Business Law

Assignment

The Judicial System of

Pakistan

Submitted To:
Justice Nasim Sabir

Submitted By:
Muzaffar Mehmood 1265
Ali Munir Rathore 1288
Mohammed Afzal 1263

Hajvery University Lahore

 Contents
1. What is Law?

2. Purpose of Law

3. Law of Pakistan

4. Judicial System of Pakistan

5. Division of Courts

a. Supreme Court

b. High Court

c. District & Session Courts

d. Federal Shariat Courts

e. Special Tribunals

f. Family Courts

g. Juvenile Courts

6. Appointment of Judges

7. Some Notable Amendments/Additions

 The Judicial System of Pakistan

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.

Some Notable Amendments/Additions (Islamic Perspective)

Laws passed in the 1980s give the victim of a murder or other violence, or
the victim’s heirs, the right to inflict an equivalent harm. At the same time,
however, there is a legal alternative in payment of blood money, which
enables wealthy Pakistanis to avoid punishment by paying money. Under
the law, only half of the amount must be paid if the victim is female.
In 1984 parts of the Indian Evidence Act of 1872 were changed with much
fanfare to meet Islamic criteria, but there was little substantial change.
Demands by Islamic enthusiasts that the testimony of two women be
considered the equivalent of that of one man were met only symbolically.
The hudood ordinances, however, do contain evidential provisions that
discriminate sharply against women.
In May 1991, the National Assembly passed the Shariat Bill, intended to
bring the entire justice system into accord with Islamic norms. These
norms had not yet been established, and, as of early 1994, no serious
attempt had been made to draft and pass the laws and constitutional
amendments that would be required. Many observers believed that the act
was meant as an empty sop to Islamist extremists, but it seemed likely
that there would be constant pressure to implement the act more fully.
In December 2006 President Musharraf signed into law the Women’s
Protection Bill of 2006, which amended the Hudood Ordinance and moved
cases of rape and adultery to secular rather than Shari’a courts. Previously,
the Hudood Ordinance, which criminalizes rape, extramarital sex, property
crimes, alcohol, and gambling, often relied on harsh and discriminatory
interpretations of Qur’anic standards of evidence and punishment that
applied equally to Muslims and non-Muslims. If Qur’anic standards are
used, Muslim and non-Muslim and male and female testimony carry
different weight. President Musharraf also ordered the release of all women
imprisoned under the Hudood Ordinance. Approximately 2,500 women
have been released.
The 2009 Nizam-e-Adl bill was tabled in the Parliament and all the major
political parties, except Muttahida Qaumi Movement (MQM), voted for the
bill and it became a law in no time. On 13 April 2009, President Asif Ali
Zardari, the 11th president of Pakistan, signed Nizam-e-Adl Regulation
2009. Prime Minister Yousuf Raza Gilani said that by supporting the
implementation of the agreement signed by the provincial government, the
National Assembly was respecting the mandate, desire and the will of the
Provincial Government. Proponents of the peace deal and the new law
argue that the new Shari’a law is merely an adjustment to similar
regulations first implemented in 1994 and 1999.