The case files reviewed provide further insight into why there is so little confidence in the ability of the courts to dispense justice. Except for Balochistan, delays in courts and the accompanying expense and loss of time are major problems. Balochistan is relatively efficient due to widespread prevalence of the informal sardari system and a lower case-load. The influential used the courts to settle scores and the police and courts obliged them, and seemed to collude with them to harass the poor. Delay occurs in civil cases due to various reasons:

Faulty process-serving mechanism;
Non-service of summons;
Non-adherence to the High Courts rules pertaining to the presence of local revenue and other officials in court;
Inability of judges to declare the non-interested litigants ex-parte;
Gross bureaucratic neglect;
Allowing an undue number of miscellaneous applications, temporary injunctions and interim relief;
Lack of witnesses and frivolous litigation.

Delay in criminal cases occurs due to :-

Poor and ineffective prosecution services;
Inability among judges to separate the case of the accused present in the court from those absconding;
Delay in recording evidence; and
Inability of jail administration to send the under-trial prisoners to attend hearings.

Other issues that cause delays include:

Transfer of judges;
Transfer of a case from one judge to another;
Non-judicial or administrative duties of judges; and
Inadequate court facilities (physical as well as human), common to civil, criminal and family cases.

Criminal Cases: Serious criminal cases like murder take a very long time to conclude because the courts insist on getting the witnesses served through the prescribed procedure as specified in Section 173(5) of the Criminal Procedure Code. While there is a provision for separating a particular party for the trial to proceed if there are delays in serving the summons, or if the accused absconds, this is rarely done.

One of the main causes that delays criminal proceedings is the inability of the judge to separate the accused present from the absconding ones. Generally, the practice in courts is that criminal cases cannot proceed unless all the accused are present. The way around this is for the court to separate the case of the attending accused from the one absent and to proceed. However, courts do not follow this approach. The field team came across delays up to eight years in cases involving absconding accused.

The slow recording of prosecution evidence is also a major cause of delay in court proceedings. The police play a central role in the presentation of the prosecution evidence. This problem was noted to be particularly serious in courts in Larkana, although it was not confined to Larkana, or to Sind.

In a criminal case in rural Punjab, one of the accused regularly attended court hearings while the other did not show up. The court took 20 months to separate the trial. The case was adjourned twenty times due to the absence of one of the accused. Such delays are unjust to the complainant/accused who regularly attends hearings. Besides, no compensation is given to the defendants who are acquitted after such a long trial.

While the FIR was readily registered, as indicated in an analysis of some cases in Haripur, there was a long delay before the trail proceedings got underway. This often allowed time for a compromise and out of court settlement, which is what the plaintiff seemed to be striving for. Not a single case in the research sample showed that the prosecution evidence was presented in criminal cases. A large proportion of the criminal cases in Haripur involved physical assaults and drug abuse.

Most of the cases (98 percent) in our Larkana sample were criminal. Many of these cases pertained to theft. Honour killings were not reported and so were missing entirely in the sample. Massive court delays often resulted because of delays in the presentation of prosecution evidence.

The district judiciary has, however, successfully cut down delays in Balochistan. An important factor that explains the efficiency of the district judiciary in Balochistan is that they have less demanding judge-to-case ratio, given the province’s sparse population, and the prevalence of the tribal justice system in areas constitution over 90% of Balochistan. The judiciary in Balochistan is also able to dismiss civil cases if one of the parties, particularly the plaintiff, does not show interest. In certain cases, these suits are re-admitted for hearings on a party’s request. However, this puts the onus on the parties to pursue the case, rather than using courts as an instrument to embroil the other party in frivolous litigations.

Other causes of delay include the transfer of judges or the transfer of a case to another court. Judges are often transferred without being replaced. In a case in Toba Tek Sindh, the judge was on leave during eight successive scheduled hearings and twelve hearings were adjourned because the case was transferred to another court. In another case, eleven hearings were adjourned because the judge had been transferred. In none of these cases were alternative arrangements made.

Slow presentation of prosecution evidence emerges as a major cause of delay. Generally, the stronger party uses this as a delaying tactic. Since police officials are an integral part of the prosecution’s evidence in criminal cases, they can also delay court proceedings. For instance, it took the prosecution three years to present its evidence in a case Toba Tek Singh. Witnesses were absent during eighteen of the hearings. Field research quantitative findings strongly confirm the delay caused by the prosecution services. On average, it took over eleven months for the prosecution to present evidence in the cases sampled. This period is longer than any other stage of a criminal case.

Criminal cases normally represent an offence against the state. When a person physically harms or kills another person, it is not only a crime against the victim or his/her family, but also a crime against society and the state and, therefore, a non-compoundable offence. However, as earlier stated, the Islamic legislation introduced in the 1980s changed such cases into compoundable offences. Since these cases have been made compoundable, sooner or later, barring a few exceptions, the parties compromise under social pressure, in exchange for compensation, or owing to a lack of faith in the judicial system.

Most criminal cases end up in acquittals, particularly in rural Sindh and Balochistan. Cases involving murder, physical injuries and fraud generally end up in compromises in Punjab and NWFP. In NWFP, those accused of murder are released on bail after two years. Therein appears to be a pattern in NWFP which needs to be further investigated.

The high rate of acquittal in Sindh and Balochistan also follows an interesting pattern. In cases of petty crimes, the accused plead guilty and are convicted in no time. In substantive criminal cases, the proceedings drag on for years for various reasons and end up in the acquittal of the accused. A few cases end in out-of-court settlements. The trend clearly points to the inefficiency of the prosecution and the courts, and involves both the police and the judiciary.

Most of the criminal cases reported in Larkana involved theft and robbery and ended up in acquittals. A few criminal cases in Larkana experienced delays because the accused were not brought from jail and no reasons were recorded for their lack of appearance. A closer look at case files suggests that the courts can move quickly when they choose to speed up the disposal of cases.

Civil Cases: Delay occurs in civil cases due to ineffective, inefficient and corrupt process-serving. In civil cases, pleadings are generally delayed due to a lack of process service or a lack of interest on the part of one or more parties. Pleading took, in the sampled cases, over 15 months to complete on average. This period was much longer than any other phase of the case except passing the judgment. However, a District and Sessions Judge was of the opinion that generally, presentation of evidence takes much longer and delays court proceedings more than any other phase. Witnesses are summoned (again through inefficient process-service), but they often do not appear and when they do, either one of the parties or their lawyers do not show up, thus, the evidence stage drags on.

When a civil suit is field, the first step is to order the defendant to appear in the court to explain his/her case. This is done by serving summons to the other party. This is where the delay takes place. Process-servers are few in number and do not have modern facilities such as motorcycles. A lot of opportunities for corruption open up at this stage. Any party that wants to delay proceedings, or wants to get an ex-parte decision against the other party, can easily collude with the under-paid process-server so that summons are not served, or not served properly, and misreported. This antiquated system of process-serving needs to be revamped. The Asian Development Bank 2003 report suggests that the system should be modified in a way that summons are also sent through registered post or courier service, depending on the plaintiff’s choice. This needs to be done in addition to modernizing process-serving management and facilities.

Delay also occurs due to the parties’ lack of interest. The research shows that core property cases involving title, inheritance, and encroachment took a long time in the courts and ended mostly in some sort of compromise, or in the abandonment or withdrawal of proceedings. Compromises are usually not reflected in decrees. Cohn and Nelson think that the main aim of the parties is to delay proceedings and to use the legal process as a bargaining tactic to settle the dispute outside the court. Delaying the proceedings with the help of lawyers does not seem to be irrational in that context. However, it is unfair to the party which does not want to delay proceedings and is trapped in the litigation process.

As mentioned already, the plaintiffs are not always the aggrieved party. The influential party can initiate proceedings as the plaintiffs to delay justice. They sometimes delayed the litigation by not actively pursuing the case.

The inability of judges to declare the non-interested litigants ex-parte also delays proceedings. In an inheritance case from the sample, the judge was not able to declare the defendants ex-parte despite a massive delay spanning several years. Non-appearance of the defendants blocked the completion of pleadings – the first stage of a civil suit. Thus, the issues were framed after three years and nine months. The preliminary decision was finally granted in favour of the plaintiff after six years and one month. At that stage, the parties compromised. If one takes the view that justice delayed is justice denied, the plaintiff was denied justice given the six-year delay that benefited the defendant.

Delay in civil cases also takes place due to introduction of miscellaneous applications by parties, a classic delaying tactic. Civil suits typically proceed from one stage to another i.e from completion of pleadings to framing of issues, appearance of witnesses, arguments to decision. However, if a miscellaneous application is introduced at any stage of the case, the progress is halted and proceedings get diverted to settling the status of that application first. Only when the nature of the application has been decided can proceedings recommence. If the application is admitted, for example, to include another party in the case, then proceedings need to initiate afresh to follow the due process. Thus, court practice of accepting and taking up miscellaneous applications causes avoidable delay in the disposal of the main case. In one case in Toba Tek Singh, the court took two years and six months to complete the pleadings because of miscellaneous applications.

Temporary injunctions are another cause of delay. Generally, influential parities get a temporary injunction against any change in the status quo in property cases. The prime motive for getting a temporary injunction is to delay proceedings. Courts also adjourn cases in response to applications seeking interim relief if a party to the dispute is involved in another case. In most such situations, the two cases can proceed simultaneously.

Litigants also delay the proceedings in cases where this is the most they can achieve. The delay also forces the other party to come to the negotiating table.

Frivolous litigations were more common in the sampled property cases in rural Rawalpindi than in urban Rawalpindi. Court fee acted as a deterrent against frivolous litigation in the past. The Federal Shariat Court ordered an exemption from the court fee for property cases worth less than Rs.25,000. This was done to make the formal judiciary more accessible to the poor. However, most of the frivolous cases observed during the fieldwork were below the Rs.25,000 mark. According to The Asia Foundation (TAF)’s Integrated Report 1999, frivolous litigation has increased manifold. This research confirms TAF Integrated Reports’ findings on the lack of court fees actually encouraging frivolous litigation.

As mentioned earlier, the judiciary in Sibi, Balochistan is more efficient than in the other districts. The reliance on the sardari system for justice and lesser litigation and congestion also contributed to cutting delay. Cases are informally investigated by the tehsildar, and then sent to the courts.

The judges in Sibi efficiently dismissed the civil cases if the plaintiff was not pursuing them. This is committing that judges in the other provinces can also easily do. Limited access to police for registration of cases is a possible cause for delay. Another likely reason is the special role of the tehsildar in the tribal belt in Sibi. The latter performs police duties along with revenue duties. If an incident takes place in the tribal belt, he can investigate it himself before formally recording it with the district police.

The judges in Sibi handle both the simple and the more complicated cases expeditiously. In one criminal case, there were more than one accused. The Judge examined the case of each accused separately and came to a quick decision.

Civil cases, too, are disposed of quickly. For instance, a civil suit was dismissed within three months due to a lack of evidence. This manner of cutting down delays is not practiced in other districts. If a case is not pursued, it is dismissed within months for lack of prosecution. Sometimes, parties appear again to initiate a re-trial. In one case, arguments on the legal issues involved were heard without the plaintiff’s and defendant’s evidence. This is another useful innovation to minimize delay.

One of the key recommendations in the Asian Development Bank’s 2001 AJP report is that judges should take active control of proceedings rather than leaving them at the mercy of the lawyers. An active involvement and tracking of cases will result in better cases flow management and an assertive role played by judges will cut down delay.

Family Cases: In most family cases, whatever the nature of the dispute, a compromise outside the court and within the family circle was reached, particularly in rural areas. Often the defendants simply did not appear while the court pursued the cases. Usually one spouse chose to be ex-parte. However, family cases were contested in mostly urban areas, as was reflected in urban Rawlapindi courts.

The Lahore High Court had sent special directives to civil courts to expedite family cases so that the average family case is decided in six months. However, using the tactics discussed in the civil cases section, one of the parties can indefinitely prolong family cases.

In dissolution of marriage cases filed by women, not incorporating the right to divorce in the nikahnama (marriage contract deed) is a major problem. Extensive litigation can be avoided if there is a greater awareness across the society about granting the right of divorce to women. In a family case in urban Rawalpindi, a twenty year old girl was stuck in a dissolution of marriage case. She had lived with her husband and in-laws for only three days. Upon finding that her husband was a drug addict and an irresponsible person, her family had asked her to return to her parents home. She had been embroiled in the conflict for three years at the time of her in-depth interview. She had suffered a major heart attack due to the tension created by the dispute. Her in-laws were also interviewed. They declared that they would never let her husband divorce her.

Proceedings of the case were observed. As the defendant’s lawyer told the court about the absence of his client, the research team spotted him in the vicinity of the court. Such delays are made possible in collusion with the court staff. The plaintiff in this said that she did not ask for the right to divorce in the nikahnama because her father thought it was a “bad omen to think of such things prior to the wedding. I wish we had. We wouldn’t have to go through all this trouble had we just marked that option.” Hence, one way to cut delay and misery involved in the dissolution of marriage cases is to publicise and popularize the right to divorce.

In another family case in urban Rawalpindi, the plaintiff was able to get a divorce in a few months. In one of those rare cases, justice was seen being delivered in a relatively short time. However, the fact that the plaintiff was an intelligent, assertive and well-connected spiritual healer also went to her advantage. She seemed to be better connected than her husband.

Another set of family cases deals with custody of children. Often husbands file such cases to harass wives/ex-wives. In one of the cases in the urban Rawalpindi sample, a mother from a lower middle class background had to resort to the High Court to regain custody of her children.

Interestingly, dissolution of marriage cases figured only in Punjab. In the sample in rural NWFP and Sindh, no dissolution of marriage cases came up. IN Haripur, family cases often included guardianship and custody matters, dowry money and maintenance. There was only one family case in the sample Larkana where a husband sought restoration of conjugal rights. The wife did not contest the case despite being serviced under the process. In Sibi, a woman sought the dissolution of her marriage, but the suit was withdrawn and the case ended in a compromise. The lack of appearance in dissolution of marriage cases in three provinces is reflective of the impact of socio-economic development on women’s rights. In Punjab, it is probably more acceptable for women, even if they are from the lower middle class, to seek dissolution of marriage through court. Given the relatively higher socio-economic development in Punjab, such a broad correlation with women’s rights seems probable.

Generally in family cases, women are at a disadvantage in prosecuting the cases in courts. The longer such cases remain pending the greater is their suffering and expense.