Judiciary of Pakistan

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The judiciary of Pakistan (Urdu: پاکستان کی عدلیہ‎) is a hierarchical system with two classes of courts: the superior (or higher) judiciary and the subordinate (or lower) judiciary. The superior judiciary is composed of the Supreme Court of Pakistan, the Federal Shariat Court and five High Courts, with the Supreme Court at the apex. There is a High Court for each of the four provinces as well as a High Court for the Islamabad Capital Territory. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution.^[1] Neither the Supreme Court nor a High Court may exercise jurisdiction in relation to Tribal Areas, except otherwise ^[2] provided for.^[3] The disputed regions of Azad Kashmir and Gilgit–Baltistan have separate court systems.^[4][5]

^[6] Besides Supreme Court of Pakistan, there are areas that are not constitutional parts of Pakistan till now. They are Gilgit Baltistan and AJK. As per constitution of Pakistan, these both areas are not a part of Pakistan, rather they are being governed by Government of Pakistan on interim basis. Though Gilgit Baltistan declared its independence from Dogra/Maharaja Kashmir on 1 November 1948, that is said to be the independence day of Gilgit Baltistan. Likewise, the authority of Constitution of Pakistan is not held there, though through Presidential ordinances, and PM packages, they are governed and given an interim authority delegated by Federal Government of Pakistan.

As the Supreme Court of Pakistan doesn't have jurisdiction over Gilgit Baltistan, thus another form of APEX Court named Supreme Appellate Court for Gilgit Baltistan has been introduced, with designated powers as that of Supreme Court of Pakistan.

The subordinate judiciary consists of civil and criminal district courts, and numerous specialized courts covering banking, insurance, customs and excise, smuggling, drugs, terrorism, taxation, the environment, consumer protection, and corruption. The criminal courts were created under the Criminal Procedure Code 1898 and the civil courts were established by the West Pakistan Civil Court Ordinance 1962. There are also revenue courts that operate under the West Pakistan Land Revenue Act 1967. The government may also set up administrative courts and tribunals for exercising exclusive jurisdiction in specific matters.^[1]

As of 2017, Pakistan's judiciary is suffering from a backlog of two million cases, with lawsuits taking an average of nearly ten years to resolve.^[7] According to some estimates, 90% of civil cases involve land disputes, owing to Pakistan's lack of a proper land register.^[7]

Superior judiciary[]

Supreme Court of Pakistan[]

The Supreme Court (KAS), established in 1956,^[8] is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The court consists of a Chief Justice and sixteen other judges. There is also provision for appointment of acting judges as well as ad hoc judges in the court. It has a permanent seat in Islamabad as well as branch registries in Lahore, Peshawar, Quetta and Karachi.

It has a number of de jure powers which are outlined in the constitution, including appellate and constitutional jurisdiction, and suo moto power to try human rights matters. Through several periods of military rule and constitutional suspensions, the court has also established itself as a de facto check on military power. The Supreme Court Judges are supervised by the Supreme Judicial Council.^[1]

Federal Shariat Court of Pakistan[]

The Federal Shariat Court of Pakistan was established in 1980 to scrutinize all Pakistani laws and determine if they conform to Islamic values "as laid down in the Quran and the Sunnah".^[9] If a law is found to be 'repugnant', the Court notifies the relevant government, specifying the reasons for its decision. The court also has appellate jurisdiction over penalties (hudud) arising under Islamic law, although these decisions can be reviewed by the Shariat Appellate Bench of the Supreme Court. The decisions of the court are binding on the high courts as well as the subordinate judiciary. The court appoints its own staff and frames its own rules of procedure.

The court consists of eight Muslim judges, appointed by the President of Pakistan, on the advice of a judicial committee of the chief justices of the Supreme Court and the Federal Shariat Court. The committee chooses from amongst serving or retired judges of the Supreme Court or the high courts or from amongst persons possessing the qualifications of judges of a high court. Of the eight judges, three are required to be Islamic Scholars/Ulema well versed in Islamic law. The judges serve terms of three years, subject to extension by the President. The current Chief Justice of the Federal Shariat Court is .

High courts[]

Lahore High Court

Sindh High Court

A Corner View of the Balochistan High Court Building, Quetta, Pakistan

There is a high court for the Islamabad Capital Territory and four provincial high courts. A high court is the principal court of its province.^[1]

• Lahore High Court, Lahore, Punjab^[10]
• Sindh High Court, Karachi, Sindh^[11]
• Peshawar High Court, Peshawar, Khyber Pakhtunkhwa^[12]
• Balochistan High Court, Quetta, Baluchistan^[13]
• Islamabad High Court, Islamabad, ICT^[14]

Subordinate judiciary[]

District judiciary[]

District judiciary or district courts exist in every district of each province, and have civil and criminal jurisdiction ordinarily governed by Civil Procedure Code,1908 for civil cases and by Code of Criminal Procedure in criminal cases. The administrative head of district judiciary is the 'district and sessions judge'. In each district headquarters, there are a number of courts of additional district and sessions judges having same judicial powers like the court of district and sessions judge, including trial for offences shown in schedule II of Code of Criminal Procedure as exclusively triable by the Court of Session i.e. Qatl e Amd (culpable homicide), rape, defamation dacoity etc. These courts have also jurisdiction to try cases under the Hudood Laws of Pakistan, certain offences under Control of Narcotic Substances Act etc. These courts also work as ex officio Justice of Peace to entertain complaints against police officials. In civil jurisdiction these courts entertain the matters under Succession Act, Insolvency Act, suits for government, summary suits pertaining to negotiable instruments etc. These Courts are also civil appellate and criminal appellate courts. Civil and Family Appeals and Civil Revisions against the Judgements and orders of courts of senior civil judges, civil judges, rent controllers, and family courts are entertained by the court of district judge which transfers the same to additional district judges as well. All convictions awarded by judicial magistrates and convictions up to four years awarded by courts of assistant sessions judges or magistrates especially empowered under section 30 Cr.P.C. are appealable to a court of sessions judge which also transfer the criminal Appeals and criminal revisions to Additional Sessions Judges.

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

Court usually starts early in the morning, with the hearing of pre-arrest bail applications, followed by post-arrest bail applications and civil appeals from the orders of the judicial magistrates' courts and civil judges. Decisions are usually announced later in the day, once the judge has had time to peruse the case files after the hearings. The rest of the day is allocated for the recording of the evidence in sessions cases such as in offences murder, rape and robbery etc. Cases are usually allotted by administrative orders of district and sessions judges. The court of the district and sessions judge usually hears administrative applications against lower courts orders.

Civil judge cum judicial magistrates' courts[]

In every town and city, there are numerous civil and judicial magistrates' courts. Normally in capacity of judicial magistrate these courts have the powers to try all offences other than those which are specifically triable by Court of Session but maximum limit for awarding sentence of improvement is not more than three years. However a judicial magistrate having special powers under section 30 of Code of Criminal Procedure can award all punishments except capital punishment. In civil capacity in the province of Sindh and Balochistan as a civil judge these courts have jurisdiction to entertain the claims of third-class suits having a pecuniary limit up to fifty thousand rupees. In other provinces civil judges have jurisdiction to entertain first- and second-class suits. Judicial magistrates possesses territorial jurisdiction police station wise as per notification issued by the Court of Session Judge. In magisterial functions judicial magistrates record statements on oath of witness, Judicial confession of accused, holds identification test parades, inquest proceedings of the prisoners. This court takes first cognizance of all offences of local laws, disposes of unclaimed properties or the movable properties suspected to be stolen.

Special tribunals and boards[]

There are numerous special tribunals such as;

• Banking courts
• Criminal courts
• Custom courts
• Drug courts
• Federal Services Tribunal
• Provincial services tribunals (one for each province)
• Income tax tribunals
• Accountability courts
• Anti-terrorism courts
• Labour courts
• Labour Appellate Tribunal
• Environmental courts
• Board of Revenue
• Special magistrate courts
• Control of Narcotic Substances (special courts)
• Consumer courts -
• Intellectual Property Tribunal
• Foreign Exchange Appellate Board

Almost all judges of above-mentioned courts and tribunals except for consumer courts are district and sessions judges or of having same qualifications. Besides, there exist revenue courts, operating under the West Pakistan Land Revenue Act 1967. The revenue courts may be classified as the Board of Revenue, the Commissioner, the Collector, the Assistant Collector of the First Grade and Second Grade. The provincial government that exercise administrative control over them appoints such officers. Law prescribes their powers and functions.

Family courts[]

The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. As per schedule in the Act of 1964 family courts entertains the disputes of dissolution of marriage, recovery of maintenance of wives and minors, dower, dowery articles, guardian and wards disputes ie custody of minors, recovery of bridal gifts etc. All final decisions are appealable before the court of district judge while interim orders are not appealable but are challenged before high court through the constitutional jurisdiction.

Juvenile courts[]

The parliament has passed the Juvenile Justice System Act 2018. The law is applicable to the whole of Pakistan. It has repealed the Juvenile Justice System Ordinance 2000.

Section 4 of the JJSO authorizes the Provincial Government to establish one or more juvenile courts for any local area within its jurisdiction, in consultation with the chief justice of the high court.

Jurisdiction of juvenile courts was conferred to sessions judges and judicial magistrates in accordance with their original jurisdiction under Code of Criminal Procedure. Juvenile Justice System Act provides that every person below the age of 8 years is juvenile. The conclusive proof of age is . The law warrants separate of the juvenile providing all privileges to the juvenile accused as per the Act of 2018.

Appointments of Judges[]

Supreme Court of Pakistan[]

Prior to 18th Constitutional Amendments, appointments to the Supreme Court of Pakistan were made by the President of Pakistan, on the recommendation of the Chief Justice of the Supreme Court. This system bred many allegations of favoritism. Many judges who were appointed were relatives of other Judges or Government officials. However, following the Supreme Court's judgement in the Al-Jehad Trust case, the government's role in judicial appointments was curtailed. Under the terms of this judgement, the Government and the President's office were bound to act on the recommendations of the Chief Justice of Pakistan.

After passage of the 18th and 19th Constitutional Amendments, a new Judicial Commission (named Judicial Commission of Pakistan) and Parliamentary Committee were established for appointments. The Judicial Commission of Pakistan consists of a total of nine members: the Chief Justice of Pakistan, four senior judges of the Supreme Court, a former Chief Justice or judge of the Supreme Court nominated by the serving Chief Justice in consultation with the four serving judges of the Supreme Court aforementioned, the Attorney General of Pakistan, the Federal Minister for Law and Justice and, one senior advocate nominated by the Pakistan Bar Council. The Parliamentary Committee confirms or may not confirm the nominee of the Judicial Commission. All power of executive was curtailed by the judicial commission and president has no discretionary power but only to approve the nominees. Prime minister has only ministerial power regarding the appointment procedure.

High Courts[]

In Appointments to the High Courts, the same procedure as in Supreme Courts appointments is adopted Prior to 18th Constitutional Amendment, High Court appointments suffered much the same criticisms as those to the Supreme Court. Future appointments will be made in the same manner as those to the Supreme Court. But instead of 4 supreme court judges, 4 most senior high court judges, provincial law minister and a member of provincial bar councils (such as Punjab Bar Council) will sit the Judicial Commission of Pakistan considering the appointment of high court judges. The age limit for the high court judge is minimum 45 years. There is no merit system for selection of Judges to higher Judiciary. Judges of the Judicial Service are generally ignored during the selection while influential Lawyers who have political support from Political Parties and Bars make it to the higher Judiciary.

District & Sessions Judges[]

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

Civil Judge Cum Judicial Magistrate[]

Civil Judge Cum Judicial Magistrates are also appointed by the Provincial High Courts, on the recommendation of provincial Public Service Commissions. These Commissions hold open competitive exams annually, which are advertised in national newspapers. The basic qualifications required are an LL.B from any recognized university, and two years' experience as an advocate in the jurisdiction in question. The exams include various compulsory papers. For example, the Punjab Public Service Commission sets compulsory papers on English Language & Essay, Urdu Language & Essay, Islamic Studies, Pakistan Studies, General Knowledge (objective test), Criminal Law, Civil Law 1 & 2, and General Law. All candidates who pass the examinations are given a psychological test. Those who pass both these stages are interviewed by members of Service Commissions, and recommendations are made to the respective High Courts for appointments. In Sindh province, the appointments are made on the backdrop of a test conducted by National testing service (NTS) which is primarily based on English language and General knowledge. The candidates who manage to pass the first test then undertake another test by NTS after which the successful candidates are chosen for the interview which is conducted by the five most senior judges of high court including chief justice of Sindh and candidate who manage to pass the interview are recommended for the post of civil judge and judicial magistrate who thereafter are appointed by the government of Sindh.

Controversies[]

Harassment of Judges[]

In May 2018 some Pakistani Judges complained of harassment and threats to Judges by Pakistani 'male' lawyer fraternity and bar associations.^[15] Similar complained of more serious nature was made in November 2020 by Dr Sajida Ahmed Chaudhry, Additional District and Sessions Judge Fathejang complained to Chief Justice of Pakistan through open letter against culture of continued intimidating disrespect, harassment and threats of judges and women judges by Pakistani 'male' lawyer fraternity and bar associations.^[15] Dr Sajida Ahmed Chaudhry has been quoted saying

"....if the district judges were supposed to be snubbed, abused, mentally and physically tortured by the lawyers during court hours but their honour and dignity could not be protected by the top judiciary, the district judges are ready to surrender their extra perks like cars, laptops, etc...."^[15]

“When the male as well as the female judges are harassed at our courts, I feel compelled and frustrated either to burn all my educational degrees one by one in front of the LHC or in front of the Supreme Court so that none of the girls among the 230 million population should dare to come and join judiciary,”^[15]

According to Rubya Mehdi Pakistan Judiciary is quite corrupt to the extent that it is said in Pakistan that even walls of judicial offices seek bribes; in this scenario in spite of Islamic traditions did not favor female judicial officers still popular public opinion was in very much welcoming appointments of female judges since they were less approachable for corruption; and for the same reason Pakistani male advocates behave adversely to Pakistan's women judges since they find them difficult to be approached and bribed.^[16]

See also[]

• Anti Terrorism Court of Pakistan
• Jirga
• Punjab Bar Council
• Pakistan penal code
• Blasphemy law in Pakistan
• Copyright protection in Pakistan
• The Oath of Judges Order 2000
• Politics of Pakistan
• Law of Pakistan
• Women related laws in Pakistan

References[]