Daily Times

The accused must not suffer due to the burden on the court because the acts of the court should prejudice nobody.

“Expeditious Justice Initiative” (hereinafter, referred to as EJI) is a step taken by the higher judiciary in fulfilment of an obligation to provide and “ensure inexpensive and expeditious justice” to the citizens of Pakistan. As a result, Model Criminal Trial Courts (hereinafter referred to as MCTCs) were created around five months ago. They have also been recently applauded for their speedy disposal of cases. They have decided several cases, precisely 12,584 in such a short period, which, hitherto, could not be done before.

Be that as it may, the disposal rate is as per aspirations, whether the justice is too? This is and always been an intrinsic question in judging the administration of justice in a country. The foremost suggestive criterion to review MCTCs in the administration of justice is to analyse its repercussions on the practical side, for which we will analyse briefly its narcotics and murder trial side.

Before anatomising EJI and its consequences, it would be pertinent to understand it briefly. The idea was a time-bound criminal trial mechanism in the country within the available resources, in the execution of which, MCTCs came into being on March 11, 2019. In this regard, 167 MCTCs are working for five months.

EJI’s objectives include the time-bound criminal trial; efficient trial management; and the fixed three months timeframe for the completion of the trial.

Further, it was also aimed to substitute the stereotyped approach in cognisance and initiation of the trial of cases and to discourage the miscellaneous frivolous petitions in subjudice matters, besides taking bar on board, all this and more with a proactive approach.

Now coming towards the aftermath of EJI, foremost aspect is that it cannot be hailed on-rather should not be hailed on- the basis of quantitative results it produced. Justice was never the domain of the quantitative approach. Yet, the quality justice has been and is the hallmark of a fair trial. Although Article 37(d) of the constitution guides the vanguards to “ensure inexpensive and expeditious justice” but not at the cost of Article 10A, which guarantees the right to a fair trial. This right is not only of the accused but also of the victim and the society.

True in the presence of backlog of cases, which are multiplied day-by-day, the accused must not suffer due to the burden on the court because the acts of the court should prejudice nobody. But it is not just the accused side that suffers. To give him expeditious justice, we may put at peril the one whose loved one was murdered. Besides justice, they also seek mercy and sympathy from the court.

Now, we begin with the examination of narcotics cases at a practical level in trial courts. Amongst the 7,687 narcotics cases, we see most cases were at a ripening stage pending adjudication in various courts. The majority of them were in waiting lists to be announced or at most, their evidence was completed.

The idea was a time-bound criminal trial mechanism in the country within the available resources, in the execution of which, MCTCs came into being on March 11, 2019. In this regard, 167 MCTCs are working for five months

But respectfully, the basic principle of criminal jurisprudence is that only proper person who can decide a case is the one who has conducted the proceedings from the start to the end, heard the evidence himself, got it on record and administered justice by hearing the summed up arguments from both sides. An exception to this remains under Section 350 of the Code of Criminal Procedure, 1898. It ensures the justice and the confidence of litigants at court. Besides, we have also observed that most of the disposal is on the technical grounds, at the default of Government Analyst’s Report. It has been held by the Supreme Court in Imam Bakhsh Case that the report must elaborate on the procedure it adopted in the analysis. Unfortunately, its defiance results in acquittal. Thus, it is another question mark for the sake of justice. Whether at the default of authorities and institutions, the only possible way is the speedy disposal of cases or to bring those at the dock for their negligence while ensuring a decision, based on evidence.

Next come the murder trials, wherein, reiterating the above-mentioned ground that cases were on the verge of finality. The foremost issue is with its time-bound approach. The fear of time because the clock is ticking. Of its natural corollary, a Damocles sword is always hanging over the head of lawyers, litigants, officials, and witnesses, etc.

Consequently, there are more perplexities and difficulties for everyone, despite being not accepted as truth. Moreover, the law obliges on the court to get the evidence on the record in its presence and by himself. We have seen that in MCTCs, two or more cases at the same time are open for the recording of depositions and disposal. For instance, in one case, the court’s mind is on final arguments. Simultaneously, its mind is on the evidence in another case.

And we know that human’s brain is not a limitless machine, so as not of the judge. Besides, lawyers, too, are humans. It is humanly not possible for a lawyer to prepare all the things in numerous cases. Admittedly, it is a hectic job.

Furthermore, the witnesses, too, are human beings. Mostly, they are illiterate, exhausted, pressurised, frightened, in grief and deep sorrow. We bring them to their knees to forget everything and give evidence regardless of how much shocked their minds are. It sometimes gets humanly impossible for both the client and his lawyer to be prepared in haste for trials. Nonetheless, a lawyer may also fail to fulfil his job efficiently, which is to protect his client’s interest. To get his client familiar with the court’s proceedings along with its culture and norms, it often becomes impossible for a desperate complainant and witnesses. Official witnesses, known as court witnesses, are also a part and parcel of the system. Mostly, they are police officials or doctors. The public prosecutors are the ones who are at the helm of trial work. Because of a huge number of cases, it has been observed that they cannot effectively prepare these witnesses. These hurdles may result in a substantial miscarriage of justice.

Last but not least, a balanced approach is required amid expeditious justice and a fair trial. And one should not forget the former approach is the principle of the policy of a state, and the latter one is a fundamental right. Besides this, the technical quantitative time-bound approach towards “inexpensive and expeditious justice” of article 37 (d) of Constitution of Islamic Republic of Pakistan, 1973, by putting at peril the confidence of citizens and lawyers over MCTCs, their working capacities and efficiencies, without resorting to the reforms of the old-fashioned, precarious and shaky investigating institution-Police reforms. By bounding and cheering the courts for their high disposal rate and in the same vein giving it the only least possible meaning of “inexpensive and expeditious justice”, is a big question mark. Because this question emanates from the golden words of Lord Chief Justice Hewart in McCarthy’s case in 1924 that “Justice should not only be done but should manifestly and undoubtedly be seen to be done.”

These words were uttered nearly a hundred years ago, but they are still the guiding grundnorm in the safe administration of justice; calling for a balanced approach amid the right to a fair trial and speedy disposal of cases.

The writers are trial lawyers