Before going into the detail discussion, it is necessary to value the importance of two words “shall” and “may” which have widely been used in legislation in Pakistan.
Use of ‘Shall’ and ‘May’
When something is mandatory for any court or a judge, the word shall have been used and where the word “may” has been used, it has been left up to the court to do such a thing with proper application of mind while taking into consideration the circumstances of the case. This does not mean that mind be applied by crossing all the limits provided in the law which ultimately would make the impression of whole process as unjustified and unwarranted. Where the legislation provides the discretionary powers to a court or a judge, it is duty of such court or a judge to utilize such powers with utmost care and diligent.
Uniformity in Discretionary Matters
As far as uniformity is concerned, some are the mandatory provisions in the legislation and it is not difficult for a judge or a court to keep or to maintain the uniformity however, in discretionary matters this very principle of uniformity varies from court to court across the country. This is very much important that there should be a uniformity in all the discretionary matters in order to throw-out impression that all the decisions are taken under a uniform policy and by adopting this very principle in latter and spirit, burden over one court can be reduced because it has been notice several times that a court which is little lenient in granting status quo in civil cases, lawyers prefer that very court by getting their cases marked which ultimately mounts the burden. So far as magisterial courts or other courts applying criminal procedure, always witness, institution of bail petitions or other criminal institution where discretion is mostly involved and any court which is little lenient in discretionary matters, more average institution as compare to the court which is not so lenient as compare to the court above mentioned.
Leniency and Strictness
The leniency and strictness while using the discretionary powers have almost created a gap within inside of the institution and simply speaking, the leniency have caused to much disturbance which has maximized the chances of misused of such approach in society which is commonly headed by lawyers and secondly by their clerks. A layman does not know the implications of mandatory or discretionary powers conferred in legislation but the legal fraternity comprising lawyers completely know that where they could ensure their relief by providing a guaranty to a litigant that he would make his work done.
Importance of Uniformity
Stay matters have always been providing a wide ground for lawyers’ community while seeking interim relief to misuse the court approach while entertaining such matters. For example, it is difficult for some servicemen to get relief little earlier from a service tribunal however, they rush towards the civil courts for immediate relief and in past, some civil courts have been entertaining such matters to the extent of status quo but this practice is completely barred under article 212 of constitution of Islamic Republic of Pakistan. In such circumstances when such matters are entertained, this practice ultimately casts a negative shadow inside the society and uniformity in such matter, is demand of the day because this very approach is completely barred by law. This has been observed that number of lawyer’s rush towards the court which leniently utilize discretionary powers. Direction is also subject to a limit which could not be crossed in any circumstances.
Likewise, grant of status quo in a property jointly owned by many co-owners, is another important legal point which needs a wider valuable discussion for the purpose of uniformity. In such cases, the ultimate solution is only the official partition but sometimes the interim relief to the extent of construction or alienation by one of co-owner makes problem for the other co-owners and in such circumstances a discretion must be used in favor of the petitioner however, it has been observed that number of times, utilization of discretionary powers has created inconvenience for all the owners of a property. Some land occupied by owner through family settlement of property suddenly becomes valuable and other co-owners come to the court for declaration etc. along with interim injunctions and in such eventuality, owner through family settlement faces litigation for indefinite time for nothing. In such like cases, utmost care should be followed in order to avoid the unnecessary sufferings of a party while exercising the discretion to grant interim relief as a proper forum for redresser is available.
Similarly, where relief has been sought in terms of money, interim relief should not be granted because this is against the spirit of principle defined in Specific Relief Act, 1877, simply stating, same cannot be termed as irreparable. It has been observed that civil courts while exercising such powers, overlook the basic claim of the party where some other dummy relief is added in heading of the plaint just in order to get interim relief for which a party is not entitled. Civil courts in such like cases should go forward by adopting a uniform policy in order to minimize the chances of misuse of courts approach towards some specific relief provided by prevailing law.
On the other hand, amid the criminal process the scope of discretion is little wider than that of civil procedure because the law has provided and guarantied the rights of accused person or any person who is charged for any offence under criminal procedure. Throughout the criminal procedure the word “may” has significantly been utilized at many occasions and in other words the scope of discretion has been extended in favor of courts in order to maintain the balance in between the rights of accused present before the court and prosecution.
The courts always exercise its discretion while deciding bail applications of the accused. Section 497Cr. PC has properly defined the discretion and mandatory duties of a court. For example, the grant of bail is completely discretionary with the court in offences against which the punishment provided as imprisonment is not less than 10 year or imprisonment of life or death. The scope of discretion has also been extended to the accused who is child, a women or he is not a hardened, disparate or dangerous criminal. Importantly as per the dictums of superior courts, the grant of bail to accused who is charged for offence which does not come under prohibitory clause of section 497 Cr. PC is entitled to be released on bail. Different courts apply different approaches while deciding such matters and no uniformity could be developed in this respect so far. In some cases, like 489 (f) PPC are having punishment for imprisonment up to 03 years despite the fact that some of checks exceed the billions and discretion cannot be exercised just taking into consideration the quantum of punishment which is only three years. However, the consensus could be developed among the courts that up to which amount the accused should be granted bail however, this is the basic condition that other circumstances of the case should also be looked into before exercising the discretionary powers. There are number of offences where the principle provided u/s 497 Cr.PC could be followed in true spirit and all the aspects in this regard will be taken later on for discussion in a detail paper.
The cases are always having their own facts and circumstances and discretion cannot be harmonized across the country but it could be effective within the district where all the courts carry on their functions under the sole administration of District & Sessions Judge. Importantly the utilization of discretionary powers has caused damage to the prestige of the institution because this approach has always remained in scarcity of harmony however, the gap can be bridged by developing a uniform policy in this regard.
Thanks for reading,
Naveed Ahmad (Civil Judge)