but also in all theologies of the world, obviously in recognition of the fact that there can be no peace without justice and its absence results in total disintegration of the social structure. These Quranic injunctions, as I understand, lead us to four definite conclusions: First, the doing of justice is an attribute of God Almighty. Second, the commandment to do justice and settle disputes between people emanates from and is the necessary incident of the appointment of prophets as Deputies of God. The third is that even the slightest deviation from what has been ordained will result in beguiling from the way of Allah. The last, but by no means the least, is that it is the bounden duty of the State, to establish an effective system of administration of justice, as one of its foremost and fundamental religious obligations for the creation of a just and civilized society. Administration of justice is thus universally recognised as one of the most basic obligations of a state. In the South Asian jurisdictions where the civil societies are in the process of development, it should be regarded as a religious imperative, for there can be no civil society without an effective system of justice. It hardly requires an emphasis that, with reference to the prevalent socio-political and economic situation in the SAARC countries, our survival as successful nations can be possible only with the establishment of a system where the merit rules the roost and that can ensure fair, efficient and speedy administration of vertical, horizontal and all embracing justice; as would annihilate, tyranny, oppression and victimization. PRECEPT OF INDEPENDENCE Independence is a precept for any judiciary operating within the parliamentary system of government. It is the capacity of courts to perform their constitutional functions free from any interference, actual or apparent. Judicial independence is an essential element of a free, democratic society. Under the parliamentary system, the separation of powers doctrine provides a system of mutual checks and balances, between the executive, legislature and judicial organs of the State, so that one branch is incapable of arrogating all powers at the expense of other two organs. It is within the context of these considerations that the jurists visualized the need for independent judiciary to act as impartial arbiter of disputes between citizens and the state. A confidence inspiring independent judiciary is undoubtedly a source of great relief for the oppressed people, for it makes them conscious of the fact that they have got a place to go to, for the redress of their grievances. Much has been said during the last fifty years about independence of judiciary; but it is still not enough to underscore its importance. The concept of independence owes its origin and sacrosance to the fundamental rights. It is essential and indispensable for just and fair resolution of disputes. There can be no peace without this independence. The curtailment or erosion of this independence would cause frustration, forcing people to throw up their hands in wail to God.

JUDICIAL EDUCATION This can be achieved only by a proficient judiciary, composed of professionally competent judges, capable of administering fair, speedy and quality justice. Continuing judicial education has, therefore, to be regarded as an accepted part of judicial life, for growth of the mental qualities of the judges, necessary for sustenance of judicial independence. Its basic requirement is that the judiciary should be accountable for its competency. It is a recognized proposition within the judiciary that judges should participate in continuing education, because this, amongst other reasons is an appropriate means to increase accountability, which, in turn, consolidates judicial independence in a democratic state. For any proper understanding of the introduction of continuing judicial education, and its significance to the judiciary, it is necessary to recognize the overarching importance of the process of professionalization, and the significance of two themes in that process, namely the pursuit of competence and the provision of accountability. It will be seen that there is a need for the judiciary to formalize a means to enhance its performance in the light of public criticism, and to demonstrate its concern for improved performance to the community in an appropriate way. PROFESSIONALIZATION This is a period of intense critical public scrutiny of the judiciary. There is nothing either unusual or incidental about this scrutiny; rather, it is a predictable part of refining the role of the judiciary in society. Professionalization is an essential element of this evolving relationship, and provides the judiciary with an important means to demonstrate its competence while preserving the integrity of its independence. The process of professionalization describes the response of professions to recent and continuing public criticism generally, and to increasingly vociferous demands for accountability. For the judiciary, this criticism centered, for the most part, not on ignorance of the law, technical deficiency, ethical misconduct or individual behaviour, but on the performance of the judicial system at large and on a perceived failure of the judiciary to reflect the society over which it was seen to preside. As I see this criticism has imposed a pressure on the judiciary to improve its service, performing its functions at the highest possible standard of competency. It was in the backdrop of these considerations that the concept of systemized continuing judicial education was evolved, for a linkage of professional performance with judicial training. With the passage of time, it become seen increasingly to be a means for improvement in its performance by the judiciary. I would say that the establishment of academies in common law countries for judicial training, became an integral part of this institutional response to pubic criticism. "From the profession's perspective, these education services provided a means of implementing progressive and preventative measures to redress any public criticism of professional incompetence and to visibly demonstrate measures of self-help as a disincentive to external regulation by government. Continuing professional development thus became recognized as an important response to establishing patterns of growth within the professions, and a means of managing both personal and systemic change". It should be said that the acquisition of judicial skills is certainly more appropriate than the spectre of intervention by the Executive.

JUDICIAL COMPETENCE In his work "Educating Judges" Livingston Armytage says that "Judicial competence should be seen as the mastery of the knowledge, practical skills and disposition of judging. Competence is the ability to perform a range of tasks through the application of knowledge and skills to the resolution of particular problems according to certain standards, within a framework of rules of conduct and ethics of the judicial profession". "The purpose of any program of continuing judicial education is to provide a process, which is more or less formalised, to promote the continuing learning of judges. It will be argued that the mission of judicial education is distinctive from other forms of occupational training or professional development in the extent to which it should promote learning and the pursuit of professional excellence which lie beyond the domain of technical competence. Ultimately, the purpose of this learning is to improve judicial performance and, thereby, the quality of justice". TRAINING OF TRAINERS In the context of what has been said above, the mission of any continuing judicial education is to improve the quality of judicial performance by helping judges to acquire the tools for professional competence. The concept of competence illuminates the issue of what makes a good judge. It includes mastery of theoretical knowledge, developing problem solving capacity and collegiate identity, relating to allied professionals, conceptualizing the judicial mission, maintaining an ethical practice and self enhancement. At an operational level, the goals and objectives of judicial education are to meet the education, training and development needs of judicial officers. What follows as rationale to invest in judicial education and training is to develop the professional competence of the judiciary to perform its functions in an efficient manner and thereby improve judicial service. The underlying idea dictates that the judiciary must invest in training of trainers to develop its own capacity to manage judicial competence and standards in a sustainable manner. This sustainability in developing competence is attained through the independence and delivery of technically sound training services which address identified shortcomings in judicial knowledge, skills and disposition for improvement in performance. Commonly these include a need for information on specific aspects of law or updates on recent new laws on legislative amendments, training in the skills of judging, such as judicial decision making, legal research, case management techniques; and the development of judicial disposition, attitudes and values relating to judicial leadership, conduct and ethics and the principles of fair trial. The quality and utility of these training services is directed through the process of developing an educational curriculum, and their effectiveness is measurable. The purpose of this training is to equip participants of the training programmes to recognize, understand and meet these needs at an institutional as well as technical level. LEGAL EDUCATION It goes without saying that the collegial knowledge of substantive laws constitutes a foundation for building of a proficient justice system to come up to the community's expectations. I would venture to say that the quality of legal education dished out to the students of law is certainly not enough to enable them to go into the legal profession for a useful contribution towards the standard and

quality of judicial business. This is an urgent and serious problem, requiring collective efforts of those professionally concerned with legal education. I would suggest that a few workshops may be held, with Principals of law colleges as participants to examine the possibility of establishing a Legal Education Commission or any networking of the kind, as a strong, independent body to set standards for legal education throughout the country and support reform measures and establish centres of excellence in legal education. It may also recommend urgent steps to replace the existing outmoded, corrupt examination system. ESTABLISHMENT OF JUDICIAL ACADEMIES The ultimate goal of fair and effective administration of justice can be achieved only by establishing judicial academies at the federal and provincial level, with a charter to provide for the proper training of judicial officers and court personnel, in order to improve the professional competence of judges and the quality of justice administered in the courts. This charter can give us an idea of the scope and gamut of various activities of these institutions. However, the importance and relevance of their functions and the impact of their performance, in terms of social development, the establishment of a civilized society and overall national prosperity can be appreciated only in the context of what they purport to achieve. The significance and indispensibility of training in improving efficiency and performance can hardly be over emphasized for human resource development. There is dire need to develop, "a distinctive model of judicial education which is designed to address the specific learning requirements of judges". The tradition of on the job learning has indisputably been slow and cumbersome and we urgently require institutionalisation of the training and education of judges. The object in view is the creation of an environment, not only viable for the legal and judicial reform process, but also conducive for the development of centres of judicial excellence. For improvement in the quality of instructions, it is of utmost importance to provide these academies with core teams of competent faculty members that can be done by making the terms and conditions of their service more attractive and giving due priority to training. Sincere and strenuous efforts should then be made, to create in the heartware of these academies, the kind of commitment and passion, required for the achievement of organisational efficiency, as would make them institutions "PRIMUS INTER PARES" (first amongst equals), to serve as rims of judicial dispensation, and be able to contribute towards modernisation of our legal and judicial skills. We must remember that no ham handed approach can make it possible and that judicial training is absolutely necessary for achievement of the ultimate goal. CONCLUSION In the background of above discussion, I sincerely hold that meaningful and effective judicial training can bring about, by improvement in the quality of justice, a social order geared to meet the challenge of paradigm shifts in values, attitudes and outlook; and that of growing public criticism, and to avert an imminent danger of the collapse of environment necessary and viable for peaceful, prosperous and respectable living. While concluding, I can do no better than making a reference to what was said by Mr. Livingston Armytage in his work "Educating Judges" "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. Developing a more or less formalized process which retains these elements in harmony is the task ahead". RECOMMENDATIONS To enable the training programmes to achieve the avowed goal of improvement in the judicial dispensation, it is recommended that:

We should establish, at the federal as also provincial level, judicial academies or strengthen the institutional capacity of academies already in existence, for pre-service and in-service training of judges, law officers and court personnel. Amendments should be made in the service rules to make pre-service training compulsory, for a duration of time suitable to the jurisdictions concerned; We may consider the creation and development of formal carrier path for those who are to be entrusted with the job of imparting instructions to the judicial officers, law officers and court personnel; Steps should be taken to ensure that the judicial academies have the services of a core team of permanent competent faculty members to attain the highest possible standard of instructions; At least once in a year, every judicial academy should arrange seminars and workshops for training of trainers, absolutely necessary for judicial resource development; We should put in place a system of evaluation that will make it possible to assess whether any and what difference has been made by the training programmes. There should be frequent needs assessment exercises for development of curricula to give the academies a direction for pragmatic approach to the training programmes. Steps should be taken to create a general awareness that training for transfer of judicial skills is indispensible for improvement in the quality of judicial work. The academies should assist the judicial leadership to develop a series of seminars designed to build the capacity of the system for improvement in the judicial business. In collaboration with the judicial academies, the judiciaries of SAARC countries should plan and develop seminars for training in project management, planning, management of change process and research for legal innovations. Then, and here again in collaboration with the judicial academies, the judiciaries should arrange seminars on (a) introduction of change into legal system, (b) awareness of social issues and paradigm shifts in philosophical perspective of law (c) role of courts in improving the existing social orders and building a true democracy and finally (d) improving operational performance, with a focus on topics such as human resources, case flow management, court automation applications and effective management of trial process. These training programmes will result in the emergence of a class of judicial officers, at the basic level in particular, with a sense of direction and a passion to manage speedy disposal of judicial business with quality and reduce the backlogs. They will hopefully contribute towards building of confidence and the acquisition of judicial skills necessary for an ambitious reform process. The Academies should hold or arrange seminars and workshops on topics such as human

rights and gender sensitization. Those concerned with the management and operation of the Academies must constantly bear in mind that topics such as judicial ethics, character building, self management, awareness of contemporary social issues; disadvantaged groups and relationship with the Bar deserve special focus.

Finally, we may consider the desirability of the establishing a research and information centre with its secretariat at an agreed place, to arrange and monitor collaboration between the judicial academies of SAARC countries - (a) to foster inter action and cooperation amongst the institutions responsible for judicial training activities and (b) encourage transfer of information and research to explore possibilities for improving the perception of administration of justice.

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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 mans 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 sovereigns 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 judiciarys 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 judiciarys 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 11th Century, it still holds the ground and has not become a clich. 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 1A 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 honble 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. Top of Page

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) ii) iii) iv) v) vi) Equality of human beings. (49:51) One is innocent unless proved guilty. No offence without intention. (33:51) Concealment of testimony is grave sin. (2:284) No crime under compulsion. (16:106) No one can be held responsible for the acts of others. (35:18)

vii) viii)

Punishment in proportion to the crime. (491:17) 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) oath." b) c) 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 The Prophet, while sending Hazrat Ali to Yamen as qazi, said to him, "don't decide on The Prophet had ordered that the case must be decided in the presence of both the the statement of one party until you hear the other party as you have heard the first party." The Prophet said, "Burder of proof lies on the complainant and the accused has to take

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) ii) iii) iv) v) And that man has only that for which he make efforts. (53:39) Whose doth right, it is for His should and whoso doth wrong, it is against him. (41:46) Each should earns on its own account. (6:165) No one will bear the burden of others. (35:18) 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) b) c) We never punish until we send a messenger. (47:15) And never did thy Lord destroy the towns until he had raised up in their mother town a Every nation had its messenger raised up to warm them. (35:25)

messenger reciting unto them. (38:59) 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-eMazalim 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. Top of Page

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. a) Finally, I would make the following proposals for consideration: 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) c) Efforts should be made to set up institutions for specialized training of investigating Their salaries should be such as would be sufficient to sustain the expenditure required for officers. We must procure persons of special skill and integrity to deal with the investigation. 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) 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. Top of Page They should be provided with reasonable accommodation for the members of their

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. 9. 10. Joint trial of different offences (under different enactments) does not vitiate proceedings The burden of proof is on the prosecution to show that the case falls within the When two or more offences when combined form a different offence, the accused may be in the absence of prejudice to the accused. exceptions to the general rule. 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. 14. Section 237, Cr.P.C. enables the Court to convict a person of an offence which is The accused charged with a major offence may be convicted of a minor offence when the disclosed in the evidence and for which he might have been charged. 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. 16. a) b) c) d) e) A person can be charged for offences of the same nature not exceeding three within a year The following persons may be charged and tried together namely:persons accused of the same offence committed in the course of the same transaction; persons accused of an offence and persons accused of abetment, or of an attempt to persons accused of more than one offence of the same kind, within the meaning of persons accused of different offences committed in the course of the same transaction; persons accused of an offence which includes theft, even if they were committed against several persons.

commit such offence; section 234 committed by them jointly within the period of twelve months;

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. a. After giving the aforesaid general guidelines in respect of the subject of charge we can Description of offence. Section 221 contains provisions regarding form of charge. Every broadly distribute the subject into the following categories: 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. f. For every distinct offence of which any person is accused there shall be a separate charge Doubt about offence If a single act or series of acts is of such a nature that it is doubtful and every such charge shall be tried separately. 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. h. Offences specified in section 239 can be tried together. 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.

CONTINUING JUDICIAL EDUCATION Chaudhry Hasan Nawaz The need for a distinctive approach to the continuing education of judges is the basic consideration for the subject of continuing judicial education. 2. Lawyers don't become good judges by the wave of a magic wand. Not even the best lawyers. {Catlin DW, "Michigan's Magic Touch in Educating Judges," The Judges' Journal, 1986, 25, 6, 3245}. 3. The increase in judicial education might well be described without exaggeration as an explosion of activity in the field in the last decade. {Sallmann PA, "Comparative Judicial Education in a Nutshell," Journal of Judicial Administration, 1993, 2, 245-255, (hereafter, Sallmann 1993), 252}. 4. Judicial education is now an accepted part of judicial life in many countries. It is an enhancement of the mental qualities necessary to the preservation of judicial independence....Judicial

independence requires that the judicial branch is accountable for its competency and the proposition is now accepted as beyond debate. {Nicholson RD, "Judicial Independence and Accountability: Can They Co-exist?" Australian Law Journal, 1993, 67, 404-426 (hereafter, Nicholson, ALJ, 1993), 425}. 5. This approach should build on the foundations of adult and professional learning theory. But, more importantly, this approach should accommodate the specific learning needs and practices of judges, and preserve judicial independence. 6. In the process, the study addresses a number of issues which underpin endeavour. This includes the questions: Why educate judges?, Is continuing education needed?, What makes a good judge? What role can education play?, How should judicial education be provided?, and, How can benefits be measured? The study explores the application of educational theory and critiques the practice of judicial education which has developed in various countries. Premised on Australian experience, the study surveys the United States and Britain in detail, with added reference to Canada and New Zealand. Assessment of the civil or "continental" approach to a career judiciary, where law graduates nominate to enter the judicial profession from the outset, falls beyond the ambit of this work. They study identifies a number of deficiencies, and proposes a model of continuing judicial learning which can serve as a template to assist judges operating in common law systems. 7. For any proper understanding of the introduction of continuing judicial education, and its significance to the judiciary, it is necessary to recognize the overarching importance of the process of professionalization, and the significance of two themes in that process, namely the pursuit of competence and the provision of accountability. It will be seen that there is a need for the judiciary to formalize a means to enhance its performance in the light of public criticism, and to demonstrate its concern for improved performance to the community in an appropriate way. 8. Study of the introduction of judicial education is as timely as it is inevitable. It is no coincidence that the early 1990's marks a period of soul-searching for judiciaries in many countries confronted with often virulent criticism and diminishing social credibility. 9. This is a period of intense critical public scrutiny of the judiciary. There is nothing either unusual or incidental about this scrutiny; rather, it is a predictable part of refining the role of the judiciary in society. Professionalization is an essential element of this evolving relationship, and provides the judiciary with an important means to demonstrate its competence while preserving the integrity of its independence. PROFESSIONALIZATION 10. The process of professionalization describes the response of professions to recent and continuing public criticism generally, and to increasingly vociferous demands for accountability. For the judiciary, this criticism centered, for the most part, not on ignorance of the law, technical deficiency, ethical misconduct or individual behaviour, but on the performance of the judicial system

at large and on a perceived failure of the judiciary to reflect the society over which it was seen to preside. 11. Public criticism of the professions became increasingly vocal throughout the western world during the 1960's. Houle describes this criticism as relating to inadequate service systems to care for the needy, and to what he describes as excessive self-interest, incompetence and malevolence. The professions were criticized by their own members (both within and between branches of the profession), by consumers (the revolt of the client, citizen and special interest group advocates), by the mass media, and by government.{Houle, "Continuing Learning in the Professions", San Francisco: Jossey-Bass, 1980, 14, 271 and 273}. This criticism has imposed pressures on all professions to carry out their duties at the highest possible standards of competence. Houle postulates that it is within this context that the concept of systematized continuing professional education evolved: Until then, it was almost universally taken for granted that the acquisition of general or special competence coupled with the expectation that every professional would voluntarily maintain, apply and advance his or her knowledge and skills throughout a lifetime would be sufficient guarantees of continued excellence of performance. But...it is now widely accepted that there should be periodic reassessments of competence to ensure to the individual professional, the people he or she serves, and society in general that a high level of performance is being maintained.{Houle, 279}. 12. This criticism, bringing with it threats of governmental regulation and intrusion into their privileged domain, led the professions to take steps to consolidate their identity in order to maintain their continuing existence. These steps included the introduction of a panoply of formalized requirements relating to entry standards, codes of conduct, rules of membership and discipline, and involved the linking of professional performance with continuing education. Continuing education became seen increasingly to be a means for professions to improve performance, disarm criticism and thereby to resist pressures to impose external standards on the professions. The incorporation of education services became an integral part of this institutional response to public criticism. From the profession's perspective, these education services provided a means of, first, implementing progressive and preventative measures to redress any public criticism of professional incompetence, and second, to visibly demonstrate measures of self-help as a disincentive to external regulation by government. Continuing professional development became recognized as an important response to establishing patterns of growth within the professions, and a means of managing both personal and systemic change. In this sense, the introduction of continuing education is but one part of a broader strategy to improve professional performance. 13. While the formative role of the judiciary, and the metamorphosis of judges from legal practitioners, tends to obscure direct comparisons being made between the judiciary and other professions, the process of professionalization provides important insights on the judiciary and the changing nature of its role. First, it marks the transference of responsibility for competence and

performance from the individual to the group, which reflects the on-going evolution of the judiciary as a social institution within society; and second, it is indicative that this group elects to see itself primarily as a body of professionals rather than as public servants or an arm of government. At a time when accountability is being demanded of all social entities in government, business and the professions, it is noteworthy that the judiciary chooses to see its role in professional terms. This choice sheds light on the deeper question "What is the judiciary?" It remains to be seen whether this self-perception is ultimately found to be appropriate or adequate. 14. Professionalization describes the evolving relationship between the judiciary and society; what is unique about this process for the judiciary is that it must find a means of enhancing competence while balancing the competing precepts of independence and accountability. For the judiciary, the introduction of continuing judicial education is demonstrably more appropriate then the spectre of intervention by the executive. CONCEPT OF COMPETENCE 15. The purpose of any program of continuing judicial education is to provide a process, which is more or less formalised, to promote the continuing learning of judges. It will be argued that the mission of judicial education is distinctive from other forms of occupational training or professional development in the extent to which it should promote learning and the pursuit of professional excellence which lie beyond the domain of technical competence. Ultimately, the purpose of this learning is to improve judicial performance and, thereby, the quality of justice. JUDICIAL COMPETENCE 16. The notion of competence, as the goal of judicial education, is central to this study. Competence is variously defined. For these purposes, it will be argued that judicial competence should be seen as the mastery of the knowledge, practical skills and disposition of judging. Competence is the ability to perform a range of tasks through the application of knowledge and skills to the resolution of particular problems according to certain standards, within a framework of rules of conduct and ethics of the judicial profession. 17. The notion of competence - while a fundamental concept in most professional development models - can be problematic. On the one hand, it can imply a minimalist threshold of capability towards which the education program is aimed. On the other hand, it can be seen as an ideal concept in terms of being a non-specific educational objective rather than any finite quality defined by quantifiable behavioural benchmarks. In this sense, it is synonymous with optimal states of proficiency, excellence or expertise. Commentators have variously described the application of these qualities as professional artistry and judicial authenticity. 18. This duality of meaning raises two important questions for judges and educators alike: first, whether judicial competence should be seen as a bench-mark or as an aspirational standard? Second,

should competence be seen as a static concept, or as a dynamic phenomenon which increases with experience throughout the judicial career? The answers to these questions are hardly polemic, and influence the nature of any program of judicial education. If the answers to both questions are the latter choice - as it will be argued that they should be - then judicial education is fundamentally distinguished from prevailing models of continuing education and occupational training. To support this distinction, it will be argued that judges generally posses unusually high levels of pre-existing professional competence by virtue of the process of merit selection. It is within this context that the mission of continuing judicial education should be seen to extend beyond conventional notions of technical proficiency to embrace professional excellence or artistry. 19. Assessment of judicial competence is difficult.[1] While the competence of professional is normally assessed through the quality of their performance, any qualitative assessment of judicial performance is fraught with both practical and doctrinal difficulties. It will be seen that the essence or artistry of judging is too complex to be readily amenable to predetermined behavioural criteria; moreover, quantitative assessment provides an incomplete and clumsy measure of performance at a personal level. More significantly, measurement of the quality of a judge's work performance other than through formal appellate procedure has the potential to subvert the integrity of the trial process and thereby the independence of the judiciary. For these reasons, few useful examples can be found to illustrate consensus on satisfactory means of measuring judicial competence using conventional procedures. Measurement tends to be proffered in quantitative terms, however arbitrary. Overcoming these difficulties remains a challenge for judicial educators. INCOMPETENCE 20. An alternative means of defining the notion of judicial competence is provided by an assessment of its absence, that is, from a review of the indicators of incompetence. Owing to the doctrinal and practical obstacles already discussed, there are limited opportunities and highly formalized mechanisms for any such review. Assessment of judicial performance is, however, a normal part of judicial administration and is constantly undertaken through a number of means which include formal complaints, appeals and the scrutiny of the public media. 21. Formal complaint procedure may or may not be provided, but tends to be complex, clumsy and potentially politically charged. In practice, the most obvious and usual means of review of judicial performance is to be found within the court structure itself, in the ordinary appellate processes. Gleeson remarks that, The working of the appellate courts is the primary means which the system provides for identifying and correcting judicial error. In this context the word "error" is used in the widest sense.... The possibility that a judge at first instance, or an intermediate court of appeal, will ultimately be held to be in error is an inescapable part of our system of administration of justice.{Gleeson AM (now, Chief Justice of New South Wales), "Judging the Judges," Australian Law Journal, 1979, 53, 338-347,

344}. 22. In addition, the competence of the judiciary is constantly reviewed by public scrutiny, frequently through the media. Of this public scrutiny, Bentham remarked: Where there is no publicity there is no justice... Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.{Bentham cited by Lord Shaw of Dunfernline, Scott v Scott, 1913, Appeal Cases (House of Lords), 417, 477}. 23. It follows that while the notion of judicial competence is complex, problematic and resists ready translation to conventional measurement, a variety of mechanisms do exist and operate to measure judicial performance at a number of levels. From the perspective of judicial education, it will be argued that compelling reasons exist to extend the measurement of judicial competence to integrate these mechanisms which operate at a systemic rather than a personal level. QUEST FOR ACCOUNTABILITY 24. It has already been foreshadowed that the introduction of judicial education should be seen within the over-arching context of the need to demonstrate judicial accountability. Accountability is another complex and problematical issue for the judiciary.[2] For judges, the question is not whether there should be judicial accountability, but how accountability should be balanced with independence.{Shetreet S, "The Limits of Judicial Accountability: a Hard Look at the Judicial Officers Act 1986," University of New South Wales Law Journal, 1987, 10,4,7}. As Lord Hailsham has 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.{Lord Hailsham, "Democracy and Judicial Independence, " University of New Brunswick Law Journal, 1979, 28,7,8; cited by Nicholson, at 408}. PRECEPT OF INDEPENDENCE 25. Independence is a precept for any judiciary operating within the Westminster system of government. This precept has been defined as the capacity of the courts to perform their constitutional function free from actual or apparent interference.{Green G (Sir Guy), "The Rationale and Some Aspects of Judicial Independence," Australian Law Journal, 1985, 59, 135-162, 135}. 26. For jurists, judicial independence is an essential element of democracy. Hailsham sees the independence of the judiciary as a bastion against the "absolutist theory of democracy". {Hailsham, 7}. Under the Westminster system, the separation of powers doctrine provides a system of mutual

checks and balances between the executive, legislative and judicial arms of government, so that one branch of government is incapable of abrogating power to itself at the expense of the other two. It is within this context that jurists see an imperative for an independent judiciary to act as an impartial arbiter of disputes between citizens and the state.{Nicholson, 410}. JUDICIAL ACCOUNTABILITY 27. At the same time, judges find themselves torn between preserving the need for judicial independence while increasingly having to provide accountability to the community.{See, for example, Basten J,"Judicial Accountability: a Proposal for a Judicial Commission," The Australian Quarterly, 1980, 468-485, which presaged the introduction of the Judicial Commission in New South Wales six years later. This accountability is, according to Nicholson, manifest in many ways: The business of all courts is, except in extraordinary circumstances, conducted in public. Judges resolve disputes under the obligation to publish full reasons for their decisions. Each decision... is subject to being appealed. Appeal court criticisms may be published without limitation. Academic lawyers are free to criticise judicial reasoning. Media attend hearings...{Nicholson, 413}. 28. Ultimately, the judiciary is confronting an ever increasing need to provide accountability, to justify and demonstrate its value and effectiveness. Nicholson, continues: Despite these structural guarantees of exposure of the business of the courts to the scrutiny of legal examination and the glare of public scrutiny, it is sometimes considered that the judicial branch needs to become more accountable.{Nicholson, 413}. 29. This problem of providing justification is described by the Chief Justice of Australia, Sir Anthony Mason:

The defence of existing professional structures and professional practices on the basis that they contribute to the just and efficient disposition of litigation is likely to be greeted with a degree of robust scepticism unless the soundness of that basis is clearly demonstrated.... The plain fact is that, in contemporary society, people are not prepared to accept at face value what professional people tell them.[3] 30. The key to reconciling this dilemma is provided by Nicholson who relates the need to provide increased accountability with the issue of continuing judicial education: Judicial education is now an accepted part of judicial life in many countries. It is an enhancement of the metal qualities necessary to the preservation of judicial independence...

Judicial independence requires that the judicial branch is accountable for its competency and the proposition is now accepted as beyond debate.{The relationship between judicial education and the preservation of independence has been recognized for some time in Canada, and is enshrined in the rationale for continuing education. For example, the charter of the National Judicial Centre declares its mission to be: "To foster a high standard of judicial performance through programs that stimulate continuing professional and personal growth; to engender a high level of social awareness, ethical sensitivity and pride in excellence, within an independent judiciary; thereby improving the administration of justice." National Judicial Institute (formerly, Canadian Judicial Centre), Annual Report 1991 - 1992, Ottawa, 4}. DISTINCTIVE APPROACH TO JUDICIAL EDUCATION 31. It may now be taken as well settled that there is a need to develop a distinctive model of judicial education which is designed to address the specific learning requirements and practices of judges while preserving judicial independence. The question of the need for judicial education is increasingly recognized within the judiciary itself. While it has been the subject of vigorous debate throughout the judiciary, a consensus is now emerging among judges, which acknowledges both the need and the benefit of continuing education in enhancing competence and consolidating independence. Since different modes and practices for selection of judges give rise to different needs, the judges participate in continuing education for reasons, altogether different from these applicable to other adults or professionals and when taken in conjunction with other features of judges as learners, give rise to the need for the development of a distinctive approach to judicial education. 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.

[1] There has been limited comprehensive work on defining judicial competencies, but, see: Gold N, "Towards a Curriculum for Continuing Judicial Education - Establishing Judicial Competence: Professionalisation, Quality and the Public Interest," 1994, (as yet unpublished article). There has been more work in relation to legal competencies, which may be applicable to the judiciary; see, most recently, ABA, Legal Education and Professional Development - an Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Chicago, 1992 (MacCrate Report); also, Blasi G, "What Lawyers Know: Lawyering Expertise,

Cognitive Science, and the Functions of Theory," Journal of Legal Education, 1995, 45, 313-386. See, McGarvie RE, "The Foundations of Judicial Independence in a Modern Democracy," Journal of Judicial Administration, 1991, 1, 33; McGarvie RE, "The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence," Journal of Judicial Administration, 1992, 1, 236-277; Gleeson M, Judicial Accountability, Canberra, 1994 (Conference on Courts in a Representative Democracy; as yet unpublished paper); and Nicholson RD, "Judicial Independence and Judicial Organization: A Judicial Conference for Australia?" Journal of Judicial Administration, 1993, 2, 143-161 (hereafter: Nicholson, JJA, 1993); and Nicholson, ALJ. Mason A, "The Independence Of The Bench; The Independence Of The Bar, And The Bar's Role In The Judicial System," Australian Bar Review, 1993, 10, 1-10,1.
[3] [2]

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 Academys 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 judiciarys 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 Associations Section of the Legal Education and Admissions to the Bar expanded Pounds 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 OConnor of the United States Supreme Court has defined professionalism as a commitment to develop ones 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 rights 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 professionals 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 precisions 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 ACADEMYS 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 ACADEMYS 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 weeks 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 Honble 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. Theres 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 dont want to do any thing to make that look in their eyes wane. Im not nave. They will grow up, become teenagers, see me differently. Ill look smaller in their eyes. But Im going to do my best not to contribute to my own diminution 28. Those eyes define professionalism for me. Its not about rules, codes of conduct, mission statements or the things that are not done. Its 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 Ill 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. Its more than following rules for the sake of following rules. Its 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 theyll do the right thing too. Start looking deep into your loved ones eyes. Youll find what it means to be a professional in those eyes, and youll 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 nt 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. 2. 3. 4. 5. 6. Educating Judges by Livingston Armitage Continuing Learning in the Professions - Houle Democracy and Judicial Independence Lord Hailsham The Australian Law Journal, 1985. Report and Recommendations of the Maryland Judicial Task force on Professionalism Nov. 10, 2003. The Florida Bar Professionalism Hand Book.

DELAY REDUCTION WITH EFFECTIVE COURT MANAGEMENT Chaudhry Hasan Nawaz INTRODUCTION Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressurize judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of fact finding and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then even the wisest judge cannot distinguish between merit and demerit. If we do not get the facts right, there is little chance for the judgment to be right.[1] 2. As far back as in the sixteenth century, William Shakespeare's Hamlet cited "law's delay" as a reason for preferring suicide to continuing life. Then, in the nineteenth century William E.

Gladstone said that "Justice delayed is justice denied". In 1958, Chief Justice Earl Warren of the United States observed that "Interminable and unjustifiable delays in our Courts are today compromising the basic legal rights of countless thousands of Americans and, imperceptibly, corroding the very foundations of constitutional Government in the United States". 3. The acuteness of the problem prevailing in our neighbouring India can be assessed from the following observations made by its Supreme Court in a case decided in 1976, after twenty five years of long litigation: "At long last, the unfortunate and heroic saga of this litigation is coming to an end. It has witnessed a silver jubilee, thanks to our system of administration of justice and our callousness and indifference to any drastic reforms in it. Cases like this, which are not infrequent, should be sufficient to shock our social as well as judicial conscience and activise us to move swiftly in the direction of overhauling and restructuring the entire legal and judicial system. The Indian people are very patient, but despite their infinite patience, they cannot afford to wait for twenty-five years to get justice. There is a limit of tolerance beyond which it would be disastrous to push our people. This case and many other like it strongly emphasize the urgency of the need for legal and judicial reforms". (AIR 1976 S.C. 1734). 4. Even the British rulers of this sub-continent were quite conscious of the seriousness of this problem. They set up a Civil Justice Committee, headed by Sir George Clause Rankin, one of the most eminent Judges of the country, as early as 1923, to inquire into the causes of delays in the disposal of civil litigation and suggest remedies. After an elaborate examination of the problem, the Committee made its report in 1925. We can do no better in this respect than repeat what was said by the Rankin Committee as far back as 1925. The position since then, if anything, has aggravated out of all proportion. The Committee observed: "Improvement in methods is of vital importance. We can suggest improvements, but we are convinced that, where the arrears are unmanageable, improvement in methods can only palliate. It cannot cure. It is patent that, when a court has pending work which will occupy it for something between one year and two years or even more, new-comers have faint hopes. When there is enough work pending at the end of 1924 to occupy a subordinate judge till the end of 1926, difficult contested suits instituted in 1925 have no chance of being decided before 1927. Whatever be the improvement in methods alone cannot be expected in such circumstances to produce a satisfactory result even in a decade." "Until this burden is removed or appreciably lightened, the prospect is gloomy. The existence of such arrears presents further a serious obstacle to improvement in methods. It may well be asked - is there much tangible advantage gained by effecting an improvement in process serving, pleadings, handling of issues and expediting to the stage when parties are in a position to call their evidence when it is a certainty that, as soon as that stage is reached, the hearing must be adjourned to a date eighteen months ahead or later, to take its place, in

its turn, for evidence arguments and decision? Unless a court can start with a reasonably clean slate, improvement of methods is likely to tantalise only. The existence of a mass of arrears takes the heart out of a presiding officer. He can hardly be expected to take a strong interest in preliminaries, when he knows that the hearing of the evidence and the decision will not be by him but by his successor after his transfer. So long as such arrears exist, there is a temptation to which may presiding officers succumb, to hold back the heavier contested suits and devote attention to the lighter ones. The turnout of decisions in contested suits is thus maintained somewhere near the figure of the institutions, while the really difficult work is pushed further into the background." 5. This is suggestive of the surmise that the problem is fairly old and being faced by many other countries with similar conditions and system of justice. But the fact of its being old and all embracing by no means derogates anything from its gravity in terms of far reaching adverse effects on the civil society. Despite this aspect, however, it must be confessed that no genuine effort seems to have been made to eradicate this evil and, whichever the place, people are still suffering from this malaise. Where sincere efforts have been made with commitment and dedication, like in Singapore, the pendency is well under control. 6. In Pakistan, the problem of delays in disposal of cases is as old as its inception and it has taken serious social dimensions with the passage of each day. It has grown in magnitude to an extent that it is not only a cause of serious concern but a problem which, it may be said without exaggeration, is eroding the very system of administration of justice. It has undercut the public confidence in the judiciary and must be dealt with on top priority basis with all systems go kind of approach. LAW REFORM COMMISSIONS 7. After independence, this problem engaged the attention of the Government of Pakistan and a Law Reform Commission, headed by Mr. Justice S.A. Rahman, a Judge of the Supreme Court of Pakistan, was constituted in the year 1958, to suggest remedies for the better and more speedy disposal of both civil and criminal cases. This Commission made its recommendations within one year, but laws' delays have continued to persist. Another Law Reform Commission was established in 1967, under the Chairmanship of Mr. Justice Hamoodur Rahman, a former Chief Justice of Pakistan, to ascertain the causes of delay in the disposal of the judicial cases and to recommend efficacious remedies for the removal of such causes and suggest measures to simplify the court proceedings. This Commission submitted an exhaustive report in February, 1970. LAW REFORM COMMITTEES 8. In 1974, a High Powered Law Reform Committee was set up by the Federal Government under the Chairmanship of the then Law Minister, to consider the problem of delays in the disposal of judicial cases and accumulation of arrears in the law courts at different levels. The Committee

submitted its report in January, 1975. Yet another Committee to achieve the same objective was set up in 1978 under the Chairmanship of a former Chief Justice of Pakistan. This Committee submitted its report in October, 1978, suggesting appropriate measures in the light of recommendations made by the preceding Law Reform Commissions and the High Powered Law Reform Committee for eliminating delays. CAUSES OF DELAY 9. These are causes of delay pointed out by these Commissions and Committees:

(i) Lack of proper supervision; (ii) unsatisfactory service of processes; (iii) lack of proper working conditions in the courts; (iv) lack of transport facility for process serving staff; (v) lack of court/residential accommodation; (vi) lack of libraries; (vii) lack of record rooms in the courts; (viii) lack of training facilities for judicial officers; (ix) shortage of ministerial staff and necessary equipments in the courts; (x) non-observance of the provisions of procedural laws; (xi) shortage of judicial officers; (xii) shortage of stationery and furniture; (xiii) delay on the part of investigating agencies; (xiv) non-attendance of witnesses; (xv) delay in writing and delivering judgments; (xvi) frequent adjournments; (xvii) dilatory tactics by the lawyers and the parties; (xviii) frequent transfer of judicial officers and transfer of cases from one court to another; (xix)interlocutory orders and stay of proceedings; and (xx) Un-attractive service conditions of subordinate judicial officers. THE CHIEF JUSTICES COMMITTEE 10. This delay had also recently been engaging serious attention of the then Chief Justice of Pakistan and that it had become a chronic malady of serious concern was acknowledged by the Chief Justices' Committee in its meeting held on 26th February, 2000 with the following observations: "Backlog and delays in quick dispensation of justice is a serious threat to the existing judicial system in the country. Concerted efforts are required by learned Judges at all levels, lawyers, litigant public, witnesses, prosecuting agencies, public leaders, media and the Executive to combat the menace by strengthening the system of administration of justice. In his judicial work, a Judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavour to minimize suffering of litigants by deciding cases expeditiously through proper written judgements". 11. A study of the reports of the Civil Justice Committee and Law Reforms Commission of 1958, the Law Reform Commission of 1967-70, and the subsequent Law Reform and Chief Justices Committees reveal that the said Commissions and the Committees had, after thorough study and examination of the Laws of the country, reached the conclusion that all laws, both procedural and substantive were, by and large, neither responsible for any delay in the disposal of judicial cases nor for accumulation of huge arrears in the law courts. They were of the view that procedural laws are

frequently abused and it is mainly human factor which is responsible for the failure of the laws, and the consequent delay in the litigation. They are, however, not averse to changes to suit the situations that have become apparent in the course of working of the procedure. RECOMMENDATIONS 12. In the Policy Paper submitted by the Asia Development to the Government of Pakistan in December 1999, on Legal and Judicial Reform in Pakistan, the following ten main recommendations were outlined: (i) Pass or reinforce good governance measures that contribute to the enabling environment for improved legal and judicial performance. Amend the Law Commission Act in order to create a National Policy making Authority for Judicial Administration. Pass legislation to create a provincial Judicial Ombudsman. Rationalize the Incentives so that they reward good Judicial Performance. Amend the Civil Courts Ordinance of 1962 with provincial effect to require an Annual Conference of District and Sessions Court judges and the publication of an Annual Report on the State of the Judiciary. Pass a new Arbitration Act and establish Commercial Divisions in the High Courts of the Punjab and Sindh. Create an Alternative Dispute Resolution Center annexed to the courts. Create Centers of Excellence in Legal Education and a Fund for Innovations in Legal Education. Build support for the judicial reform program by establishing pilot courts in the National Capital Region and the provincial capitals; build ten or twenty new courthouses in districts without a court currently on the ground. Pass legislation to provide for a Judicial Development Fund.

(ii)

(iii) (iv) (v)

(vi)

(vii) (viii)

(ix)

(x)

13. The importance of these recommendations was explained in the paper in these words: "These recommendations are not intended to be "wisdom frozen in time". On the contrary, they represent a deliberate effort, first, to make strategic choices about reform activities, and second, to structure credible institutions that are able to carry the reform process forward. But these recommendations will need to be adapted during implementation: no legal and judicial reform plan

can "out-think" deep historical patterns of behaviour through the sheer force of elaborate design and planning. So the recommendations should be considered "thoughtfully indicative" rather than "insistently directive". 14. It further said: "In this spirit, these recommendations were developed with energy and with hope. They were generated in consultation with experts both inside and outside Pakistan who are renowned for their understanding and personal integrity. They are informed by cross-national comparison with legal and judicial reforms in a number of countries, and by academic studies. They reflect the cutting edge insights of multilateral development agencies, whose lending to legal reform efforts has increased dramatically in the past five years. And they are offered with the recognition that their implementation will require the creativity, courage, and cunning of Pakistan's leaders". CUTTING EDGE INSIGHT 15. In spite of this high quality, diligent and efficient examination of the matter by the Law Reform Commissions and Committees resulting in very useful and proficient recommendations to eradicate this chronic malady, we are still facing the problem, rather larger in gravity and dimensions. This is because the recommendations have never been seriously taken and implemented. We are thus as far from the destination as fifty years ago and the achievement of avowed goal is still not in sight. The question arises why the much needed results have not been produced. The only answer is that this has been so for lack of the judicial and political will to accomplish the task and no serious effort seems to have been made for implementation of the recommendations. 16. As gathered from the reports of the Law Reform Commissions/Committees and those resulting from the Asian Development Bank's study, the crux of the problem is unpredictable increase in the volume of litigation with the passage of each day and failure to make proportionate increase in the number of judges to deal with these cases to keep pace with ever increasing pending file. The result is that at most of the places, pending file requiring the services of five judicial officers has been entrusted to one judicial officer. And this is because our priorities are topsy turvy. I do not think we will ever be able to solve this problem of delay, so long as it does not achieve its due place in the priority list. CALENDAR CONTROL SYSTEM 17. Meticulous and closer application to the entire gamut of the problem and due consideration of the relevant factors will bring us to the conclusion that we are in dire need of an environment where the delay is made to appear relatable either to frequent adjournments or to any of the above mentioned causes. It can be there, only if we first bring about a situation where the presiding officer has the option to refuse adjournment. I believe, on the basis of my personal experience as also that of others in judicial business, that in the courts where the presiding officer has to cope with a daily cause list of 120 to 150 cases, the adjournments are not voluntary but a situational imperative. It seems to me that a presiding officer with that kind of cause list and the

people milling around, thus bring about unenviable working conditions, will have every justification for accommodating a counsel on the ground that he is engaged with another case called earlier for hearing in another court, rather than adjourning the matter at the fag end of the day on the ground that the court time is over. 18. And I have heard people saying why the presiding officer should at all have had a list of 120 to 150 cases for one working day and that why he could not manage to fix cases in such a manner that the daily cause list did not exceed 20 to 30 cases. Although an explanation can easily be found, I am constrained to say that try as you might, it is not possible to visualize what exactly happens in the court to force the presiding officer to embellish the daily list to an unmanageable extent. Left to myself for an answer, it would be enough to say that you have to be a presiding officer of a court, with a pendency of 1500 to 2500 cases, to realize what happens when dates are fixed for hearing. There are large number of cases where people clamour, and rightly so, for shorter adjournments. PROPOSALS 19. In the backdrop of these circumstances and the conditions obtaining in the District Courts, the following proposals are submitted for consideration of the Law and Justice Commission: (a) In the districts, Case Management Committees or Prioritization Committees, howsoever you may call them, may be constituted by the District & Sessions Judges for each court functioning under their jurisdictions, with the presiding officer of the court concerned as Chairman, reader of court, representatives of the stake holders and their counsel as members. The committees may be entrusted with the category-wise prioritization of cases, on the basis of their importance, which will be determined with reference to and on the basis of: (i) the nature of cases, (ii) dates of institution, (iii) location and value of the property in dispute, (iv) civil rights involved, (v) the parties, (vi) impact of the ultimate decision, (vii) the number of persons affected by the decision of the court, (viii) involvement of public interest, (ix) the nature of questions involved for determination, (x) whether any temporary injunction has been granted in favour of either of the parties, and (xi) other relevant considerations. (b) In criminal cases, priority can be determined on the basis of: (i) dates of institution of proceedings, (ii) nature and gravity of the offence, (iii) the number of persons affected, (iv) public interest in the outcome, (v) the impact of judgement to be passed in the case, and (vi) maximum punishment provided for a particular offence. (c) These Committees will function under the direct control and supervision of the District

& Sessions Judges (d) After the process of prioritization is completed; the presiding officer may put 500 cases, in order of priority, on active calendar for trial and final disposal. Then, at the end of the month, as many cases as disposed of may be brought on active calendar in order of priority from the inactive calendar. As an important ingredient of the plan, the presiding officer must fix a target in terms of number of cases to be disposed of in a month, in a manner as would ensure that the disposal exceeds the institution by at least 5 to 10 cases in every month, so that the pending file is gradually reduced.

(e)

20. This, I would say will be the best local arrangement for case flow management which, as they say, is the central theme and conceptual heart of court management in general. If put in practice, the unproductive time wasted by a presiding officer with a daily cause list of 120 to 150 case and dealing with preliminaries in at least 100 cases, will be utilized by him in disposal oriented hearing of 25 to 30 cases. He will thus be in full control of the calendar and by virtue of that circumstance in that of the court as an organization. If the number of judges is bound to remain inadequate and we fail to make proportionate increase in the present strength of the judiciary to cope with the ever increasing pending file, this arrangement is the only way to address problems of delay and backlogs, for pulling the chestnut out of the fire. 21. We might examine the proposals from another point of view. It must be conceded that the causes of delay enumerated above do play a substantial part in aggravation of the problem and that they must be eliminated to produce results. But what I respectfully maintain is that other causes of delay, such as lack of proper supervision, unsatisfactory service of processes, delay in submission of challans, non attendance of witnesses and frequent adjournments are only collateral and they can be relevant only if the presiding officers will have time to address to these matters. As for instance if the ahlmad fails to issue process well in time or the process server is negligent in effecting service, the presiding officer should have the time to inquire into the matter and bring them to book; and this can be humanly possible only if he does not have more than 25 to 30 cases on his daily cause list. SUPPLEMENTARY MEASURES PROFESSIONALISATION 22. In his book "Educating Judges" Livingston Armytage said: "The process of professionalization describes the response of professions to recent and continuing public criticism generally, and to increasingly vociferous demands for accountability. For the judiciary, this criticism centred, for the most part, not on ignorance of the law, technical deficiency, ethical misconduct or individual behaviour, but on the performance of the judicial system at large and on a perceived failure of the judiciary to reflect the society over which it was seen to preside".

23. I would propose that the civil judges-cum-judicial magistrates should be made to function only in one capacity at a time, so that we may have separate civil and criminal courts. However, a Civil Judge exclusively in-charge of civil work may be made to function at his next posting as judicial magistrate to gain experience both in civil and criminal work. I am of the view that segregation of civil and criminal work will facilitate the process of professionalization. JUDICIAL COMPETENCE 24. Judicial competence can be seen as the mastery of the knowledge, practical skills and disposition of judging. Competence is the ability to perform a range of tasks through the application of knowledge and skills to the resolution of particular problems according to certain standards, within a framework of rules of conduct and ethics of the judicial profession.It hardly requires an emphasis that judicial competence can be achieved only by continuing judicial education. I would recommend that the High Courts should amend the relevant rules so as to make adequate judicial training as condition precedent for promotion of the judicial officers at various levels. ALTERNATIVE DISPUTE RESOLUTION 25. Alternative dispute resolution mechanisms are appropriate for cases that require some facilitation by a dispute resolution system. I would propose that alternative dispute resolution (ADR) centres may be established and annexed to the courts, to serve as a significant alternative to the traditional, conflicting legal culture of Pakistan. Skilled ADR staff or "neutrals", can privately resolve, through mediation and pre-trial counselling, large number of cases with greater speed to cut down the institution of fresh cases. These centres can also be useful in addressing frivolous litigation. They may require capacity building, such as efforts to reach out to the bench, the bar and law students through seminars, role playing experiences, literature reviews, talks and workshops. Improvement in the arbitration system may also be favourably considered by effecting necessary amendments in the Arbitration Act. INVOLVEMENT OF THE BAR 26. It is not possible to achieve the ultimate goal of delay reduction and fair, speedy, effective, administration of justice, without positive association and cooperation of the bar. The District Judges may be asked constitute Bench Bar Committees to facilitate this cooperation. EXCELLENCE IN LEGAL EDUCATION 27. On this aspect of the matter, I may quote, with advantage, from the Policy Paper of the Asian Development Bank: "In Pakistan, the past fifty years have seen a decline rather than a strengthening of professional standards and academic excellence in legal education. The quality and output of

legal education today -- whether viewed in professional or academic terms-is very poor. The result of this process is clear: legal education in Pakistan is not producing lawyers, judges, legal scholars, government legal officials and other law-trained personnel Pakistan needs to meet the legal, economic, governance, social and cultural challenges of poverty, civil conflict, social stratification, abuse of rights that Pakistan faces." "The strategic causes of decline and weakness in Pakistani legal education include lack of strong, implementable processes for institutional quality in legal education; significant under-resourcing of legal education; lack of transparency, accountability and faculty control within legal education, along with significant politicization at certain times; outmoded curricula and teaching; the virtual absence of legal research and a research environment; significant under-staffing of full-time faculty; poor infrastructure, libraries and faculty resources; inequitable access and outmoded, some times corrupt admissions procedures; outmoded, sometimes corrupt examination systems; poor earlier education and language skills among students; among other issues." "This study, then, recommends the formation of a National Council for Legal Education (NCLE) as a strong, national, independent body with power to set standards for legal education throughout Pakistan and to support reform measures, and establishing centers of excellence in legal education." PASSION FOR WORK 28. It may be added, by way of another supplementary measure, that these proposals, if accepted and implemented will certainly play a vital role in reducing the backlog, but would not still be enough to achieve the objective, unless we approach the work with passion, commitment and dedication. As recommended by the Chief Justices Committee, the Chief Justices of the High Courts may convene annual provincial conferences with the participation of all the District Judges, for contriving judicial leadership and to infuse the officers of District Judiciary with the kind of passion which is required to meet the challenge of progressive accumulation of cases. NEW JUDICIAL CULTURE 29. These recommendations, if carried into effect will, go a long way in creating an environment, ultimately favourable for the development of a new judicial culture, where the Ahlmad will be well aware of the fact that the processes have to be issued in time. The process server will keep it in mind that failure to serve the process will entail punitive action and the counsel for the parties shall know that adjournments are not to be requested. Everybody else concerned with the disposal of a matter, either civil or criminal, will be sure of the fact that the presiding officer is bound to go by the calendar. This new judicial culture will result in materialization of the concept that quicker dispatch of judicial business and the elimination of delays are sine qua non of a

progressive civil society and the over all national development which comes in its wake. NOW THE ROOT CAUSE 30. Last but by no means the least, it may be mentioned, again for consideration as a supplementary measure, that we have had so many proposals and recommendations of the Law Reform Commissions and High Powered Committees who made thorough and highly meticulous examination of the problem for elimination of delay. They identified the causes of delay and made extremely valuable recommendations. It would be not an exaggeration to say that they in fact left nothing to be desired. It is, however, unfortunate that they have not been implemented, obviously for want of political and judicial will. 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.
1]

Southern Pac. Transport. Co.v. Stoot, 530 S.W.2d 930, 931 (Tex.1975).

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 Honble Federal Sharait Court which was dismissed and the appellant approach to the Honble Supreme Court of Pakistan against the Judegement passed by the learned Additional Sessions Judgement Dera Ismail Khan & Honnble 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 Honble Supreme Court Of Pakistan considered the aspect of recording confessional statement on oath as a primary question. The observation of the Honble 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 Honble 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

by Aftab Ahmed Lone Additional District & Sessions Judge Director (Instructions) Federal Judicial Academy, Islamabad The Civil Judges and newly promoted SCJ having a pressure to meet the required progress specified by the concern High Court usually dismissed the suits or reject it without proper appreciation of principles of Res Judicata. I felt that it would be convenient for them to give them general information based upon the verdicts and authorities passed by Honble Supreme Courts. The doctrine of Res Judicata is based on maxim. nemo debet bis vexari eadem causa (No man ought to be put to trouble, if it appears to the court, that it is for one and the same cause) A final judicial discussion of a court of competent jurisdiction once pronounced between parties/litigants, cannot be contradicted by anyone, as against any other of such parties in any subsequent litigation between the same parties respecting the same subject matter. It is found in the principal

that there should be an end to the litigation as to any issue between the same parties when once that issue has been directly and substantially determined between them by a court of competent jurisdiction. It sorts fresh litigation at the outset. Res-Judicata not only ousts the jurisdiction of the court but a person cannot be harassed again and again upon the same question. A judgement delivered by a court of competent jurisdiction operates as a bar as regards all findings which are essential to sustain the judgement. The object of the principle of Res-Judicata as suggested by the expression itself is that finally should impart to judicial decision and if a case is Res-judicata, it may not be reopened so as to be adjudged again. In other words once a matter between parties to a suit or proceeding is decided and the decision has become final either (a) because no appeal lies (b) or an appeal was taken or (c) if taken it was dismissed, none of the parties shall be allowed to canvas the same matter again in a subsequent suit or proceedings between the same parties.[1] The applicability of section 11 is not restricted only to suits but its principle apply to the proceeding, which may not be provided in the former suit or proceeding the same were heard and the same dispute between them was agitated and decided by court of competent jurisdiction. It is not necessary that the former proceedings should be only a suit. Section 11 of C.P.C is not exhaustive and the principle of the Res Judicata can be invoked in respect of proceedings to which it does not strictly apply. For example, in Mirza Muhammad Yaqoob verses Chief Commissioner and another[2], it was observed that Petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea, the proper cause would be to file petition for review of such a petition is maintainable. The general principle of Res-judicata is applicable to writ petition also.

The principle of section 11 have also been applied to the orders and decision made in execution proceedings.[3] Similarly if an application for

amendment of a decree has been heard and finally decided it will debar a subsequent application for the same purpose upon general principle of Law analogous to those of Res-judicata. It was highlighted in Ms. Shahzad Bibi and another verses Gulzar Khan that
[4]

the principle that a party is not to be vexed out for the same course is acknowledged in section 10 and 11 of the code of Civil procedure and even where section 11 does not in term apply, the general principle of Res Judicata have always been invoked by Courts of Law to achieve finality in litigation. An issue decided in one way at an earlier stage is not allowed to be reconvassed at a subsequent stage. From the above observation it has been subtracted that if a court having decided a preliminary issue is entitled reconsider its decision, it might go on altering and altering its decision any number of time at the invitation of the parties. If the Honble Superior Court has delivered its judgement upon particular issue and has signed the same than as far as the trial courts are concerned, that issue cannot be reagitated. There are certain circumstances where the principle of res-judicata does not apply. For example where the suit has been withdrawn with permission to file afresh on same cause of action, where the plaint is rejected for want of court fee, where the parties to earlier suit are different, where the cause of action of former suit is different, dismissal of former suit for non-prosecution, later suit for possession and mesne profits whereas former suits for declaration, subject matter in both suits different, former suit for possession subsequent for partition, when wrong decision on jurisdiction, and many more as per circumstances and facts of each case. A case came before Honble Supreme Court,[5] where the plaint was rejected under order VII Rule 11 C.P.C for want of court Fee, it was held that It is also a settled Law that rejection of plaint has not an adjudication on merits. It is a decree only by fiction, therefore, there is no bar to file fresh suit.

The principle of Res judicata also applies in family suit, the illustration of above proposition is that if a suit for restitution of conjugal right filed by the husband, the wife being respondent agitated and stated before the court that she is not prepared to live with her husband at any cost and the court came to the conclusion that the husband is not entitled to get relief of conjugal right then the wife can file a suit for dissolution of marriage. Constructive Res-Judicata A party cannot sue for any portion of a claim which it has either omitted to sue or has relinquished in the earlier suit, it cannot assert his right to sue for such claim at a later stage and the court would not grant leave to bring a fresh suit for such omitted or relinquished claim. The principle of Res-judicata being mandatory has to be applied against the parties and even an agreement between the parties cannot operate against this principle. Similarly Order 2, Rule 2 C.P.C provides that every suit shall include the whole of the claim to which the plaintiff is entitled and where a plaintiff omitted to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. In case of Anwar-ul-Mulk verses Mian Ghafoorur-Rehman and others , the August Supreme Court has observed as under: Doctrine of constructive res judicata is embodied in Explanation IV to section 11, C.P.C and is an essential constituent of doctrine of Res judicata. It is because of principle of res judicata that the doctrine of res judicata is rendered fully effective. The aim to the doctrine is to compel both the parties to the suit to raise before the Court in support of their contentions all the grounds of attack and defence available to them. By force of this doctrine, the parties have to bring their whole case to the Court and cannot reserve for the purpose of a second suit grounds available to them in support of their case. The rational behind the constructive res judicata is that if the parties have had an opportunity of asserting a ground in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such grounds in the former suit and it shall be further deemed that these grounds had been heard and decided as if these matters had been actually in issue. As such, such parties shall be precluded

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from raising these grounds in a subsequent suit. Such matters will by virtue of this legal fiction be construed to be res judicata. In the end I would like to add that all the principles to be interpreted strictly and doors of Justice not be slammed because Law is not what is termed as a technical knock out leaning aggrieved person with a bitter mouth but presenting a party who has had a fair fight on merits to drag his opponent back to court a second time over same dispute. Procedural Law was not meant to frustrate but advance cause of Justice ad should not be interpreted to make it a sort of trap.

[1] [2]

PLD 1977 SC 220, PLJ 1977 SC 392 PLD 1965 SC 254 [3] PLR 6 All 269 [4] PLD 1973 Lah 878 [5] PLJ 2007 SC 650 [6] 1997 SCMR 1796