THE JUDICIAL SYSTEM OF PAKISTAN
Law and order are essential components of any civilized society. A
country cannot progress or function with the implementation of a
proper judicial system. Country like Pakistan is deprived for such an
effective and transparent judicial system that can punish the culprit
irrespective of his power and authority and save the innocent.
Unfortunately, legal system of Pakistan is highly biased and has many
flaws that need to be corrected to restore the faith of common man.
The Law of Pakistan:
The Law of Pakistan is based on the legal system of the Islamic
Republic of Pakistan. The origin of Pakistani law is based upon the
legal system of old British India; incorporating the common law of
England and Wales. Amendments in the legal system of Pakistan came
during the reign of General Muhammad Zia-ul-Haq, when elements of
Islamic Shariah law were incorporated into Pakistani law. This led to
the institution of a Federal Shariah Court (FSC). In Federally
Administered Tribal Areas (FATA), a system of law employing
traditional practices is persistent at the local level. At this level,
disputes are settled by a Jirga, a council of tribal elders. Ministry of
Law and Justice is an advisory service organization providing services
to all the offices of Federal and Provincial Governments on legal,
judicial and constitutional matters.
Islam and the Legal System:
The legal system of Pakistan is based on English common law and
Islamic law. Between 1947 and 1978, Islamic law was largely restricted
to the sphere of personal status issues, such as marriage, inheritance
and divorce. The Islamisation of the legal system began in earnest
under General Zia ul Haq (1977-1988). Through a series of presidential
decrees, Zia introduced far reaching changes in Pakistan’s criminal
justice system, regulated by the Pakistan Penal Code of 1860 and the
Code of Criminal Procedure (1898). He also created a parallel court
system, consisting of Shariat courts, and amended the country’s anti-
blasphemy laws. While most of the “Islamic” laws he instituted are
still on the statute, and some were reinforced by conservative
governments, Pakistan’s parliament has recently introduced legal
changes aimed at improving the status of women in the private and
public spheres.
The Judicial System of Pakistan:
The Judiciary of Pakistan is a hierarchical system with two classes of
courts: the superior judiciary and the subordinate judiciary. The
superior judiciary is composed of the Supreme Court of Pakistan, the
Federal Shariah Court and five High Courts, with the Supreme Court at
the top. 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 delegate the superior judiciary with the obligation to
preserve, protect and defend the constitution. However, neither High
court nor Supreme Court can practice jurisdiction to tribal areas
except of the special case. The disputed regions of Azad Kashmir and
Gilgit–Baltistan have separate court systems.
Division of Courts:
Supreme Court:
The Supreme Court is the apex Court of the land, exercising original,
appellate and advisory jurisdiction. It is the Court of ultimate appeal
and therefore the final arbiter of law and the Constitution. Its
decisions are binding on all other courts. The Court consists of a Chief
Justice and other judges, appointed by the President as per procedure
laid down in the Constitution. An Act of Parliament has determined
the number of judges. The number fixed at the moment is Chief
Justice and 16 judges. There is also provision for appointment of
acting judges as well as ad hoc judges in the court. A person with 5
years’ experience as a Judge of a High Court or 15 years standing as an
advocate of a High Court is eligible to be appointed as judge of the
Supreme Court.
High Courts:
There is a High Court in each province and a High Court for the
Islamabad Capital Territory. Each High Court consists of a Chief Justice
and other judges. The strength of Lahore high Court is fixed at 60,
High Court of Sindh at 40, Peshawar High Court at 20, High Court of
Baluchistan at 11 and Islamabad High Court at 7. Qualifications
mentioned for the post of a Judge are, 10 years’ experience as an
advocate of a High Court or 10 years’ service as a civil servant
including 3 years’ experience as a District Judge or 10 years’
experience in a judicial office.
District & Sessions Courts:
District courts exist in every district of each province, and have civil
and criminal jurisdiction. In each District Headquarters, there are
numerous Additional District & Session Judges who usually preside the
courts.
District & Sessions Judge has executive and judicial power all over the
district under his jurisdiction. The Sessions court is also a trial court for
heinous offences such as Murder, Rape, Haraba offences (armed
robbery where specific amount of gold and cash is involved), and is
also appellate court for summary conviction offences and civil suits of
lesser value.
Each Town and city now has a court of Additional District & Sessions
judge, which possess the equal authority over, under its jurisdiction.
When hearing criminal cases, it is called the Sessions Court, and when
it hears civil cases, the District Court. Executive matters are brought
before the relevant District & Sessions Judge.
• The High Court of each province has appellate jurisdiction over the
lower courts.
• The Supreme Court has exclusive jurisdiction over disputes
between and among provincial governments, and appellate
jurisdiction over High Court decisions.
Federal Shari at Court:
The Court consists of 8 Muslim Judges including the Chief Justice.
Procedure for appointment of judges of Federal Sariah Court has been
changed after 18th and 19th amendments as previously such judges
were appointed by the President from amongst the serving or retired
judges of the Supreme Court or a High Court or from amongst persons
possessing the qualifications of a judge of the High Court.
At present, judges of Federal Shari at Court are also appointed
through Judicial Commission which comprises Chief Justice of Pakistan
as Chairperson, four senior most Judges of the Supreme Court, One
former Chief Justice or a retired judge of the Supreme Court
appointed by the Chairperson in consultation with the four member
judges for a period of two years, the Attorney General for Pakistan,
the Federal Law Minister, Chief Justice of Federal Shariat Court and
most senior judge of the Federal Shariat Court.
For appointment of Chief Justice, however, the most senior judge of
the Federal Shariat Court is excluded from the composition of the
Commission. Once the Judicial Commission approves a new name for
appointment as the judge of the Federal Shariat Court, it goes to an
eight member Parliamentary Committee that has equal
representation of the government and the opposition as well as of
two houses. This Committee has two weeks to review the
recommendation after which if the recommendation is approved, it
goes to the Prime Minister who forwards the same to the President
for appointment. The Parliamentary Committee, for reasons to be
recorded, may not confirm the recommendation by three-fourth
majority, in which instance the decision is forwarded to the
Commission through the Prime Minister and the Commission sends
another nomination.
Special Tribunals and Boards:
There are numerous special tribunals such as;
• Banking Courts
• Custom Courts
• Drug Courts
• Federal Services Tribunal
• Provincial Services Tribunals (one for each province)
• Income Tax Tribunals
• Anti-Corruption Courts
• Anti-Terrorism Courts
• Labor Courts
• Labor Appellate Tribunal
• Environmental Courts
• Board of Revenue
• Special Magistrate courts
• Control of Narcotic Substances (Special Courts)
• Consumer Courts
Family Courts:
The West Pakistan Family Courts Act 1964 governs the jurisdiction of
Family Courts. These courts have exclusive jurisdiction over matters
relating to personal status. Appeals from the Family Courts lie with
the High Court, where the Family Court is presided by a District Judge,
an Additional District Judge, or a person notified by the Government
to be the rank and status of a District Judge or an Additional District
Judge and to the District Court, in any other case.
Every town and city or Tehsil has court of family judge. In some areas,
where it is only Family Court but in most areas Civil Judge Courts have
been granted the powers of Family Court Judges. According to section
17 of the Family Court Act, 1964, the provisions of C.P.C. (Civil
Procedure Code) and Qanun-e-Shahdat Order (Evidence Law) are not
applicable over to Family Court and the same are allowed forming or
regulating its own procedure to decide case expeditiously, properly
and in the best interest and convenience of lady litigants.
Juvenile Courts:
Section 4 of the JJSO authorizes the Provincial Government to
establish one or more juvenile courts for any local area within its
jurisdiction, in consultation with the Chief Justice of the high court.
Ten years have passed, and not a single such court has been
established; and instead the High Courts have been conferring status
of the juvenile courts on the existing courts.
The High Court cannot be doing this on their own, and must be
instructed by the provincial governments to do so. In this era of
independent judiciary, the High Courts should stand up against the
governments on this issue and refuse to confer powers on the already
over-burdened courts and instead should insist upon establishing
exclusive juvenile courts.
Section 6 of the JJSO prescribes special procedure for the juvenile
courts which involves issues like not ordinarily taking up any other
case on a day when the case of a child accused is fixed for evidence
on such day; attendance of only specified persons in the court; and
dispensing with the attendance of the child in the trial.
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.
10 Crimes and their legal Punishments in
Pakistan:
Murder:
Killing someone regardless of any motive is a big crime. In Pakistan
punishment of murder comes under section 302 of Pakistan Penal
code. Penal Code governs the punishment of murder which is also
known as Qatl-i-amd in three categories.
a) Punished with death as Qisas. Qisas is an Islamic term that means
equal retaliation which allows the country to take the life of
murderer.
b) Punished with death or imprisonment for life is known as Tazir.
Having regard to the facts and circumstances of the case, if the
proof in either of the forms specified in section 304 is not
available
c) Punished with imprisonment of either description for a term
which may extend to twenty-five years, where according to the
injections of Islam the punishment of Qisas is not applicable
Rape:
Rape cases are not increasing in Pakistan only but it’s gearing pace
globally. Rape comes under great crime according to Pakistan Penal
Code and it has decided the punishment for this crime under Section
367 of PPC in two categories.
a) The law states that whoever commits rape shall be punished with
death or imprisonment of no less than ten years the punishment
years can increase to 25 year depending on the severity of the
case and the criminal shall also be liable to fine.
b) If the rape is committed by two or more person with common
intention like gang rapes the criminals should meet the fate of
death or lifetime imprisonment.
Robbery:
Robbery is also a serious crime, although in our country the burglar
never gets detained but if he meets the legal procedure then
according to PPC the person who commits robbery should be
punished with not less than 3 years imprisonment that can extend up
to 14 years depending on the case’s sensitivity. This punishment
comes under Section 392 of Pakistan Penal Code-PPC.
Extortion:
The most common crime in our country is extortion and according to
Section 384 of Pakistan Penal code Punishment for extortion is
imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
Blasphemy:
Many countries argue on the point that whether insulting or
defamation of any religion, holy personages and religious artifacts is
a crime or not and they all have some kind of law to maintain
religious harmony in their countries. In Pakistan this crime is bigger
than all other crimes, a murderer gets out on bail but an offender of
this law goes down the sand. Blasphemy law is divided in two section
295 B and 295 C. The punishment for 295 C is for those who
desecrates or damages the Holy Quran. The one who does this
derogatory act shall be punished with lifetime imprisonment.
The offender of 295-C faces more severe punishment. According to
this law whoever commits blasphemy by words, either spoken or
written, or by visible representation or by any imputation, innuendo,
or insinuation, directly or indirectly, defiles the sacred name of the
Holy Prophet Muhammad (peace be upon him) shall be punished
with death, or imprisonment for life, and shall also be liable to fine.
Corruption:
There is no doubt that the curse of corruption has eaten the whole
economy of Pakistan. When the government realized the
involvement of public officials and political parties in corruption
charges they passed an ordinance of national accountability, making
National Accountability Bureau as an autonomous federal institution
to combat corruption cases. NAB is that institution that investigates,
inquires and arrests individuals of corruption charges. Individuals
convicted under the National Accountability Bureau Ordinance are
prohibited from holding political office for ten years.
Theft (Electric and gas):
Section 379 of Pakistan Penal Code defines the punishment for utility
services such as electricity, gas or telephone stealing, as whoever
commits theft shall be punished with the maximum imprisonment of
three years, or with fine, or with both.
Cybercrimes:
As per draft regulation, a person accessing an information system–
without authorization may face imprisonment for up to six months
and a fine of up to Rs. 100,000 or both. Changing content of
information system may result into imprisonment of up to nine
months or a fine of up to Rs. 200,000. Cybercrime punishments are
very vast and the law takes care of all the fraudulent. If someone is
found guilty of posing another person’s identity then he/she may
face imprisonment of three months of a fine of Rs. 50,000 or both.
Unauthorized interception of private data like hacking emails can
result in imprisonment of two year and fine of 500,000 or both. The
law also provides special protection for women, If someone is found
harassing any woman by spreading any personal content
(video/pictures/audio) publicly to harm her reputation then the
person shall face imprisonment for one year or a fine up to Rs. 1
million or both.
Human Trafficking:
Human Trafficking comes under serious crime in Pakistan if anyone is
found guilty of human trafficking like keeping anyone as slave, selling
children or women, coercing someone to do wrong deeds,
kidnapping or abduction of anyone then the person will face serious
legal charges. According to PPC the person who commits any of
above crimes can be punished with minimum imprisonment of 5
years which can be extended to 14 years with heavy fine.
Attempt to commit Suicide:
Suicide is prohibited in Islam and Pakistan Penal Code considers an
attempt to commit suicide, a crime. The court has also defined
the punishment for this crime in Section 325. According to the law
whoever attempts to commit suicide, shall be punished with simple
imprisonment for a term which may extend to one year, or with fine,
or with both.
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