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Petitioner: M/s. MFMY INDUSTRIES Ltd. and others VS Respondent: FEDERATION OF PAKISTAN through JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Gulzar Ahmed, Maqbool Baqar Title:M/s. MFMY INDUSTRIES Ltd. and others vs FEDERATION OF PAKISTAN through
JUDGMENT
Reported As: PLJ 2015 SC 976 Result: Petition allowed Judgment JUDGMENT ' CIVIL APPEALS NOS. 1646 & 2000/2006 Mian Saqib Nisar, J.--These appeals are being disposed of on a short point i.e. Whether the impugned judgment passed by the learned High Court is proper judicial dispensation or otherwise. The relevant facts in this context are:- the appellants filed constitutional petitions before the learned High Court of Sindh, whereby they assailed the imposition of import fee enforced through certain SROs on various grounds and also sought relief of refund of the amount already paid by them to the Customs Department on account of the above. The 'hearing in the matters took place on 22.3.2005 and 4.5.2005 respectively and the judgment was reserved, which was ultimately announced on 10.8.2006 after a lapse and delay of almost one year and three months. The appellants had challenged the said judgment herein and leave was granted, inter alia, on the point(s) that since the impugned judgment had been passed in the matters after an inordinate delay, whether it was a case fit for remand of the matters to the learned High Court for hearing and decision afresh. 2. Learned counsel for the appellants while arguing these appeals has confined today to the said point and submitted that because of such a long delay, the judgment in question is invalid and improper judicial dispensation and on this score alone the same (judgment) stands vitiated. This is the proposition requiring resolution vide the present verdict. 3. Heard. Before dilating upon the proposition in hand, I feel constrained to briefly highlight the importance of judiciary/judicature as a vital component of the State. A State, as understood today, constitutes three foundational organs i.e. Legislature, Executive and Judicature. In ordinary
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parlance, these (organs) are also known to be the three pillars of the State. The political philosophers, jurists, constitutional experts and even judicial opinions pronounced all over the world (specially in the countries having the democratic system/set up for governance) are unanimous in their views that the entire structure of the State is founded, built upon, and secured only on account of the said pillars. And due to lack/absence or imbalance in respect of any of these organs/pillars, the very concept of State is periled and its existence is put at risk. ' The 'main object and function of the legislative branch of the State is to make laws, which (laws) obviously define and prescribe the rights and obligations of the citizens/persons and the duties of the State; these laws ordain the functions which the State can, and has to perform vide various organs thereto. The legislative limb also enables a broader mechanism for State governance by drawing policies and issuing and passing resolutions on numerous important aspects expedient for the effective functioning of the State. It may also provide for a machinery through which laws and directives etc. Are or should be implemented and enforced. It (legislature) formulates and constitutes the positive law of the State. ' Whereas the object of executive is to not only carry out and run the affairs of the State in accordance with the laws made by the legislature and any policy/direction given to it, but also comply with laws, follow the established rules, norms and standards expedient and necessary for the due administration of the State. Thus, it (executive) is responsible for the governance of the State and for carrying out its affairs in consonance with the Rule of law. ' According to the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Minister. The executive authority shall act through the Prime Minister who shall be the Chief Executive of the Federation (see Article 90 of the Constitution). Furthermore President shall appoint Federal Ministers and Ministers of State from amongst the members of Majlis Shoora on the advice of the Prime Minister (see Article 92). Thus it is clear that the top echelon of the State administration comes into being through and from the Parliament, which comprises of the chosen representatives of the people. These chosen representatives simultaneously act as the legislators and the administrators. The administrative/executive branch, having thus been elected by the people of State, while performing its functions keeps in view its political expediencies, the commitments made to the electorate per its misfits and the policies which seem necessary in its own judgment for its future political interests; inter alia for these factors and in the exuberant pursuit of its goals, the executive may compromise the well established rules of governance which not only results in misuse and abuse of authority, but may also lead to violation of the rights of the citizens consciously or inadvertently or cause violation of the social, economic and political rights of the people in general or in particular of those who do not agree with the government in power. ' Anyhow, as highlighted above, according to the constitutional setup of our country, executive primarily emanates out of the legislative branch of the State i.e. Out of the chosen representative of the people, therefore, there remains no strict separation of power between the legislature and the executive. Rather practically there is considerable harmony and also collaboration between these two branches of the State. These branches at times support and bolster each other and while they do so, the possibility that either of the two branches exceeds its jurisdiction and empowerment or misuses the same cannot be ruled out. For example, on account of some executive expediency, the legislature,. On the behest of the executive, may pass certain laws, which otherwise may not conform to the parameters (ultra vices) of constitutionality, but are simply promulgated with the object of meeting executive exigencies. Likewise, the elements of abuse, excessive use of power, arbitrary exercise of power, whimsical, ,non-transparent, unfair and unreasonable action(s) on part of the executive including the violation of fundamental rights have been commonly noticed and
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also interfered with by the judiciary to protect and safeguard the rights of the citizens/persons, who are affected on account of such abuses and misuses. It is in the aforementioned circumstances that where the legislature or the executive branch has erred in the exercise of its jurisdiction and is responsible for any of the deviations indicated above, that an affected person for the purposes of seeking redressal of his grievance against such wrong and/or for enforcing his rights under the law, including his fundamental rights as enshrined in the Constitution, comes forth to the judicature by knocking at its door (note: in the context of above, I am purposely not making reference to any private litigation between two individuals). This is the last resort for a beleaguered and aggrieved person. It is thus that the judicature is conceived, perceived and is meant to act as the final arbiter not only vis-a-vis the interpretation of the Constitution, the statutory law(s), but is to also ensure that RULE OF LAW is adhered to and the rights of the citizens/persons approaching the Courts are determined and enforced against the Might of the State. It is commonly and jurisprudentially known all over the republican and democratic world that the Courts are the guardians of the Constitution and are responsible for preserving and securing the rights of the aggrieved citizens/persons as against the State. ' The discussion above briefly provides for the importance of the judicial branch of the State. Besides, the pivotal, cardinal and important role of the judicature can be assessed from the quote of Hazrat Ali (R.A.) who avowed "a society with kufr may be sustained but not the one where there is injustice". In Asma Jillani's case (PLD 1972 SC 139 @ 182), Chief. Justice Hamood-ur-Rahman while impressing upon the role of judiciary remarked "It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it". I am also reminded to mention here (as it is commonly known, but I have no authentic version of it), that during the second world war, a question was posed to Winston Churchill, Britain Prime Minister, whether Britain would win the war or not, he responded to the effect that if there was a functional judiciary in Britain, there was no doubt that Britain would win. Once Justice Thurgood Marshall, Judge of the Supreme Court of the United States of America while commenting on the importance of the judiciary remarked, "The greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary". In furtherance to this, I would also like to add here that judiciary which lacks courage to do justice without fear and favour, is biased, suffers from the vice of self-interest, is tardy, indolent and incompetent and has no urge, will, passion and ability to decide the cases/disputes before it expeditiously, it falls in the romance of aggrandizement and populism is a danger to the State and the society. Whereas, a great virtue of a judicial functionary is that he applies the rules of balancing and proportionality while performing his functions and discharging his duties. ' Provided above, are some good illustrations of the importance and significance of the judiciary in a society and within a State. I may like to add here that one of the most important differences between developed countries on one hand and developing or under developed countries on the other is the respect for, adherence to and enforcement of THE RULE OF LAW. I have no doubt in my mind that this ideal can only be achieved through an independent and capable judiciary, which is beyond the reach, control and influence of other branches of the State. The judicature has to act as a natural umpire who keeps a check on the exercise of power by other organs of the Stath so as to ensure that the rights of citizens/persons are not affected and trampled contrarily to law. 4. In view of the above discourse, when the judiciary enjoys such a special position, privilege and status in the functioning of the State, it is also saddled with the onerous duty of discharging its functions efficiently, effectively and with utmost diligence and care. One of the responsibilities in this context, universally known, is the duty of the Judge to decide the cases expeditiously, because it is a known jurisprudential concept that "justice delayed is justice denied". The Courts must, thus,
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exercise all the authority conferred upon them to prevent any delays which are being caused at any level by any person whosoever. I am mindful of the fact that in any litigation there are certain procedural implications without which there shall be .No discipline left for the regulation of a, lis before a Court. These procedural and legal aspects of the matter are equally important, which must be followed in letter and spirit. However, barring such time that is consumed for adherence with these legal and procedural . Aspects, the Courts are bound to decide the matter as promptly as possible especially once the trial and the hearing of the case(s) is complete (note: in the trial case) and in appeals, revisions and constitutional matters, once the hearing of the matter (when arguments are concluded) has taken place and has been concluded. 5. Termination of a lis undoubtedly is through a verdict of a Court which is a decision disposing of a matter in dispute before it. (the Court) and in legal parlance, it is called a "JUDGMENT". It is invariably known that a Judge finally speaks through his judgment. According' to Black's Law Dictionary, a judgment has been defined to mean "A Court's final determination of the rights and obligati' s of the parties in a case" and per Henry Campbell Black, A Treatise on the Law of Judgment. "An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked". These definitions are adequately self-explanatory. In our procedural law (civil), judgment as defined in Section 2(9) of Code of Civil Procedure means "the statement given by the judge of the grounds of a decree or order". It should be emphasized here that a judgment should supply r adequate reasons for the conclusion reached and arrived at and should be reflective of application of proper judicial mind by the Judge and it should not be a mechanical and not speaking judgment in nature. ' It may be reiterated that without a judgment, there is no concept of justice and/or fruitful outcome of litigation which without any fear of contradiction means that the State lacks an effective justice system. In such a situation, I would, rather, go to the extent of saying that if the Judge/the Court does not pronounce a judgment for resolving the legal and factual issues involved in a dispute before it at all, the very purpose of the judicial branch of the State will be frustrated and eroded. If there is no judgment in terms of law, the entire 'judicial setup shall be rendered farce and illusionary, which obviously shall in turn disturb the equilibrium between the pillars of the State upon which it rests, resulting into serious impairment of the functioning of the State. 6. After having shed some light on the importance of judgments, it is essential to note that in pure civil litigation which emanates from the institution of a suit/lis, a trial Judge, if there are triable issues for the resolution of which the evidence is required, (note: subject to delinquency of the parties and the consequences for not producing the evidence thereof) (the Court) after recording of the evidence, is supposed to pronounce the judgment per Order XX Rule 1(2), which reads as:- "the Court shall, after the case has been heard, pronounce judgment in open Court, either at once or on some future day not exceeding thirty days, which due notice shall be given to the parties or their advocates". The judgment thus has to be given by the trial Court within the prescribed period of 30 days, after the hearing of the case has been concluded. It may be relevant to mention here that with the commencement of the trial in a civil us, the hearing of the case also starts. And with the conclusion of the trial, the hearing also concludes. The conclusion of the trial or the hearing means that the parties have concluded and completed their evidence. There is no specific provision in the, CPC which confers the right upon the parties to make oral arguments before the trial Court, but per convention, the oral submissions of the parties are also heard, which exercise however, must-be concluded within 30 days time from the conclusion of the trial, as prescribed by
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law. If the parties, despite the opportunity granted by the Court to make oral submissions, do not avail the same, the Court is not bound to wait indefinitely for them and keep on adjourning the matter. This is highly deprecated and should be discouraged, rather the Court should pronounce the judgment without their arguments and this (such judgment) shall not be in violation of the rule of hearing. ' In my view, the expression "not exceeding thirty days" makes it mandatory for the trial Court to render its judgment within the prescribed time period. If the same is not done, without a sufficient cause i.e. a cause beyond the control of the Judge, the judgment is impaired in value if not invalid and disciplinary action can be taken against a Judge who is found habitual in delaying his judgments beyond that period, obviously following proper legal steps for such action and in any case at least this vice of the judge must adversely reflect in his ACR's. ' However, in the case(s) of appeal against the judgment and decree of the trial Court, the provisions relevant in the context of judgment are Order XLI Rule 30, CPC, which read as follows:-- "The Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings whether on appeal or in the Court from whose decree the appeal is preferred to which reference maybe considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which, notice shall be given to the parties or their pleaders." ' From a reading of the above, it is conspicuous that the appellate Court after hearing (note: obviously the hearing means oral arguments) the parties or their pleaders, as the case may be, shall pronounce the judgment at once or on some future day. This future day by no stretch of legal interpretation or on the settled rules and norms of justice can be construed to mean an indefinite period. Rather the rule of reasonableness of time required for the performance of a judicial act in the normal and ordinary course necessary for doing justice should be attracted and pressed into service and read into it. ' If the first appeal against the decree or order (subject to the pecuniary jurisdiction) is being heard by the District Judge (Additional District Judges included), and it is only the oral summations which are being addressed by the parties/pleaders and heard by the Court and no fresh evidence is being recorded (subject to additional evidence as discussed in, Order XLI Rule 27, CPC), as the long exercise of a trial is now over; the record is complete; the matter is ripe in all respects for a decision, and the Judge is only required to render the judgment after hearing the summations, thus he has to do the same within reasonable time. This reasonable time, to my candid consideration, should not be more than 45 days. I am enlarging the margin of 15 days (i.e. 30 days+ 15 days) because the same Judges also act as Sessions Judges and have to conduct session trials and render decisions in criminal matters and Other judicial work also, thus given them the margin of other assignments the noted time is most reasonable and quite sufficient for the appellate Court (District Judges) to compose the -judgment. This rule and adherence to time, should equally apply to the judgments in relation to the revisional as also review jurisdiction of these Court(s) or where the Court(s) is exercising any other special jurisdiction in cases of civil nature before it. If the judgments are not announced within such reasonable time as stated above, same consequences should follow which are prescribed for the trial Court Judges in respect of action(s) proposed against them and the impairment of the judgment(s), I find it expedient to mention here that this rule should also extend to all the special Courts (forums), tribunals either constituted under the Federal or the Provincial laws and set up which are presided over by the serving or retired judges of the subordinate judiciary and even to those forums which are presided over by the ex judges of the High Courts (note: however if some time has been fixed by the law for the disposal of any matter before the special forum, such law should take precedence over this rule of reasonableness of time set out in this opinion). It also requires mention here that in quite a large number of cases it has been experienced that the cases are adjourned for the arguments for umpteen, indefinitely numerous
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occasions, therefore to curb this menace the Judges of the District Judiciary and the special forum throughout the country while pronouncing their judgments should record a note at the end/bottom thereof, as to how many times the case was listed for hearing of the arguments and was adjourned so that the High Courts which have supervisory authority over the said Judiciary must stay abreast about the performance of the Judges; the causes for the delay and should take measures and the steps to rectify the causes and the reasons in this behalf. Mdreover this Court as the apex Court of the country and being the paterfamilias must also know what is the state of affair in the Judiciary at the lower ebb and the manner in which the cases are being dealt with and conducted at the trial and appellate/revisional stage. The special Courts and the forums should also made such endorsements at their judgments too. No lethargy or casual attitude is tolerable and the times have come to take appropriate stern and positive actions for speedy justice, rather simple rhetoric's. 7. I shall now turn to the hearing of the first and/or second appeals by the High Court(s), and the hearing of the cases before it in its re-visional and constitutional jurisdiction. As the first appeals against decrees and mostly the constitutional cases and ICAs are heard by a Division Bench(s) of the High Courts, so as to enable the two Judges tp deliberate, confabulate and compose the judgment(s), or record dissent and/or exchange draft judgments, the reasonable time for the pronouncement of judgments should be 90 days. This time period (90 days) shall also be reasonable time for the High Courts, for the reason that Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates "Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it". Thus for proper enunciation of law, considerable research, brooding and pondering may be required. 90 days time in view of said Article should, therefore, also be good and adequate for the composition of the judgments be the High Court(s) in the above matters and also in first appeal against order or second appeals, and in the cases before it in its revisional or review jurisdiction, or any of the special jurisdictions of the High Court(s) (note: subject to the principle if the law has fixed a time for the conclusion of the proceedings and pronouncement of judgment under aay special law, this' has to take precedence over the 90 days). ' If the Judges cannot compose and deliver the judgments within the above (reasonable) time, then they for sufficient reasons, to be recorded (by them) should set out the case for re-hearing: However, because of the high status of the judges of the High Courts, it is not expected that the learned Judges shall fix the matters for rehearing in routine just to cover up the lapse in composing the judgment within 90 days, rather I am sure that it shall definitely be for genuine reasons, reflected in the order of rehearing as to why the judgment could not be written and pronounced. However, pronouncement of judgment by the High Court after a lapse of time period of 90 days if the matter for any reason is not put for any rehearing per se shall not be invalid, though it may be frowned upon. But again it does not mean that learned High Court has indefinite time to pronounce the judgment after hearing of the matter. In my opinion, the maximum time within which the judgment should come is 120 days. Otherwise the judgment shall stand weakened in quality and efficiency, if not invalid altogether and 'therefore when challenged before this Court, the Court shall decide whether it should sustain or set aside on the simple and short ground of inordinate delay. 8. Now coming to the judgments to be rendered by the apex Court of the country. The cases/matters by this Court are heard in benches. Usual cases are heard by a three members' bench, though two members' benches also hear the matters. The rule of 90 days should also ordinarily extend to those (cases) heard by two member benches, of this Court and if the matter is not decided within this time, the case should be fixed for rehearing. This is what I would do for myself.
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' But as the cases are heard by the larger Bench particularly a Bench of three and above, the rule of 90 days should not be attracted because this Court, being the apex Court of the country has to enunciate law on very important legal' and constitutional propositions,…
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