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The Judicial System of Pakistan

by

Dr Faqir HussainRegistrar, Supreme Court of Pakistan

General

The roots of the current judicial system of Pakistan stretch back to the medieval period

and even before. The judicial system that we practise 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 postindependence period. !otwithstanding the

successive changes i.e. one rule"dynasty substituted by the other, which naturally resulted

in the socioeconomic and political transformation of the #ndian 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. $ll in all, the system e%perienced and passed through & distinct stages

of historical development, namely, Hindu 'ingdom, Muslimrule and British colonial

domination. The (th and current era, commenced with the partition of #ndia and the

establishment of Pakistan as a sovereign and independent )tate. The system, thus, has

evolved through a process of reform and development. This conclusion enjoys near

unanimity among historians and commentators of #ndian legal history. *uring 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 organising courts+ structure and hierarchy, and following procedures"practices in

reaching decisions. Therefore, the present judicial system is not an entirely foreign

transplant, as is commonly alleged, but has acuired an indigenous flavour and national

colour. $nd 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 the people are making resort to the courts for the



resolution of their conflicts"disputes indicates that the system enjoys a degree of

legitimacy and acceptance.

Historical -etrospect

Hindu Period

The Hindu period roughly e%tends from /00 B1 until /00 $*. #nformation on the

judicial system during Hindu period has been somewhat sketchy, gathered mostly from

scattered sources, such as ancient books like *haramshastra, )miritis and $rthashastra,

and commentaries of the same by historians and jurists. These sources construct a well

defined system of administration of justice during the Hindu period. The 'ing was

regarded as the fountain of justice who also discharged judicial functions. #n this task,

judges as well as his ministers and counsellors assisted him. He was the final judicial

authority and court of ultimate appeal. $t the 1apital, besides the 'ing+s 1ourt, the 1ourt

of 1hief 2ustice e%isted. This 1ourt, in hierarchy, was ne%t to the 'ing+s 1ourt and

appeal against its decisions lay to the 'ing+s 1ourt. The judges were appointed on the

basis of their ualifications and scholarship but the choice was mostly restricted to upper

caste i.e. Brahmins.

$t the village level, tribunals dispensed justice, consisting of the assembly of the village,

or the caste or the family. 34 The village Headman acted as 2udge"Magistrate for the

community. *ecisions by such tribunals were usually through conciliation. The decisions

of village"town courts"tribunals were appealable in the higher courts and final appeal lay

before the 'ing+s 1ourt. Besides, judgment by the courts, the system of arbitration was

also invoked.

$s regards the procedure followed in the courts"tribunals, no formal rules e%isted, as the

law applicable was not statutory but customary and moral. The determination of truth and

punishment of the wrongdoer was regarded as a religious duty. 1ivil proceedings

commenced with the filing of a claim which was replied to by the opposite party. Both

parties were allowed to produce witnesses so as to prove their respective claims. 5n the

conclusion of the trial, decision was pronounced which was duly enforced. #t appears

thus, that the system of administration of justice, as it operated in ancient #ndia, was not

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substantially different from what it is in the modern times. #n a sense, the current system

seems to be a continuation of the former practices and procedures.

6. Muslim Period

The Muslim period in the #ndian )ub1ontinent roughly begins in the th century $.*.

This period may be divided into two parts i.e. the period of early Muslim rulers who ruled

*elhi and some other parts of #ndia and the Mughal period, which replaced such Muslim

and other rulers in /67 $.*. The Mughal dynasty lasted until the middle of 8th century.

*uring the period of Muslim rulers, the #slamic law generally held the ground and

remained the law of the land in settling civil and criminal disputes. However, common

customs and traditions were also invoked in settling secular matters. These rulers were

not particularly keen on applying the #slamic law to each and every sphere of life, and let

the indigenous customs and institutions continue side by side with #slamic law and

institutions. *uring this period, different courts were established and functioned at the

central, provincial, district and tehsil 9Pargana: level. These courts had defined

jurisdiction in civil, criminal and revenue matters and operated under the authority of the

'ing. 5n the top of judicial hierarchy was the 'ing+s 1ourt, presided over by the 'ing

himself, e%ercising original as well as appellate jurisdiction. The 'ing was the head of

judicial administration and he made all appointments to judicial posts. Persons of

recognised scholarship, known competence and high integrity were appointed to such

posts. The judges held office during the pleasure of the 'ing.

The Mughals improved upon the previous e%perience and created an organised system of

administration of justice all over the country. 1ourts were created at each and every unit of the

administrative division. $t the village level, the Hindu system of Panchayats 91ouncil of ;lders:

was retained, which decided petty disputes of civil and criminal nature, using conciliation and

mediation as means of settling disputes. $t the town level, there e%isted courts, presided over by

<a=ieParganah. )imilarly, at the district 9)arkar: and provincial 9)ubah: level, courts of <a=is

were established. The highest court at the provincial level was that of $dalat !a=ime)ubah.

)imilarly, for revenue cases, officers known as $min were appointed at the town level. $t the

district level, revenue cases were dealt with by $malgu=ar and at the provincial level by *iwan.

The )upreme -evenue 1ourt was called, the #mperial *iwan. )ide by side, with civil and revenue

&



courts, criminal courts, presided over by >aujdar, 'otwal, )hidar and )ubedar functioned. 364 The

highest court of the land was the ;mperor+s 1ourt, e%ercising original and appellate jurisdiction.

$lthough these courts generally e%ercised e%clusive jurisdiction in different categories of

cases, however, sometimes their jurisdiction was intermi%ed, in as much as, officers

dealing with criminal cases were also reuired to act as revenue courts. >urthermore,

whereas territorially these courts formed a concentric organisation, their jurisdiction was

not always e%clusive on the basis of territorial limits. Thus, a plaintiff may choose to file

his suit in a town or a district or a province. The pecuniary jurisdiction of the courts was

also not defined? hence, a case of higher value may be filed in a court of small town.

)imilarly, appellate jurisdiction e%isted but was not well defined. Thus, a plaintiff or acomplainant, not satisfied with a decision, may file a second suit"complaint in another

court. )uch later court would decide the matter afresh, without indeed taking into

consideration the earlier finding of the court.

The emperor made the judicial appointments and persons of high scholarship and good

reputation were appointed to the posts. #nstructions were given to the judges to be neutral

and impartial? and complaints against them were taken seriously. 1orrupt officials were

removed. 1onseuently, the scales of justice were very high. 3&4

The procedure followed in civil cases was not much different from the procedure, which

is applicable today. 5n a suit being filed, the court summoned the opposite party to admit

or deny the claim. #ssues were framed in the presence of both the parties who were then

reuired to produce evidence in support of their respective claims. )imple cases were

decided, based on such evidence, however, in complicated cases, the judge may launch

his own investigation into the matter. 3(4 Ma%imum effort was made to find the truth. 5n

the conclusion of the proceedings, judgment was pronounced and duly e%ecuted.

@itigants were allowed to present their cases either personally or through agents. )uch

agents were not e%actly lawyers 9in the modern sense of the term: but were fully

conversant with the judicial procedure. $n officer of the court called Mufti, attached to

the court, made the interpretation of law. 3/4

& British Period

(



The ;ast #ndia 1ompany was authorised by the 1harter of 76& to decide the cases of its

;nglish employees. The 1ompany, therefore, established its own courts. The President

and 1ouncil of the 1ompany decided all cases of civil or criminal nature. The subseuent

charters further e%panded such powers. Thus the 1harter of 77 authorised the Aovernor

and 1ouncil to decide not only the cases of the 1ompany employees but also of persons

residing in the settlement. #n deciding such cases, the Aovernor and the 1ouncil applied

the ;nglish laws. $s the character of the 1ompany changed from one of a trading

concern into a territorial power, newer and additional courts were established for

deciding cases and settling disputes of its employees and subjects. The administration of

justice was initially confined to the presidency town of Bombay, 1alcutta and Madras. #n

view of the huge distances between these towns and the peculiar conditions prevailing

there, the administration of justice, which developed in these towns, was not uniform.

There were established two sets of courts, one for the Presidency towns and the other the

mufussil. The principal courts for the town were known as the )upreme 1ourts and

-ecorders 1ourts. These courts consisted of ;nglish judges and applied ;nglish laws.

The ;nglish people, residing in such towns alone, were subject to their jurisdiction. The

native inhabitants, who were mostly living in the mufussil, were governed under separate

courts called )adar *ewani $dalat and )adar !i=amat $dalat, dealing with civil and

criminal cases respectively. )uch courts applied the local laws and regulations.

The )upreme 1ourt of 1alcutta was established under the -egulating $ct &. The

1ourt consisted of a 1hief 2ustice and other 2udges, e%ercising both civil and criminal

jurisdiction. The 1ourt could also issue certain prerogative writs. #n 8C, -ecorders

1ourts were established at Madras and Bombay with powers identical to the )upreme

1ourt of 1alcutta. $fterwards, the -ecorders 1ourt at Madras was substituted by the

)upreme 1ourt 9under the Parliament $ct C00:. $ few years later, the -ecorders 1ourt

at Bombay was also replaced by the )upreme 1ourt 9under the Parliament $ct C6&:.

These new 1ourts had indeed the same composition, jurisdiction and powers as e%ercised

by the )upreme 1ourt of 1alcutta.

The High 1ourt $ct C7 abolished the )upreme 1ourts as well as the )adar $dalats and

in their place constituted the High 1ourt of 2udicature for each Presidencytown. This

1ourt consisted of a 1hief 2ustice and such other number of 2udges, not e%ceeding /.

/



The $ct prescribed professional ualifications for such 2udges together with the mode of

their appointment. Thus, it was provided that "& rd of the 2udges should be appointed

from amongst the barristers with / years standing and "&rd from amongst the civil

servants, having & years e%perience as a *istrict 2udge. The remaining "& rd seats were

filled from amongst pleaders and members of subordinate judiciary, having / years

e%perience. The 2udges were appointed by the 1rown and held office during his pleasure.

The High 1ourts e%ercised original as well as appellate jurisdiction in civil and criminal

matters and were also reuired to supervise the functioning of the subordinate courts in

their respective domain. Besides the Presidencytowns, High 1ourts were also established

in $llahabad in C77, Patna in 88, @ahore in 88 and -angoon in 8&7. The )ind

1hief 1ourt was established under the )ind 1ourts $ct 867. )imilarly, under the !D>P

1ourts -egulation 8& and the British Baluchistan 1ourts -egulation 8&8, the 1ourt of

2udicial 1ommissioner was created in each such area.

The 1ode of 1ivil Procedure 80C created principal civil courts, namely, the 1ourt of

*istrict 2udge, the 1ourt of $dditional *istrict 2udge, the 1ourt of 1ivil 2udge and the

1ourt of Munsif. Their territorial and pecuniary jurisdictions were also defined.

The Aovernment of #ndia $ct 8&/ retained the High 1ourts and also provided for the

creation of a >ederal 1ourt. 374 The >ederal 1ourt was established in 8&. #ts 2udges were

appointed by the 1rown and held office till completing the age of 7/ years. The

ualifications prescribed were, / years e%perience as a 2udge of a High 1ourt or 0 years

e%perience as a barrister or 0 years e%perience as a pleader in a High 1ourt. The $ct

further provided that the 2udges of the >ederal 1ourt and High 1ourts should hold office

during good health and behaviour, meaning they may not be removed e%cept on the

grounds of infirmity of mind or body or misbehaviour, only when on a reference made by

the 1rown, the 2udicial 1ommittee of Privy 1ouncil so recommends. The >ederal 1ourt

e%ercised original, appellate and advisory jurisdiction. 34

Post#ndependence ;volutionE

5n independence, the Aovernment of #ndia $ct 8&/ was retained as a provisional

1onstitution. $s a conseuence, the legal and judicial system of the British period

continued, of course, with due adaptations and modifications, where necessary, to suit the

7



reuirements of the new -epublic. This way, neither any vacuum occurred nor any break

resulted in the continued operation of the legal system. The judicial structure remained

the same. The @ahore High 1ourt continued to function and so did the )indh 1hief 1ourt

and the 1ourts of 2udicial 1ommissioner in !D>P and Baluchistan. $ new High 1ourt

was set up at *acca. 3C4 )imilarly, a new >ederal 1ourt for Pakistan was also established.

384 The powers, authority and jurisdiction of the >ederal 1ourt and High 1ourts, as

prescribed in the Aovernment of #ndia $ct 8&/, remained intact. The Aovernment of

#ndia $ct 8&/ was amended in 8/( with a view to empower the High 1ourts to issue

the prerogative writs. 304 The subseuent 1onstitutions i.e. 8/7, 876 and 8& did not

drastically alter the judicial structure or the powers and jurisdiction of the superior courts.

The changes effected were, renaming the >ederal 1ourt as the )upreme 1ourt by the

8/7 1onstitution and the upgradation of the 1hief 1ourt of !D>P and 2udicial

1ommissioner 1ourt of Baluchistan into fullfledged High 1ourts, by the 8&

1onstitution. @ater on, a new 1ourt called, >ederal )hariat 1ourt was created in 8C0 34

with jurisdiction to determine, suo moto or on petition by a citi=en or the >ederal or a

provincial Aovernment, as to whether or not a certain provision of law is repugnant to the

injunctions of #slam. 364

)uperior 2udiciary

The 1onstitution of Pakistan deals with the superior judiciary in a fairly comprehensive

manner and contains elaborate provisions on the composition, jurisdiction, powers and

functions of these courts. The 1onstitution provides for the Fseparation of judiciary from

the e%ecutiveG and the Findependence of judiciaryG. 3&4 #t entrusts the superior courts with

an obligation to Fpreserve, protect and defendG the 1onstitution. 3(4 The ualifications of

2udges, their mode of appointment, 3/4 service conditions, salary, pension, 374 etc are also

laid down in the 1onstitution. The remuneration of judges and other administrative

e%penditures of the )upreme 1ourt and High 1ourts are charged on the

>ederal"Provincial 1onsolidated >und, 34 which means it may be discussed but cannot be

voted upon in the legislature.

The 1onstitution also provides for the grounds as well as forum and procedure for the

removal of judges of the superior courts. 3C4 The )upreme 2udicial 1ouncil, consisting of

the senior judges of the )upreme 1ourt and High 1ourts, on its own or on a reference



made by the President, may recommend the removal of a 2udge on the ground of

misconduct or physical or mental incapacity. Thus, the 1onstitution ensures the freedom,

independence and impartiality of the superior judiciary.

The )upreme 1ourt and High 1ourts have recently been given a degree of financial

autonomy. This measure followed the )upreme 1ourt ruling in the case of Aovernment of

)ind v )haraf >aridi. 384 The 1ourt held that the independence of judiciary also means the

elimination of financial control of the ;%ecutive over the judiciary, and therefore, the

1hief 2ustice of the )upreme 1ourt and High 1ourts should be authorised to make re

appropriation of funds within the budgetary allocation, without the approval of >inance

Ministry. The 1ourt went on to elaborate that the 1hief 2ustices would thus be competent

to reappropriate amounts from one head to another and may also create or abolish posts

and upgrade or downgrade the same. 3604

This ruling came during the course of interpretation of $rticle /9&: of the 1onstitution,

which provides that Fjudiciary shall be separated progressively from the ;%ecutive within

( yearsG. The 1ourt held that as per such constitutional mandate, the functions of

magistracy should be bifurcated and the judicial magistrates must be placed under the

administrative control of the High 1ourt. The 1ourt fi%ed the 6& rd of March 88( as the

last date for carrying out this measure. #n its order dated 6( th 2anuary 887 on the review

petition, the )upreme 1ourt e%tended the said date to 6& rd March 887 and reiterated that

separation must be effected by the due date and added that no reuest for further

e%tension in time will be entertained. 1onseuently, through appropriate amendments in

law, judicial magistrates were placed at the disposal of High 1ourts. @ater, the )upreme

1ourt in the cases of $l2ehad Trust v >ederation 364 and $sad $li v >ederation 3664 further

interpreted various provisions in the 1onstitution and clarified the procedure and

ualifications for appointment to the )upreme 1ourt and High 1ourt and appointment of

the 1hief 2ustices of the said courts.

9: )upreme 1ourt

The )upreme 1ourt is the ape% 1ourt of the land, e%ercising original, appellate and

advisory jurisdiction. 36&4 #t is the 1ourt of ultimate appeal and therefore final arbiter of

law and the 1onstitution. #ts decisions are binding on all other courts. 36(4 The 1ourt

consists of a 1hief 2ustice and other judges, 36/4 appointed by the President. $n $ct of

C



Parliament has determined the number of judges. The number fi%ed at the moment is .

1urrently, the 1ourt is working with full strength. >urther, 6 $d hoc 2udges have also

been appointed for one year. $ person with / years e%perience as a 2udge of a High 1ourt

or / years standing as an advocate of a High 1ourt is eligible to be appointed as 2udge

of the )upreme 1ourt. 3674 The standing practice is that the 1hief 2ustice recommends a list

of names to the President and the President selects 2udges from the said list. The

recommendation of the 1hief 2ustice is binding on the President, e%cept for sound

reasons to be recorded by the President. )imilarly, the most senior judge is appointed as

the 1hief 2ustice, e%cept for concrete and valid reasons to be recorded by the President.

The 1ourt e%ercises original jurisdiction in intergovernmental disputes, 364 be that

dispute between the >ederal Aovernment and a provincial government or among

provincial governments. The 1ourt also e%ercises original jurisdiction 9concurrently with

High 1ourts: for the enforcement of fundamental rights, where a uestion of public

importance+ is involved. 36C4 The 1ourt has appellate jurisdiction in civil and criminal

matters. 3684 >urthermore, the 1ourt has advisory jurisdiction in giving opinion to the

Aovernment on a uestion of law. 3&04

The 1ourt appoints its own staff and determines their terms and conditions of service. 3&4

The )upreme 1ourt 9$ppointment of 5fficers and )ervants and Terms of )ervice: -ules

8C6 prescribe the ualification for and mode of appointment and promotion of staff

together with penalties and procedure for disciplinary proceedings against them. The

1ourt may also frame its own rules of procedure. 3&64 The )upreme 1ourt -ules 8C0 laid

down detailed procedure for the filing of petitions and appeals and their processing

through the 1ourt.

$s compared to the practice elsewhere in the world, particularly the Inited )tates and

Inited 'ingdom where fewer cases reach the ape% 1ourt, the )upreme 1ourt of Pakistan

deals with cases far beyond its capacity to deal with. #ts jurisdiction, original as well as

appellate, is fairly wide. Besides entertaining civil and criminal appeals from the High

1ourts, the 1ourt also hears appeals from the judgments against the >ederal )hariat

1ourt, )ervice Tribunals and some special courts. The 1ourt also entertains cases of

violation of >undamental -ights under its original jurisdiction 9$rt C(9&::. Besides

8



being deputed to act as special court"tribunal, the judges are also engaged as members of

enuiry commissions. $s a conseuence, there is always some pending work to dispose

of. 5n st >ebruary, 600, a total of 08( cases were pending in the )upreme 1ourt.

$ppro%imately &000 J 7000 cases 9both petitions and appeals: are annually filed in the

1ourt. Besides, around &0,000 applications"letters are annually received under $rticle

C(9&: of the 1onstitution and processed by the 1ourt. 5bviously, the 1ourt has a heavy

workload. #t raises the uestion as to whether the 1ourt can devote adeuate time and

serious attention to important cases, involving the interpretation of law and the

1onstitution, ensure their timely disposal through sound reasoning and uality judgment,

as is e%pected of an ape% 1ourt. There is a need, thus, to ponder whether or not the

jurisdiction of the 1ourt should be restricted to important and serious cases.

There is no system of adeuate research assistance being made available to the 1ourt so

as to facilitate the judges in their research assignments concerning the

clarification"elaboration of a legal provision or interpretation of the 1onstitution. )uch a

measure will undoubtedly help in improving the uality of judgment and facilitate in

correct interpretation of law.

To facilitate the litigant public and ensure prompt disposal of cases, the 1ourt, e%cept in

very important cases, generally operates through benches. Benches have been constituted,

and are functional, almost round the year. Besides its Principal )eat at #slamabad, there

are ( Branch -egistries, one at each provincial metropolis. Dhereas the constitution of

Benches and their operation in various cities, facilitates the public and ensures prompt

disposal of cases, this system does affect the uality of judgments and deprives the 1ourt

of collective wisdom, so very vital for the ape% 1ourt, dealing with important issues and

principles. There is, therefore, perhaps a need to ree%amine the wisdom of bench system.

This is however not possible with the present workload and rising trend of institution of

cases, due to wider jurisdiction of the 1ourt.

96: High 1ourts

There is a High 1ourt in each province. ;ach High 1ourt consists of a 1hief 2ustice and

other puisne judges. The strength of @ahore high 1ourt is fi%ed at /0, High 1ourt of

)indh at 6C, Peshawar High 1ourt at 7 and High 1ourt of Baluchistan at 8. The 1hief

0



2ustice is appointed by the President in consultation with the 1hief 2ustice of Pakistan

and other judges, in consultation with the 1hief 2ustice of Pakistan, Aovernor of the

Province and the 1hief 2ustice of the concerned High 1ourt. 3&&4 <ualifications mentioned

for the post of a 2udge are, 0 years e%perience as an advocate of a High 1ourt or 0

years service as a civil servant including & years e%perience as a *istrict 2udge or 0

years e%perience in a judicial office. 3&(4 The standing practice for the appointment of

2udges of High 1ourts is that initially the 1hief 2ustice of the concerned High 1ourt

prepares a list of candidates which is submitted to the President through the Aovernor of

the province and 1hief 2ustice of Pakistan. The President finally selects 2udges from the

said list. The recommendation of the 1hief 2ustice of Pakistan and 1hief 2ustice of the

High 1ourt is binding on the President, e%cept for sound reasons to the contrary. The

most senior judge would have legitimate e%pectancy of being appointed as the 1hief

2ustice e%cept for concrete and valid reasons, to be recorded by the President.

The 1ourt e%ercises original jurisdiction in the enforcement of >undamental -ights and

appellate jurisdiction in judgments"orders of the subordinate courts in civil and criminal

matters. $ large number of cases are pending in various High 1ourts. #n the @ahore High

1ourt, a total of /,8/ cases, in the High 1ourt of )indh, 6,68 cases, in Peshawar

High 1ourt, &,70 cases and in the High 1ourt of Balochistan, 6((/ cases were pending

on st 2anuary 600.

The 1ourt supervises and controls all the courts subordinate to it. 3&/4 #t appoints its own

staff 3&74 and frames rules of procedure for itself as well as courts subordinate to it. 3&4

$n e%tremely controversial provision in the 1onstitution has been the transfer of a judgefrom one High 1ourt to another without his consent or after consultation with the 1hief

2ustice of Pakistan or 1hief 2ustices of the concerned High 1ourts. 3&C4 The original 8&

1onstitution made such a transfer subject to such consent as well as consultation. $

proviso added by the 1onstitution 9>ifth $mendment: $ct 87 empowered the President

to order such transfer for a period not e%ceeding one year, and the President 5rder !o. (

of 8C/ e%tended such period from one to two years. )imilarly, $rticle 60&19(: of the

1onstitution, added by the 1onstitution 9$mendment: 5rder 8C0, also provides that a



judge of a High 1ourt may be transferred to act, for up to two years, as a judge of the

>ederal )hariat 1ourt, and in the event of refusal, shall be deemed to have retired from

the service. 3&84 ;versince such amendments, the transfer provisions had been the subject

of intense criticism, and rightly so, as the provisions were seldom used in public interest.

The provisions had often been misused or abused for pressurising the judges so as to

obtain from them favourable opinions"judgments or punish them for their upright

behaviour. The )upreme 1ourt in the case of $l2ehad Trust v >ederation 3(04 e%amined

this provision in the light of other provisions pertaining to the independence of the

judiciary and concluded that no judge may be transferred to the >ederal )hariat 1ourt,

and further, that transfer to another High 1ourt is permissible only in public interest.

9&: >ederal )hariat 1ourt

The 1ourt consists of C Muslim 2udges including the 1hief 2ustice. 3(4 )uch 2udges are

appointed by the President from amongst the serving or retired 2udges of the )upreme

1ourt or a High 1ourt or from amongst persons possessing the ualifications of a 2udge

of the High 1ourt. 5f the C 2udges, & are reuired to be Ilema who are well versed in

#slamic law. The 2udges hold office for a period of & years and the President may further

e%tend such period. 3(64

The 1ourt, on its own motion or through petition by a citi=en or a government 9>ederal or

provincial:, may e%amine and determine as to whether or not a certain provision of law is

repugnant to the #njunctions of #slam. 3(&4 $ppeal against its decision lies to the )hariat

$ppellate Bench of the )upreme 1ourt, consisting of & Muslim 2udges of the )upreme

1ourt and not more than 6 Ilema, appointed by the President. 3((4 #f a certain provision of

law is declared to be repugnant to the #njunctions of #slam, the Aovernment is reuired to

take necessary steps to amend the law so as to bring it in conformity with the injunctions

of #slam. The 1ourt also e%ercises appellate revisional jurisdiction over the criminal

courts, deciding Hudood cases. 3(/4 The decisions of the 1ourt are binding on the High

1ourts as well as subordinate judiciary. 3(74 The 1ourt appoints its own staff 3(4 and

frames its own rules of procedure. 3(C4 5n st 2anuary 600, a total of &&7 cases 9&07

appeals"revisions and &00 petitions: were pending before the 1ourt.

6



;ver since its establishment in 8C0, the >ederal )hariat 1ourt has been the subject of

criticism and controversy in the society. 1reated as an #slamisation measure by the

Military -egime 3(84 and subseuently protected under the controversial C th $mendment,

3/04 its opponents uestion the very rationale and utility of this institution. #t is stated that

this 1ourt merely duplicates the functions of the e%isting superior courts. The

composition of the 1ourt, particularly the mode of appointment of its judges and the

insecurity of their tenure, is taken e%ception to, and it is alleged, that this 1ourt does not

fully meet the criterion prescribed for the independence of the judiciary, hence, is not

immune to pressures and influences from the ;%ecutive. #n the past, this 1ourt was used

as a dumping ground for the recalcitrant judges. $nd whereas some of its judgments,

particularly the ones which relying on the #slamic concept of euity, justice and fair play,

e%panded and enlarged the scope and contents of individual+s rights were commended,

others that validated the controversial Hudood @aws, in particular, the sentence of -ajam

9stoning to death: are severely criticised and deplored. Dith the adoption of Protection of

Domen 91riminal @aws $mendment: $ct, 6007 the jurisdiction of the 1ourt is

considerably curtailed inasmuch as, appeals"applications for revision arising out of trial

of offences taken out from the 5ffence of Kina 9;nforcement of Hudood: 5rdinance,

88 are no longer filed before the 1ourt. They are filed before the High 1ourt. #n brief,

there is a need for a serious discussion on the independence, utility and functions of this

1ourt.

9(: )ubordinate 2udiciary

The subordinate judiciary may be broadly divided into two classes? one, civil courts,

established under the Dest Pakistan 1ivil 1ourt 5rdinance 876 and two, criminal

courts, created under the 1riminal Procedure 1ode C8C. #n addition, there also e%ist

other courts and tribunals of civil and criminal nature, created under special laws and

enactments. Their jurisdiction, powers and functions are specified in the statutes creating

them. The decisions and judgments of such special courts are assailable before the

superior judiciary 9High 1ourt and"or )upreme 1ourt: through revision or appeal. The

civil courts may be classified as followsE

9i: 1ivil L 1riminal 1ourts

&



The provincial governments appoint the civil and criminal judges and their terms and

conditions are regulated under the provincial civil servants acts"rules. The High 1ourt,

however, e%ercises administrative control over such courts. The civil courts consist of

*istrict 2udge, $dditional *istrict 2udge and 1ivil 2udge 1lass #, ## L ###. )imilarly, the

criminal courts comprise of )ession 2udge, $dditional )ession 2udge and 2udicial

Magistrate 1lass #, ## L ###. @aw fi%es their pecuniary and territorial jurisdictions. $ppeal

against the decision of civil courts lies to the *istrict 2udge and to the High 1ourt, if the

value of the suit e%ceeds specified amount. )imilarly, in keeping with the uantum of

penalty, appeals against criminal courts lie to )ession 2udge or High 1ourt.

9ii: -evenue 1ourts

Besides the civil courts, there e%ist revenue courts, operating under the Dest Pakistan

@and -evenue $ct 87. The revenue courts may be classified as the Board of -evenue,

the 1ommissioner, the 1ollector, the $ssistant 1ollector of the >irst Arade and )econd

Arade. The provincial government that e%ercise administrative control over them

appoints such officers. @aw prescribes their powers and functions.

9iii: )pecial 1ourts

The 1onstitution authorises the federal legislature to establish administrative courts and

tribunals for dealing with federal subjects. 3/4 1onseuently, several special

courts"tribunals have been created which operate under the administrative control of the

>ederal Aovernment. Most of these courts function under the Ministry of @aw L 2ustice,

however, certain courts also operate under other ministries"departments. )uch

courts"tribunals include the )pecial Banking 1ourt, )pecial 1ourt 1ustom, Ta%ation and

$nticorruption, #ncome Ta% 9$ppellate: Tribunal, #nsurance $ppellate Tribunal, etc etc.

The judicial officers presiding over these courts are appointed on deputation from the

provincial judicial cadre.

9iv: )ervice Tribunals

Inder $rticle 66 of the 1onstitution, the Aovernment is authorised to set up

administrative courts and tribunals for e%ercising jurisdiction in matters, inter alia,

relating to the terms and conditions of service of civil servants. $ccordingly, service

tribunals, both at the centre and provincial level have been established and are functional.

(



The members of these tribunals are appointed by the respective Aovernment. $ppeal

against the decision of the Provincial )ervice Tribunal and the >ederal )ervice Tribunals

lies to the )upreme 1ourt.

/



Procedure

The 1ode of 1ivil Procedure 80C prescribes procedure for proceedings in civil cases.

The 1ode is in two parts i.e. )ections, which contain the basic and fundamental principles

and can be amended only by the legislature, and )chedules, which contain rules of

procedure and can be amended by the High 1ourt. The 1ode is indeed a consolidating

statute, prescribing detailed procedure for instituting suit 9meaning who may file a suit,

how and where:, pleadings 9filing plaints"written statements, their form and particulars:,

proceedings, writing of judgment and e%ecution of decrees, etc. The 1ode has been

reviewed from time to time and its provisions amended to keep pace with time and

changing condition of the society. )imilarly, the 1riminal Procedure 1ode C8C as well

as various other special statutes prescribe criminal procedure. The <anune)hahadat

8C( prescribes the competency of witnesses, the e%amination of witnesses, form of

evidence and the procedure for presenting the same, etc. The procedure prescribed in the

law applies to judicial proceedings and investigations by a court of law in civil or

criminal cases.

5rganisation of )ubordinate 2udiciary

The subordinate courts 9civil and criminal: have been established and their jurisdiction

defined by law. 3/64 They are supervised and controlled by the respective High 1ourt.i3/&4

The administration of justice, however, is a provincial subject and thus the subordinate

courts are organised and the terms and conditions of service of judicial officers

determined under the provincial laws and rules. The issues of recruitment, promotions

and other terms and conditions of service together with disciplinary proceedings, etc are

dealt with under the provincial civil servants acts and the rules framed thereunder. Intil

recently, the appointing authority for judicial officers happened to be the provincial

government but with the separation of the judiciary from the e%ecutive, such authority

has been transferred to the High 1ourt.

#nitial recruitment as 1ivil 2udgecum2udicial Magistrate is made through the Provincial

Public )ervice 1ommission with the active involvement of the High 1ourt. >or the

provinces of Punjab, !D>P and Balochistan, recruitment is made through a competitive

e%amination consisting of a written test and viva voce. #n )indh, however, such

recruitment is made by the High 1ourt itself through a written test followed by viva voce

7



and the names of selected candidates are recommended to the Provincial Aovernment for

appointment.

$ 1ommittee of the judges of the High 1ourt, decides the issue of promotion of judges.

>or appointment as $dditional *istrict L )essions 2udge, uota is fi%ed for service

personnel as well as induction from the Bar. $ppointment as *istrict L )essions 2udge is

by promotion on the basis of senioritycumfitness from among the serving judicial

officers.

$fter appointment, the civil judges are usually attached for a few weeks to the 1ourt of

)enior 1ivil 2udge"*istrict L )essions 2udge to get practical training. They also receive

specialised training at the >ederal 2udicial $cademy and in the respective provincial

academies. )uch training is comprised of education in various substantive laws, court

management, case processing and judicial procedure, etc.

$s mentioned earlier the High 1ourts e%ercise supervision and control over the

functioning of the subordinate judiciary. )uch supervision and control is both

administrative as well as judicial. #n the administrative sphere, disciplinary proceedings

may be initiated against a judicial officer by the High 1ourt. 2udicial control is also

e%ercised through revision and appeals being filed in the High 1ourt against the

orders"decisions of the subordinate courts. The High 1ourt carries out its supervisory

functions through inspections and calling of record from the courts. The Member

#nspection Team 9M#T: mostly deals with the issue? however, the 1hief 2ustice of the

High 1ourt or any other judge deputed by the 1hief 2ustice also carries out regular as

well as surprise inspections. The 1hief 2ustice is competent to initiate disciplinary action

against a judge and take appropriate action in the matter.

*isciplinary proceedings against judicial officers are apparently initiated and action taken

under the 9provincial: Aovernment )ervants 9;fficiency and *iscipline: -ules. )uch

rules were primarily designed for the e%ecutive officers whose duties and functions are

different from judicial officers. 1onseuently, in their application to judicial officers, the

rules do contain certain gaps and anomalies. #n particular, the rules are silent on how a

judicial officer ought to conduct himself in and outside the court. There is, therefore, a



need for preparing a separate code of conduct for the members of the subordinate

judiciary, covering their private and public life and in particular, their conduct in the

court so as to maintain propriety and decorum in the court and enhance public confidence

in the administration of justice.

$s regards the grievance of the judicial officers with regard to the terms and conditions

of service, mechanism e%ists for resolving it. There e%ists a Provincial 2udicial )ervice

Tribunal for deciding appeals against the final orders of departmental authority. The

judges of the respective High 1ourt man such tribunals.

The subordinate judiciary in almost all the provinces operates under some constraints.

There e%ists shortage of judicial officers, their supporting staff and euipment. The

strength of subordinate judiciary has not kept pace with the rise in litigation due to which

huge arrears of cases are piling up and there are enormous delays in deciding cases. $s

against the recommendations of several commissions and committees that the number of

cases pending with a civil judge should not be more than /00 and the number of units

pending with a *istrict L )essions 2udge should not be more than (/0 at a time, in actual

practice the number of cases and units is far in e%cess of this prescribed limit.

There is a backlog of civil and criminal cases at the level of subordinate judiciary in all

provinces. 5n st 2anuary 600, in the Province of the Punjab, the number of cases

pending was 0,/(7. #n the Province of )indh, the number of pending cases was

6&,77&, in !D>P, the figure was &,000 whereas in Balochistan, it was C&. The

Province of )indh perhaps presents the worst scenario, but the other provinces

particularly Punjab and !D>P also have huge arrears.

This phenomenon is caused partly because of the inadeuate budgetary allocation

towards the judiciary. Infortunately the administration of justice, so far has been

regarded merely as a welfare service to the community rather than a social responsibility.

$s a result, the judiciary suffered due to understaffing 9both judicial and ministerial:,

lack of courtrooms, euipment, residential accommodation and library material, etc.

5bviously these and other problems had to be addressed and resolved if the

administration of justice is to improve and become efficient. 'eeping in view the

C



problems of dilapidated court buildings and shortage of staff, adversely affecting the

functioning of courts, the Aovernment of Pakistan launched the $ccess to 2ustice

Programme. Inder the Programme, funding is made available to judiciary and other

institutions concerning the administration of justice, e.g. department of police,

prosecution and investigation, etc. $ccordingly, the strength of judges in subordinate

courts is being increased and new court buildings constructed. !ecessary euipment is

also being provided. #t has brought about an overall improvement in the functioning of

judiciary. !eedless to say, a sound and effective judicial system is a sine ua non for

keeping peace in the society and maintaining growth and development.

8



ORGANISATION AND STRENGTH OF JUDICIAL HIERARCHY

!oteE. #n Punjab, // *istrict L )essions 2udges, &( $dditional *istrict L )essions 2udges and 6& )enior"1ivil 2udges and 2udicial

Magistrates are working on e% cadre posts.6. #n )indh, (6 *istrict L )essions 2udges, 8 $dditional *istrict L )essions 2udges and C )enior"1ivil 2udges and 2udicial

Magistrates are working on e% cadre posts.&. #n Balochistan, / *istrict L )essions 2udges, ( $dditional *istrict L )essions 2udges, )enior"1ivil 2udges and / 2udicial

Magistrates are working on e% cadre posts.(. #n !D>P, & *istrict L )essions 2udges, 8 $dditional *istrict L )essions 2udges and )enior"1ivil 2udges and 2udicial

Magistrates are working on e% cadre posts.

Shariat Appellate Bench of theSpre!e Cort

5(3SC+2FSC / Ullema)

SU"RE#E COURT OF "A$ISTANCJ%&'

(Al)o crrentl* + A,-hoc J,.e)/

Fe,eral Shariat CortCJ+7(3 to be Ulema)

Lahore Hi.hCortCJ+49

Hi.h Cort ofSin,hCJ+27

Hi.h Cort ofBalochi)tan

CJ+8

"e)ha0ar Hi.hCortCJ+15

District & Sessio J!"#e$3%

'""l District & SessiosJ!"#e$24%

District & Sessio J!"#e$25

'""l District & SessiosJ!"#e$9





SeiorCiil J!"#e

Ciil J!"#e1st ClassCiil J!"#e2" Class

Ciil J!"#e3r" Class

J!"icial*a#istrate

1

st

ClassJ!"icial*a#istrate2" ClassJ!"icial

*a#istrate3r" Class

SeiorCiil J!"#e


Ciil J!"#e3r" Class

J!"icial*a#istrate

1

st


*a#istrate3r" Class

SeiorCiil J!"#e


Ciil J!"#e3r" Class

J!"icial*a#istrate

1

st


*a#istrate3r" Class

SeiorCiil J!"#e


Ciil J!"#e3r" Class

J!"icial*a#istrate

1

st


*a#istrate3r" Class

*ember *alis,e,S-!ra$18

$545 $17$238$85 $28 $75

.ai$3

For!) entertainin. Cri!inal Ca)e) n,er H,oo, La0)

A,!ini)trati1e Cort) 2Tri3nal)

60



Court Jurisdiction

)IP-;M; 15I-T

. C(9: 5riginal jurisdiction in intergovernmental disputes, issues declaratory judgments?

6. C(9&: ;nforcement of >undamental -ights involving an issue of public importance?

&. $rt C/96: $ppeal from judgment"order of High 1ourt in criminal cases, tried in original and"or

appellate capacity and having imposed death penalty or life imprisonment?

(. $rt C/96: $ppeal in civil cases when the value of claim e%ceeds fifty thousand rupees?

/. $rt C/96: $ppeal when High 1ourt certifies that the case involves interpretation of the

1onstitution?

7. $rt C/9&: $ppeal 9subject to grant of leave: from High 1ourt judgment"order?

. $rt C7 $dvisory jurisdiction on any uestion of law involving public importance referred by the

President?

C. $rt C To issue directions"orders for doing complete justice in a pending case"matter?

8. $rt CC To review any of its own judgment"order?

0. $rt 60( To punish for its contempt?

. $rt 66 $ppeal from $dministrative courts"tribunals? and

6. $rt 60&> #ts )hariat $ppellate Bench hears appeals from judgments"orders of >ederal )hariat 1ourt.

>;*;-$@ )H$-#$T 15I-T

. $rt 60&* To determine whether a provision of law is repugnant to the #njunctions of #slam?

6. $rt 60& ** -evisional 2urisdiction in cases under Hudood laws?

&. $rt 60& ; To review its judgment"order?

(. $rt 60& ; To punish for its contempt? and

/. Inder Hudood laws, hears appeals from judgment"order of criminal courts.

6



H#AH 15I-T

. $rt 889: to issue / writs namely mandamus, prohibition, certiorari, habeas corpus, certiorari and

uo warranto?

6. $rt 8896: ;nforcement of >undamental -ights? &. $rt 60&E To supervise"control subordinate courts?

(. $rt 60(E To punish for its contempt?

/. To hear appeal under ).00 of 1P1?

7. To decide reference under ).00 of 1P1?

. Power of review under ).( of 1P1?

C. Power of revision under )./ of 1P1?

8. $ppeals under ).(0 of 1r.P.1?

0. $ppeals against acuittal under ).( of 1P1?

. $ppeals against judgment"decree"order of tribunals under special laws?

6. To issue directions of the nature of habeas corpus under ).(8 of 1r.P.1?

&. #nter1ourt appeal at @ahore High 1ourt and High 1ourt of )indh,High 1ourt of )indh has original jurisdiction in civil cases of the value of above & millionN.

*#)TT. L );))#5!) 2I*A;"$**@. *#)TT. L );))#5!) 2I*A;

. $ppeal against judgment"decree of a 1ivil 2udge under ).87 of 1P1?

6. $ppeal against order under ).0( of 1P1?

&. Power of revision under )./ of 1P1?

(. 5riginal jurisdiction in suits upon bills of e%change, hundies or promissory notes under 5rder

OOO## of 1P1?

/. Murder trial under ).67/ $ of the 1r.P.1?

7. 1riminal trial under Hudood laws?

. $ppeals under ).(6& of 1r.P.1?

C. Power of revision under ).(&/ of 1r.P.1?

66



8. To issue directions of the nature of habeas corpus under ).(8 of 1r.P.1? and

0. *ecides prearrest bail applications under ) (8C of the 1r. P1.

9#n 'arachi *istrict, the original jurisdiction of *istt 2udge is limited to -upees & million:

1##@ 2I*A; )T 1@$))

. To try all civil suits, there is no pecuniary limit on its jurisdiction?

6. #n certain jurisdictions also designated as -ent 1ontroller?

&. #n certain jurisdictions also designated as 2udge, >amily 1ourt?

(. $t 'arachi, pecuniary jurisdiction limited to rupees & million 9'arachi 1ourts 5rder 8/7:? and

/. #n certain jurisdictions designated as Magistrate empowered under ).&0 of 1r.P.1.

1##@ 2I*A; 6 !* 1@$))

. To try civil suit up to the value of fifty thousand rupees? and

6. #n certain jurisdictions designated as -ent 1ontroller"2udge, >amily 1ourt.

1##@ 2I*A; &-* 1@$))

To try civil suit up to the value of twenty thousand rupees.

M$A#)T-$T; )T 1@$))

To try offences punishable up to & years imprisonment and fifty thousand rupees fine.

M$A#)T-$T; 6 !* 1@$))

To try offences punishable up to year and five thousand rupees fine.

M$A#)T-$T; &-* 1@$))

To try offences punishable up to month and one thousand rupees fine

6&



Stren.th of J,.e) an, A,!ini)trati1e Staff of Sperior 2 S3or,inateJ,iciar*

J,.e)Spre!e

Cortof "a4i)tan

Fe,eralShariatCort

LahoreHi.h Cort

Hi.h Cortof Sin,h

"e)ha0arHi.h Cort

Balochi)tanHi.hCort

C-ie0 J!stice &

J!"#es

&5 67 86 +7 &' 67

'"miistratie Sta00 8'9 +&' &7'& 596 :;' :67

e"ec &6<5&; :<:&' 98<&58 +9<+5& &:<'&6 +<;;8

Distt & SessiosJ!"#es/ '""l Distt &Sessio J!"#e/Seior Ciil J!"#e/Ciil J!"#e

- - 5:5 867 +99 &59

'"miistratie Sta00 - - &6::6 ::&9 &;86

e"ec - - &&6<8;' &+:<'': :9<666 7<:99

Stren.th of #e!3er) an, A,!ini)trati1e Staff of A,!ini)trati1e Tri3nal)

Fe,eral Ser1iceTri3nal

"n=a3 Ser1iceTri3nal

Fe,eralO!3,)!an

Fe,eral Ta>O!3,)!an

*embers && 68 69 6&

Sta00 &+' 85: &;8

e"ec +6;8: &8&' ;778 :89

Crrent Stren.th of La0 Officer) of the Fe,eration an, "ro1ince)

Fe,eration Fe,eral Balochi)tan N?F" "n=a3 Sin,h Total

'ttore eeral 0or aista/ '"ocate eeral

1 1 1 1 1 8

De!t 'ttore

eeral/'""itioal '"ocateeeral

1 2 5 12 8 :9

Sta"i# Co!sel/ 'ssistat '"ocate eeral

9 2 5 33 12 '&

District 'ttore ,, 31 ,, 58 24 &&:

De!t District 'ttore ,, ,, ,, 18 152 ::+

'ssistat De!t District 'ttore

,, 1% ,, 128 ,, &;;

!blic rosec!tor ,, ,, 31 ,, 31 '+

De!t rosec!tor ,, ,, 45 ,, ,, ;8

'ssistat !blicrosec!tor

6S,1% ,, ,, 42 ,, ,, ;+

6S,14 ,, ,, 84 ,, ,, 7;

oermet lea"ers ,, ,, 9 ,, ,, 5

'ssistat oermet lea"ers ,, ,, 31 ,, ,, :&

Total) +6 8+ +8: ;&+ ++7 5'8

A,1ocate) on the Roll of the Spre!e Cort

Senior A,1ocate) A,1ocate) A,1ocate)-on @Recor, Total

25 2453 223 292%

A,1ocate) on the Roll) of the Hi.h Cort)

"n=a3 Sin,h N?F" Balochi)tan

3 %84 3171 12

A,1ocate) on the Roll) of the Di)trict Cort)

6(



"n=a3 Sin,h N?F" Balochi)tan

22 %%3 852% 178

LIST OF LA? COLLEGES

SNo Na!e of The Uni1er)it* No of affiliate, Colle.e)1 es-aar Uiersit es-aar 17

2 6a-o!,"i aria Uiersit *!lta 14

3 S-a- :ati0 Uiersit ;-ari!r 5

4 !ab Uiersit :a-ore 21

5 Si"- Uiersit Jam S-oro 2

% <slamia Uiersit 6a-aal!r %

7 omal Uiersit Dera <smial ;-a 3

8 ;arac-i Uiersit ;arac-i 2

9 6aloc-ista Uiersit .!etta 1

1 Fe"eral Uiersit <slamaba" 2

11 <teratioal <slamic Uiersit <slamaba" 1

Gran, Total 9;

6/



i

-eferencesE

34 @aw 1ommission of #ndia+s (th -eport, 8/C, ol l, p 67364 *r. !asim Hasan )hah, 1onstitution, @aw and Pakistan $ffairs, 8C7, Dajidalis @imited,

Aulberg, @ahore, p 883&4 B.-. )harma, 2udiciary on Trial, 8C8, *eep L *eep Publications, -ajouri Aarden, !ew

*elhi, p (3(4 -eport of the @aw -eform 1ommission, 870, p 703/4 lbid374 )ection 60034 )ection 60(, 60/, 60, 6&3C4 By the High 1ourt 9Bengal: 5rder 8(384 By the >ederal 1ourt of Pakistan 5rder 8(C304 )ection 66&$34 $rticle 60&1364 $rticle 60&*3&4 Preamble and $rticle 6$3(4 $rticles C L 8( read with &rd )chedule3/4 $rticles L 8& 3&/4 $rticle 60&374 $rticle 60/ read with /th )chedule 3&74 $rticle 60C34 $rticles C L 6 3&4 $rticle 6063C4 $rticle 608 3&C4 $rticle 600384 P@* 88( )1 0/ 3&84 $rticle 60&1 9/:



3604 #bid p/ 3(04 5P cit, p &6(364 P@* 887 )1 &6( 3(4 $rticle 60&13664 P@* 88C )1 && 3(64 #bid36&4 $rticles C(, C/ L C7 3(&4 $rticle 60&*36(4 $rticle C8 3((4 $rticle 60&>36/4 $rticle 7 3(/4 $rticle 60&*3674

$rticle 3(74

$rticle 60&A364 $rticle C(9: 3(4 $rticle 60C36C4 $rticle C( 9&: 3(C4 $rticle 60&23684 $rticle C/ 3(84 By the 1onstitution 9$mendment: 5rder 8C03&04 $rticle C7 3/04 1onstitution 9$mendment:3&4 $rticle 60C 3/4 #tem ( of the >ederal @egislative $ct,

Part # in the (th )chedule3&64 $rticle 8 3/64 $rticle /3&&4 $rticle 8& 3/&4 $rticle 60&3&(4 #bid

penal code ... qanoon e shahadat order ....narotics acts 1997

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