Above: Chief Justice of Pakistan’s Supreme Court Asif Saeed Khosa

The chief justice of Pakistan has brought in structural and systemic changes in the judicial system to make justice speedy and less expensive and these courts are expected to bring his dream to fruition

By Asif Ullah Khan

At a time when Chief Justice of India Ranjan Gogoi has written to the prime minister to increase the retirement age of High Court judges to 65 years and increase the strength of the Supreme Court, his counterpart in Pakistan has ushered in a judicial revolution to tackle the same issue through model courts.

Chief Justice of Pakistan’s Supreme Court Asif Saeed Khosa’s concept of model courts has been called a “silent revolution” in the judicial history of the country by legal experts as criminal trials, especially of murder and narcotics, are disposed of within days instead of years. Before he took over as chief justice, Justice Khosa had earned the reputation of a “no adjournment” judge. From day one, he made it clear that unlike his predecessor, Justice Mian Saqib Nisar, who took more than 40 suo motu cases in his two-year tenure, he was more interested in structural and systemic changes in the judicial system to make justice speedy and less expensive. He said he would take suo motu notice only in rare cases when there was no option left.

Addressing 57 new additional judges of the Model Criminal Trial Courts of Pakistan in Islamabad recently, Justice Khosa said that the Supreme Court would have zero pendency of criminal cases shortly. He chose criminal—murder and narcotics—cases for the model court because in such cases, innocent family members of an accused suffer for no reason. In civil cases, a litigant and his family do not have to go through this torture. He said long criminal trials inflict unspeakable miseries on the families of the accused, especially when the spouse is not educated. It not only disrupts the education of children, but also forces such women to take up menial jobs where sometimes they’re abused and exploited.

A connoisseur of English literature, Justice Khosa, whose judgments are peppered with quotes from Shakespeare, Kahlil Gibran and English classics, has decided over 10,000 cases of criminal nature since 2014 and only 526 criminal appeals are pending at the Principal Registry, which are expected to be decided by August. Senior Pakistani journalist Rauf Klasra told India Legal it is the first time in Pakistan that a judge has talked about human compassion, asking why families and children should suffer for an act by one individual.

Taking the issue of compassion further, Justice Khosa announced the setting up of 116 gender-based courts as the issue of domestic violence and violence against women is a worldwide phenomenon and Pakistan is no exception. “Recently, I was attending an international conference in St Petersburg where many European delegates took pride in saying that they have one or two courts dealing with gender-based violence. I kept quiet and when my turn came I said we will have 116 gender-based courts. One court in each district,” Justice Khosa said.

Being aware of the condition of women in the sub-continent, he said: “In our society generally such matters are hushed up and very few cases are taken to courts and women do not get a fair trial. First of all, the atmosphere of the courts, which is dominated by men, makes them uncomfortable. There are male judges, lawyers and prosecutors and the way women are questioned or cross-examined embarrasses them and they are not able to put across their side properly.”

To overcome these problems, Justice Khosa said each district in Pakistan will have a special gender-based court where women can go and freely say what they want, uninfluenced by the atmosphere of courts. “For these courts, the judges will be exclusively trained and the atmosphere of these courts will be very different from the atmosphere which you see in normal courts so that women can feel comfortable,” Justice Khosa said. Similarly, he added that there would be child courts, different from juvenile courts, to deal with issues pertaining to children.

At present, 110 model courts all over Pakistan are dealing with murder and narcotics cases since April 1 and despite lawyers’ strikes and weekends, these courts have recorded the statements of 18,302 witnesses. A total of 128 death sentences were handed down and 349 people awarded life imprisonment. In six districts, these model courts have stopped functioning because of zero pendency in murder and narcotics cases (see box).

Apart from model courts, Justice Khosa has also introduced e-courts, which decided a number of cases where hearing was held without any adjournment, with litigants and lawyers sitting in Karachi. Another landmark step he has taken is regarding false evidence and fake witnesses. He has declared that the rule “falsus in uno, falsus in omnibus (false in one thing, false in everything)” would be an integral part of jurisprudence in criminal cases and it would be followed and applied by all courts in Pakistan in letter and spirit. He said this rule had been held by the superior court in the past to be inapplicable to criminal cases. This had gradually encouraged and emboldened witnesses appearing in trials of criminal cases to indulge in lies, making it increasingly difficult for courts to discover the truth and dispense justice. Now, he said, if the court finds that a witness resorted to deliberate falsehood on a material aspect, he “shall, without any latitude, invariably be proceeded against for committing perjury”.

Babar Sattar, a prominent Pakistani lawyer, called Justice Khosa’s step a breath of fresh air. He said that earlier the law was that if a part of the testimony was false while the rest was reliable, the judge could take into consideration the reliable part to decide the case. The judge had to use his discretion to sift the grain from the chaff.

Justice Khosa has identified this fundamental flaw in the Pakistan judicial system as he seeks to inject honesty and certainty into the practice of criminal law.

Sattar said that while upholding the acquittal of Asia Bibi, a Christian woman who spent eight years wrongfully accused on death row in a blasphemy case, Justice Khosa had lamented that the Pakistan criminal justice system was falling apart due to a cobweb of lies. Not surprisingly, the criticism of speedy trials by model courts has come from the lawyers’ fraternity, which has called them “justice rushed, justice crushed”.

They feel that it’s not humanly possible to conclude a murder trial in four days, which includes framing of charges, examination of evidence, recording of statements and concluding arguments by the prosecution and the defence counsel. They even accuse judges of not giving a proper opportunity to defence counsel to advance their arguments.

The vice-chairman of the Pakistan Bar Council (PBC), Syed Amjad Shah, said that the PBC had noticed that “one-sided figures” were being made public regarding the functioning of the model courts. He said the Bar Council would comment on the failure or success of model courts after it sees the figures that it had sought. The sustainability of model courts, he said, will remain in serious doubt unless their functioning is evaluated against evidence.

Another criticism against the model courts is the high acquittal rate. Over 4,000 people have been acquitted by 110 model courts since April 1. Critics say the acquittal rate is high because of the poor standard of investigation and the police’s failure to collect forensic evidence.

PBC executive member Raheel Kamran Sheikh said that a mechanism should be put in place to keep a record of the causes of acquittal: whether it was the result of (i) defective investigation such as failure to collect incriminating evidence or falsely accusing in the absence of any incriminating evidence, (ii) failure of the prosecution to adduce evidence properly, or (iii) inconsistencies or lies of the prosecution witnesses.

“Not only will this allow ascribing the responsibility of each segment towards the acquittal rate but also help in developing targeted measures to improve the dispensation of justice,” he added.

Of course, one cannot deny that these model courts will encounter teething problems. But, as Justice Khosa, quoting a Chinese proverb, said: “A journey of a thousand miles begins with a single step.” He said they had taken the first, second, third, fourth, fifth and sixth steps in this journey to provide speedy and inexpensive justice to Pakistanis.

—The writer is a former deputy managing editor of The Brunei Times