ISLAMABAD: In what appeared to be a response to an assertion made by Prime Minister Nawaz Sharif that pendency of cases before the courts was contributing to a breakdown in law and order, two judges of the Supreme Court observed on Thursday that the time had come for the executive to accept its failings and fulfil its responsibilities.

“It’s time that the executive takes responsibility and does its duty, which is also its constitutional obligation,” observed Justice Asif Saeed Khosa. He was heading a three-member bench that had taken up a 2009 suo motu case related to prison overcrowding and the deplorable state of prisoners in jails.

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Hearing another matter, Justice Jawwad S. Khawaja listed inefficient investigations and weak prosecutions as the primary reasons for delays and the rising backlog of cases pending in court, adding that if the current state of affairs persisted, it would only add to the backlog.

In his remarks, which were made during a meeting with President Mamnoon Hussain and senior businessmen from across the country, the PM had said, “The independence of judiciary was essential but equally important is the performance of judiciary. The pendency of numerous cases has contributed towards law & order issues.”

Justices Khawaja and Khosa tell executive to stop blaming courts and get its act together

Legal observers see these observations as a sharp rejoinder to the prime minister’s comments about the judiciary.

Justice Khosa seemed to refer to the PM’s remarks on two separate occasions. He questioned the wisdom behind setting up military courts and asked whether the judges of these courts were more capable and intelligent than the judges in the judiciary.

During a hearing of the suo motu matter, Justice Khosa deplored that 2,400 judges had the daunting task of clearing a backlog of 1.7 million cases in different courts.

Whenever the executive is asked to increase the strength of judges in these courts, it excuses itself, claiming resource constraints, Justice Khosa said, adding that it was the government’s job to appoint judges, not the judiciary’s.

The bench also expressed its dissatisfaction over the condition of prisoners in jails and said it was the government’s duty to improve the conditions at prisons and ensure the rights of inmates. “We have been monitoring the issue of prison reforms for the last 21 years and the suo motu case was taken by the court only to shake up the government.”

But the matter was disposed of on assurances by law officers that prison conditions would be improved by provincial governments.

The same bench, while hearing a Punjab government’s review petition on a terrorism case, observed that it was the job of the courts to do justice, even in terrorism-related cases.

The case involved the acquittal of seven members of the proscribed Lashkar-i-Jhangvi (LJ), including its chief Malik Ishaq, Ghulam Rasool Shah, Abdul Hanan, Mohammad Abu Bakar and others. The Supreme Court had acquitted the accused in Oct 16, 2000, due to weak prosecution and ineffective evidence.

The men were booked by police for their alleged involvement in the Feb 2, 1997, terrorist attack on the Iranian cultural centre in Multan, which left eight Irani officials, including the counsel general, dead. An anti-terrorist court had sentenced to death all the accused.

During Thursday’s proceedings, Justice Khosa observed that this was a sensitive and dangerous case, which could have an adverse affect on relations with our neighbouring country.

When Additional Prosecutor General Rana Abdul Majeed asked the court to keep in mind the sensitivity of the case, the bench observed that court could not go beyond the law and dismissed the review petition.

Instead of spouting propaganda against the judiciary for delaying justice, the state should accept its own failure, observed Justice Jawwad S. Khawaja, adding that the courts were meant to dispense justice and not just hand down punishments.

His remarks were made as the court was hearing the matter of Haider Ali VS the district police officer Chakwal.

The court also summoned the complete record of cases from all provinces where the accused were acquitted or freed because of incomplete challans and weak prosecution. The court has also asked for details of action taken against delinquent investigating officers for conducting incomplete investigations.

“Who should be held responsible for locking up innocent people for years, who are eventually acquitted since the offence for which they were booked cannot be proven later,” the judge asked.

Published in Dawn, January 16th, 2015

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