ISLAMABAD: A government move to amend the Criminal Procedure Code (CrPC) to empower judicial magistrates to register First Information Reports (FIRs) may further tax an already over-burdened subordinate judiciary.

The Ministry of Law and Justice is introducing the amendment at a time when the superior judiciary is already concerned over the massive backlog in the subordinate judiciary.

According to the latest figures from the Law and Justice Commission of Pakistan, there are approximately 1.9 million cases are pending with the district judiciary across Pakistan, of which 37,005 cases are pending before the subordinate judiciary of the federal capital alone.

Chief Justice Saqib Nisar, in a recent speech, backed alternate dispute resolution (ADR) forums for the redress of petty issues, and Lahore High Court Chief Justice Syed Mansoor Ali Shah has already inaugurated ADR centres in different cities.

Legal experts divided over wisdom of latest govt move; say current law already provides such powers to district and sessions judges

The draft legislation describes ADR as a “process in which parties resort to a method of resolving the dispute other than adjudication by courts and includes arbitration, mediation, conciliation, neutral evaluation and dispute resolution”.

Judges of the superior judiciary are also cognisant of burden on the high courts, and in some judgments have suggested ways to reduce litigation by deciding only those cases that could not be decided at any other forum.

Though the law ministry has already introduced an ADR bill applicable to the federal capital in its bid to reduce the workload of the subordinate judiciary, some serving judges from both tiers consider the empowerment of judicial magistrates to register FIRs as being against the spirit of ADR. They maintain that instead of lessening the burden, the move will only add to their workload.

The proposed amendments to sections 154 and 190 of the CrPC empower magistrates to take cognisance over the non-registration of an FIR. As per the amendment in section 154, “where an officer-in-charge of a police station refuses to record information relating to the commission of a cognisable offence, the complainant may against such officer-in-charge of the police station, make a complaint to the magistrate concerned”.

Under the proposed amendment in section 190, the magistrate could issue show cause notices to a station house officer for not registering an FIR over a cognisable offence.

A serving district and sessions judge told Dawn that it was the executive’s domain to take notice in such issues. However, he said that section 22-A of the CrPC already empowered an additional district and sessions judge (ADSJ) to order SHOs to register FIRs in their capacity as justices of peace.

Legal experts, have differing opinions on this proposed empowerment of civil judges and judicial magistrates.

Criminal law expert Ahsanuddin Sheikh said that in 1994, the Supreme Court drew a line between the powers of the executive and the judiciary. He said that if judicial magistrates were given such executive powers, it would be a violation of the SC judgment.

Advocate Sheikh was of the view that empowering judicial magistrates to register FIRs would not only overburden the subordinate judiciary, but would leave this power open to misuse by unscrupulous elements.

In his view, an ADSJ can, in his capacity as a justice of peace, issue an executive order under existing law for the registration of an FIR. But if a judicial magistrate were given such power, it would create unnecessary confusion within the criminal justice system.

Former Pakistan Bar Council (PBC) vice chairman Barrister Farogh Nasim, however, believed that in order to check the abuse of authority by SHOs, it was necessary to evolve a mechanism for judicial oversight over executive power. In order to overhaul the CrPC, he said, such amendments were necessary.

When asked about the possibility of over-burdening the subordinate judiciary in this way, Barrister Nasim suggested that the government increase the number of judicial magistrates to avoid such an issue.

Barrister Zafarullah Khan, who is currently looking after the law ministry, said the law was being overhauled after due deliberation and a comparative analysis of countries where such systems were working successfully.

Published in Dawn, December 26th, 2017