Judiciary and its role in

Pakistan:
Presentation: Ajab khan
INTRODUCTION:
Introduction:
Pakistan came into being as an independent state in south asia 0n 14
august, 1947.
According to independence act 1947, new state was to be governed as
soon as possible according to British-India act 1935.
British India law was followed with necessary adoption and modification.
Therefore, no vacuum was created in the rule of law, as there occurred no
break in the chain of legal continuity.
As Pakistan has inherited the British-India judicial structure so the pattern
of judicial authority also remained the same
INTRODUCTION:
Structure and role:
Supreme court at the apex of judicial structure.
Which acts as;
Final guardian of the constitution.
Final court of appeal in matters arising out of cases decided by the high court.
Its decisions are binding on all other courts.
The Supreme Court has the explicit power to block the exercise of certain
Presidential reserve powers.
For example:
under Article 58, the President may dismiss the National Assembly (triggering new
elections) but the dismissal is subject to Supreme Court approval.
INTRODUCTION:
Structure and role:
 Next in the graduation are the four high courts in the provinces who exercise general control over
the administration of justice in their respective territorial limits.
 Under the high courts are district and sessions judges and additional district and sessions judges
with jurisdiction in both civil and criminal matters.
 Below the district and session judges, there on the civil side, civil judges of different grades.
 On the criminal side, there are district magistrates, additional district magistrates and other
magistrates exercising various powers.
 In addition, there are several special judges for trying specific types of cases and likewise there
are special courts and tribunals with jurisdiction conferred on them in specified fields only.
 In addition to the regular courts, several special tribunals have also been established to deal with
specified matters such as the income tax tribunal, labor courts, banking courts, the family courts,
the rent tribunal etc.
 Whose powers and jurisdiction are specified in the statutes(a written law passed by a legislative
body.) creating them.
Introduction:
Structure and role:
Although these courts and tribunals are not subordinate to the provincial high
courts, their decisions are amenable(open and responsive to suggestion.)to
correction by the high courts in exercise of its constitutional jurisdiction. When
ever these or tribunals are found to contravene(fail to comply with) the law under
which they are acting, or exceed their jurisdiction.
Similarly the decisions of service tribunals established to deal with cases relating
to the terms and conditions of persons in the service of Pakistan, can be brought
of examination before the supreme court which may grant leave of appeal against
their decisions if the cases involve a substantial question of law of public
importance.
Again, the decisions of the federal sharia court which has been established to
examine and decide the question of law is repugnant to the injunctions of Islam
as laid down in the holy Quran and Sunnah of the prophet can also be made the
subject matter of an appeal.
Introduction:
Any decision whether of an ordinary or special court or tribunals can
be taken for scrutiny(critical observation or examination.) to the apex
supreme court.
Which could be done;
Process of appeal and revision before the normal courts in the
ordinary way.
Exercise of the extra ordinary constitutional jurisdiction of the high
courts where the decision has been given by a special court or
tribunals.
Ordinary courts:
Ordinary courts: Proceedings in civil matters.
 i.e. disputes between citizens and/or businesses (for instance, problems with rent, a
service contract or a divorce, etc.); these courts are often referred to as "civil courts".
constitution and jurisdiction of civil courts:
The system of civil courts was established in the province under the west Pakistan civil
courts ordinance, 1962.
Provinces have been divided into civil districts and the limits and headquarters of each
district are fixed by the provincial government.
In each province, besides the courts of small causes, the civil courts of different grades
are divided as under:
I. The courts of the district judges.
II. The courts of the additional district judges.
III. The courts of the civil judges.
Ordinary courts:
Court of the district judge is subordinate to the high court.
similarly every civil court of a grade inferior to that of the district judges' court
and every court of small causes is subordinate to the high court and the district
court.
The internal organization of the subordinate civil courts regulated by the
provisions of local and special laws.
The following essential provisions of the code of civil procedure which embody
the law in accordance with which all civil courts are required to proceed in the
trial of suits or other proceedings before them merit notice;
 No court shall have jurisdiction to try any suit( The term refers to any proceeding
by a party or parties against another in a court of law.) unless it is of a civil nature.
 No court shall entertain any suit the amount or value of the subject matter of
which exceeds the pecuniary limits of its jurisdiction. A provincial small causes
court can not entertain a suit in, which, the amount claimed exceeds PRs. 5000/-.
Ordinary courts: its jurisdiction.
 No court shall entertain any suit which as regards the subject matter there of, has been excepted
form its cognizance. Thus a provincial small cause court can not entertain a suit for recovery of
immovable property.
 Every suit shall be instituted in the court of the lowest grade competent to try it. The object of
this rule of procedure is to reduce the institution of cases in the courts of higher grades.
 The lowest grade of civil court is that of a civil judge of the third class with jurisdiction to try suits
the value of the subject matter of which does not exceed PRs. 20,000.
 The civil judge of the second class is empowered to try all suits of which the value does not
exceed PRs. 50,000 while the court of the civil judge of the first class has jurisdiction to entertain
original civil suit without limit as regard their valuation.
 In each district there is a court of a district judge which is the highest court in the district with no
limit to its pecuniary jurisdiction. The district judge is empowered to direct that any civil business
cognizable by his court and the courts under his control, shall be distributed among such courts
within the limit of their jurisdiction in such manner as he may think fit.
Ordinary courts: its jurisdiction.
The high court may by notification confer additional powers on civil
courts. Besides the civil judges have been invested with the powers of a
controller the Sindh urban rent restriction ordinance, 1959 and of
family courts Act, 1964.
The district court alone has appellate jurisdiction to entertain appeals
from the decree or order of a district judge or an additional district
judge lies to the high court.
An appeal from the decree or order passed by a civil judge lies to the
district judge if the value of the original suit does not exceed PRs.
50,000. in any other case an appeal from the decree or order of a civil
judge lies to the high court.
Criminal courts: their constitution and
jurisdiction.
The criminal law in Pakistan is mostly codified in Pakistan penal code, 1860, and the code of criminal
procedure, 1898.
The penal code is the substantive law of which the code of criminal procedure furnishes the adjective law to
put in force its provisions.
The main object of the code of criminal procedure is to supplement the penal code by rules of procedure for
preventing the commission of offenses and punishing offenders.
The provinces in Pakistan consist of several session divisions.
Every session division consists of a district or of a group of districts.
The provincial government is how ever empowered to later the limits or the number of such divisions and
districts and may divides any district into sub-divisions or alter the limits of any subdivision.
For the administration of criminal justice, the subordinate criminal courts have been classed as under:
Courts of sessions.
Magistrate of first class.
Magistrates third and second class.
Each class of court is distinct and different from the other.
Court of sessions:
Every session division has a court of sessions presided over by a session
judge.
Additional session judges and assistant session judges are also appointed in
such numbers as may be considered necessary for the disposal of work in a
session division.
The session judge of one sessions division may be appointed additional judge
of another session division.
The additional session judge had the same powers as a session division.
The additional session judge had the same power as a session judge but an
assistant session judge is subordinate to the sessions judge.
The session judge may distribute and transfer the work of the session
division among the additional sessions judges and assistant sessions judge.
District magistrate:
Besides the district magistrates and additional district magistrates, the provincial
government may appoint as many magistrates of the first, second or third class in; a
district as may be considered fit and necessary.
The provincial government or subject to its control, the district magistrate , may
define the areas within which these other magistrates are to exercise their
jurisdiction and powers.
If the jurisdiction of a magistrate is restricted to a define area, he can not take
cognizance of a case out side such area.
But if such local limits are not prescribe, his powers extend throughout the district.
The provincial government may also put any magistrate of the first or second class
in; charge of a subdivision.
Such magistrates are called sub divisional magistrates. The government may
delegate this powers to the district magistrate.
District magistrates:
In every district there is a magistrate of the first class appointed as the
district magistrate.
Any magistrate of the first class may also be appointed as an additional
district magistrate he be exercises the powers of the district magistrate,
but the district magistrate alone has the powers transfer cases from his
own court to that of any magistrate and for recalling any case from the
court of a subordinate magistrate to his own court.
The district magistrate is responsible for maintaining law and order in
the district. He exercises general control over the police force and it is
his duty to supervise the judicial work of the magistrate in the district.
Powers and jurisdiction of criminal courts:
For the purpose of taking cognizance of different offenses, and passing sentences upon offenders, the code of
criminal procedure has divided offenses into two classes:
 Offences under the Pakistan penal code.
 Offences under any other law.
Any offence under the penal code may be tried by the high court or the court of sessions or any other court
specified for the purpose in the code of criminal procedure.
An offence under any other law may be tried by the court specified in such law, and if no such court is
mentioned, these may be tried by the high court or such court as is specified for the purpose in the code of
criminal procedure.
From this state of the law, it follows that the high court and the court of sessions have concurrent jurisdiction
with the subordinate courts over offences triable by the latter courts.
But a magistrate has only such jurisdiction to try offences as is specified in the code. In this connection one
special case has to be noticed. Under section 30 of the code of criminal procedure the provincial government
may invest the district magistrate of the first class with power to try all offences not punishable with death.
Such magistrates are called section 30 magistrates and may pass any sentence authorized by law, except a
sentence of death or of imprisonment; for life or for a term exceeding seven years.
High courts: Appointing its judges.
Appointment procedure for high court judges is changed after 18th and 19th amendment.
they are appointed by the Judicial Commission and Parliamentary Committee.
Judicial commission: Chairman(Chief Justice of Pakistan), who appoint 4 most senior judges of the Supreme Court + 1 former
Chief Justice/ Retired judge of the Supreme Court.
Chairman takes consultation from 4 member judges of Supreme Court (Attorney General for Pakistan + Federal Minister for
Law & Justice, Chief Justice and most senior judge of the High Court.
They are appointed by provincial Minister for Law and an Advocate, (of fifteen years standing) who are nominated by
respective provincial Bar Council, as members.
Appointment of Chief Justice requirement: most senior judge of the High Court, as member of the Commission is excluded.
As Judicial Commission approves new name for appointment of High Court judge.
It goes to an 8-member Parliamentary Committee that has equal representation of the Government and the Opposition as
well as of two houses i.e. National Assembly and Senate.
This Committee has two weeks to review the recommendation.
If the recommendation is approved, it goes to the Prime Minister who forwards the same to the President for appointment.
The Parliamentary Committee, for reasons to be recorded, may not confirm the recommendation by three-fourth majority; in
which instance, the decision is forwarded to the Judicial Commission through the Prime Minister, and the Commission is then
required to send another nomination.
High courts: its powers.
High courts derive their powers and jurisdiction from several sources;
The constitution.
The codes of criminal procedure and civil procedure.
various other statutes.
The constitution also specifies the appellate and writ jurisdiction of the high courts.
The constitution of 1956 not only continued the jurisdiction by empowering the high
courts to enforce writs of various natures such as habeas-corpus, Mandamus, prohibition,
quo-warranto and Certiorari or any of them but amplified it by empowering it to enforce
any of the fundamental rights conferred by the said constitutions of 1962 and 1973
dropped the words “for any other purpose.”
Presently the high courts drive their powers and jurisdiction from the provincial
constitution order 1981 under which they have the jurisdiction to issue orders in nature
of the writs mentioned above.
The conferment of the power to issue writs in the high courts has brought about a
remarkable reform in the matter of judicial control of administrative and executive
tribunals and other officials invested with power to affect the life, liberty, and property of
the citizens.
High courts:
Jurisdiction:
High Court has the Constitutional, Supervisory and the Civil Original Jurisdiction :
High Court is conferred with a vast, comprehensive and effective jurisdiction under the Constitution. Subject to law and the
constitution, and where no other adequate remedy is provided by law, the High Court in its constitutional jurisdiction, inter-alia, may
make an order.
Directing a person performing, within the territorial jurisdiction of the court (functioning in connection with the affairs of the
Federation, province or a local authority to refrain from doing anything he is not permitted by law to do, or to do anything he is
required by law to do
Declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in
connection with the affairs of the Federation, province or a local authority has been done or taken without lawful authority and is of
No. legal effect:
Directing that a person in custody within the territorial jurisdiction of the Court may be brought before it so that the court may satisfy
itself that he is not being held in custody without lawful authority or in an unlawful manner
require a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what
authority of law he claims to hold that office
Further, the High Court may make an order giving directions as may be appropriate, to any person or authority, including any
Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of the Court for
the enforcement of any of the Fundamental Rights conferred by the Constitution.
High courts:
Supervisory Jurisdiction:
High Court exercises two types of supervisory jurisdictions i.e. the Judicial and the Administrative.
High Court supervises and control all courts subordinate to it.
Such judicial superintendence is carried out by way of entertaining and hearing Appeals and Revisions against
the orders/judgments of the courts subordinate to High Court.
Whereas in its Administrative supervisory jurisdiction the High Court inter-alia ;
Monitors to ensure smooth and effective functioning of the courts subordinate to it.
Recruit and post the judicial officers , for the courts subordinate to it.
Frame rules for standardized procedure and process for effective functioning of subordinate courts
Issues general instructions and caries out inspection of subordinate civil and criminal courts.
Disciplinary action including departmental enquiry.
ACR(Administrative Case Review).
Complaints against Judicial officers.
High courts: use of writs.
A writ of prohibition can be issued against a person/body politics or corporate performing
within the territorial jurisdiction of the court, functions in connection with affairs of the
federations, a province or a local authority, directing him to refrain from doing anything he
is not permitted by law to do.
Similarly, a writ of mandamus can be issued by the court against such a person/body
politics or corporate directing him to do any thing he is required by law to do.
A writ of certiorary can be issued by the high court for declaring in appropriate case, that
any act done or proceeding taken with appropriate case, that any act done or proceeding
taken within the territorial jurisdiction of the court by a person performing functions in
connection with the affairs of the federation.
A province or local authority has been done or taken with out lawful authority and is of no
legal effect.
Similarly a writ of habeas-corpus can be issued by the high court in order to ensure that no
body is detained without lawful authority or in un lawful manner.
High courts: some terminologies.
appellate: concerned with applications for decisions to be reversed.
Writ: form of written command in the name of a court or other legal authority to act or abstain from acting in a
particular way.
statutes: written law passed by a legislative body.
Habeas-corpus: writ requiring a person under arrest to be brought before a judge or into court, especially to
secure the person's release unless lawful grounds are shown for their detention.
Mandamus: Judicial writ issued as a command to an inferior court or ordering a person to perform a public or
statutory duty.
quo-warranto: Prerogative writ requiring the person to whom it is directed to show what authority they have
for exercising some right or power (or "franchise") they claim to hold.
Certiorari: writ or order by which a higher court reviews a case tried in a lower court.
Tribunals: body established to settle certain types of dispute
Code of criminal procedure:
Administrative tribunals:
Executive tribunals:
Supreme court of Pakistan:
The constitution places the supreme court at the apex of the judicial system of Pakistan it is
a court of ultimate appeal in matters civil sand criminal and has ordinal jurisdiction not
only in capacity as the final arbiter of any dispute which might arise among the four
federating provinces of Pakistan but also in its capacity as the guardian of the constitution.
The law declared by the supreme court is binding on all courts in Pakistan and all the
executive and judicial authorities throughout Pakistan are directed to act in its aid.
The chief justice and judges of the supreme court are appointed by president from
amongst persons possessing the necessary qualification prescribed by constitution, that is
having been an advocate for not less than 5 years. The retiring age is 65 years. Being a
superior court of record, it has also inherent powers and jurisdiction of such a court in
addition to those specified by the constitution such as the power to punish for its own
contempt and the power to make its own rules of procedure. The original jurisdiction
empowers it to hears and determine dispute between the four provincial governments and
the central government.
Supreme court of Pakistan:
Under its advisory jurisdiction, the court may give its opinion on a
reference made of it by the president on a question of law in its
appellate capacity it hears and determined appeals against judgments
delivered by the four provincial high courts, the federal sharia courts
and the service tribunals, subject to its being persuaded to grant leave
to appeal against judgments of the said courts or tribunals that are
impugned before it.
Appointment of judges of supreme court of
Pakistan:
The Supreme Court is at the apex of the judicial systems of Pakistan.
A person with five years experience as a Judge of High Court or 15 years experience as advocate of High Court is eligible to be appointed as a Judge of the
Supreme Court.
The Chief Justice of Pakistan and each of other judges of the Supreme Court shall be appointed by the President in accordance with Article 175A, inserted
through 18th and 19th Constitutional amendments.
These Constitutional amendments have devised a new scheme for appointment of Judges of;
 Supreme Court.
 Federal Sharia Court.
 High Courts.
These Constitutional amendments provide for the constitution of Judicial Commission of Pakistan and Parliamentary Committee.
The Judicial Commission of Pakistan: Chairman(Chief Justice of Pakistan), 4 most senior judges of the Supreme Court, 1 former Chief Justice or judge of
the Supreme Court nominated by the Chairman in consultation with four member judges for a period of two years, the Attorney General for Pakistan, the
Federal Law Minister and a senior advocate of Supreme Court of Pakistan nominated by the Pakistan Bar Council.
Similarly,
The Parliamentary Committee consists of eight members with equal membership from the Treasury and Opposition Benches as well as of two Houses i.e.
National Assembly and Senate. The nomination of the members from the Treasury Benches shall be made by the Leader of the House and from
Opposition Benches by the Leader of the Opposition, provided that when the National Assembly is dissolved, the total membership of the Parliamentary
Committee shall consist of the members from the Senate only.
Appointment of judges of supreme court of
Pakistan:
The Judicial Commission of Pakistan shall nominate a name for the
appointment as judge of Supreme Court in majority after evaluating
professional competency and antecedents.
The recommendations of the Judicial Commission are sent to the
Parliamentary Committee. The Committee after receipt of nomination from
the Commission may confirm the nominee by majority of its total
membership within fourteen days, failing which the nomination shall be
deemed to have been confirmed. However, the Committee may not confirm
the nomination for reasons to be recorded, by three-fourth majority within
said period and forward it to the Commission through Prime Minister and in
such case the Commission shall send another nomination. The Committee
shall send the name of the nominee confirmed by it or deemed to have been
confirmed to the Prime Minister who shall forward the same to the President
for appointment.
INDEPENDENCCE OF JUDICIARY:
The position of the judge and the independence of the judiciary are the most
important aspects in the administration of justice.
No matter how excellent the procedure for the dispensation of justice by the
courts, unless the judge presiding over it is in a position to act independently
and impartially ,no proper dispensation of justice is possible.
The principle means of securing this objective are by ensuring security of
tenure for the judge and otherwise making them independent of
government agencies.
Fortunately, successive constitutions which had been promulgated from time
to time have contained important provisions for ensuring security of tenure
for the judges of the superior courts and for making them independent of
the control of other agencies.
INDEPENDENCCE OF JUDICIARY:
Thus, after a judge has been appointed as such by the president, no further
link remains between him and the executive in , relation to the discharge of
his judicial duties.
He holds office up to the retiring age of 65 0r 62 years as a supreme court or
high court judge, as the case may be during the tenure of his office, the
terms and conditions of his service cannot be altered to his detriment.
He cannot be transferred to another high court without his own consist,
except where it is for a period not exceeding one year.
The judge of the supreme court are not government or civil servants in the
ordinary sense but held positions under the constitution and there salaries
are drawn on the consolidated fund of the federation as the case may be.
INDEPENDENCCE OF JUDICIARY:
A judge can not be removed from his office except on the recommendation of supreme
judicial council which comprises the chief justice of Pakistan ,the two most senior judges of
the high courts.
The recommendation for removal of a judge from office can only be made on grounds
misconduct or physical or mental illness which may incapacitate him from discharging his
judicial functions.
A Judge of the supreme court or of a high court can not hold any office of profit before the
expiration of 2 years after he has ceased to be such a judge for the office which are
specified in the constitution itself . similarly a person who has been a permanent judge of
the supreme court cannot plead or act in any court or before any authority in Pakistan ,in
the same way a person who has been a permanent judge of a high court is also barred
from practice before the high court of which had been a judge of any court or authority
which was its jurisdiction. These provinces are to discharge any possible future allurement
to the judges and add further strength to the other provinces aimed at preserving the
independence of the judiciary.
SEPERATION OF THE JUDICIARY FROM THE
EXECUTIVE:
The framers of the constitutions of Pakistan has also a large body of public
opinion in the country ,has consistently made efforts for a judiciary
completely independent from the executive . Provision were made either as
a directive principle of state policy as in 1962 constitution or as an operative
provision as in the 1956 and 1973bconstitution for the separation of the
judiciary from the executive in the shortest from possible time. The
magistrates who are empowered to try cases on the criminal side and also
to exercise executive districts or civil judges have any connection with the
executive .According the direction of the supreme court of Pakistan ,the
process has been started to make judiciary independent from the Executive
and separation has been made possible within the framework of the
constitution.
SHARIA AND SHARIA COURT:
Hudood laws: in pursuance of the islamization of the laws a step was taken on February
10, 1979 when five ordinances were promulgated by the president of Pakistan amending
the existing penal code of Pakistan.
under these ordinances both the conceptual nature of the acts which were considered to
be offence under the said penal code as well as the quantum of punishment and
prescribed their in, affecting the property of persons and the moral and social order of
society were radically altered with a view to bringing the laws on these questions in
conformity with the holy Quran and Sunnah.
The Islamic penal laws are based on two notions of crime that is, hadd and tazir.
By hadd is meant penalty or punishment fixed by the Quran for an offence where as by
tazir is meant penalty or punishment fixed by the state.
Traditional Islamic criminal law consists of both huddod and tazirat. In Pakistan steps were
taken to Islamize the penal code by repealing the existing provisions relating to the
offences of theft, robbery, dacoity, and ebduction, rape, fornication, adultery, false
accusation of adultery, drunkenness etc, and replacing them by huddod and tazirat laws.
Islamization of laws:
The council of Islamic ideology has examined some 228 laws of the Pakistan
penal code as also several other acts with a view to ascertaining whether the
provisions of the laws conflict with the injunctions of Islam.
The federal sharia court exercising the powers newly conferred upon it to
under take the scrutiny of existing law, has examined a large number of laws
starting from the laws contained in the Pakistan penal code with a view to
ascertaining whether and to what extent these laws are repugnant to the
injection of Islam.
The council of Islamic ideology has proposed several laws in connection with
the islamization of existing laws, some of which have already been adopted
with certain amendments by the assembly.
Federal sharia court:
The president of Pakistan while promulgating the huddod laws also promulgated on the same day, a constitution order, 1979 to take
effect on February, 1979.
According this order, sharia benches were constituted in the country, that is, each high court was to have a sharia bench while an
appellate sharia bench was to be constituted in the supreme court at Rawalpindi, Islamabad.
The sharia benches were empowered to strike down existing as well as future laws, with the exception of the constitution, muslim
personal law, any law relating of the procedure of any court or tribunal or until the expiration of three years from the commencement
of the constitution order, 1979, any fiscal law or any law relating to the collection of taxes and fees or banking or insurance practice
and procedure, if they were repugnant to the injunctions of Islam.
While doing so the sharia benches, apart from declaring any existing or future law, law to be Islamic or unislamic could also suggest
how best the law declared to be unislamic could be reshaped in order to bring it in conformity with the relevant injunctions of Islam
and Sunnah for implementation by the government.
On may 27, 1980, the four sharia benches constituted in the high courts were replaced but establishing a federal sharia court judges
and three Ulema well-versed in Islamic law.
The federal sharia court could examine and decide the question whether or not any law or provision of law was repugnant to hearing
appeals or revisions against the decision passed by any criminal court in relation to any law relating to the enforcement of haddod. It
is provided that the law declared by the federal sharia court will be binding on the high courts and the courts subordinate to them.
Federal sharia court:
Federal sharia court:
Federal sharia court: