The judicial system in pakistan

Muslim Period

The Muslim period in the Indian Sub-continent roughly begins in the 11 th century A.D. This period may be divided into two parts i.e. the period of early Muslim rulers who ruled Delhi and some other parts of India and the Mughal Period, which replaced such Muslim and other rulers in 1526 A.D. The Mughal Dynasty lasted until the middle of 19 th century.

During the period of Muslim rulers, the Islamic law generally held the field and remained the law of the land in settling civil and criminal disputes. However, common customs and traditions were also invoked in settling secular matters. These rulers were not particularly keen on applying the Islamic law to each and every sphere of life, and let the indigenous customs and institutions continue side by side with Islamic law and institutions. During this period, different courts were established and functioned at the central, provincial, district and tehsil (Pargana) level. These courts had defined jurisdiction in civil, criminal and revenue matters and operated under the authority of the King. On the top of judicial hierarchy was the King's Court, presided over by the King himself, exercising original as well as appellate jurisdiction. The King was the head of judicial administration and he made all appointments to judicial posts. Persons of recognised scholarship, known competence and high integrity were appointed to such posts.

The judges held office during the pleasure of the King.

The Mughals improved upon the previous experience and created an organised system of administration of justice all over the country. Courts were created at each and every unit of the administrative division. 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. At the town level, there existed courts, presided over by Qazi-e-Parganah. Similarly, at the district (Sarkar) and provincial (Subah) level, courts of Qazis were established. The highest court at the provincial level was that of Adalat Nazim-e-Subah.

Similarly, for revenue cases, officers known as Ameen were appointed at the town level. At the district level, revenue cases were dealt with by Amalguzar and at the provincial level by Diwan.

The Supreme Revenue Court was called, the Imperial Diwan. Side by side, with civil and revenue courts, criminal courts, presided over by Faujdar, Kotwal, Shiqdar and Subedar functioned. 2 The highest court of the land was the Emperor's Court, exercising original and appellate jurisdiction.

Although these courts generally exercised exclusive jurisdiction in different categories of cases, however, sometimes their jurisdiction was inter-mixed, in as much as, officers dealing with criminal cases were also required to act as revenue courts. Furthermore, whereas territorially these courts formed a concentric organisation, their jurisdiction was not always exclusive on the basis of territorial limits. Thus, a plaintiff may choose to file his suit in a town or a district or a province. The pecuniary jurisdiction of the courts was also not defined; hence, a case of higher value may be filed in a court of small town. Similarly, appellate jurisdiction existed but was not well defined. Thus, a plaintiff or a complainant, not satisfied with a decision, may file a second suit/complaint in another court. Such later court would decide the matter afresh, without indeed taking into consideration the earlier finding of the court.

The emperor made the judicial appointments and persons of high scholarship and good reputation were appointed to the posts. Instructions were given to the judges to be neutral and impartial; and complaints against them were taken seriously. Corrupt officials were removed.

Consequently, the scales of justice were very high. 3 The procedure followed in civil cases was not much different from the procedure, which is applicable today. On a suit being filed, the court summoned the opposite party to admit or deny the claim. Issues were framed in the presence of both the parties who were then required to produce evidence in support of their respective claims. Simple cases were decided, based on such evidence, however, in complicated cases, the judge may launch his own investigation into the matter. 4 Maximum effort was made to find the truth. On the conclusion of the proceedings, judgment was pronounced and duly executed. Litigants were allowed to present their cases either personally or through agents. Such agents were not exactly lawyers (in the modern sense of the term) but were fully conversant with the judicial procedure.

Post-Independence Evolution:

On independence, the Government of India Act 1935 was retained as a provisional Constitution.

As a consequence, the legal and judicial system of the

Superior Judiciary

The Constitution of Pakistan deals with the superior judiciary in a fairly comprehensive manner and contains elaborate provisions on the composition, jurisdiction, powers and functions of these courts. The Constitution provides for the "separation of judiciary from the executive" and the "independence of judiciary". 13 It entrusts the superior courts with an obligation to "preserve, protect and defend" the Constitution. 14 The qualifications of judges, their mode of appointment, 15 service conditions, salary, pension, 16 etc are also laid down in the Constitution.

The remuneration of judges and other administrative expenditures of the superior courts are charged on the Federal/Provincial Consolidated Fund, 17 which means it may be discussed but cannot be voted upon in the legislature.

The Constitution also provides for the grounds as well as forum and procedure for the removal of judges of the superior courts. 18 The Supreme Judicial Council, consisting of the senior judges of the Supreme Court and High Courts, on its own or on a reference made by the President, may recommend the removal of a Judge on the ground of misconduct or physical or mental incapacity. Thus, the Constitution ensures the freedom, independence and impartiality of the superior judiciary.

The Supreme Court and High Courts have recently been given a degree of financial autonomy.

This measure followed the Supreme Court ruling in the case of Government of Sind v Sharaf

Faridi. 19 The Court held that the independence of judiciary also means the elimination of financial control of the Executive over the judiciary, and therefore, the Chief Justice of the The Court exercises original jurisdiction in inter-governmental disputes, 29 be that dispute between the Federal Government and a provincial government or among provincial governments. The Court also exercises original jurisdiction (concurrently with High Courts) for the enforcement of fundamental rights, where a question of 'public importance' is involved. 30 The Court has appellate jurisdiction in civil and criminal matters. 31 Furthermore, the Court has advisory jurisdiction in giving opinion to the Government on a question of law. 32

To provide an expeditious and inexpensive remedy in matters relating to infringements of Registries, one at each provincial metropolis. Whereas the constitution of Benches and their operation in various cities, facilitates the public and ensures prompt disposal of cases, this system does affect the quality of judgments and deprives the Court of collective wisdom, so very vital for the apex Court, dealing with important issues involving interpretation of law/Constitution. There is, therefore, perhaps a need to re-examine the wisdom of bench system. This is however not possible with the present workload and rising trend of institution of cases, due to wider jurisdiction of the Court.

High Courts

There is a High Court in each province and a High Court for the Islamabad Capital Territory. The Court appoints its own staff 46 and frames its own rules of procedure. 47 On 1 st January 2011, a total of 1848 cases were pending before the Court.

Ever since its establishment in 1980, the Federal Shariat Court has been the subject of criticism and controversy in the society. Created as an Islamisation measure by the Military Regime 48 and subsequently protected under the controversial 8 th Amendment, 49 its opponents question the very rationale and utility of this institution. It is stated that this Court merely duplicates the functions of the existing superior courts. The composition of the Court, particularly the mode of appointment of its judges and the insecurity of their tenure, is taken exception to, and it is alleged, that this Court does not fully meet the criterion prescribed for the independence of the judiciary, hence, is not immune to pressures and influences from the Executive. In the past, this

Court was used as a dumping ground for the recalcitrant judges. And whereas some of its judgments, particularly the ones which relying on the Islamic concept of equity, justice and fair play, expanded and enlarged the scope and contents of individual's rights were commended, others that validated the controversial Hudood Laws, in particular, the sentence of Rajam

Subordinate Courts

The subordinate judiciary may be broadly divided into two classes; one, civil courts

Special Courts and Tribunals

The Constitution authorises the federal legislature to establish administrative courts and tribunals for dealing with federal subjects.

Procedural Law

The Code of Civil Procedure 1908 prescribes procedure for proceedings in civil cases. The Code is in two parts i.e. Sections, which contain the basic and fundamental principles and can be amended only by the legislature, and Schedules, which contain rules of procedure and can be amended by the High Court. The Code is indeed a consolidating statute, prescribing detailed procedure for instituting suit (meaning who may file a suit, how and where), pleadings ( follow the procedure prescribed in the above-mentioned codes, whereas some such courts follow special procedure laid down in the respective statutes.

Terms and Conditions of Service of subordinate Judiciary

The subordinate courts (civil and criminal) have been established and their jurisdiction defined by law. 51 They are supervised and controlled by the respective High Court. 52 The administration of justice, however, is a provincial subject and thus the subordinate courts are organised and the terms and conditions of service of judicial officers determined under the provincial laws and rules. The issues of recruitment, promotions and other terms and conditions of service together with disciplinary proceedings, etc are dealt with under the provincial civil servants acts and the rules framed thereunder. Until recently, the appointing authority for judicial officers happened to be the provincial government but with the separation of the judiciary from the executive, such authority has been transferred to the High Court. training is comprised of education in various substantive laws, court management, case processing, judicial procedure, and code of conduct, etc.

As mentioned earlier the High Courts exercise supervision and control over the functioning of the subordinate judiciary. Such supervision and control is both administrative as well as judicial.

In the administrative sphere, disciplinary proceedings may be initiated against a judicial officer by the High Court. Judicial control is also exercised through revision and appeals being filed in the High Court against the orders/decisions of the subordinate courts. The High Court carries out its supervisory functions through inspections and calling of record from the courts. The

Member Inspection Team (MIT) mostly deals with the issue; however, the Chief Justice of the High Court or any other judge deputed by the Chief Justice also carries out regular as well as surprise inspections. The Chief Justice is competent to initiate disciplinary action against a judge and take appropriate action in the matter.

Disciplinary proceedings against judicial officers are apparently initiated and action taken under the (provincial) Government Servants (Efficiency and Discipline) Rules. Such rules were primarily designed for the executive officers whose duties and functions are different from judicial officers. Certain High Courts have adopted codes of conduct for subordinate judiciary, but they are quite sketchy/ inadequate. Thus, in their application to judicial officers, the current rules do contain many gaps and anomalies. In particular, the rules are silent on how a judicial officer ought to conduct himself in and outside the court. There is, therefore, a need for preparing a separate comprehensive code of conduct for the members of the subordinate judiciary, covering their private and public life and in particular, their conduct in the court so as to maintain propriety and decorum in the court and enhance public confidence in the administration of justice.

As regards the grievances of the judicial officers with regard to the terms and conditions of service, mechanism exists for resolving it. There exists a Provincial Judicial Service Tribunal for performance, the institution of cases in courts is increasing, which is a sign of enhanced public confidence in the judiciary.

The Judicial System of Pakistan

12.

To issue directions of the nature of habeas corpus under S.491 of Cr.P.C;

13.

Inter-Court appeal at Lahore High Court and High Court of Sindh, {High Court of Sindh has original jurisdiction in civil cases of the value of above 3 million}.

2.

In certain jurisdictions designated as Rent Controller/Judge, Family Court.

The Judicial System of Pakistan

CIVIL JUDGE 3 RD CLASS

To try civil suit up to the value of twenty thousand rupees.

MAGISTRATE 1 ST CLASS

To try offences punishable up to 3 years imprisonment and fifty thousand rupees fine.

MAGISTRATE 2 ND CLASS

To try offences punishable up to 1 year and five thousand rupees fine.

MAGISTRATE 3 RD CLASS

To try offences punishable up to 1 month and one thousand rupees fine