The Judicial System of Pakistan

(Zulqarnayn Awan, Lahore)

What is Law?
Law is a system of rules that are enforced through social institutions to govern behavior. Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedent (normally in common law jurisdictions).

Purpose of Law
There may be numerous purposes of law, some important are as follows:

• Satisfaction for victims (i.e. revenge).
• Deterrent to discourage others from acting in a way considered detrimental to society.
• To prevent vigilantism and mob justice, often targeting innocent third parties.

The Law of Pakistan
The Law of Pakistan is the law and legal system existing in the Islamic Republic of Pakistan. Pakistani law is based upon the legal system of British India; thus ultimately on the common law of England and Wales. Pakistan as an Islamic republic also has been influenced by Islamic Sharia law.

The Judicial System of Pakistan
The roots of the current judicial system of Pakistan stretch back to the medieval period and even before. The judicial system that we practice today has evolved over a long period of time, spanning roughly over a whole millennium.

The system has passed through several epochs covering the Hindu era, Muslim period including the Mughal dynasty, British colonial period and post-independence period. Notwithstanding the successive changes i.e. one rule/dynasty substituted by the other, which naturally resulted in the socio-economic and political transformation of the Indian society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement/refinement, without indeed, having to undergo any major disruption or substantial change.

All in all, the system experienced and passed through 3 distinct stages of historical development, namely, Hindu Kingdom, Muslim Rule and British Colonial administration. The 4th and current era, commenced with the partition of India and the establishment of Pakistan as a sovereign and independent State.

The system, thus, has evolved through a process of reform and development. This conclusion enjoys near unanimity among historians and commentators of Indian legal history. During this process of evolution and growth, the judicial system did receive influences and inspirations from foreign doctrines/notions and indigenous norms/practices, both in terms of organizing courts’ structure and hierarchy, and adopting procedures/practices in reaching decisions.

Therefore, the present judicial system is not an entirely foreign transplant, as is commonly alleged, but has acquired an indigenous flavor and national color. And whereas the system may not fully suit the genius of our people or meet the local conditions, its continued application and practice has made it intelligible to the common man. The very fact that increasing number of people are making.

The Judicial System of Pakistan resort to the courts for the resolution of their conflicts/disputes indicates that the system enjoys a degree of legitimacy and acceptance.

Islam and the Legal System
The legal system in Pakistan is based on English common law and Islamic law. Between 1947 and 1978, Islamic law was largely restricted to the sphere of personal status issues, such as marriage, inheritance and divorce. The Islamization of the legal system began in earnest under General Zia ul Haq (1977-1988). Through a series of presidential decrees, Zia introduced far reaching changes in Pakistan’s criminal justice system, regulated by the Pakistan Penal Code of 1860 and the Code of Criminal Procedure (1898). He also created a parallel court system, consisting of Shariat courts, and amended the country’s anti-blasphemy laws. While most of the “Islamic” laws he instituted are still on the statute, and some were reinforced by conservative governments, Pakistan’s parliament has recently introduced legal changes aimed at improving the status of women in the private and public spheres.

Division of Courts
Supreme Court
The Supreme Court is the apex Court of the land, exercising original, appellate and advisory jurisdiction. It is the Court of ultimate appeal and therefore the final arbiter of law and the Constitution. Its decisions are binding on all other courts. The Court consists of a Chief Justice and other judges, appointed by the President as per procedure laid down in the Constitution. An Act of Parliament has determined the number of judges. The number fixed at the moment is Chief Justice and 16 judges. There is also provision for appointment of acting judges as well as ad hoc judges in the court. A person with 5 years experience as a Judge of a High Court or 15 years standing as an advocate of a High Court is eligible to be appointed as judge of the Supreme Court.

High Courts
There is a High Court in each province and a High Court for the Islamabad Capital Territory. Each High Court consists of a Chief Justice and other judges. The strength of Lahore high Court is fixed at 60, High Court of Sindh at 40, Peshawar High Court at 20, High Court of Baluchistan at 11 and Islamabad High Court at 7. Qualifications mentioned for the post of a Judge are, 10 years experience as an advocate of a High Court or 10 years service as a civil servant including 3 years experience as a District Judge or 10 years experience in a judicial office.

For the appointment of Judges of High Courts, the practice used to be that initially the Chief Justice of the concerned High Court prepared list of candidates which was submitted to the President through the Governor of the province and Chief Justice of Pakistan. The President finally used to select judges from the said list. The recommendation of the Chief Justice of Pakistan and Chief Justice of the High Court were binding on the President, except for sound reasons to the contrary. The most senior judge would have legitimate expectancy of being appointed as the Chief Justice except for concrete and valid reasons, to be recorded by the President.

District & Sessions Courts
District courts exist in every district of each province, and have civil and criminal jurisdiction. In each District Headquarters, there are numerous Additional District & Session Judges who usually preside the courts.

District & Sessions Judge has executive and judicial power all over the district under his jurisdiction. The Sessions court is also a trial court for heinous offences such as Murder, Rape, Haraba offences (armed robbery where specific amount of gold and cash is involved), and is also appellate court for summary conviction offences and civil suits of lesser value.

Each Town and city now has a court of Additional District & Sessions judge, which possess the equal authority over, under its jurisdiction. When hearing criminal cases, it is called the Sessions Court, and when it hears civil cases, the District Court. Executive matters are brought before the relevant District & Sessions Judge.

• The High Court of each province has appellate jurisdiction over the lower courts.
• The Supreme Court has exclusive jurisdiction over disputes between and among provincial governments, and appellate jurisdiction over High Court decisions.

Federal Shariat Court
The Court consists of 8 Muslim Judges including the Chief Justice .Procedure for appointment of judges of Federal Shariat Court has been changed after 18th and 19th amendments as previously such judges were appointed by the President from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of a judge of the High Court.
At present, judges of Federal Shariat Court are also appointed through Judicial Commission which comprises Chief Justice of Pakistan as Chairperson, four senior most Judges of the Supreme Court, One former Chief Justice or a retired judge of the Supreme Court appointed by the Chairperson in consultation with the four member judges for a period of two years, the Attorney General for Pakistan, the Federal Law Minister, Chief Justice of Federal Shariat Court and most senior judge of the Federal Shariat Court.

For appointment of Chief Justice, however, the most senior judge of the Federal Shariat Court is excluded from the composition of the Commission. Once the Judicial Commission approves a new name for appointment as the judge of the Federal Shariat Court, it goes to an Eight member Parliamentary Committee that has equal representation of the government and the opposition as well as of two houses. This Committee has two weeks to review the recommendation after which if the recommendation is approved, it goes to the Prime Minister who forwards the same to the President for appointment. The Parliamentary Committee, for reasons to be recorded, may not confirm the recommendation by three-fourth majority, in which instance the decision is forwarded to the Commission through the Prime Minister and the Commission sends another nomination.

Special Tribunals and Boards
There are numerous special tribunals such as;
• Banking Courts
• Custom Courts
• Drug Courts
• Federal Services Tribunal
• Provincial Services Tribunals (one for each province)
• Income Tax Tribunals
• Anti Corruption Courts
• Anti Terrorism Courts
• Labor Courts
• Labor Appellate Tribunal
• Environmental Courts
• Board of Revenue
• Special Magistrate courts
• Control of Narcotic Substances (Special Courts)
• Consumer Courts

Almost all judges of above mentioned courts and tribunals except last one are of District & sessions Judges or of having same qualifications. Besides, there exist revenue courts, operating under the West Pakistan Land Revenue Act 1967.

The revenue courts may be classified as the Board of Revenue, the Commissioner, the Collector, the Assistant Collector of the First Grade and Second Grade. The provincial government that exercises administrative control over them appoints such officers. Law prescribes their powers and functions.

Family Courts
The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court, where the Family Court is presided by a District Judge, an Additional District Judge, or a person notified by the Government to be the rank and status of a District Judge or an Additional District Judge and to the District Court, in any other case.

Every town and city or Tehsil has court of family judge.In some areas, where it is only Family Court but in most areas Civil Judge Courts have been granted the powers of Family Court Judges. According to section 17 of the Family Court Act, 1964, the provisions of C.P.C. (Civil Procedure Code) and Qanun-e-Shahdat Order (Evidence Law) are not applicable over to Family Court and the same are allowed forming or regulating its own procedure to decide case expeditiously, properly and in the best interest and convenience of lady litigants.

Juvenile Courts
Section 4 of the JJSO authorizes the Provincial Government to establish one or more juvenile courts for any local area within its jurisdiction, in consultation with the Chief Justice of the high court. Ten years have passed, and not a single such court has been established; and instead the High Courts have been conferring status of the juvenile courts on the existing courts.

The High Court cannot be doing this on their own, and must be instructed by the provincial governments to do so. In this era of independent judiciary, the High Courts should stand up against the governments on this issue and refuse to confer powers on the already over-burdened courts and instead should insist upon establishing exclusive juvenile courts.

Section 6 of the JJSO prescribes special procedure for the juvenile courts which involves issues like not ordinarily taking up any other case on a day when the case of a child accused is fixed for evidence on such day; attendance of only specified persons in the court; and dispensing with the attendance of the child in the trial.

Appointments of Judges
Supreme Court of Pakistan
Prior to 18th Constitutional Amendments, appointments to the Supreme Court of Pakistan were made by the President of Pakistan, on the recommendation of the Chief Justice of the Supreme Court. This system bred many allegations of favoritism. Many judges who were appointed were relatives of other Judges or Government officials.

However, following the Supreme Court's judgment in the Al-Jehad Trust case, the government's role in judicial appointments was curtailed. Under the terms of this judgment, the Government and the President's office were bound to act on the recommendations of the Chief Justice of Pakistan.

After passage of the 19th Constitutional Amendment in 2010, a new Judicial Commission and Parliamentary Committee were established for appointments. The Judicial Commission consists of a total of nine members: the Chief Justice of Pakistan, four senior judges of the Supreme Court, a former Chief Justice or judge of the Supreme Court nominated by the serving Chief Justice in consultation with the four serving judges of the Supreme Court aforementioned, the Attorney General of Pakistan, the Federal Minister for Law and Justice and, one senior advocate nominated by the Pakistan Bar Council. The Parliamentary Committee confirms or may not confirm the nominee of the Judicial Commission.

High Courts
In Appointments to the High Courts, the same procedure as in Supreme Courts appointments is adopted Prior to 18th Constitutional Amendment, High Court appointments suffered much the same criticisms as those to the Supreme Court. Future appointments will be made in the same manner as those to the Supreme Court.

District & Sessions Judges
Additional District & Sessions Judges are appointed by the Provincial High Courts, from a pool of Lawyers and subordinate judges. To be eligible for appointment, Lawyers must have ten years' experience as an advocate with good standing in the respective jurisdiction. They must also pass an examination conducted by the High Courts. Subordinate judges are promoted from senior civil judges on a seniority basis.


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