Topic 1:

Introduction to Legal System

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
 Introduction
Meaning
• Legal refers to the rules identified as binding because
they emanate from the State authorities.

Definition:
• Legal System refers a collective set of institutes
(organizations of a State), primary legislation (i.e. Act
and Ordinances) secondary/delegated legislation (i.e.
Rules, Regulations, Orders etc.), and persons (working
in the public functionaries including the head of
institutes) and the way they work in a particular
country.

2
 Major Legal Systems in the World

• The global legal system is divided into five

major systems, namely:
1. Civil Law Legal System
2. Common Law Legal System
3. Non-Western Legal Systems
4. Mixed Law Legal System
5. Customary Law
6. Muslim Law (Shariah and Fiqah)

3
Overview of Global Legal Systems

4
 Civil Law Legal System
Civil Law Legal System:
• The civil (code) law is widely brought to be tough law which is more
highly resistance to common law.
• In civil law the legislation (code or statute) is the paramount source of law.
Judges have the power only to determine whether existing statutes govern a
particular legal issue but they have no authority to create new law.
• Two kinds of legislation co-existed in this system.
1. Codes integrate the full set of legal principles governing particular areas. For
example, much of private law is codified in a single civil code.
2. Matters not addressed in the basic codes still may be controlled in piecemeal
fashion (fragmented) by separate legislation. These supporting statues,
sometimes labeled as ‘special code’ are closer in spirit to the laws enacted in
common law.
• Modern civil law first surfaced in the Europe during eighteenth century.
France was the starting point, where newly formulated legal codes sought
to institutionalized socio-political changes ushered in by the French
Revolution (began in 1789 and ended in the late 1790).

5
 Expansion of Civil Law Legal System
• Napoléon Bonaparte [1769–1821] was a French statesman and
military leader who conquered much of Europe in the early 19th
century.
• Napoleon’s military campaigns were instrumental in spreading the
civil code’s influence over much of Western Europe.
• Belgium, the Netherlands and later days Germany, Poland, Latvia,
and Italy received the French code in the aftermath of conquest.
• Spain agreed upon a civil code in the late 1800s derived largely from
French sources.
• Germany carried these reforms further creating a very distinctive code
in 1896 that was highly technical in nature and more strongly rooted
in Roman legal principles than its French-based antecedent (‫)سابقہ‬.

6
 (Cont.) Expansion of Civil Law Legal System

• The German code later spread through much of Central and Eastern
Europe, Italy, and Portugal.
• Scandinavian nations belong to this legal family but were not
directly impacted by the French or German codification movements.
• The civil law systems in Sweden, Norway, Denmark, and Finland
are based on statutory law and have bifurcated court systems, but
uniformity lack comprehensive, integrated codes. Instead, their
codes more closely resemble legislative compilations found in the
United States.
• Latin America’s wholesale conversation to the civil law system was
a matter of choice as well as history. In colonial relationship with
Spain and Portugal clearly exposed the population to Roman law
principles and institutions.
7
 Legal Framework of European Union
• The European Union (EU) is a international organization and having status of legal personality.
• The EU was created by the Maastricht Treaty, which entered into force on November 1, 1993. The
foundation treaty has been followed by a number of treaties creating supranational institutions, that
is, institutions above those domestic law. For each member state, the EU is growing source of law,
which become inter-twined with national law.
• Today, 27 countries are members of the EU. So from 31 January 2020, the United Kingdom
is no longer part of the European Union.
• The EU can now make treaties in its own name, and its law is now called “EU Law.”
• Under Maastricht Treaty of 1992, three pillars were designated:

Maastricht Treaty of 1992

Common Foreign and Police and Judicial Co-

European Communities
Security Policy operation in Criminal Matters
(1)
(2) (3)

• The first of these was supernatural, and the two other represented inter-governmental Co-operation.

8
Overview of European Union (EU)

9
Legal Systems in European Union (EU)

Major Categories & Sub-categories in EU

10
 Common Law Legal System
• The Common Law legal system originated from the legal history of England and it is based
on stare decisis (Latin: meaning “to stand by things decided”) doctrine.
• In Common Law System, judicial precedents are primary source of law. Its practical
application is that previous court judgments are binding to subsequent similar legal issues
that may appear before the court.
• In order for a precedent to be binding on a case before a court, there must be a similarity of
facts in both cases. If not, these cases are to be distinguished from each other and a court is
thus not bound to apply the previous judgment to the case presently before it.
• In deciding whether a judgment creates a precedent and therefore binding, judge must
distinguish between a court’s ratio decidendi (Latin: meaning "the reason" or "the rationale
for the decision") and per incuriam (Latin: meaning “"through carelessness" or “without
due regard to the correct law”).
• The court’s decision is founded is the part of a judgment in which court applies the relevant
legal principles in coming to its decision. That part creates a precedent and is binding. This
binding force is called obiter dicta (Latin: meaning “by the way”).
• The value of stare decisis doctrine is that its result is the legal uniformity, certainty,
predictability, reliability, and convenience in the application of the law.

11
 (Cont.) Common Law Legal System
• The judicial precedents empower the courts to utilize legal principles that judges have
developed (i.e. precedent) to decide the particular case. Such rulings can have dramatic
consequence extending far beyond the immediate dispute if they create legal precedent. To
establish precedent, judicial opinions must contain at least one ratio decidendi i.e. a new or
modified legal principle derived from the judge’s decision on the material facts at hand. Legal
professionals are saddled with the challenge of extracting this component from language of
relevant case that is referred as obiter dicta.
• Precedent is generally binding on lower-level courts unless subsequent can be distinguished
based on their facts. Even per incuriam decisions also have the binding authority on the lower
courts and the lower court are bound to follow. Statutes, in turn codified common law
principles spanning a body of case law, or introduce regulations to issues that have received
little attention from the courts.
• Rupert Cross and J.W. Harris, Precedent in English, Fourth Edition (Page 158-159). But the
Privy Council in Baker v. Queen (1957 A.C. 774) expressed the view that although inferior
courts were bound to follow the decisions of the Higher Courts even if they were per
incuriam, they were not bound by the preposition of law incorporated into ratio decidendi,
because it does not create a precedent for use in the decision of other cases (page-788). The
same view was followed in National Enterprises Ltd., v. Racal Communications Ltd. (1975)
Ch. 397; Baros v. Bethal (1982 1 All E.R. 106.
12
 Mixed Law Legal System

• The first characteristic feature of the mixed

legal system is the specifically mixture legal
systems.
• These systems are built upon dual foundations
of common law and civil law materials.
Systems around the world diverse mixes – of
religious law, customs, merchant law, Roman
law, judge-made law, legal pluralism, etc.

13
Questions & Answers
 Topic 2:
Key Features of Legal System

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
There is no return to yesterday.
…we are on a new journey.
A wise man once said:

“Even if you’re on
the Right Track,
you’ll get run over if
you just sit there.”

—Will Rogers [1879-1935] an

American entertainer,
famous for his pithy and
homespun humour.
 Legal System

Definition:

– A legal system is a procedure or process for

interpreting and enforcing the law.

– A legal system is a composition/collection of the

entire system relating to law and administration of
justice in a State.

– A legal system may also be defined as an “entire

network of courts, government institutions, and law
enforcement agencies.”

4
 Why Do We Need A Legal System?

• The legal system is a necessary component of the

State machinery for governing the affairs of the
country.
• How to run affairs of the State?

The Constitution of
Pakistan

Legislature Executive Judiciary

5
 Judicial System

• The word judiciary (courts) may have a

broader meaning when it is used in relation
with the terms “judicial system.”
• It exists in every modern State. The judicial
system refers to the branch of government
vested with the ‘judicial power’ to:
1. Interpret
2. Construe, and
3. Apply the LAW

6
 Where does ‘Law’ come from?

The Law primarily comes from Two sources:

1. Parliament
– Legislation
• Ordinary Legislation (Act of Parliament).
• Delegated Legislation (Rules & Regulations).
• Ordinance (Issued by President & Governors).
2. Court
• Judicial Decisions /Precedent/Case Laws
3. Customs

7
 Categories of World’s Legal Systems
Common Law Legal System Civil Law Legal System Religious Legal System
Common Law Legal System originated Civil Law Legal System has its In Religious Legal System the
in England after Norman Conquest of roots in the Roman Empire. The Constitution of the State
1066. King Henry–II (1133–1189) is Emperor Justinian (ruled 518– recognizes any particular as the
considered the man behind the common 565) ordered the compilation of official religion of the State.
law in England. He established a law called Justinian Code
common law system which was uniform (Corpus Juris Civilis) or Body
to whole of England. of Civil Laws.

The common law may also means law Civil Law Legal System is also Religious Legal System is also
created by the ‘common law courts.’ called Civilian Legal System. called Theocratic Legal System.

Most of the law is created by judges Most of the law is statutory law It is based on religious teachings
following precedents. It is based on created by parliament and not and traditions, for example Quran
customs, traditions, and precedents. by judges. It is based on set of and Sunnah.
codified laws.
Common law countries are: the United Civil law dominants in most Islam – Iran, Saudi Arabia
States, United Kingdom, Australia, countries in the Europe, Latin Hinduism – Nepal
Pakistan, Indian Bangladesh, etc. America, Japan, Korean, China, Buddhism – Bhutan, Sri lanka
and Russia. Judism – Israel

8
 Major Characteristics of Civil Law

There are three major characteristics that

differentiate a civil law system from common
law:
1. Civil law systems are inquisitorial rather than
adversarial.
2. Civil law is code-based rather case-based.
3. Civil law is influenced more by academic
experts than by practicing lawyers.

9
 Difference Between Adversarial &
Inquisitorial System
S. No. Functions Adversarial System Inquisitorial System
1. Objective of Trial Finding the Winner through Finding the Truth through extensive investigation
open competition between and examination of all evidence.
prosecution and defence.

2. Role of Judge Passive : Pronounce judgments Active : Judge play san active role for
depending on hearing, questioning and hearing the parties.
evidence, and witness.

3. Role of Lawyer Active Passive

4. Cross Examination Conducted adversely primarily Conducted neutrally by Judges

by lawyers
5. Legal Representation The Norm Not the Norm

6. Level of Conflict Relatively High Relatively Low

7. Expert Testimony Haphazard Integral to the System

8. Precedent Decision of Higher Courts are Little use of precedents and judges are free to
binding on lower courts. decide each case independently of previous
decisions by apply the relevant law.

10
Questions & Answer Session
 Topic 6:
Constitutional History of Pakistan

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
 Making of Pakistan

• On 3rd June 1947, Lord Mountbatten, last Viceroy of

India, called the conference of all the leaders of the
subcontinent and communicated to them his
Government's Plan for the transfer of power.
• On 18th July, 1947 the British Parliament passed the
historic Indian Independence Act, 1947 by which
India and Pakistan were declared to be separate and
independent Dominions (Pakistan and India).
• British left Pakistan and India in 1947.

2
 Interim Constitutional Arrangement

• Pakistan got its Independence on 14th

August, 1947.
• At the time of independence in August 1947,
Pakistan adopted the Government of India
Act, 1935 as an ‘interim constitutional
arrangement’ to run the affairs of State.

3
 Constitution-making in Pakistan
• On 7th March 1949, the Objectives Resolution was introduced before the
first Constituent Assembly as included as Preamble of the Constitution
(now inserted as Article 2-A in the Constitution 1973).
• On 12th March 1949, the First Prime Minister of Pakistan, Liaquat Ali
Khan, formed a ‘Basic Principles Committee’ comprising of 24 Members
to prepare a draft Constitution on the basis of the Objectives Resolution.
• On 16th October 1951, Prime Minister, Liaquat Ali Khan was
assassinated.
• On 17th October 1951, Khawaja Nazimuddin took over as the Prime
Minister of Pakistan.
• The final draft of the Constitution was prepared in 1954.
• On 24th October 1954, Governor General, Ghulam Muhammad,
dissolved the Constituent Assembly.

4
 Constitutional Crisis in Pakistan
• Pakistan plunged into a Constitutional crisis in 1954 when Governor General,
Ghulam Muhammad, dissolved the Constituent Assembly.
– The grounds for dissolution were that the constitutional machinery of
the country had broken down and the Assembly lost the confidence of
the people.
• President of Constituent Assembly, Moulvi Tamizuddin Khan, challenged this
dissolution before Sindh Chief Court as unconstitutional, illegal and without
jurisdiction. His lawyer, Mr. I.I. Chundrigar stated before the Court that “the
constituent assembly is sovereign and sacred body , it can only be
extinguished by revolution or coup d’ etat”. The Court accepted the sovereign
and supreme power of Constitutional Assembly regarding the constitution and
law-making and found no powers were vested in the Governor General to
dissolve the Constitutional Assembly under Indian Independence Act, 1947.
The Sindh Chief Court decided numinously in favour of Moulvi Tamizuddin
Khan. [Moulvi Tamizuddin v. Federation of Pakistan (PLD 1955 Sindh 96)].

5
 Government Filed Appeal Against Decision

• The Decision was challenged in an appeal by the government in

Federal Court. On 21 March 1955, the Federal Court, under
leadership of Chief Justice Munir, decided the case in favour of the
government and against Moulvi Tamizuddin Khan by a majority of
4 to 1.

• The Federal Court reversed the judgment of the Sindh High Court
on technical grounds without addressing the question whether the
assembly was rightly dissolved or not? The dissenting (‫)اختالف رائے‬
judge in this case of Justice A. R. Cornelius. He placed the
Constitutional Assembly above the Governor General and found it
to be a sovereign body.
Note:
Justice A. R. Cornelius is portrayed as a savior of democracy and protector of Fundamental Rights

[Federation of Pakistan v. Moulvi Tamizuddin Khan (PLD 1955 Federal Court 240].

6
 Salient Features of Constitution, 1956

• After more than 9 years of gaining independence

from the British rule, the Pakistan’s first constitution
was adopted on March 23, 1956.
• It was a Written Constitution.
• It was a Flexible Constitution and two third members
of the Assembly could bring amendment in the
Constitution.
• Urdu and Bengali were declared as the state
languages.
• Parliamentary and Federal System of Government.
• Center was more powerful than the Provinces.

7
 Government Model

• Constitution abolished the office of the Governor-

General.
• President is the Head of State and Executive Authority
of the Federation.
– He was authorized to appoint Governors,
Judges of Supreme Court, High Courts, etc.
• It introduced the federal system of government.
• Prime Minister was the Head of Government and was
empowered to nominate his Cabinet.

8
 Constitutional Model

• Country name was adopted as the ‘Islamic Republic of Pakistan.’

• Karachi was the Federal capital.
• Constitution of Pakistan, 1956 consisted of 234 Articles, divided
into 13 Parts and 6 Schedules.
• System of government was federal in which provinces were
given autonomy under constitution. Separate lists were provided
under this system for lawmaking. The Constitution provided
three lists of subjects:
1. Federal ‫ وفاقی‬List (total 33 subjects/items).
2. Provincial ‫ صوبائی‬List (total 94 subjects/items).
3. Concurrent ‫ متوازی‬List (total 19 subjects/items).

9
 Legislative Model
• Constitution introduced a Unicameral Legislature (National Assembly).
• National Assembly was the solely responsible for law making (no concept
of upper house i.e. Senate).
• National Assembly was comprising 300 members and 5 seats were reserved
for women for each of the two wings.
– Total Membership of the House = 310
• Principle of parity was followed in the Constitution:
– The two wings of the country, West Pakistan (now Pakistan) and
East Pakistan (Bangladesh since 1971) having equal seats in the
National Assembly.
• Members of the National Assembly were to be elected on the basis of
Direct Elections conducted on the basis of Adult Franchise.
• Both wings of State also had Unicameral-Province house for lawmaking.

10
 Independence of Judiciary

• Constitution of Pakistan, 1956 provided

independent judiciary.
• It constituted a Supreme Court headed by a
Chief Justice.
• It provided Fundamental Rights to the citizen
of Pakistan. However, the President had power
to suspend the ‘Fundamental Rights’ in case of
emergency.

11
 Life of Constitution of Pakistan, 1956

• Constitution of Pakistan, 1956 had a short life.

• On 7th October 1958, President of Pakistan, Major General
Iskander Mirza, abrogated the Constitution through proclamation
of Martial Law and appointed the General Muhammad Ayub
Khan, Commander-in-Chief of the Army, as the Chief Martial
Law Administrator.
• On 27th October 1958 General Muhammad Ayub Khan took over
as a Second President of Pakistan.
• On 17th February 1960, General Ayub Khan formed a
‘Constitution Commission.’
• On 1st March 1962, General Ayub Khan adopted a new
Constitution for Pakistan (i.e. Constitution of Pakistan, 1962).
12
Questions & Answers Session

13
 Topic 4:
What is Judgment and How to Read It?

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
Lawyers' Approach

2
Limitations of Judge

3
 Duties of a Judge

1. Law is written on the sleeves of a judge.

2. Judge, not litigants, is required to point out the
correct laws.
3. It is the primary duty of a judge to apply the
correct law to a case before it.
4. A judge is vested with powers to:
1. Interpret
2. Understand, and
3. Apply the correct law.

4
 What is Judgment?
Judgment

Section 2 (9) of the Code of Civil Procedure, 1908:

“means the statement given by the judge of the grounds of a
decree or order.”

Each judgment must contains:

1. Facts of the case.
2. The issues involved in the case.
3. The evidence brought by the parties.
4. Findings on issues (based on evidence and argument)
5. Relief (if granted based on prayer).

5
 Core Elements of Judgment
Judgments of the courts is made up of the following two elements:

1. Finding by the courts of material facts.

2. Statement of the principles of law applicable to the legal

problem raised by the facts upon which decision is based is
Ratio Decidendi. (reasoning or principle upon which case is
decided).

Remember:
– Not every statement made in course of a judgment is binding as
part of the Ratio Decidendi of the case.

6
 What is Precedent?

• The Precedent (‫ )نظیر‬means any prior court (judicial) decision

possibly relevant to a present case to be decided.
• The doctrine of Precedent is the foundation of common law.
• Precedent comprises of two elements:

Precedent
Ratio Decidendi Obiter Dicta

7
 Function of Precedent

• Precedent has always been distinguished feature of the

English common law legal system (sometime also
called judge-made-law or customary law).
• The entire body of common law is based on ‘decided
cases.’ In other words, the common law has been
manufactured by the decisions of English judges. Why,
because the authority of precedents was great in
England because of the power, the skill, and
professional reputation of judges who made them.
• On the contrary, Roman law (also called civil law) does
not allow such place or authority to precedent.

8
 Origin & Development of Precedent

• The Judgments handed down by circuit courts made up

the common law of England during the reign of King
Henry-II (1185 A.D).
• In the case of Mirehouse v. Rennell 1833 Justice James
Parke first established binding precedent and ensured
that decisions in a particular court would be binding on
the same and all lower courts.
• Justice Parke’s ultimate objective was to deliver
‘uniformity, consistency and certainty’ by applying the
same judgment in future cases where the principles were
judged too similar to establish any other decision.

9
 Doctrine of Precedent

Doctrine of Precedent:
• Precedent is a legal instrument for persuasion of
judges. But in English common law legal system
a legal precedent speaks with a voice of authority.
• It is not a merely evidence of the law but a source
of law.
• Precedent is based on the Latin maxim: “stare
decisis et non queita movere” which means stand
by what has been decided and do not unsettle the
established.
10
 Types of Precedents
There are two types of precedents in method of their operation
1. Declaratory Precedent:
• A declaratory precedent is one which is merely application of an already
‘existing rule’ of law. A declaratory precedent is classical or traditional
source of law. (These are majority in number).
2. Creative Precedent:
• A creative precedent is one which creates and applies a ‘new rule’ for
future. (These are fewer in number).

There are two types of precedents in method of their biding

1. Authoritative Precedent:
• Judges are under obligation to follow but they will take into consideration.
2. Persuasive Precedent:
• Judges under no obligation to follow but they will take into consideration.

11
 Rational of Stare Decisis

Three principles of Stare Decisis bring:

1. Predictability which foster people's perception of justice.
2. Seemingly promotes a cluster of values and equality.
3. Strengthen the legal system's ability for administration
of justice.

Predictability Stability Integrity

12
Legal Scheme of Stare Decisis in Pakistan
• Article 189 of the Constitution of Pakistan, 1973
Supreme
Decisions of Supreme Court binding on other Courts Court
• Any decision of the Supreme Court shall, to the extent that it
decides a question of law or is based upon or enunciates a
principle of law, be binding on all other courts in
Pakistan.
High Court
• Article 201 of the Constitution of Pakistan, 1973
Decision of High Court binding on Subordinate Courts
• Any decision of a High Court shall, to the extent that it
decides a question of law or is based upon or enunciates a Subordinate
principle of law, be binding on all courts subordinate to it. Courts

13
 Supreme Court is not slave of own Judgments!

• In Pakistan, the decisions of Supreme Court are binding on all other Courts
(except Supreme Court itself) to the extent that it decides a ‘question of law’
or ‘principle of law.’

• The Supreme Court is not slave of own judgments. It is important to note

that the principle of Stare Decisis (meaning: ‘stand by things decided) does not
apply to Supreme Court as explained in the case [2017 SCMR 206] as under:
"This court in the case of Hitachi Limited v Rupali Polyester (1998
SCMR 1618), has concluded that the Supreme Court is not a slave of
doctrine of stare decisis and can change or modify its view with the
passage of time. All the courts and public institutions are bound to
follow the principles laid down by this court. No exception to this
principle can be created under the garb of rule or procedural niceties.”

14
 Ratio Decidendi

Ratio Decidendi : [reasoning or principle upon which

case is decided].

‫وہ خاص نکتہ یا عنصر جو فریقین کے مابین فیصلہ کا تعین کرے ۔‬

Remember:
– Not every statement made in course of a judgment is
binding as part of the Ratio Decidendi of the case.
– For example additional statements are discarded as
Obiter Dicta.

15
 Obiter Dicta

Obiter Dicta: [Additional statements or expressions of

judge].

‫جج کی ضمنی رائے یا ذاتی اِظہار راۓ جو عدالت میں ہو اور فیصلے‬
‫ لیکن غیر موثر شُمار ہو۔‬، ‫کے ضمن میں کیا جاۓ‬

Remember:
• Supplementary /personal statements are discarded.
• It has no binding effect.

16
Difference Between Ratio Decidendi & Obiter Dicta

Ratio Decidendi Obiter Dicta

• Meaning: [Rational for • Meaning: [By the way].
decision]. • Statement of law which is
• Principle or proposition of not essential part of ratio
the law applied in the decidendi.
deciding the legal problem is
called ‘ratio decidendi.’ • Passing observations of
• It represents the reasoning or judge about a case which
ground upon which a case is are peripheral to the
decided by the judge. outcome of the case are
• It has binding effect [i.e. known as ‘obiter dicta.’
stare decisis]. • It has not binding effect.

17
 Doctrine of Stare Decisis

Stare Decisis: [To stand by things decided]

‫فیصلہ کی پابندی کرنا‬

In Common Law, Stare Decisis means that the

decision of a court in one case provides a precedent
(i.e., a standard) for the decision of future cases with
like or similar facts and similar issues in the same or
subordinate courts within a particular jurisdiction.

18
 Per Incuriam Judgment

Per incuriam: [through lack of care]

‫قانون سے ناوا قفیت کی بنا پر غلط فیصلہ‬

A judgment is a Per incuriam if it has been decided on:

1. Ignorance of a statute or of a rule having the force
(statutory effect) which would have affected the decision if
the court had been aware of it.
2. When the court has acted in ignorance of a previous
decision of its own precedent.

19
 Legal Status of Per Incuriam Judgment

• A per incuriam judgment not to be followed

as precedent by a lower court.
• A per incuriam judgment will not have the binding
authority on the lower court and the lower court is not
bound to follow it.
• A lower court is free to depart from an earlier judgment of a
Superior Court where the earlier judgment was decided per
incuriam.
• In common law, the rationes of a judgment must be
followed by lower courts while hearing similar cases.

20
How Are Judgments Published?

Approved for Reporting Both Judges Decide

21
World of Law Journals

22
 Types of Law Journals

All judgments recommended as “Approved for

Reporting” will be published in the Law
Journals by the recognized/certified publishers:
1. Supreme Court Monthly Review (SCMR) 1. Pakistan Tax Decisions (PTD)
2. Pakistan Supreme Court Cases (P.S.C.) 2. Gilgit Baltistan Law Reports (GBLR)
3. Pakistan Legal Decision (PLD) Pakistan Law Journal (PLJ)
4. Civil Law Cases (CLC) 3. Pakistan Criminal Law Journal
5. Corporate Law Decisions (CLD) (P.Cr.L.J.)
6. Monthly Law Reports (MLD) 4. Pakistan Labour Cases (PLC)
7. Yearly Law Reports (YLR) 5. National Law Reports (NLR)

6. All India Law Reports (A.I.R.)

23
From Reporting to Publication

24
 First Page of Judgment

Year Page No.

Author
Citation
Forum

Bench:
List of Judges

Parties

Citation: Abdul Wahab & others v. HBL & others [2013 SCMR 1383]
25
Second Page of Judgment
Background of case

Reference of
Applicable laws

26
 Third Page of Judgment
1

List of Lawyers
3

Dates of Hearings

27
Finding Ratio Decidendi & Obiter Dicta
Obiter Dicta: [Judge's
expression of opinion
which is persuasive only].

Ratio Decidendi: [Rational

for Decision]. It is binding.

Obiter Dicta: [Judge's

expression of opinion
which is persuasive
only].
Ratio Decidendi: [Rational for
Decision]. It is binding.

Reason for Dismissal.

Court Dismissed
Petition.

28
 Topic 8:
Constitutional History of Pakistan
(The Constitution of Pakistan, 1973)

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
 It is written in one of the finest novels:

“The law is like the pants you

bought last year for a growing
boy, but it is always this year and
the seams are popped and the
shankbone’s to the breeze. The
law is always too short and too
tight for growing humankind.”

Robert Penn Warren [1905–1989] an

American poet and novelist.

2
 Function of Constitution

1. Constitution is a legal instrument by which a

government can be run and be controlled.
2. Constitution prescribes principles upon which the
government should be established and conducted.
– Every constitution has some features and
characteristics embedded in:
 Historical, religious, and social background of the
people for whom it is framed.
– Every constitution has features and picture-frame with:
 Public aspiration, historical inspiration, geographical
recognition, political formulations and people’s
expectations.

3
 The Constitution of Pakistan, 1973

• The Constitution of Pakistan, 1973 restored the federal and

parliamentary form of Government in which executive is fully
accountable to the Legislature (National Assembly & Senate).
• The constitution provides bicameral legislature (National
Assembly and Senate).
• Prime Minister is the powerful executive authority of Pakistan.
• Executive authority of federation is exercised by the federal
government (Federal Cabinet).
• The President is the ceremonial Head of State with no influence
over legislation or selection of Prime Minister.
• The President had to abide by the Prime Minister’s advice in all
matters.
4
 Principles of Constitution, 1973

• The Constitution of Pakistan, 1973 is based on three organs

of the State:
1. Legislature: [make laws]
2. Executive: [implement laws]
3. Judiciary: [interpret laws]

Constitution

Legislature Executive Judiciary

5
 Fundamental Rights
• The Government is responsible to protect the life, liberty and
property of individuals.
• The Supreme Court under Article 184(3) and High Court
under Article 199(2) have been responsible to provide
remedy to those citizens whose Fundamental Rights (Natural
Rights) have been violated by the State or its functionaries.
• In Chapter 1 of the Constitution (from Article 8 to Article 28)
the provisions of the Fundamental Rights are provided to the
citizens of Pakistan.
– Article 8 of the Constitution provides that “laws inconsistent
with or in derogation of fundamental rights to be void.”
– Further, 9 of the Constitution stated that “No person shall be
deprived of life or liberty save in accordance with law.”

6
 Legislative Model

• Constitution contained 280 Articles divided into 12 Parts

and 5 Schedules, and 1 Annex.
• The Constitution is more rigid than flexible (need
2/3rd majority to bring amendment).
– Two-Third majority is required to amend the
Constitution.
– Simple Majority of votes is required to amend/introduce
a new law.
• From 14th August 2020 till Date (June 30, 2020) 30
Amendments have introduced in the Constitution of
Pakistan, 1973.
7
 Federal and Provincial Legislation

• Under Article 142 of the Constitution of Pakistan,

1973 the legislative powers are distributed between
the Federal Legislature and Provincial Legislature:
1. Federal Legislative List = Parliament has
exclusive power
2. Both the Parliament and Provincial Assemblies
have power to make laws with respect to
Criminal Law, Criminal Procedure and Evidence.
3. If Not Mentioned = Provincial Assemblies shall
have power to make laws with respect any matter
not mentioned in the Federal Legislative List.

8
 Independence of Judiciary

• Preamble of the Constitution of Pakistan, 1973

provides the independence of judiciary shall be fully
secured.
• Independence of judiciary is basic principles of the
constitutional system of governance.
• Judiciary can foster an appropriate legal and judicial
environment and effectively y and efficiently resolve
public claims and grievances.
• Legal and judicial developments are conducive to
higher economic growth and social development.
9
 From Martial Law to 58 2(B)

• Civilian rule under the parliamentary system proved short lived.

• In 1977, General Zia-ul-Haq toppled Bhutto‘s government on
the basis of allegation of electoral rigging and imposed the
Martial Law, dissolved the assemblies and suspended the
Constitution.
• General Zia-ul-Haq assured to hold elections within 90 days for
restoration of democracy which he postponed for eight years.
• General Zia-ul-Haq with support of political and religious parties
managed to pass the 8th Constitutional Amendment from National
Assembly which empowered the President under the Clause 58
2(B), to dissolve the National Assembly, appoint military service
chiefs, judges and provincial governors.

10
 Conclusion

Democracy means a ‘political system’ marked not only

by ‘free and fair elections’ but also by the:
 Rule of law;
 Separation of powers;
 Judicial independence; and
 Protection of basic liberties of speech, assembly, religion,
property, and basic principles that reflect social objectives
such as public peace and security.
This is substantive aspect of democracy. Without it, the
regime is not democratic.

11
Questions & Answers
 Topic 3:
Judicial Systems in the World

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
The laws of nations forever grow, progress
and change!

Law is a dynamic
and living,
requiring constant
re-examination and
re-evaluation.

2
 Independent Judiciary

“Independence of the judiciary

shall be fully secured.”

Preamble of the Constitution of Pakistan, 1973

3
 World’s Judicial Systems
There are TWO types of justice systems in the world:

Inquisitorial (‫)تحقیقی‬
Adversarial (‫ )مخالفانہ‬System
System

Used in Common Used in Civil Law

Law Countries Countries

USA, UK, Germany, France,

Pakistan, etc. Spain, etc.

4
 Basic Concept & Differences

Adversarial (‫ )مخالفانہ‬System Inquisitorial (‫ )تحقیقی‬System

• In adversarial system, the parties • In inquisitorial system, the
to a case develop and present court actively involved in
their arguments, gather and proof-taking by investigating
submit evidence, question the facts of the case.
witnesses, and, generally control
the information presented
according to the law and legal
process.
• Judge does not conduct its own • Judge makes inquiries, calls
investigation, or construct its and examines witnesses, and
own version of events. generally determines the
matters.

5
 (Cont…) Basic Concept & Differences
Description Adversarial (‫ )مخالفانہ‬System Inquisitorial (‫ )تحقیقی‬System
Adversarial system is a judicial Inquisitorial system is a judicial
system in which the courts play role system in which the courts play active
as ‘neutral referee’ to determine the role to investigate the facts of the case
Role of Court
issues raised by parties. ‘BUT not to and determine the truth.
conduct an investigation or
examination.’
The court is largely dependent upon The court dominates proceedings and
Dependency the evidence presented by the actively searches for the truth.
parties.
Adversarial proceedings are Inquisitorial criminal proceedings are
Structure structured as a dispute; a conflict structured as an official investigation.
between two sides.
The adversarial trial is not structured The fundamental idea of inquisitorial
Fundamental as an investigation into the truth but proceeding is that the judge himself
Idea to reach a just settlement between must investigate a complaint.
the parties.
6
 (Cont…) Basic Concept & Differences
Description Adversarial (‫ )مخالفانہ‬System Inquisitorial (‫ )تحقیقی‬System
Adversarial system determines the Inquisitorial system through an
Function
truth through a competitive process. official investigation.
Burden of Accused person is regarded as Accused person is regarded as guilty
Proof innocent until proven guilty. until proven innocent.
Conviction Regularly Rarely
Adversarial system is based upon the Inquisitorial system assumes that the
view that proceedings should be truth can be, and must be, discovered
structured as a dispute between two in an investigative procedure and,
sides in a position of theoretical because it may be in the interests of
the parties to conceal it, that the state
Central equality before a court which must
is best equipped to a carry out such
Agenda decide on the outcome of the independent inquiry.
contest. The procedural aim is to
settle the conflict stemming from the
allegation of commission of a crime.

7
 (Cont…) Basic Concept & Differences
Description Adversarial (‫ )مخالفانہ‬System Inquisitorial (‫ )تحقیقی‬System
• The heart of process is the • The heart of the process is
public trial stage. the pre-trial stage.

• Proceedings are structured • Public trial generally plays

Heart of
as a continuous hearing in a less significant role in
Process
which evidence is inquisitorial proceedings.
presented to an
unprepared fact-finder.

• Decisions made by Higher • Judges free to make

Courts form a precedent decisions on a case-by-
Precedent which will bind the lower case basis.
courts.

8
Questions & Answer Session
 Topic-10
Judicial System of Pakistan

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
 Introduction

• The current judicial system Pakistan has evolved over a

long period of time.
• The judicial system has passed through several periods,
covering the Hindu Period, Muslim Period (the Mughal
Empire) and British Colonial Period.
• Overall, the judicial system passed through following three
(3) different phases in term of historical developments:
1. Hindu Period
2. Muslim Period
3. British Colonial Period

2
 Hindu Period
• The Hindu period lasts for 3 millennia i.e. from 1500 BC until 1500 AD.
• Information on the judicial system during Hindu period has been somewhat
sketchy, gathered mostly from scattered sources, such as ancient books, namely
Dharmashastra, Smritis (based on customs and traditions of people),
Arthashastra, 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 King was regarded as the fountain of justice who also discharged judicial
functions.
• At the Capital, besides the King's Court, the Court of Chief Justice existed.
This Court, in hierarchy, was next to the King's Court and appeal against its
decisions lay to the King's Court.
• The judges were appointed on the basis of their qualifications and scholarship
but the choice was mostly restricted to upper caste i.e. Brahmins.

3
 Muslim Period

• The Muslim Period begins in the Indian sub-continent in the 11th A.D.
• This period is further divided into two periods:
1. The period of early Muslim rulers who ruled Delhi and some other
parts of India. The Khilji Dynasty (1290–1320 A.D): Alauddin
Khilji (1296–1316 A.D.) was the first Muslim
Ruler whose Empire covered almost the whole of India up to its
extreme South.
2. Mughal Period (1526–1857) replaced such Muslim and other
rulers in 1526 A.D and lasted until the middle of 19th century.
3. During the period of Muslim Rulers, the Islamic law remained
applicable and in force for settlement of civil and criminal
disputes.

4
 Muslim Period
• The Mughals created an organized system of administration of justice.
• They established Courts in every unit of the administrative divisions.
1. At the village level, the Hindu system of Panchayats (Council of Elders) was retained,
which decided petty disputes of civil and criminal nature, using conciliation and
mediation as means of settling disputes.
2. At the town level, there existed courts, presided over by Qazi-e-Parganah.
3. At the district (Sarkar) and provincial (Subah) level, courts of Qazis were established.
4. The highest court at the provincial level was that of Adalat Nazim-e-Subah.
5. For revenue cases, officers known as Ameen were appointed at the town level.
6. At the district level, revenue cases were dealt with by Amalguzar and at the provincial
level by Diwan.
7. The supreme revenue court was called, the Imperial Diwan.
8. The criminal courts, presided over by Faujdar, Kotwal, Shiqdar and Subedar
functioned.
9. The highest court of the land was the Emperor's Court, exercising original and appellate
jurisdiction.

5
 British Period

• The King of England, James-I through Charter dated 4th February 1623
authorized the English East India Company to decide the cases of its
English employees.
• The Charter of 1661 further expanded the powers and authorized the
Governor and Council to decide not only the cases of the Company
employees but also of persons residing in the settlements.
• The Charter of 1726, granted by George-I, King of England, to the
Company, introduced the English law and system of administration
of justice.
• The Company established its own courts and the President and Council
of the Company decided all cases of civil or criminal nature.
• In deciding such cases, the Governor and the Council applied the
English laws.

6
 (Cont…) British Period

• The administration of justice was initially confined to the

Presidency Town of Bombay, Calcutta and Madras.
• In view of the huge distances between Towns and the
peculiar conditions, 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 for the Mufussil.
• The principal courts for the town were known as the
Supreme Courts and Recorders Courts. These courts
consisted of English judges and applied English laws.

7
 (Cont…) British Period

• The Supreme Court of Calcutta was The Supreme Court of

Calcutta was established under the Regulating Act 1773.
• The Court consisted of a Chief Justice and other judges,
exercising both civil and criminal jurisdiction. The Court could
also issue certain prerogative writs.
• In 1798, the Recorders Courts were established at Madras and
Bombay, with powers identical to the Supreme Court of Calcutta.
• Later on, the Recorders Court at Bombay was also replaced by
the Supreme Court (under the Parliament Act 1823). These new
courts had the same composition, jurisdiction and powers as
exercised by the Supreme Court of Calcutta.

8
 (Cont…) British Period

• The High Court of Judicature Act, 1861 abolished

the Supreme Courts as well as the Sadar Adalats
and constituted the High Court of Judicature for
each Presidency Town.
• The Court consists of a Chief Justice and such
other number of judges, not exceeding 15.
• The Act prescribed professional qualifications for
such judges together with the mode of their
appointment.
9
 (Cont.…) British Period

• The judges were appointed by the Crown and held office during his
pleasure.
• The High Courts exercised original as well as appellate jurisdiction in
civil and criminal matters and were also required to supervise the
functioning of the Subordinate Courts in their respective domain.
• Besides the Presidency Towns, High Courts were also established in
Allahabad in 1866, Patna in 1919, Lahore in 1919 and Rangoon in
1936.
• The Sindh Chief Court was established under the Sind Courts Act
1926.
• Under the NWFP Courts Regulation 1931 and the British Balochistan
Courts Regulation 1939, the Court of Judicial Commissioner was
created in each such area.
10
 Post-Independence Era

• At independence, Pakistan adopted the Government of India Act,

1935 as a provisional Constitution. As a result, the legal and
judicial system of the British period continued in Pakistan
without interruption.
• The Lahore High Court continued to function and so did the
Sindh Chief Court and the courts of Judicial Commissioner in
NWFP and Balochistan.
• A new High Court was established at Dacca.
• A new Federal Court for Pakistan was also established.
• The powers, authority and jurisdiction of the Federal Court
and High Courts, as prescribed in the Government of India
Act, 1935 remained the same.
11
 Organogram of Courts

Supreme Court of Pakistan

Shariat Appellate Bench

of Supreme Court

Federal Shariat Court

Administrative
High Courts Tribunals

Special Courts
Criminal
Courts
Entertaining
Hadood
Cases Subordinate Courts

12
Organogram of Courts

13
 Supreme Court of Pakistan

• The Supreme Court of Pakistan established under

Article 176 of the Constitution of Pakistan, 1973.
• It is superior court of the country, exercising original,
appellate and advisory jurisdiction.
• It is the Court of ultimate appeal and final arbiter of
the law and the Constitution.
• Its decisions are binding on all other courts in
Pakistan.
• The Court consists of a Chief Justice and 16 Judges.

14
 Jurisdiction of Supreme Court
• Article 184(1) Original jurisdiction in inter-governmental disputes, issues declaratory
judgments.
• Article 184(3) Enforcement of Fundamental Rights involving an issue of public importance.
• Article 185(2) Appeal from judgment/order of High Court in criminal cases, tried in original
and/or appellate capacity and having imposed death penalty or life imprisonment.
• Article 185(2) Appeal when High Court certifies that the case involves interpretation of the
Constitution;.
• Article 185(3) Appeal (subject to grant of leave) from High Court judgment/order.
• Article 186 Advisory jurisdiction on any question of law involving public importance,
referred by the President.
• Article 187 Issues directions/orders for doing complete justice in a pending case/matter.
• Article 188 Review of its judgment/order.
• Article 204 Punishment for contempt.
• Article 212 Appeal from administrative courts/tribunals.
• Article 203F Its Shariat Appellate Bench hears appeals from judgments/orders passed by
Federal Shariat Court.

15
 Suo Moto Action by Supreme Court

• Public Interest Litigation (PIL) is an important means of

achieving the social justice.
• The Supreme Court of Pakistan is the custodian of the
Fundamental Rights.
• The Supreme Court of Pakistan under Article 184(3) has
power to exercise Suo Moto (‫=ازخود‬on its own motion)
jurisdiction and make an order if it considers necessary that
a ‘question of public importance’ with reference to the
‘enforcement of any of the Fundamental Rights’
conferred by ‘Chapter I’ of Part II (of the Constitution of
Pakistan, 1973) is involved.

16
 Jurisdiction of Federal Shariat Court

1. Under Article 203-D of the Constitution of Pakistan, 1973 the

Federal Shariat Court has jurisdiction to determine whether a
provision of law is repugnant (‫ )مخالف‬to the Injunctions of Islam.
2. Under Article 203-DD it has Revisional jurisdiction in cases
under Hudood laws.
3. Under Article 203-E it has Review jurisdiction of its own
judgments/orders.
4. Under Article 203-E it has jurisdiction to initiate cases for
punishment for contempt of the Court.
5. It also entertains appeals from judgments/orders of Lower
criminal courts trying Hudood Law cases.

17
 High Courts in Pakistan

• 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. Sanctioned strength of Judges is as under:
1. Lahore High Court = 60
2. High Court of Sindh = 40
3. Peshawar High Court = 20
4. High Court of Balochistan = 15
5. Islamabad High Court = 7
Total = 142

18
 Writ Jurisdiction of High Court
The High Court under Article 199 (1) has power to issue following five (5) writs:
1. Writ of Mandamus: A Command issued by the High Court (on the application of any
aggrieved party) directing any person (public official) performing functions in connection
with the affairs of the Federation, a Province or a local authority, to perform to do anything
required by law, to refrain from doing anything he is not permitted by law to do. [See Article
199 (1) (a) (i) ].
2. Writ of Prohibition: The High Court (on the application of any aggrieved party) may issue
order to a Subordinate Court/Tribunal to refrain from continuing with a proceeding on the
ground that the proceeding is without or is in excess of jurisdiction for contrary to the law or
acting in violation of rules of natural justice). [See Article 199 (1) (a) (ii)].
3. Writ of Certiorari: The High Court (on the application of any person) in exercise of
supervisory jurisdiction may issue orders that Subordinate Court/Tribunal acts without
jurisdiction, excess of jurisdiction, fails to exercise it, error on the record, court tainted with
fraud, court involved in corruption or collusion, or violated the principles of natural of justice.
4. Writ of Habeas Corpus (Have his body/produce the body): The High Court (on the
application of any person) may issue Direction for release of a person detailed unlawfully or
in custody without lawful authority. [See Article 199 (I) (b) (i)].
5. Writ of Quo Warranto (by what authority): The High Court (on the application of any
person) may enquire from any person, holder of a public office to show that under what
authority he is holding the said office. [See Article 199 (2) (b) (ii)].
19
 Jurisdiction of High Courts
• Article 203 Supervisory Control of the Subordinate Courts.
• Article 204 Punishment for contempt.
• Appeal under S.100 of CPC.
• Review under S.114 of CPC.
• Revision under S.115 of CPC.
• Appeals under S. 410 of CrPC.
• Appeals against acquittal under S. 417 of CrPC.
• Appeals against judgment/decree/order of tribunals under special laws.
• Issues directions of the nature of habeas corpus under S. 491 of CrPC.

Note:
The Karachi Bench of High Court of Sindh has original jurisdiction in civil cases of the
value of rupees fifteen million and above. The Islamabad High Court has original
jurisdiction in civil cases of the value of rupees on hundred million and above.

20
 Jurisdiction District & Sessions
Judge/Additional District & Session Judge
• Appeal against judgment/decree of a Civil Judge under S. 96 of CPC as well as other laws
specifically provided in the respective enactments e.g. Rent Law and Family Law, etc.
• Appeal against order under S.104 of CPC.
• Revision under S.115 of CPC.
• Original jurisdiction in suits upon bills of exchange, Hundies or promissory notes under Order
XXXVII of CPC.
• Murder trial under S. 265 A of the CrPC and all other trials involving death penalty under the Anti-
terrorism Act, Control of Narcotic Substances Act, etc.
• Criminal trial under Hudood Laws.
• Appeals under S. 423 of CrPC.
• Revision under S. 435 of CrPC.
• Issues directions of the nature of habeas corpus under S. 491 of CrPC as well as Justice of
• Peace under S.22-A & B of Cr.PC; and
• Decides pre-arrest bail applications under S. 498 of Cr. PC.
Note:
(The original jurisdiction of District Judge is limited to rupees fifteen million and in Islamabad Capital
Territory rupees one hundred million).

21
 Jurisdiction of Civil Courts
1. Civil Judge 1st Class
– Tries all civil suits, there is no pecuniary limit on its jurisdiction.
– In certain jurisdictions, also designated as Rent Controller.
– In certain jurisdictions, also designated as Judge, Family Court and Guardian Judge.
– At Karachi, pecuniary jurisdiction limited to rupees fifteen million (Karachi Courts
Order 1956); at Islamabad limited to rupees one hundred million.
– In certain jurisdictions designated as Magistrate empowered under S. 30 of CrPC.

1. Civil Judge 2nd Class

– Tries civil suit up to the value of rupees five hundred thousand in Punjab, rupees fifty
thousand in Khyber Pakhtunkhwa and rupees fifteen thousand in Balochistan.
– In certain jurisdictions, designated as Rent Controller/Judge, Family Court and Guardian
Judge.

2. Civil Judge 3rd Class

– Tries civil suit up to the value of rupees one hundred thousand in Punjab.

22
 Jurisdiction of Magistrate Courts

1. Magistrate 1st Class

– Tries offences punishable up to 3 years imprisonment and
fine up to Rs.50,000/-

2. Magistrate 2nd Class

– Tries offences punishable up to 1 year imprisonment and fine
up to Rs.5000/-

3. Magistrate 3rd Class

– Tries offences punishable up to 1 month imprisonment and
fine up to Rs.1000/-

23
Questions & Answers
 Topic-9:
Reading Law & Interpreting Legal Texts

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
 Rational Activity: Who has the Best!

“Law is enforced the

way the law is written;
it's not about true
justice, it's about
interpretation of the
law and who has the
best lawyer.”

— Laurell K. Hamilton (b.

1963) an American fantasy
and romantic novel writer.

2
 Intellectual Activity: Read the Unwritten

“The law is what is read,

not what is written.”

―Donald Kingsbury (b.

1929), an American
science fiction novel
author.

3
 Functional Activity: Power & Truth

"All things are subject to

interpretation. Whichever
interpretation prevails at a
given time is a function of
power and not truth."

– Friedrich Nietzsche [1844 -

1900] a German philosopher
and cultural critic.

4
 What Is Legal Interpretation?
Meaning:
• Legal interpretation means understanding the true
sense of the law.

Definition:
• Legal interpretation is an ‘rational activity’ that
gives meaning to a ‘legal text’ or ‘intellectual
activity’ to determine the ‘normative message
(‫ ’)معیاری پیغام‬that arises from a ‘legal text’ (i.e.
Constitution, Act, Ordinance, or Case Law).

5
 What Is Legal Construction?
Meaning:
• Legal construction means drawing inferences (‫)نتیجہ‬
about the subject, that are above the direct expression
of text.

Definition:
• Legal construction determines the sense and
explanation of abstruse (‫ ) ُمب َہم‬terms, text, etc., in the
statute and draws a conclusion on the basis of logical
reasoning, with respect to the subject that lies above
the direct expression of the legal text.

6
Difference between Interpretation and Construction

Interpretation is used
Construction is used
to determine the real
to ascertain the legal
intention of the
effect of the legal text.
legislature.

7
 Forms of Legislation

• Primary Legislation
• Means Act of Parliament or Ordinance.
1

• Delegated (Subordinate) Legislation

• Means Rule-making powers given by the Primary Legislation
(Act of Parliament or Ordinance) to make laws which include
rules, regulations, and bye-laws are the vehicle through which
2 object of a statute is carried forward and implemented.

8
 Principles of Legal Construction
• In construction of a statute following four (04)
common law principles are necessary to be
considered:
1. The source of the enactment;
2. The intention of law-maker (will of legislature);
3. Purpose, object or the aims to be achieved; and
4. The kind of enactment i.e. penal, beneficial,
remedial, etc.

9
 Rules of Interpretations
1. Literal or Grammatical Rule
• The Literal or Grammatical Rule of interpretation is the primary rule. It used to to
construe provisions of statute literally and grammatically giving the words their
ordinary and natural meaning. This rule is also known as the Plain meaning rule.
2. The Golden Rule
• The Golden Rule of statutory interpretation may be applied where an application
of the Literal Rule would lead to an absurdity. In such cases the Courts may
depart from a word’s normal meaning and apply a secondary meaning.
3. Mischief Rule
• The Mischief Rule of statutory interpretation is the oldest of the
rules. The Mischief Rule was established in16th Century from the Heydon’s Case
[1584] 3 CO REP 7] in the United Kingdom. Under the Mischief Rule the court's
role is to suppress the mischief the Act is aimed at and advance the remedy, and
what ruling would effectively implement this remedy.

10
 Date of Commencement
• Where any statute (law) does not sets out a date on which it is to
come into force:
– then that of enforcement is the day it received assent from the
assenting authority (President in case of enactment of Federal
legislature and Governor in case of enactment of Provincial
legislature).
• Where Rules, Regulations, Orders, or Circulars having effect of law
are issued in exercise statutory powers or delegated authority under
any statute comes into force on the date of publication in official
gazette.
• Same principle is applied where any amendment, addition,
modification, or substitutions made in Rules, Regulations, Orders, or
Circulars or issued under any statute.
11
 Definition Clause
Definitions in the enactment are normally declaratory in nature as definitions
contained in a statute assign special meaning to the terms and expressions used by
the legislature in particularly legislature.
Use of words “means” and “includes/included/including”:
• Definition clauses usually use either the word “means” or the word “includes”.
• When the word “means” used the definition is exhaustive and is confined to what is
stated in the statute/law.
• When the word “includes/included/including” used the definition is expansive and
it bears not merely its ordinary dictionary meaning, but also carries the extended
meaning.
• If the definition clause use both “means” and “includes” the definition of
exhaustive as to what follows the word “means” but also covers what follows the
word “includes.”
• Definition as provided in statute Pari Materia (on the same subject=‫ )مساوی قانون‬and
interpreted by Superior Courts can be applied for purpose of another statute.

12
 (Conti…) Definition Clause
Year:
• A year calculated according to the British Calendar. One year will have 365 days.
Financial Year:
• Shall mean the year beginning on the 1st July and ending on 30th June.
Legal terms:
• Words used in one statute cannot be interpreted with reference to definition in another
statute unless both are in Pari Materia (on the same subject=‫)مساوی قانون‬.
Illustration:
• Main purpose of illustration is to show how the principles contained in that section of the
enactment is to be applied.
Explanation:
• It used in law to explain and facilitates its interpretation by way clarification.
Words not defined:
• Where word is not defined in a statute the Court is to follow its general/ordinary
meaning given in dictionary.

13
 Terms and Functions
Terms Functions
And v. Or “And” typically signifies a conjunctive list, meaning each condition in the list must
be satisfied, while “or” typically signifies a disjunctive list, meaning satisfying any
one condition in the list is sufficient.
May v. Shall Term shall” used in a statute make mandatory in nature and it impose a duty to do it
what is prescribed while word “may” grants the discretion and permissible sense.
Unless Except These terms usually signify an exception to the statute.

Subject to… Within the These terms may limit the scope of the statute, or may indicate that a certain part of
meaning of For the the statute is controlled or limited by another section or statute.
purposes of
If…then… Upon These terms indicate that for one part of a statute to take effect, a precondition or
Before/After Provided requirement must be satisfied.
that…
Notwithstanding Literally, “in spite of,” this term usually signifies that a certain term or provision is
not controlled or limited by other parts of the statute, or by other statutes.
Each/Only These terms commonly limit the class of objects that are either included in or
Every/Any/All excluded from the statute.

14
 Gazette of Pakistan

Date of Publication
in Gazette

Date of Publication
in Ministry of Law

Date of Commencement

Object /Purpose/Aim

Preamble Preamble

15
Title of Law

Scope of Law

16
Definitions Clause

Definitions of
Specific Words
used in the law.

Definitions of
Specific Words
used in the law.

17
 Conclusion
• The legal interpretation should advance the
object of the law and not destroy the law.
• The legal construction should promote and
serve the cause of justice.
• Preamble is the gateway to any law.
• Intention of the legislature must be collected
from the Preamble (‫ )تمہید‬of the law.
• Historical background of law is also the key to
find out the real intention of the legislature.
18
 Topic 7:
Constitutional History of Pakistan
(Constitution of Pakistan 1962)

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
 Role and Function of Constitution

1. Constitution is a legal instrument by which affairs of

the State can be run and controlled.
2. It embodies the fundamental principles upon which
the government should be established and
conducted.
3. There is no specific set of pattern or form provided
for the Constitution.
4. Constitution can be and may be in variety of forms.
5. It is a supreme law of the land/country.

2
 Referendum with Heavy Mandate

• On 14th February 1960, the referendum took place.

• General Ayub Khan presented the approximately
80,000 Basic Democrats with choice:
– “Have you confidence in President Field Marshal
Mohammad Ayub Khan?" He was “elected.” (If a
majority said “Yes”).
• Basic Democrats 75,283, representing 96% of total
voting , voted “Yes.”
• General Ayub Khan has become President of
Pakistan.

3
 Constitution of Pakistan, 1962

• On 17th February 1960, General Ayub Khan formed a

‘Constitution Commission’ headed by Chief Justice of Pakistan,
Muhammad Shahabuddin, with other Ten Members (5 from
each West Pakistan and 5 from East Pakistan) to draft a
Constitution for the country within the shortest possible time.
• On 6th May 1961 the ‘Constitution Commission’ presented the
report. After the examination it was given the shape of a
Constitution.
• In January, 1962 the Cabinet approved the final text of new
Constitution.’
• On 8th June, 1962 the new Constitution of Pakistan, 1962
came into effect.
4
 New Basic Democracy System

• According to Ayub Khan Pakistan was not ready for a

experiment of parliamentary democracy and the country required a
period of guidance and honest government before a
new constitutional system.
• He introduced a new Political System called “basic democracies”
consisting of directly elected 80,000 “basic democrats” directly
elected by the people from rural and urban councils of the
administrative unites (town, tehsils, districts, and divisions).
• These 80,000 Basic Democrats then formed an electoral college to
elect the members of the Provincial Assemblies, National Assembly,
and the President.
• The new system was easily manipulated.
• It enabled local elites to maintain their dominance.
5
Features of Constitution of Pakistan, 1962

• It introduced the Presidential Form of Government.

• President was to be elected for a period of 5 Years, but
was eligible for re-election for the next term.
• President was the Head of State and Executive
Authority of the Pakistan.
• President may have a ‘Council of Ministers’ composed
persons who were not member of the National
Assembly to assist and advise the President.
• Council of Ministers were accountable to the President
but not to the National Assembly.
6
 Government Model

• Constitution introduced the Presidential form of

Government first time in Pakistan.
• President was Head of State and Executive Authority of
Pakistan.
• President may have a Council of Ministers, composed
persons who were not member of the National Assembly to
assist and advise the President.
• In Provinces the Executive Authority vested in the
Governors who were appointed by the President.
• Governors were empowered to appoint Provincial Ministers
with permission of the President.
7
 Constitutional Model

• Pakistan was declared as an ‘Islamic Republic of Pakistan.’

• Legislature consists of a single house Unicameral
Legislature (i.e. National Assembly). The Senate did not
exist.
• Constitution provided 2 Provincial legislatures and
governments.
• Urdu and Bengali were recognized as the National
Languages.
• There were 2 Province of Pakistan, East Pakistan and
West Pakistan having equal seats in the National
Assembly of 156 Members (including Six women)
elected by 80,000 Basic Democrats.
8
 Legislative Model

• Process of amendment in the Constitution was extremely difficult.

– President had the discretion to assent the Bill even passed by the
Two-Third majority and could return the Bill for re-consideration in
which it required support of Three-Fourth of the total numbers of
members of National Assembly.
– On re-presentation if Bill was not acceptable to the President he
could dissolve the Assembly or direct a Referendum.
• Constitution contained 250 Articles divided into 12 Parts and 3
Schedules.
• Legislative powers were distributed between the Centre and the
Provinces.
1. Federal ‫ وفاقی‬List.
2. Provincial ‫ صوبائی‬List.
9
 Supreme Court of Pakistan

• Constitution ensured complete freedom of

judiciary.
• The Supreme Court of Pakistan was the Court
of ultimate jurisdiction in the country. Besides,
its being a Court of appeal it had advisory and
constitutional jurisdiction.
• It also had jurisdiction to decide inter-
government disputes.

10
 Proclamation of Emergency in 1965

• On 6th September 1965, Pakistan experienced the first

Proclamation of Emergency under its permanent
Constitution of 1962, when President Ayub Khan
declared emergency an on account of:
War that had been broken out with India over
the Kashir Dispute.
• A joint declaration, also called Tashkent
Agreement, was signed by Pakistan and India.
• War between Pakistan and India ended within 17
Days on 11th January 1966.
11
 Detention of Political Leadership
• During protests against the Tashkent Declaration, many political leaders
like Ghulam Jilani, Nawabzada Nusrullah, and Sardar Shoukhat Hayat
Khan were kept in detention under the Defence of Pakistan Ordinance,
1965 and Defence of Pakistan Rules, 1965. They challenged their
detention but the West Pakistan’s High Courts rejected their petitions.
• Abdul Baqi Baloch, a baloch activist and a strong opponent of General
Ayub Khan, was under detention, and West Pakistan High Court (Karachi
Bench) also rejected his appeal.
• Against the decisions of High Courts all detainees filed appeals in the
Supreme Court of Pakistan.
• The Supreme Court in its judgments rejected the appeals of Ghulam
Jilani and Abdul Baqi Baloch and laid down some broad principles and
guidelines for cases of political detainees.

12
 Legality Validity of Emergency

• The state of emergency remained in force in

Pakistan from Three Years despite the cessation of
hostilities and war with India on 11th January 1966.
• Consequently, the validity of a rage of detention orders
issued under Rule 32 of Defence of Pakistan Rules,
1965 was challenged before the Supreme Court.
• Two important decisions of Supreme Court are:
Ghulam Jilani v. Government of West Pakistan [1967
PLD SC 373] and Abdul Baqi Baloch v. Government
of Pakistan [1968 PLD SC 313].

13
Ghulam Jilani v. Government of West Pakistan

• Principle issue involved in the case of Ghulam Jilani v. Government

of West Pakistan [1967 PLD SC 373] was the ‘interpretation’ of
Rule 32 of Defence of Pakistan Rules, 1965.
• The Supreme Court was asked to consider the validity of several
detention orders issued under Rule 32, particularly in view of the
wording of enabling statute, Section 3(2)(x) of the Defence of Pakistan
Ordinance, 1965 under which authority the rules had been framed,
provided for preventive detention where a detaining authority “suspects
on grounds appearing to such authority to be reasonable” that any
person had acted, acting, or being about to act, in one of a number of
prejudicial ways.
– The Court had come to the conclusion that satisfaction under
Rule 32 is subjective and that, is “reasonableness” can not be
quested in a court of law.
14
Abdul Baqi Baloch v. Government of Pakistan

• The Supreme Court in case of Abdul Baqi Baloch v.

Government of Pakistan [1968 PLD SC 313] in
1968, Justice Hamoodur Rahman held that:
“It can not be said merely because hostilities have
ceased, the emergency is also at end. This is a
purely a political question which is outside of the
competence of the court to decide….No court can
give a declaration that a state of war has ceased to
exist when Chief Executive does not say so.”
[1968 PLD SC 313] Page 330

15
MM Mansur Ali v. Arodbedu Shekkar Chatterjee

• Similarly, the Supreme Court of Pakistan

in the case of MM Mansur Ali v. Arodbedu
Shekkar Chatterjee [1968] 71 ILR 708
held:
– The question of whether or not the
circumstances which give rise to a state of
emergency had ceased to operate could
only be decided by the Chief Executive.

16
 Supreme Court’s Approach towards Emergency

• The Supreme Court of Pakistan under the leadership of Fourth Chief

Justice Alvin Robert Cornelius (tenure: 1960-68) in cases of Malik
Ghulam Jilani and Shroish Kashmiri, held that it is the court’s
responsibly to protect the Fundamental Rights of citizens and in both cases
he laid down a strong foundation of “Judicial Review” and “due process of
law.”
• Later on, the Supreme Court of Pakistan in two important cases, namely:
1. Abdul Baqi Baloch v. Government of Pakistan [1968 PLD SC
313], and
2. MM Mansur Ali v. Arodbedu Shekkar Chatterjee [1968] 71 ILR
708
did not even put it on record that there appeared to be no justification for
the continuance of the Emergency proclaimed 1965, as the circumstances,
i.e. the hostilities with India, had ceased to exist for Three Years.

17
 Second Imposition of Martial Law

• Other than the courts, the only alternate and effective remedy that
existed was to mobilise vocal public opinion and voice against the
continuance of the prolonged emergency.
• President Ayub Khan in his letter of 24 March 1969 asked General
Yahya Khan to perform his ‘legal and constitutional responsibility’ of
saving the country from ‘international disorder and chaos.’
• On 25th March, 1969 President Ayub Khan resigned due to massive
public protest against his government.
• On 25th March 1969 General Agha Muhammad Yahya Khan,
Commander-in-Chief of Army, performed his ‘legal and constitutional
responsibility’ not only by proclaiming Martial Law throughout the
country but also abrogating the Constitution of Pakistan, 1962 and
prohibiting political activities.

18
 Fair and Free Elections, 1970

• General Yahya Khan abrogated the Constitution

of Pakistan 1962 and dissolved the assemblies.
• On 29th March 1970, through an ordinance, he
presented an interim Constitution: The Legal
Framework Order (LFO).
• One 31st March 1969 he became President of
Pakistan and assumed the title of Chief Martial
Law Administrator.
• On 7th December, 1970 under the New
Constitution, General Yahya Khan held first ‘fair
and free elections’ in the history of Pakistan.

19
 Outcome of Fair and Free Election

• Awami League under the leadership Sheikh Mujeeb-

ur-Rehman swept 160 out of 165 seats allocated to
East Pakistan and Zulfiqar Ali Bhutto Pakistan
People’s Party emerged as the single largest party
from Sindh and Punjab and managed to win 88 seats.
• Despite majority of votes, Bhutto was not ready to
accept Mujeeb-ur-Rehman as the Prime Minister of
Pakistan.
• General Yahya Khan failed to transfer power to the
majority party and situation became worse.
20
 Political Chaos and Internal Disorder

• On 1st March 1971, General Yahya Khan

postponed the first session of newly Constituent
Assembly which triggered the first massive
movement of civil disobedience in the Eastern
Province.
• People of Eastern Province demand autonomy
which result in political chaos and outbreak of
civil war in March, 1971.
• These circumstances ultimately resulted in Fall
of Dacca and creation of Bangladesh on 16
December, 1971.
21
 Beginning of a New Era!

• On 20th December 1971, President and Chief Martial

Law Administrator was compelled to step
down/resigned.
• On 20th December 1971, Zulfiqar Ali Bhutto, the leader
of majority party, which won 88 seats in the Elections
1971 became President and Chief Martial Law
Administrator (CMLA).
• The National Assembly which had been elected in
General Elections 1970, as a Constituent Assembly, was
entrusted with task of framing a new Constitution for
Pakistan.
22
 Interim Constitution, 1972
• In 1972 the National Assembly adopted an interim Constitution
that came into force on 21st April 1972 (Interim Constitution of
the Islamic Republic of Pakistan 1972). This Interim Constitution
provided that:

– ‘Proclamation of Emergency, issued on the 23rd November 1971,

shall be deem to be a Proclamation of Emergency issued under
this Article and any law, or rule or order made or purported to
have been made in pursuance of the Proclamation shall be
deemed to have been validity made.’
(Article 139 (8) Interim Constitution of the Islamic Republic of Pakistan 972).

– It was also provided that a Proclamation of Emergency issued

or have been issued under this Article shall not be called in
question in any court.
(Article 139 (9) Interim Constitution of the Islamic Republic of Pakistan 972).

23
 Constitution of Pakistan, 1973

• On 12th April 1973, the National Assembly

replaced the Interim Constitution of 1972 and
adopted the Constitution of the Islamic Republic
of Pakistan, 1973.
• On 14th August 1973, the Constitution of the
Islamic Republic of Pakistan, 1973 came into
force.
• The current Constitution has been in force for
more than 46 Years (until June 2020) although
subject to several suspensions and amendments.
24
Questions & Answers

25
 Topic 5:
History & Development of Legal System
in Subcontinent

Subject: Legal System of Pakistan

Course Code: LLB 124

Shah Murad
Assistant Professor
Department of Law
Federal Urdu University of Arts, Sciences and Technology, Karachi.
Email: [email protected]
 Outline

• Introduction
• Development of Legal System
• Age of Discovery & Exploration
• Nation States and Dynastic Rivalries
• European Expansion and Asian Mobility
• Division & Control of the New World
• European’s East India Companies
• Doctrine of Lapse
• Indian Mutiny, 1857
• Conclusion
2
 Introduction
Meaning of Legal:
• Term ‘legal’ refers to the rules identified as binding
because they emanate from the State authorities.

Definition of Legal System:

• The ‘legal system’ refers a collective set of institutes
(organizations of a State), primary legislation (i.e. Act
and Ordinances) secondary/delegated legislation (i.e.
Rules, Regulations, Orders etc.), and persons (working
in the public functionaries including the head of
institutes) and the way they work in a particular
country.

3
 Development of Legal System
• Present-day legal system (courts & adjudication) in Pakistan has a
history of several hundred years, in particularly the 200 years of
British Rule in the Indian Subcontinent=‫( برصغیر‬now Pakistan,
India, and Bangladesh).

• The legal system of Pakistan have been influenced by the Hindu

and Muslim periods as well as by the English legal system which
ended in 1947.

• The modern legal and judicial system of Pakistan, India, and

Bangladesh developed with the arrival of the English East
India Company in the Indian Subcontinent.
4
 Age of Discovery & Exploration
 The ’Age of Discovery and Exploration’ was originated in the
European civilization after the Renaissance = ‫( حیات نو‬French for:
rebirth) in the beginning of 15th century until the middle of the 17th
century.
 The Renaissance period revived and promoted the cultural, artistic,
political, and economic rebirth following the Middle Ages in
Europe.
 The Renaissance witnessed the extensive overseas discovery and
exploration, most notably the discovery of the Asia and the
Americas.
 The ’Age of Discovery and Exploration’ also marks the rise of
the widespread adoption of European settlements, migration,
colonialism, and mercantilism.
5
 Everybody Wants to Rule the World
"All for freedom and for pleasure;
Nothing ever lasts forever;
Everybody wants to rule the world.”

– Lyrics from a song by

English Pop Rock Band, Tears for
Fears, released in March, 1985.

6
 Nation States and Dynastic Rivalries
• The organization of expansion overseas reflected in economic terms the
political nationalism of the European states.
• This political development took place through processes of internal unification and the
abolition of local privileges by the centralizing force of dynastic monarchies.
• Castilian interest in the New World and Aragonese ties in Italy, moreover, resulted in the
ambivalent nature of Spanish 16th Century policy, with its uneasy alternation between the
Mediterranean and the Atlantic.
• During the reign of Emperor Charles-V centralization was quickened by the importation
of Burgundian conciliar methods of government, and in the reign of his son Philip-II
Spain was in practice an autocracy. The dominions of Charles V thus encircled France
and incorporated the wealth of Spain overseas.
• Other European monarchies imitated the system devised by Roman-law jurists and
administrators in the Burgundian dominions along the eastern borders of France.
• The ruler of the Ottoman Empire, Sultan Süleyman-I, himself overran Iraq and
challenged the Portuguese dominion of the Indian Ocean from his bases in Suez and
Basra. His armies also conquered Hungary in 1526 and threatened Vienna in 1529.

7
European Voyages of Discovery

8
Strong Desire for becoming A Sea Power

“Whoever rules the waves

rules the world.”

– Alfred Thayer Mahan

[1840–1914], a US naval strategist
and historian.

9
 Division & Control of the New World
• In the last years of the 15th Century, Portuguese navigators established the
sea route to India and within a decade had secured control of the trade
routes in the Indian Ocean.
• Mercantile interests, crusading and missionary zeal, and scientific curiosity
were intermingled as the motives for this epic achievement.
• Similar hopes inspired Spanish exploitation of the discovery by Christopher
Columbus of the Caribbean outposts of the American continent in 1492.
• The Treaties of Tordesillas, 1494 and the Treaty of Saragossa, 1529
defined the limits of Westward Spanish exploration and the Eastern
ventures of Portugal.
• Spain and Portugal have become global the powers and acting as the
frontline of the expansion of Europe.
• Spain and Portugal divided the newly discovered sea lanes of the world
between them.
10
 Treaty of Tordesillas, 1497:
A Basis for Discovery & Exploration
• The Treaty of Tordesillas, agreement
signed between Spain and Portugal at
Tordesillas, Spain, on June 7, 1494,
divided the newly discovered lands
outside Europe (non-Chiristian) between
the ‘Portuguese Empire’ and
the ‘Spanish Empire.
• The Treaty aimed settling conflicts over
lands newly discovered or explored
by Christopher Columbus and other late
15th century voyagers.
• The Treaty prevented further Portuguese
colonization in the New World.

11
A View of Treaties of Tordesillas-1497

12
 Treaty of Saragossa, 1529
• A conflict began in 1520 between Portugal
and Spain when both kingdoms reached the
Pacific Ocean because there no agreed
meridian of longitude had been established
in the East.
• The Treaty of Saragossa, was a peace
agreement signed at Zaragoza, Spain on 22nd
April, 1529 between the King John-III of
Portugal and Spanish Emperor Charles-V.
• The peace treaty defined the areas of Spanish
and Portuguese in Asia, to resolve the
"Moluccas issue", which had arisen because
both kingdoms claimed the “Moluccas
Islands” also known as “Spice Islands” for
themselves, asserting that they were within
their area of influence as specified in by the
Treaty of Tordesillas, 1494.

13
 Spain and Portugal in 1550:
Areas Under Control of Spain & Portugal
• Asfd

14
European Expansion and Asian Mobility

• The Indian subcontinent was a

land of mystery, richness, and
deep spiritual discovery.
• Every facet of this ancient land
seems scented with the famous
spices (cinnamon, cloves, and
pepper) and exotic products of
China silk, tea, porcelain that
lured European traders for
commercial and maritime
expansion in Asia.

15
 Foundation of Mughal Empire
• The Delhi Sultanate came into existence in 1206, when Qutb al-Din Aibak
of the Slave dynasty became the first Sultan of Delhi.
• From 1206 to 1526 five different Muslim Dynasties: the Slaves, the
Khaljis, the Thughluqs, the Sayyids and the Lodhis ruled India.
• In 1526 Babar established the Mughal dynasty in India.
• Third Mughal Emperor, Akbar the Great, died in 1605, leaving India in a
state of political tranquility.
• The Fifth Mughal Emperor, Shah Jahan's reign is said to have marked the
pinnacle of the Mughal dynasty. Under his reign the Mughal Empire
reached the peak of its glory. He is known for the promotion of art, culture,
and architecture.
• After imprisoning Shahjahan, his son Aurangzeb Alamgir, crowned at
Delhi as Sixth Mughal, in 1707.
• Mughal Dynasty ruled the Mughal Empire in India from 1526 to 1857.
16
 Judicial System in Mughal Dynasty
• The Muslim conquerors brought a new religion, new civilization, new social,
new justice system, and efficient administration system in India.
• Government of Mughal Rulers made no discrimination in distributing the
benefits of justice. It granted complete freedom to Hindus who constituted the
bulk of the country’s population, for the performance of their religious rights
and determination of civil suits according to their law of inheritance, marriage
and caste.
• The operation of Islamic civil law was restricted to the Muslims.
• But the operation of Islamic criminal law applied to both Muslims and Hindus.
• In keeping this arraignment, the Mughal Emperor, Akbar the Great, created two
types of tribunal: the first under ‘Qazi’ who administrated Islamic law (both
civil and criminal law), and the second under the ‘Mir Adl’ a secular officer of
Government, whose cognizance extended to suits and actions not specifically
provided by the religious laws of the Muslims and Hindus.

17
 Administration of the Delhi

• The Muslim conquerors brought a new religion, new

civilization, new social, and new justice system in India.

Sultan
(Head of State)

Wazir Diwan-I Sadr-us-Saddar Diwan-I Insha Diwan-I Ariz

(Finance & (Minister Qazi Quzat
(Minister of (Minister (Defense
Prime Foreign Islamic) (Chief Justice)
Affairs External Affairs) Minister)
Minister)

18
 At the dawn of the seventeenth
century the European nations were
establishing the global empires.

19
 Arrival of the Game Changers

Do you keep doing the same old thing over and over, hoping
that if you do it one more time it will turn out differently?
The winners are the game changer who change things in a big
way. That’s what game changers do. There’s a quote for that!

“Be a Game Changer,

The World is already full of Players.”

20
 The European’s East India Companies
Following European trading companies were the key players in international
sea trade. Further, their commerce competition paved the way for the
European settlements in the Indian Subcontinent. List of Companies are:

English Dutch East Danish Portuguese French Swedish

East India India East India East India East India East India
Company Company Company Company Company Company

S# Year Name of the Company Country of Origin Promoted Legal System

1. 1600 English East India Company England Common Law Legal System
2. 1602 Dutch East India Company Netherlands Civil Law Legal System

3. 1616 Danish East India Company Denmark Civil Law Legal System

4. 1628 Portuguese East India Company Portugal Civil Law Legal System

5. 1664 French East India Company France Civil Law Legal System

6. 1731 Swedish East India Company Sweden Civil Law Legal System

21
European Settlements in India [1498-1739]

22
Formation of Dutch East India Company
• While England, Portugal, Spain, and France
were dividing up the New World, the
ingenious Dutch decided to take over the
seas trading.
• On 20th March, 1602 the Dutch East India
Company was formed through Charter
granted by the State-General, the national
administrative body of the Dutch Republic
by amalgamation of several Dutch trading
companies.
• The Company brought the existing
‘precompiles’ together under one umbrella,
it was cherished the United East India
Company (Verenigde Oost-Indische
Compagnie-VOC).
• Iron, lead, copper, calico, linen, pepper and
spices were the main commodities.
23
 Dutch Dominion in India
• The Dutch built their first fort in India at Pullicat in 1612 and named it
‘Castle Geldria.’
• Dutch established factories at Masulipatnam, Patapoli, Narspur, Pallakudi,
Sadras, Tegnapatnam and Porto Novo, Bimilipatam, Jaggaanathpuram,
Killakari, Masanpadi, and Ape Camorin on the eastern seaboard.
• The most famous and productive factory was established at Chinsuria,
Bengal.
• Pulicat Fort was built in 1612 by the Dutch and named as Castel Geldria after
Gelderland, a state in Holland.
• From 1652, Dutch started acquiring many places in the Coromandel Coast,
Calicut and Tuticorin from Portuguese.
• For a brief period 1692-1697 Dutch also occupied Pondicherry.
• The fort at Sadras was taken over by the French in 1758 and regained by the
Dutch in 1759.

24
 The Dutch: The Best in the Business

• The Dutch East India Company was quite the impressive

Global Enterprise, arguably the template for the modern
Global Traders in existence even to this day.
• The Company was the largest and most profitable Global
Enterprise in the history.
• The Company was at its high point in its time it was more
successful than other companies.
• Their violent expansion by force is just another example
of greedy men trying to take over and monopolize the
world.

25
 Rise of Dutch East India Company
• The Company had between 30,000 and 40,000 employees and 200
vessels.
• In the nearly 200-year reign of its empire at sea, the Company
became the world's first multinational corporation and valued at
close to seven trillion dollars by today's standards.
• The Company laid the foundation of the modern globalized world
and built monopolies that controlled the economy of the 17th and 18th
centuries in Europe and the East Indies.
• The Company established a monopoly on the global spice trade that
would not only rock the world but forever change the course of
modern business history.
• The Company was determined to squeeze everyone else out of
the market.

26
 The Dutch Supremacy in the East

• The Dutch long enjoyed their pre-eminence in the East.

• The Dutch East India Company vested with the power to
wage war and exterminate any who dared stand in their
way, the rest of the world stood by as the unstoppable force
took over the whole of international maritime trade.
• The enterprises of the English and French, their only rivals
in this quarter of globe, were at first but slow and feeble.
• The extensive jurisdiction of the Dutch East India Company
was divided into 5 governments of Java, Amboyna, Ternate,
Ceylon, and Macassar. Their colony at Cape of Good Hope
constituted a 6th government.
27
 History Changing Corporate Innovation
• Concept of ‘forming Company through
shares’ and ‘stock exchange’ are creations
of the Dutch.
• In 1612 the VOC developed the innovative
business model for the corporation of
using ‘joint stock ownership’ by
‘shareholders’ which led to a marketplace,
modern day stock exchange.
• They divided a corporation into ‘shares to
stock’ which means owing fractions of a
company instead of the whole being own
by a person.
• The shares of stock were available to be
purchased by members of the public.

28
 Dutch–Portuguese War, 1602
• The Dutch–Portuguese War started in 1602
due to conflict involved the Dutch East
Indian Company invading Portuguese
colonies in the Americas, Africa, India and
the Far East.
• However, the conflict had little to do with the
war in Europe and served mainly as a way for
the Dutch to gain an overseas empire and
control trade at the cost of the Portuguese.
• The outcome was that Portugal successfully
repelled Dutch attempts to secure Brazil and
Angola while the Dutch were the victors in
the Cape of Good Hope and the East Indies,
with the exception of Macau which the
Portuguese retained, capturing Malacca,
Ceylon, the Malabar Coast and the Moluccas.
29
 Fourth Anglo-Dutch War (1780-1784)
• The ultimate decline of the Dutch East
India Company (is firmly linked to the
rise of the British Empire in Asia. This
assumption is best exemplified by the
Fourth Anglo-Dutch War (1780-1784),
when superior English naval strength
brought all Dutch trade between Europe
and Asia to a complete stand still.
• Without any incoming ship, the Company
was no longer able to fulfill its financial
obligations in Europe and had to ask for
postponement of payment.
• Despite its plight, it refused to surrender.
After the war, trade resumed, but on
shakier footing.
30
 Fall of Dutch East India Company

• The next time war broke out in 1796, is sounded the death knell
of the Company and just before it went bankrupt, the State
intervened.
• Even before 1780 certain symptoms of decline had already been
visible as early as 1736 the Company had been struggling to
finance its Asian trade without running into more structural debt
in Europe.
• Increasing number of short term loans made the Company more
vulnerable resulted in commercial decline of the Company.
• After the financially disastrous Fourth Anglo-Dutch War
(1780–1784), the company was nationalized in 1796, and
finally dissolved in 1799.

31
 The Danish East India Company
• In 1615 two Dutchmen applied to King
of Denmark, Christian-IV for permission
to found an East Indian Company in
Copenhagen.
• In March 1616, the King of Denmark,
Christian-IV, granted the Royal Charter
to Danish East India Company (Ostindisk
Kompagni) for carrying out trade with
South and South-East Asia.
• The aim of the Company was to create an
alternate to English and Dutch trade in
Asia.
• The Company was given monopoly on all
trade with East India, China, and Japan
for 12 Years.

32
 Danish Trade Expeditions to Asia
• Admiral Gjedde Ove [1594-1660] led the
first Danish expedition to Asia in 1618.
• Expectations were high when left the
Copenhagen with a fleet of 5 ships, but the
expedition became an economic failure.
• The second company Danish East India
Company existed between 1670 and 1729.
But in 1730 it was re-founded as
the Asiatic Company (Asiatisk
Kompagni).
• During the years 1618-39 total 18 Ships
were sent off from Copenhagen and
between 1622 and 1637 only 7 of them
returned with cargos, probably of spices
(cloves and pepper).
33
 Danish Settlements in India 1620-1845
• Admiral Gjedde Ove established the 1st
Danish colony at Tharangambadi, India and
constructed Fort Dansborg as the base for
Danish settlement.
• The Danish East India Company held colonial
possessions in India for more than 200 years,
including the town of Tharangambadi (now in
Tamil Nadu), Serampore (now in West
Bengal, and the Nicobar Islands (now
Andaman and Nicobar Islands).
• Danish presence in India was of little
significance to the Dutch, English, and French
as they presented neither a military nor a
mercantile threat.
• The Company was under-capitalized and
never able to dominate or monopolize trade
routes in the same way as the Dutch, English,
and French dominated.
34
 Fall of the Danish East India Company
• Trade connections with Asia were too irregular for the
Danish East India Company to develop into a major
European market for Asia.
• The Company not became serious rivals to the Dutch and
English until 1675 shortly before the Dutch start thinking
about leaving the Burma.
• During the Napoleonic Wars, in 1801 and again in 1807,
the British Navy attacked the Copenhagen. As a result of
last attack, Denmark lost its entire fleet and the island
of Helgoland to Britain.
• Denmark finally sold its remaining settlements in mainland
India in 1845 and the Danish Gold Coast in 1850, both to
the British.

35
 Portuguese New World and Subcontinent

• In 1501 the Portuguese King, Manuel-I sent a

fleet of 13 ships under the command of Pedro
Álvares Cabral, a Portuguese expedition was
the first to bring spices from India to Europe
by way of the Cape of Good Hope.
• Portugal went on to dominate the naval
trading routes through much of the 16th
century.

36
 Portuguese Arrival in India Subcontinent

On May 20, 1498, Vasco da Gama arrived in India and became the first European sailor to
reach India by sea. Upon Da Gama’s arrival, Zamorin, the King of Calicut, returned to
Calicut from his second capital at Ponnani to receive the foreign fleets and Vasco da Gama.

37
 Vasco da Gama: A Hero of Portugal
• The Portuguese Captain, Vasco da Gama,
discovered the sea route to India after 309-day
voyage from Lisbon around the Cape of Good
Hope and returned to Lisbon from Indian in
summer 1499.
• The Portuguese had been the first European
who travelled from Lisbon and arrived in
Indian Subcontinent for a over century before
the English established their first factory at
Surat in 1612.
• The Portuguese's enterprise, courage, superior
ships, and seamanship enabled them to
establish colonies in India with total command
of the seas and monopoly in the spice trade.

38
 The Portuguese East India Company
• In August, 1628 the King of Portugal,
Philip-III, due to his personal union
with Spanish Crown, formed a
national chartered company, the
Portuguese East India Company
(Companhia da Índia Oriental) to look
after Portuguese interests in India due
to growing influence of
Dutch and English.
• The Casa da Índia, a Portuguese state-
run commercial organization,
protected and managed the Portugal's
monopoly on the spice trade.

39
 Unique Strengths of Portuguese
• The Portuguese were the first exporters of ship-borne western
imperialism into Asia.
• The kings of Portugal, a country with a population of a little over a
million in the middle of the 15th century, became rich monarchs, or
rather “merchant capitalists.”
• Muslim traders had dominated that trade, prior to the arrival of the
Portuguese to the Indian Ocean, with monopolistic Venice as their
European intermediary.
• The breaking of this monopoly was one of the principal objectives of
Lisbon’s expansion into Asia.
• Profits reaped from the trade were enormous. For example, Vasco da
Gama returned from his first voyage to India with cargo worth sixty
times the initial capital investment.
40
 Portuguese in India in 16th & 17th Centuries:
Light Green Territories conquered:
(Dark Green Territories are Allies / Under Influence)

41
How Did A Small Kingdom Forged an Empire?

• Question: How did a small kingdom, Portugal, on the edge of Europe become a
global maritime power at the beginning of the 16th century and forged an
Empire in Asia?
• Ans. In the bloody annals of the European conquest of Asia, Portuguese barbarity
stands out. Indeed, it apparently was an essential component of the Portuguese’s
strategy to subdue the local populations. Exemplary terror and wanton violence
were therefore integral to Portuguese expansion and the securing of trading rights in
Asia right from the start of the European conquest.
• A Portuguese explorer, Vasco da Gama, during his second voyage to the India in
1502 attacked a ship carrying 240 Muslim pilgrims including women and children
off the coast of Malabar and despite the vessel surrendering without a fight and the
rich Muslim merchants offering their wealth, Vasco da Gama refused and decided
to burn the ship and everyone on it.
• Hindus and Muslims in India would not forget their heinous deed for
centuries.

42
 Expertise and Strategy of Portuguese
Portuguese general consolidated a revolutionary concept of empire:
• The Portuguese were always aware of how few they were; many their early
contests were against vastly unequal numbers.
• They quickly abandoned the notion of occupying large areas of territory.
Instead, they evolved as a mantra the concept of flexible sea power tied to
the occupation of defendable coastal forts and a network of bases.
Portuguese Supremacy at Sea:
• The Portuguese due to their expertise in fortress building, navigation,
cartography, and gunnery; their naval mobility and ability to coordinate
operations over vast maritime spaces; the tenacity and continuity of their
efforts—an investment over decades in shipbuilding, knowledge
acquisition, and human resources—these facilitated a new form of long-
range seaborne empire, able to control trade and resources across enormous
distances.

43
 Portuguese v. Other European Powers
• The Portuguese’s were engaged in practices of
cruelty, bigotry, avarice, and indulgence led to a
gradual decrease in their power and when other
European powers namely, Britain, France, and
Dutch came into Indian waters, they had no
effective means to stop them.
• The Portuguese tried their best to prevent the
English from gaining a foothold on Indian soil
and intrigued at the Emperor’s court. However,
Jahangir did consent to their establishing a factory
at Surat.

44
 Anglo-Portuguese War, 1612
• The Portuguese have been failed to diplomacy and intrigue, they tried
force and this first Anglo-Portuguese battle took place off the Surat
coast in 1612. In this battle English defeated a much larger Portuguese
force. Ratio was at a 4 to 1 disadvantage.
• In 1614 Captain Downton arrived at Surat and confronted another
strong Portuguese squadron. He had four ships and 600 main against
the Portuguese strength of 6 large galleons, many other smaller ships,
134 guns and 9000 men out of which 2600 were Portuguese. Fight last
for 3 week, the Portuguese force utterly defeated.
• Both these actions were fought in full view and knowledge of the
native inhabitant and the Mughal Governor. They were delighted
and the Governor presented Captain Downton a fine sword wit hilt
of gold. The Emperor Jehangir was extremely delighted.

45
 Fall of Portuguese East India Company
• The Seventeenth century saw the decline of the Portuguese power in
India.
• The Portuguese lacked the ‘political strength’ and ‘personal
character’ necessary to maintain the overseas empire and trade.
• Portuguese were not traders, but “knight-errants and crusaders, who
looked on every pagan as an enemy of Portugal and Christ.”
• By their policy of religious persecution and forcible conversion of
the natives to Christianity, the Portuguese incurred the hostility and
Indian rulers and the people.
• They also roused the hostility of Indian by their clandestine
activities- piracy, robbery, and taking away of people, for selling
them as slaves.
• The Portuguese failed to compete with other Europeans traders who
came in seventeenth century. They also preferred to consolidate their
position in Brazil, the country discovered by them.

46
 French Arrival in the Indian Subcontinent

• The great advantages of trade in India had

conferred on the Portuguese and Dutch also
inspired the French with a desire to participate
in it, and several attempts were made to
acquire a commercial footing in the East
during the first half of the seventeenth century
but without success.

47
 The French East India Company
• In 1664 the French East India
Company was formed by Jean-
Baptiste Colbert under state
patronage during the reign of King
Louis-XIV to trade with India.
• Its first enterprise was directed to the
Island of Madagascar but it was
abandoned due to unhealthiness of
the climate and hostilities of natives.
• In 1668 the Company established its
first factory at Surat.
• In 1669, the Company set-up its
second factory at Masaulipatam.
48
 Dream of Joseph-François Dupleix
• Joseph-François Dupleix, Governor
General of French India and rival of
Robert Clive (first British administrator
of Bengal) arrived in India in 1721 as an
Office of the French East India
Company and 10 years later he was
appointed as Governor of
Chandernagor.
• He wished to make the French East
India Company not only a commercial
but also a territorial power.
• His ultimate dream was to create a
French empire in India to confront
the British imperialism.
49
 French Colonization in India

• The French were a late comer

in India trade, but they quickly
established themselves in India
and were poised to overtake
Britain for control.
• The French had established
two important stations in
India-Chandernagar in Bengal
and Pondicherry on the
Carnatic coast, both governed
by the presidency of
Pondicherry.
50
 Fall of French East India Company

• The French East India Company was a state-controlled

organization, and in this respect it differed from the
chartered companies of merchant capital in England and
Holland in those days.
• The Company witnessed a decline in the first decade of the
18th century.
• In 1719, the Charter of the Company was cancelled and it
was absorbed in the schemes of Law, of Mississippi
notoriety.
• In 1764, the Company brought to bankruptcy by the Seven
Year War, made over its assets to the French King.
51
Swedish Arrival in Indian Subcontinent

• The Swedes had made

several attempts to
engage in formal
overseas trading from
the early seventeenth
century, but there were
also long-established
indirect contact between
Sweden and the East
Indies.
52
 The Swedish East India Company

• In June, 1731, the King of Sweden,

Gustav-II Adolf, granted the Royal
Charter and monopoly to the Swedish
East India Company (Svenska
Ostindiska Companiet-SOIC) for
conducting trade with South Asia,
China, and Far East.
• The Company was formed by Henrik
König in Gothenburg, Sweden.
• The Company was engaged in trading
of goods including tea, porcelain, rice,
furniture, and precious stones and
other distinctive luxury items.

53
 Decline of Swedish East India Company
• The Company during its entire existence from 1731 to 1813, made 132 expeditions, and
using 37 different ships to Asia almost exclusively confined to Guangzhou in China and
also some expeditions to India.
• The Company had between 400 and 800 employees and never more than eight ships
at a time.
• The Company has been called Sweden's most successful business venture ever. But the
sea voyage was longer for the Swedes who come from the North and have to cope with
a more difficult departures.
• During the Fourth Charter [1786–1806] with privileges granted for 15 years, but those
were quite different from the previous charters. Now anyone had the right to trade with
the countries on the other side of Cape if the SOIC had not started the trade by
launching a ship within two years.
• Due to new and strict terms and conditions the investors' trust in the sea-trade broken
and no ships were sent out by the Company.
• On 13 December 1813, shareholders of the Company formally dissolved the Company.

54
Queen Elizabeth-I: The Ultimate Game Changer

“She remembered who she was

and the game changed.”

— Lalah Delia, an writer, author,

and founder Vibrate Higher Daily.

55
 The Making of English East India Company

• In 1600, a group of English merchants, mariners,

explorer, and politician requested the Queen
Elizabeth-I for a Royal Charter for a maritime
trading company that would let them voyage to
India, South East Asia, and China, with
subscribed capital, on behalf of the Crown.
• Some 219 members under the title of “the
Governor and the Company of Merchants of
London Trading into East Indies” put up nearly
70,000 pounds of their own money to finance
the venture.
• Object of the Company was to break the
monopoly of trade of the Dutch East India
Company in Far East Asia, especially
Sumatra and Java.

56
 The English East India Company
• In 1600 the Queen Elizabeth-I of
England granted Royal Charter to
British merchants along with
privateering rites (legal piracy) and a
granted spice monopoly in England
for 15 years to trade in the East
Indies (Southeast Asia) on behalf of
the Crown.
• On 31st December, 1600 the first
English East India Company was
formed as a ‘Joint Stock’ private
entity to open trade with Asia in
jealousy of the Dutch.
57
 Model of English East India Company
• Sir James Lancaster VI Commanded the first English ship sailed for India
and he also established the first English trading post in Southeast Asia.
• In April 1601, in command of the Red Dragon, Lancaster went on the first
trading expedition of the English East India Company.
• The Company was a model of corporate efficiency in its 100 years history.
• During its first 20 years the Company was run from the
home of its Governor, Sir Thomas Smythe, and had only 6 permanent
staff.
• In 1700 the Company operated with only 35 permanent employees in
its small Head Office in London.
• Nevertheless, that skeleton staff executed a corporate coup unparalleled in
history: the military conquest, subjugation, and plunder of vast tracts of
Southern Asia.

58
 Legal Status of Royal Charter
Royal Charter authorized the British
East India Company:
“…to make, ordain and constitute
such and so many reasonable
laws, constitutions, order and
ordinances as to them ... shall
seem necessary... so always that
the said laws, orders, ordinances,
imprisonments, fines, and
amercements (financial
penalty=‫ )جرمانہ کرنا‬be reasonable
and not contrary or repugnant to
the laws, statutes, customs, of this
Our realm.”
Note: In above text “Our Realm” means country
ruled by a Queen or King.

59
Expansion of English East India Company

• The English East Indian Company between 1601 and 1612, organized
the 12 voyages to the East on separate and terminable account.
• The period between 1613 and 1642 witness the operation of three
successive joint stocks.
• In 1637, Charles-I had granted a patent to the so-called Courteen’s
Association to trade to those parts of the East Indies where the
Company had not established a factory.
• The monopoly privileges of the Company were threatened when in July
1698 rival company- usually described as the New English East India
Company received a Charter from the Crown.
• But in April 1702, the two companies agreed to have a joint ‘Board of
Directors’ the final amalgamation coming in 1709 under an award by
the Earl of Godolphin.

60
Mogul Rulers & English East India Company

Representative of the English East India Company set foot on Indian soil during
the reign of 4th Mughal Emperor, Jahangir. He authorized the Company to
establish trading outposts and factories in India.
61
Influence of English East India Company

• The Company established

its first factory in Surat in
1613 with the permission
of the local Mughal
governor.
• Later on, other factories
established in Madras
(1639), Bombay (1668),
and Calcutta (1690), etc.

62
Judicial System of English East India Company

• The English East India Company soon found that its legislative authority was
not enough.
• A Treaty was signed between England and Mogul Emperor in 1618 and the
Company was given the Royals prerogative for empowering the commander-
in-chief of each voyage separately to inflict capital punishment for murder or
mutiny and to:
“to adjudicating and disputes between the English employees of the
Company and other Englishmen.”
• The first reported trial under one such Royal commission was held on the 2nd
February, 1616 on board the ship Charles lying at the Surat seaport, before the
commander of the fleet.
• Gregory Lillington was accused of killing Henry Barton, an Englishman, near
Surat on the Bay of Bengal.
• Gregory confessed to the crime and was put to death.

63
 Battle of Plassey-1757
• Nawab of Bengal, Siraj-ud-daula. total
force consisted of 50,000 army (15,000
cavalry + 35,000 foot soldier, war
elephants, and forty cannons.
• The Company under command of Robert
Clive arranged a force of 3000 army (2000
local + 1000 English) with eight guns.
• The battle ended in about eight hours.
• Nawab’s and his French allied force had
1500 casualties and the Company’s
casualties were fewer than 100.
• If this battle had continued for some time,
then Robert Clive would surely have lost.
But fortune favoured the Company.

64
The Unstoppable: English East India Company

• On 23 June, 1757, Robert Clive won his victory at Battle of

Plessey, not due to superiority of European military
technology or the valour of his forces but also because of
the betrayal of Mir Jafar (Commander-in-Chief of the army)
of Nawab of Bengal, Siraj-ud-daula [1733-1757].
• Battle of Plassey marked the way for British control in India.
• A decisive victory of the East India Company over the Siraj-
ud-daula and his French Allies helped the Company to seize
control of Bengal.
• In 1765 the Company was granted revenue collection as well
as customs of three provinces: Bengal, Bihar, and Orissa.

65
 Tipu Sultan & French Alliance

• The French East India Company and French

troops attempts at supplying aid to regional rulers
opposed to the British as such the Ruler of the
Kingdom of Mysore, Tipu Sultan [1750- 1799], a
bitter enemy of the English, in the 1790s were
relatively ineffective and the storming of the Tipu
Sultan’s capital of Seringapatam by British troops
and the killing of the Tipu Sultan in 1799
effectively meant the end of independent Mysore
and its power was transferred to the Company.
66
Tax Collection Powers of English East India Company

• The Mughal Emperor,

Shah Alam, hands a
scroll to Robert Clive,
the Governor of Bengal,
which transferred tax
collecting rights in
Bengal, Bihar and
Orissa to the English
East India Company.
The Mughal emperor Shah Alam hands a scroll to Robert Clive, the governor of Bengal, which
transferred tax collecting rights in Bengal, Bihar and Orissa to the East India Company.
67
 Robert Clive: Founder of British India
• The founder of British-Indian
Empire, Robert Clive [1725-1774]
was one of the most extraordinary
figures Britain ever produced. At the
age of 31 he conquered the Bengal.
• In his later life the British
Parliament brought him under
painful trial against charges of
corruption and he ended up one of
the most hated men in Britain.
• He died violently under still-
mysterious circumstances just
before his 50th birthday in prison.
68
 Ambition & Strategy of English East India Company

• Despite its less-than-stable

origins, the nascent English
East India Company ran the
gauntlet of competitors from
Portuguese merchants to the
initially more successful Dutch
East India Company, before
confronting the growing
menace of the French East
India Company ‘Compagnie
des Indes’ (established by
Colbert in September, 1664).

69
 Rise of the English East India Company
• Bengal, one of the richest regions in the world, came under the
Company in 1757.
• The Company after the victory of Plassey emerged after a series of
struggles with their French competitors as the most militarily
powerful of the Indian states, by defeating successively the Nawab
Vizier of Awadh and the Mughal Emperor (1764), Tipu Sultan of
Mysore (1799) and the Marathas under Scindhia (1803).
• After 1765, the English deposed their own Nawab and seized
direct control of taxation.
• The East India Company further extended and promoted its
political interests in India, like a powers of sovereign ruler over
the territory under its control.

70
 New Approach of East India Company
• The British East India Company (EIC) was incorporated as joint
stock company through a Royal Charter on December 31, 1600. As
a private company, British East India Company served as one of
the key players in the formation of the British Empire in the Indian
Subcontinent.
• The Company came to India as a mere trader and became through
the tide of events the overlord of two hundred million subjects.
• The shareholders of the Company have become millionaire and
billionaire, being to institute the laws and customs of foreign
people.
• On no other country of the world, has such an unnatural event
taken place.

71
 The Regulating Act, 1773

• In 1773, due to the misgovernment by the East India

Company, the British Parliament passed the Regulating Act
of 1773 to control (territories of the company mainly in
Bengal) and regulate management affairs of the East India
Company in India and Europe.
– In accordance with the provisions of the Regulating
Act of 1773, Warren Hastings became the first
Governor-General.
• It was the first intervention by the British crown in the
company’s affairs and marked the beginning of a takeover
process that was completed in 1858.

72
 Features of The Regulating Act, 1773
• The Act elevated the Governor of Bengal to Governor-General of
Bengal and established an Executive Council of Four Members to assist
the Governor-General.
• Governors of Bombay and Madras presidencies subordinate to the
Governor-General of Bengal.
• The Act established a Supreme Court at Calcutta (1774) with one Chief
Justice and Three other Judges.
• The Supreme Court has powers to try civil, criminal, and admiralty
(shipping) cases.
• The Act provided jurisdiction to supreme judiciary over all British
subjects including the provinces of Bengal, Bihar and Orissa.
• Appeals could be taken from the provincial courts to the Governor-
General-in-Council and from there to King-in-Council.

73
 Map of British Empire in 1786:
Extent of British Territories Shows in Red

74
 Rise of British Power in Subcontinent

• War of Independence against British Rule

in India in started in 1857 in Meerut by Indian troops
(who were in service of the British East India Company)
and it spread to Delhi, Agra, Kanpur, and Lucknow.
• War of Independence against British Rule failed!
• On August 2, 1858 the British Parliament passed the
Government of India Act, 1858 to end the rule of East
India Company and transferred it to British Crown.
• The East India Company was formally dissolved in 1874
by the East India Stock Dividend Redemption Act (1873).

75
 Doctrine of Lapse
• The princely states in India accepted the supremacy of British Crown but the East
India company granted a certain amount of freedom in conducting their internal
matters this is called “Doctrine of Paramountcy.”
• Later on, Lord Dalhousie, Governor-General of India [1848–56], devised formula
of “Doctrine of Lapse” to deal with questions of succession to Hindu Indian states.
• According to Hindu law, an individual or a ruler without natural heirs could adopt a
person who would then have all the personal and political rights of a son. Lord
Dalhousie asserted the paramount power’s right of approving such adoptions and of
acting at discretion in their absence in the case of dependent states.
• In practice this meant the rejection of last-minute adoptions and
British annexation of states without a direct natural or adopted heir, because
Dalhousie believed that Western rule was preferable to Eastern and to be enforced
where possible.
• Annexation in the absence of a natural or adopted heir was enforced in the cases of
Satara (1848), Jaitpur and Sambalpur (1849), Baghat (1850), Chota Udaipur (1852),
Jhansi (1853), and Nagpur (1854).
76
 Two Different Administrative Systems
English East India Company Local Indian Rulers
The East India Company divided the Local Indian Rulers divided the territories
territories into Presidencies. into District, Pargana, Tehsil and Parishad
Governor ruled the administrative units. Zamindar were responsible for units

Governor-General was the Head of State King / Nawab was the Head of State

Introduction of Acts, Regulations, Local Indian Rulers brought no Acts and

Reforms: Reforms but used to rule with through their
1. Regulating Act Farman (King’s decree)
2. Indian Council Acts
3. Montague-Chelmsford Reforms

77
 Indian Mutiny, 1857
• The Revolt of 1857 was the first rebellion against
the English East India Company when the Lord
Charles John Canning, was the Governor General
of India.
• The revolt was started on 10 May, 1857 in
Meerut, later it spread and took a massive form.
• Reason behind revolt was induction of infield
riffles in the army, cartridge of which had fat of
pig. Further, policies used by the British for
territorial annexation (Doctrine of Lapse,
Subsidiary Alliance) also angered the Indian
Rulers.
• Leaders of revolt were: Rani Lakshmibai [Jhansi],
Kunwar Singh [Bihar], Nana Saheb [Kanpur],
Tatia Tope [Kanpur], Begum Hazrat Mahal
[Lucknow], and Bahadur Shah [Delhi]. But there
was a deficiency of central leadership.
• Due to lack of planning, communication gap, and
discipline among the rebels revolt ended on 20
June, 1858.

78
 The Infinite Game
• Business and politics are the
finite games.

• The rules of an infinite game

are changeable.

• Infinite games have no

defined endpoint.

• There are losers and winners

but only Winner Takes It All.

79
 The Winner Takes It All

"The winner takes it all;

The loser has to fall."

– Lyrics from a Song of ABBA,

a Sweden Pop Band, released in
July, 1980.

80
Bahadur Shah Zafar in Military Tribunal

• The last Emperor of the Mughal Dynasty fled

refuge to the tomb of his ancestor, Humanyun,
six miles from Delhi but was captured.
• One 27th January, 1858, Bahadur Shah Zafar,
was convicted based on various charges before
a Military Tribunal consisting of Five
Members (all English) under the Chairmanship
of Major General Panny, and charged him
under Act of XIV 1858 .

81
 Criminal Charges on Bahadur Shah Zafar
In the charge-sheet of his trial, he was referred to as the “Ex-King of Delhi” and was accused
of conspiracy, abetment of murders that tool place from 11 May, 1857 to 1 October, 1857,
and being a traitor against the State and charged framed under Act of XIV 1858 as under:

82
 Trial in Military Tribunal
• The 42 day-long trial of Bahadur Shah Zafar conducted at Military Tribunal established in
historic Red Fort, Delhi (also served as the residence palace of the Bahadur Shah Zafar) and
continued from January 27, 1858 to March 9, 1858.
• The prosecution produced 18 alleged eyewitness, besides 200 documents including various
orders and proclamations purporting to have been issued under the seal/signature of the Last
Mughal Emperor, in particularly with reference to violent events took place on May 11, 1857
at Delhi.
• Bahadur Shah Zafar without any lawyer and undefended by any legal expert faced the
Military Tribunal. He had no knowledge of intricate procedure of British judicial trials. There
was none to advise him on the International Law, or lack of competence, or the territorial
jurisdiction of the colonial Military Tribunal.
• Bahadur Shah Zafar cross-examined none of the eye-witnesses and understood nothing about
the evidence recorded on English. He filed Written Statement, the English translation was of
which was read out by an official of the Military Tribunal.
• Bahadur Shah Zafar played no independent role in Mutiny of 1857. But the defence of a
prisoner under trial is almost always prepared with the object of defeating the prosecution,
and the defence of Bahadur Shah Zafar was no exception.

83
 Judgment of Military Tribunal
• Bahadur Shah Zafar, 82 years old, before Military Tribunal simply stated:
“I had nothing to do with the activities of mutineers. Whatever they did,
was without my knowledge or order. These rebels used to bring papers,
mostly in envelopes, and used the Royal Seal to give them or signed by me
or on my behalf. Mutineers had made me a prisoner and I was completely
under their control and had no option to oppose their actions, something
holding out threat and gestures of intimidation. Whatever, they did, was
without my knowledge or consent.”
• On behalf of the prosecution it was urged that though liable to be hanged, extreme
penalty of death may be withheld, as in terms of his willingness of surrender,
General Wilson, had undertaken to spare his life.
• On March 9, 1858 the Military Tribunal announced a verdict of guilty against
Bahadur Shah Zafar on all accounts and awarded him extreme sentence of “penalty
of death.”
• The judgment of the Military Tribunal was confirmed by Major General Panny,
who sent the same for final approval to the Chief Commissioner of Punjab Sir John
Jowrence.
• Sir John Jowrence had withheld extreme “penalty of death” and awarded a
sentence of “imprisonment for life” to Bahadur Shah Zafar.
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 Trial that Changed History!
• The former Mughal Emperor, Bahadur Shah Zafar, from his statements before
the Military Tribunal seemed mentally and psychologically weak and
demoralized.
• Bahadur Shah Zafar was a prisoner and a victim of defeatist mentality who did
not assert his rights of de jure= ‫ قانونی طور پر‬sovereignty and the vassalage of
the East India Company before the Military Tribunal.
• The Military Tribunal had in the eye of the International Law, had not legal
competence or territorial jurisdiction to try an Emperor of India. Because
Bahadur Shah Zafar was not a citizen owing allegiance to the British
Government.
• The English East India Company, being a commercial entity, carrying on trade in
India, with the express permission of the forefathers of Bahadur Shah Zafar, had
staged a revolt against its benefactor – the Bahadur Shah Zafar, Last Emperor of
Mughal Dynasty.
• Crime does not efface itself by lapse of time!
85
 Game of Thrones (GOT)

“When you play the game of

thrones, you win or you die.
There is no middle ground.”

— Cersei Lannister,
Game of Thrones (Season
1, Episode 7).

86
Bahadur Shah Zafar: A Helpless Emperor
• Following involvement of
last Mughal Emperor,
Bahadur Shah Zafar, in
Mutiny of 1857, the British
Crown deposed him from
power on 27 September,
1857.
• The British Crown exiled
him to Rangoon (now
Yangon) in British-
controlled Burma (now
Myanmar) after convicting
him on multiple charges.
Sad poetry by the Last Emperor of Mughal Dynasty, Bahadur Shah
Zafar [October 24, 1775– November 7, 1862].
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 Reality of the English East India Company

 The English East India Company, a joint-stock company (founded in 1600 and
continued in business until 1873), for carrying sea-trade with the East Indies,
evolved into one of the world’s first capitalistic corporations that changed the World
and shaped the modern multinational corporations.

 During 200 years the Company grew from a loose association of Elizabethan
tradesmen into "the grandest society of merchants in the universe.” It behaved more
like an independent principality as it made treaties, waged wars, and acquired
territories.

 The Company became a vital part of burgeoning British supremacy was intertwined
with the political imperialism of the expanding British Empire.

 The Company, being a commercial enterprise, served as one of the key players in
the formation of the British Empire, and became a non-state global power in its own
right and ultimately founded an empire, the British Raj.
88
 Conclusion
1. Before the 1857 take over by the British Crown, the English East
India Company had done the ground work for the colonization of
the Indian Subcontinent.
2. The common law legal system (of England) has exerted
considerable influence in shaping the legal system in British-India
(now Pakistan, India, and Bangladesh).
3. As a consequence of over a century of British influence and rule in
the Indian Subcontinent, the legal and judicial system of Pakistan,
India, and Bangladesh are based on English Common Law Legal
System and the English language.
4. Pakistan’s legal system is based on the common law legal system
because of the influence of British colonial rule and legal system.

89
Questions & Answers