What is Judicial system Introduction

The roots of the current judicial system of Pakistan stretch back to the medieval period and even
before. The judicial system that we practice today has evolved over a long period of time, spanning
Roughly over a whole millennium. The system has passed through several epochs, covering the
Hindu era, Muslim period including the Mughal Empire, British colonial period and postindependence chapter. Notwithstanding the successive changes i.e. one rule/dynasty substituted
by the other, which naturally resulted in the socio-economic and political transformation of the
Indian society, the judicial system generally maintained a steady growth and gradual advance
towards consolidation and improvement/refinement, without indeed, having to undergo any major
disruption or breakdown.
All in all, the system experienced and passed through 3 distinct stages of historical development,
namely, Hindu Kingdom, Muslim Rule and British Colonial Administration. The 4th and current era,
commenced with the partition of India and the establishment of Pakistan, as a sovereign and
independent State. The system, thus, has evolved through a process of reform and development.
This conclusion enjoys near unanimity among historians and commentators of Indian legal history.
During this process of evolution and growth, the judicial system did receive influences and
inspirations from foreign doctrines/notions and indigenous norms/practices, both in terms of
organizing courts’ structure, hierarchy, jurisdiction and adopting trial procedures/practices.
Therefore, the present judicial system is not an entirely foreign transplant, as is commonly alleged,
but has acquired an indigenous flavour and national colour. And whereas the system may not fully
suit the genius of our people or meet the local conditions, its continued application and practice has
made it intelligible to the common man. The very fact that increasing number of people are
resorting to the courts for the resolution of their conflicts/disputes, indicates that the system enjoys
a degree of legitimacy and acceptance.

Historical Retrospect
2.1 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 like Dharamshastra, Smritis and 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. In this task, judges as well as his ministers and counselors assisted him. He was the
final judicial authority and court of ultimate appeal. 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.
The Judicial System of Pakistan
The Judicial System of Pakistan
At the village level, tribunals dispensed justice, which consisted of the assembly of the village, or the
1-caste or the family. The village Headman acted as Judge/Magistrate for the community. Decisions
by such tribunals were usually through conciliation. The decisions of village/town courts/tribunals
were appealable in the higher courts and final appeal lay before the King’s Court. Besides
adjudication, the system of arbitration was also in vogue.
As regards the procedure followed in the courts/tribunals, no formal rules existed, as the law
applicable was not statutory but customary or moral. The determination of truth and punishment of
the wrong-doer was regarded as a religious duty. Civil proceedings commenced with the filing of a
claim which was replied to by the opposite party. Both parties were allowed to produce witnesses so
as to prove their respective claims. On the conclusion of the trial, decision was pronounced which
was duly enforced. It appears thus, that the system of administration of justice, as it operated in
ancient India, was not substantially different from what it is in the modern times. In a sense, the
current system seems to be a continuation of the former practices and procedures.
2.2 Muslim Period
The Muslim period in the Indian sub-continent roughly begins in the 11th 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 19th century.
During the period of Muslim rulers, the Islamic law 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
1 th 14 Report of Law Commission of India, 1958, Vol. I, p 26
The Judicial System of Pakistan
3
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
2
courts, criminal courts, presided over by Faujdar, Kotwal, Shiqdar and Subedar functioned. 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 organization, 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
3
scales of justice were very high.
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,
4
in complicated cases, the judge may launch his own investigation into the matter. 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. An officer of the court called Mufti, attached to the court, made the
5
interpretation of law.

2.3 British Period
The East India Company was authorized by the Charter of 1623 to decide the cases of its English
employees. The Company therefore established its own courts. The President and Council of the
Company decided all cases of civil or criminal nature. The subsequent charters further expanded
such powers. Thus, the Charter of 1661 authorized the Governor and Council to decide not only the
cases of the Company employees but also of persons residing in the settlements. In deciding such
cases, the Governor and the Council applied the English laws. As the character of the Company
changed from one of a trading concern into a territorial power, newer and additional courts were
established for deciding cases and settling disputes of its employees and subjects. The
administration of justice was initially confined to the Presidency Town of Bombay, Calcutta and
Madras. In view of the huge distances between these Towns and the peculiar conditions prevailing
there, 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. The English people, residing in such towns
alone, were subject to their jurisdiction. The native inhabitants, who were mostly living in the
Mufussil, were governed under separate courts called Sadar Dewani Adalat and Sadar Nizamat
Adalat, dealing with civil and criminal cases respectively. Such courts applied the local laws and
regulations.
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. Afterwards, the Recorders Court at
Madras was substituted by the Supreme Court (under the Parliament Act 1800). A few years later, the
Recorders Court at Bombay was also replaced by the Supreme Court (under the Parliament Act
1823). These new courts had indeed the same composition, jurisdiction and powers as exercised by
the Supreme Court of Calcutta.
The High Court of Judicature Act 1861 abolished the Supreme Courts as well as the Sadar Adalats,
and in their place, constituted the High Court of Judicature for each Presidency Town. This Court
consisted 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. Thus, it
was provided that 1/3rd of the judges should be appointed from amongst the barristers with 5 years
standing and 1/3rd from amongst the civil servants, having 3 years experience as a District Judge.
The remaining 1/3rd seats were filled from amongst pleaders and members of Subordinate
Judiciary, having 5 years experience. 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. Similarly, under the NWFP Courts Regulation 1931 and

the British Balochistan Courts Regulation 1939, the Court of Judicial Commissioner was created in
each such area.
The Code of Civil Procedure 1908 created principal civil courts, namely, the Court of District Judge,
the Court of Additional District Judge, the Court of Civil Judge and the Court of Munsif. Their
territorial and pecuniary jurisdictions were also defined.
The Government of India Act 1935 retained the High Courts and also provided for the creation of a
6
Federal Court. The Federal Court was established in 1937. Its judges were appointed by the Crown
and held office till completing the age of 65 years.

The qualifications prescribed were, 5 years
experience as a judge of a High Court or 10 years experience as a barrister or 10 years experience as a
pleader in a High Court. The Act further provided that the judges of the Federal Court and High
Courts should hold office during good health and behavior, meaning,

they may not be removed
except on the grounds of infirmity of mind or body or misbehavior, only when on a reference made
by the Crown, the Judicial Committee of Privy Council so recommends. The Federal Court exercised
7
original, appellate and advisory jurisdiction

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 British period continued, of course, with due
adaptations and modifications, where necessary, to suit the requirements of the new Republic.

This way, there occurred no vacuum or breakdown, and the operation of the legal system continued
uninterrupted. The judicial structure also remained the same. The Lahore High Court continued to
function and so did the Sindh Chief Court and the courts of Judicial Commissioner in NWFP and
8
Baluchistan. A new High Court was set up at Dacca. Similarly, a new Federal Court for Pakistan was
9
also established. The powers, authority and jurisdiction of the Federal Court and High Courts, as
prescribed in the Government of India Act 1935, remained intact.
The Government of India Act 1935 was amended in 1954 with a view to empower the High Courts to
10 issue the prerogative writs. The subsequent Constitutions i.e. 1956, 1962 and 1973 did not
drastically alter the judicial structure or the powers and jurisdiction of the superior courts. The
changes effected were, renaming the Federal Court as the Supreme Court by the 1956 Constitution
and the upgradation of the Chief Court of NWFP and Judicial Commissioner Court of Baluchistan
into full-fledged High Courts, by the 1973 Constitution. Later on, a new court called, Federal Shari’at Court.

Court was created in 1980 with jurisdiction to determine, Suo moto or on petition by a citizen or the
Federal or a provincial Government, as to whether or not a certain provision of law is repugnant to
12 the injunctions of Islam.
Pakistan being a Federal Republic, the provinces enjoy wide powers, and subjects to administer
including the administration of justice. The High Court is the principal court of the province, which
exercises original jurisdiction (issuing writ for enforcement of Fundamental Rights) and appellate
jurisdiction (against orders/judgments of Subordinate Courts and special courts). The Subordinate
Courts function under the administrative control of the High Court. All such courts are funded by the
Provincial Government.

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
13 “independence of judiciary” It entrusts the superior courts with an obligation to “preserve, protect
14 15 and defend”the Constitution. The qualifications of judges, their mode of appointment, service
16
conditions, salary, pension, 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
17 Consolidated Fund, 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
18 judges of the superior courts. 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
19 measure followed the Supreme Court ruling in the case of Government of Sind v Sharaf Faridi. 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 Supreme Court and High Courts
should be authorized to make re-appropriation of funds within the budgetary allocation, without
the approval of Finance Ministry. The Court went on to elaborate that the Chief Justices would thus
be competent to re-appropriate amounts from one head to another and may also create or abolish
20 posts and upgrade or downgrade the same.
This ruling came during the course of interpretation of Article 175(3) of the Constitution, which
provides that “judiciary shall be separated progressively from the Executive within 14 years”. The
Court held that as per such constitutional mandate, the functions of magistracy should be
bifurcated and the judicial magistrates must be placed under the administrative control of the High
Court. The Court fixed the 23rd of March 1994 as the last date for carrying out this measure.
In its order dated 24th January 1996 on the review petition, the Supreme Court extended the said
date to 23rd March 1996 and reiterated that separation must be effected by the due date and added
that no request for further extension in time will be entertained. Consequently, through appropriate
amendments in law, judicial magistrates were placed at the disposal of High Courts. Later, the
21 22 Supreme Court in the cases of Al-Jehad Trust v Federation and Asad Ali v Federation further
interpreted various provisions in the Constitution and clarified the procedure and qualifications for
appointment to the Supreme Court and High Court and appointment of the Chief Justices of the said
courts.
This procedure was changed by the Constitution 18th & 19th (Amendments) Acts 2010. Before such
amendments, the standing practice was that the Chief Justice of Pakistan used to recommend a
panel to the President and the President would select a suitable judge from the said panel. Similarly,
for the appointment of judges in the High Courts, the respective Chief Justice would forward a panel
to the President which was routed through the Governor of the Province and Chief Justice of
Pakistan. The recommendation of the Chief Justice was binding on the President, except for sound
reasons to be recorded by the President.
4.1 New Procedure for Appointment
Following the adoption of Constitutional (18th & 19th) Amendments Acts 2011, new
process/procedure was prescribed for appointment of judges to the superior judiciary.
The 18th Amendment was aimed at strengthening the parliamentary system and transferring
additional subjects to the provinces. The Parliament also prescribed a new fora and procedure for
the appointment of judges. Cases of appointment in superior courts i.e. Supreme Court, Federal
Shari’at Court, High Courts are to be processed through two forums i.e. Judicial Commission of

Pakistan and Parliamentary Committee. The Judicial Commission is headed by the Chief Justice of
Pakistan and comprises senior judges of Supreme Court, Chief Justice and senior puisne judges of
High Court, Attorney General for Pakistan, Federal and Provincial Law Ministers, representatives of
the Federal and Provincial Bar Councils, etc. The Commission nominates names for each vacancy and
forwards it to the Parliamentary Committee for confirmation.
The Parliamentary Committee comprises eight members: four from National Assembly and four
from Senate. The Committee scrutinizes the nominations and names confirmed are forwarded to
the President, through the Prime Minister, for appointment.
The 18th Amendment was challenged in the Supreme Court and examined by a 17-member bench,
which decided to send a reference to the Parliament with certain recommendations to improve the
process and procedure of appointment of judges. The Parliament graciously considered the
reference and approved many a recommendations through the adoption of Constitution (19th
Amendment) Act 2010.
In the light of 18th and 19th amendments, judges of Supreme Court are appointed through the
Judicial Commission which consists of Chief Justice of Pakistan as Chairman and four senior judges
of the Supreme Court, one former Chief Justice or judge of the Supreme Court, nominated by the
Chairman, in consultation with the four member judges, as members. The remaining members are,
the Attorney General for Pakistan, Federal Minister for Law and Justice and a senior advocate,
Supreme Court, nominated by the Pakistan Bar Council. Once the Judicial Commission approves a
new name for appointment as judge of the Supreme Court, it goes to the eight-member
Parliamentary Committee that has equal representation of the Government and the Opposition as
well as of the two houses i.e. National Assembly and Senate. This Committee has two weeks to
consider the nomination. If approved, the name is forwarded to the President, through the Prime
Minister, 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 in that eventuality, the Commission is required
23 to send another nomination.
Notwithstanding the procedure provided in Article 175A, the President has to appoint the most
senior judge of the Supreme Court as the Chief Justice of Pakistan. As per opinion of the Supreme
Court, on a Reference received from the President, the Government is not authorized to decide inter
24
se seniority of the judges. The issue was resolved by another verdict of the Supreme Court, wherein
it was held that the inter se sonority of judges of High Court shall reckon from the date of their
appointment as Additional Judge of High Court; however if appointed on the same day, then it shall
25
reckon from their seniority in age.

For appointment of Chief Justice and judges of Federal Shari’at Court, the Chief Justice and most
senior judge of the said court are added to the composition of the Judicial Commission, provided
that for appointment of the Chief Justice, the most senior judge is excluded from such composition.
Similarly, for appointment of Chief Justices and judges of High Courts, the Chief Justice and senior
most judge of the respective High Court, provincial minister for law and an advocate of High Court
(15 years standing), as nominee of the provincial bar council, are added to the composition of the
Commission. However, for appointment of Chief Justice, the senior most judge is excluded from
such composition. Just like appointments in the Supreme Court, the Chief Justices and judges of the
Federal Shariat Court and High Courts are appointed by the President through their nomination by
the Judicial Commission and confirmation by the Parliamentary Committee.
4.2 Accountability
The system of accountability is an essential prerequisite of the independence of judiciary. The
Constitution of Pakistan prescribes such procedure in the form of Supreme Judicial Council. The
Supreme Judicial Council is a unique institution, which comprises the senior most judges in judicial
hierarchy and entrusted with the onerous responsibility of deciding complaints that are referred to
it. The Supreme Judicial Council is comprised of the Chief Justice of Pakistan, as Chairman, with two
most senior Judges of the Supreme Court and two most senior Chief Justices of High Courts, as
members. The Registrar, Supreme Court of Pakistan acts as its Secretary. On a reference received
from President or through suo moto action, the Supreme Judicial Council investigates the matter
and presents its finding to the President. If the Council decides that the Judge is incapable of
performing the duties of office or is guilty of misconduct, and therefore should be removed from
office, the President may order the removal of such judge. A judge may not be removed from service
26
except on the specified grounds and subject to the prescribed procedure.
4.3 Supreme Court
The Supreme Court is the apex Court of the land, exercising original, appellate and advisory
27 jurisdiction. It is the Court of ultimate appeal and final arbiter of law and the Constitution. Its
28 29 decisions are binding on all other courts. The Court consists of a Chief Justice and other judges,
30 appointed by the President as per procedure laid down in the Constitution. An Act of Parliament
31 has fixed the number of Judges at 17 i.e. Chief Justice and 16 judges. There is also a provision for
32 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
33 to be appointed as judge of the Supreme Court.

The Court exercises original jurisdiction in settling inter-governmental disputes, 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
35 Fundamental Rights, where a question of ‘public importance’ is involved. The Court has appellate
36 jurisdiction in civil and criminal matters. Furthermore, the Court has advisory jurisdiction in giving
37 opinion to the Government on a question of law.
To provide an expeditious and inexpensive remedy, in matters relating to infringements of
Fundamental Rights, enshrined in Chapter II of the Constitution, a Human Rights Cell has been
established in the Court which now includes Expatriate Pakistanis Complaint Wing. The Cell
functions under the direct supervision of the Chief Justice of Pakistan. It is mandated to
expeditiously process the complaints and grievances received from the general public. Many such
letters, applications and complaints are received. At the initial stage, a report is called from the head
of the Department/Agency, complained against. In case the grievance is redressed, the matter is
disposed of. Cases requiring hearing are however fixed in Court and decided. In this way, relief is
provided to the poor and vulnerable section of society without going through the traditional
protracted litigation process. The public interest litigation in this form paved way for bringing relief
as well as statutory reforms in matters of general public importance, e.g., the enactment of the
Bonded Labour System (Abolition) Act 1992, Human Organs and Tissues Act 2010, Prohibition of Kite
Flying (Amendment) Act 2009, Prohibition of Smoking and Protection of Non Smokers Health
Ordinance, 2002, etc.
38 The Supreme Court appoints its own staff and determines their terms and conditions of service. The
Supreme Court (Appointment of Officers and Servants and Terms of Service) Rules 1982 prescribe
the qualification for and mode of appointment and promotion of staff together with penalties and
procedure for disciplinary proceedings against them. The Court may also frame its own rules of
procedure. The Supreme Court Rules 1980 laid down detailed procedure for the filing of petitions
and appeals and their processing through the Court.
As compared to the practice elsewhere in the world, particularly the United States and United
Kingdom, where fewer cases reach the apex court, the Supreme Court of Pakistan deals with cases,
far beyond its capacity to handle. Its jurisdiction ? original as well as appellate ? is fairly wide.
Besides entertaining civil and criminal appeals from the High Courts, the Court also hears appeals
from the judgments against the Federal Shari’at Court, Federal/provincial service tribunals and some
special courts. The Court also entertains cases of violation of Fundamental Rights under its origin

jurisdiction i.e. Art 184(3). As a consequence, there is always huge number of pending cases before
the Court. As per latest data available, on 31st December 2013, a total of 20,480 cases were pending
39 in the Supreme Court. Approximately, 14000 – 16000 cases (both petitions and appeals) are
annually filed in the Court. The current backlog is about 2200 cases. In addition, thousands of
applications/letters are annually received under Article 184(3) of the Constitution and processed by
the Court. Obviously, the Court has a very heavy workload.
To facilitate the litigant public and ensure prompt disposal of cases, the Court generally operates
through benches, working at the Principal Seat and the 4 Branch Registries, one at each provincial
metropolis. Such benches work, almost round the year. Whereas the constitution of Benches and
their operation in various cities facilitate the public and ensures justice at the doorstep; the 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 the interpretation of law/Constitution. There is,
therefore, perhaps a need to re-examine the wisdom of bench system, which is however not
possible with the present workload, and rising trend of institution of cases, due to the wider
jurisdiction of the Court. A way out may be the transfer of the court appellate jurisdiction under Art
212 (appeals in service matters) to High Courts. The High Courts could handle the extra workload, as
there strength was recently increased (in 2008) and they are currently operating with full strength.
Thus, they could deal with appeals arising out of the judgments of the provincial service tribunals.
The appeals against verdicts of (Federal) Service Tribunal may be filed at the Islamabad High Court;
its strength however requires increase due to heavy pendency before it.
4.4 High Courts
There is a High Court in each province and yet another High Court for the Islamabad Capital Territory.
Each High Court consists of a Chief Justice and other puisne 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 Balochistan 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
40 experience as a District Judge or 10 years experience in a judicial office.
For the appointment of judges of High Courts, in the past, the practice used to be that initially the
Chief Justice of the concerned High Court would prepare a list of candidates which was submitted to
the President, through the Governor of the province and the Chief Justice of Pakistan. The President
made the final selection from the said list. Subsequently, however the Supreme Court, in the case of
41 Al-Jehad Trust v Federation ruled that the recommendation of the Chief Justice of Pakistan and
Chief Justice of the High Court shall be binding on the President, except for sound reasons to the
contrary. The court further ruled that the most senior judge would have legitimate expectancy of
39 Judicial Statistics of Pakistan 2013, published by the Law and Justice Commission of Pakistan, Islamabad
40 Art 193
41 PLD 1996 SC 324
The Judicial System of Pakistan
12
being appointed as the Chief Justice, except for concrete and valid reasons, to be recorded by the
President.
As mentioned earlier, the procedure of appointment of judges in the High Courts has been changed
after the 18th and 19th amendments. The judges of High Courts are appointed by the Judicial
Commission and Parliamentary Committee. For appointment of judges of High Courts, the Judicial
Commission comprise the Chief Justice of Pakistan, as Chairman with four senior most judges of the
Supreme Court, one former Chief Justice or a retired judge of the Supreme Court, appointed by the
Chairman, in consultation with the four member judges of Supreme Court, Attorney General for
Pakistan, Federal Minister for Law & Justice, Chief Justice and most senior judge of the High Court to
which appointment is being made, provincial Minister for Law and an Advocate, (of fifteen years
standing), nominated by the respective provincial Bar Council, as members. For appointment of
Chief Justice, the requirement of most senior judge of the High Court, as member of the Commission
is excluded. Once the Judicial Commission approves a new name for appointment as judge of High
Court, 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.
The Court exercises original jurisdiction in the enforcement of Fundamental Rights and appellate
jurisdiction in respect of judgments/orders of the Subordinate Courts in all civil and criminal
matters. Appeals are also entertained against orders/judgments of Special Courts. A large number of
cases are pending in various High Courts. In the Lahore High Court, a total of 1,73,037 cases, in the
High Court of Sindh, 66,457 cases, in Peshawar High Court, 26,716 cases and in the High Court of
Balochistan, 4,923 cases were pending on 31st December 2013. In the newly established Islamabad
42 High Court, a total of 13,387 cases (both civil and criminal) were pending on 31st December 2013,
around 10,000 of such cases were transferred to it from Lahore High Court.
43 44 The High Court supervises and controls all the courts subordinate to it. It appoints its own staff
45 and frames rules of procedure for itself as well as courts subordinate to it.
An extremely controversial provision in the Constitution had been the transfer of a judge from one
High Court to another, without his consent or after consultation with the Chief Justice o

Chief Justices of the concerned High Courts. The original 1973 Constitution made such a transfer
subject to such consent as well as consultation. A proviso added by the Constitution (Fifth
Amendment) Act 1976, empowered the President to order such transfer for a period, not exceeding
one year; and the President Order No. 14 of 1985 extended such period from one to two years. This
clause was however deleted by the Constitution 18th Amendment and the original clause resorted.
Now a judge of a High Court cannot be transferred without his consent and consultation with the
Chief Justice of Pakistan and Chief Justices of both the High Courts.
4.5 Federal Shariat Court
47 The Court consists of 8 Muslim judges including the Chief Justice. Procedure for appointment of
judges of Federal Shariat 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, the judges of Federal Shariat Court are also appointed through the
Judicial Commission, which comprises the Chief Justice of Pakistan, as Chairman with four senior
most Judges of the Supreme Court, one former Chief Justice or a retired judge of the Supreme Court,
appointed by the Chairman, in consultation with the four member judges of the Supreme Court,
Attorney General for Pakistan, the Federal Minister for Law and Justice, Chief Justice of Federal
Shariat Court and most senior judge of the Federal Shariat Court, as members. 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 a judge of the Federal Shariat Court, 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 Commission through the Prime Minister, and the Commission is
required to send another nomination.
Of the 8 judges, 3 are required to be Ulema (Islamic scholars), who are well versed in Islamic law. The
48. judges hold office for a period of 3 years and the President may further extend such period.
The Court may, on its own motion or through petition by a citizen or a government (Federal or
provincial), may examine and determine as to whether or not, a certain provision of law is repugnant
49 to the injunctions of Islam. Appeal against its decision lies to the Shari’at Appellate Bench of the

Chief Justices of the concerned High Courts. The original 1973 Constitution made such a transfer
subject to such consent as well as consultation. A proviso added by the Constitution (Fifth
Amendment) Act 1976, empowered the President to order such transfer for a period, not exceeding
one year; and the President Order No. 14 of 1985 extended such period from one to two years. This
clause was however deleted by the Constitution 18th Amendment and the original clause resorted.
Now a judge of a High Court cannot be transferred without his consent and consultation with the
Chief Justice of Pakistan and Chief Justices of both the High Courts.
4.5 Federal Shariat Court
47 The Court consists of 8 Muslim judges including the Chief Justice. Procedure for appointment of
judges of Federal Shariat 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, the judges of Federal Shariat Court are also appointed through the
Judicial Commission, which comprises the Chief Justice of Pakistan, as Chairman with four senior
most Judges of the Supreme Court, one former Chief Justice or a retired judge of the Supreme Court,
appointed by the Chairman, in consultation with the four member judges of the Supreme Court,
Attorney General for Pakistan, the Federal Minister for Law and Justice, Chief Justice of Federal
Shariat Court and most senior judge of the Federal Shariat Court, as members. 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 a judge of the Federal Shariat Court, 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 Commission through the Prime Minister, and the Commission is
required to send another nomination.
Of the 8 judges, 3 are required to be Ulema (Islamic scholars), who are well versed in Islamic law. The
48 judges hold office for a period of 3 years and the President may further extend such period.
The Court may, on its own motion or through petition by a citizen or a government (Federal or
provincial), may examine and determine as to whether or not, a certain provision of law is repugnant
49 to the injunctions of Islam. Appeal against its decision lies to the Shari’at Appellate Bench of the

Supreme Court, consisting of 3 Muslim judges of the Supreme Court and not more than 2 Ulema
50 (Islamic scholars), appointed by the President. If a certain provision of law is declared to be
repugnant to the injunctions of Islam, the Government is required to take necessary steps to amend
the law, so as to bring it in conformity with the injunctions of Islam. The Court also exercises appellate
51 and revisional jurisdiction over the criminal courts, deciding Hudood cases.
52 The decisions of the Court are binding on the High Courts as well as Subordinate Judiciary. The
53 54 Court appoints its own staff and frames its own rules of procedure. On 31st December 2013, a total
55 of 997 cases were pending before the Court.
Ever since its establishment in 1980, the Federal Shariat Court has been the subject of controversy in
56 the country. Created as an Islamisation measure by the Military regime and subsequently
57
protected under the controversial 8th Amendment, its opponents question the very rationale and
utility of this institution. It is argued that this Court merely duplicates the functions of the existing
superior courts. The composition of the Court, particularly the loose qualifications of 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, susceptible to pressure and
influence 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 (stoning to death) are severely criticised and deplored. With the
adoption of Protection of Women (Criminal Laws Amendment) Act 2006, the jurisdiction of the
Court is considerably curtailed, inasmuch as, appeals/applications for revision arising out of trial of
offences are taken out from the Offence of Zina (Enforcement of Hudood) Ordinance 1979, hence are
no longer filed before this Court. They are filed before the High Court. In a recent verdict (Shariat
Petition 1/1 of 2010), the Court sought to extend its jurisdiction to all matters mentioned as Hudood
in the Islamic injunctions and further declared certain amendments to the Protection of Women
(Criminal Law Amendment) Act 2006 as repugnant to the injunctions of Islam. However an appeal
against this decision has been filed before the Supreme Court and as such the implementation of
this judgment is stayed. Appeals against the judgments of the Federal Shari’at are heard by the 5-
member Shari’at Appellate Bench of the said Court.

Subordinate Courts
The Subordinate Judiciary may be broadly divided into two classes; one, civil courts, established
under the Civil Courts Ordinance 1962, and two, criminal courts, created under the Code of Criminal
Procedure 1898. In addition, there also exist other courts and tribunals of civil and criminal nature,
created under special laws. Their jurisdiction, powers and functions are specified in the statutes,
creating them. The decisions and judgments of such special courts are assailable before the superior
judiciary (High Court and/or Supreme Court) through revision or appeal.
The provincial governments fund the justice sector. The civil and criminal courts judges and their
terms and conditions are regulated under the provincial rules. The High Court, however, exercises
administrative control over such courts. The civil courts consist of District Judge, Additional District
Judge, Senior Civil Judge and Civil Judge Class I, II & III. Similarly, the criminal courts comprise of
Sessions Judge, Additional Sessions Judge and Judicial Magistrate Class I, II & III. Law fixes their
pecuniary and territorial jurisdictions. Appeal against the decision of civil courts lies to the District
Judge and to the High Court, if the value of the suit exceeds specified amount. Similarly, in keeping
with the quantum of penalty, appeals against criminal courts lie to Sessions Judge or High Court.

Special Courts and Administrative Tribunals
The Constitution authorizes the Federal Legislature to establish special courts as well as
58 administrative courts and tribunals for dealing with federal subjects. Consequently, several special
courts/tribunals have been created which operate under the administrative control of the Federal
Government. Most of these courts function under the Ministry of Law & Justice, however, certain
courts also operate under other ministries/departments. Such courts/tribunals include: Special
Courts (Control of Narcotics Substances), Banking Courts (Recovery of Loans), Special Courts
(Offences in Banks), Special Courts (Customs, Taxation & Anti-smuggling), Income Tax Appellate
Tribunal, Environmental Tribunal , Insurance Appellate Tribunal, Customs, Excise & Sales Tax
Appellate Tribunal, Special Judges (Central), Drugs Courts, Anti-terrorism Courts, Accountability
Courts. Similarly, the provincial governments have their own special courts/tribunals, established
under statutes. Such provincial courts/tribunals include Labour Courts, Consumer Protection
Courts, Anti–terrorism Courts and Anti-corruption Courts. The judicial officers presiding over these
courts are mostly appointed on deputation from the provincial judicial cadre.
Besides, there exist revenue courts, operating under the WP Land Revenue Act 1967. The revenue
courts may be classified as the Board of Revenue, Commissioner, Collector, Assistant Collector of the
First Grade and Second Grade. The provincial government that exercise administrative control over
them, appoints such officers. The WP Land Revenue Act 1967 prescribes their powers and functions.

6.1 Service Tribunals
Under Article 212 of the Constitution, the government is authorized to set up administrative courts
and tribunals for exercising exclusive jurisdiction in matters, relating to the terms and conditions of
59
service of civil servants. Accordingly, service tribunal has been established at the Federal level. The
provincial governments have established their own service tribunals. The members of these
tribunals were previously appointed by the respective government. However, as the service
tribunals, both Federal and provincial, perform judicial functions, the Supreme Court has directed
the government to make appropriate legislation to ensure the independence and impartiality of
60 such bodies and ensure their financial autonomy. Appeals against the decision of the
Federal/provincial service tribunals lie to the Supreme Court.

Procedural Law
The Code of Civil Procedure 1908 prescribes the 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 Orders, 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 (filing plaints/written
statements, their form and particulars), proceedings, writing of judgment and execution of decrees.
The Code has been reviewed from time to time and its provisions amended to keep pace with time
and changing conditions of the society. Similarly, the Code of Criminal Procedure 1898 prescribes
the criminal procedure. The Qanun-e-Shahadat Order 1984 prescribes the competency of witnesses,
the examination of witnesses, form of evidence and the procedure for presenting the same. The
procedure prescribed in the law applies to judicial proceedings and investigations by a court of law
in civil or criminal cases. The special courts follow the procedure prescribed in the above-mentioned
codes, whereas some such courts follow special procedure, laid down in the respective statute.

Terms and Conditions of Service of Subordinate Judiciary
The Subordinate Courts (civil and criminal) have been established and their jurisdiction defined by
61 62 law. They are supervised and controlled by the respective High Court. 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 High

Court rules. Until recently, the appointing authority for judicial officers happened to be the
provincial government but with the separation of judiciary from the executive, such authority has
been transferred to the High Court. Initial recruitment as Civil Judge-cum-Judicial Magistrate is
made through written tests and viva voce examination, conducted by the respective High Court.
A Committee of the judges of the High Court, decides the issue of promotion of judges. For
appointment as Additional District & Sessions Judge, quota is fixed for service personnel as well as
induction from the Bar. Appointment as District & Sessions Judge is by promotion on the basis of
seniority-cum-fitness from among the serving judicial officers.
After appointment, the civil judges-cum-Judicial Magistrate receive specialized training at the
Federal Judicial Academy and/or the respective provincial judicial academy. Such training includes
education in various substantive/procedural 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 proceedings against a judge and take
appropriate action in the matter.
Disciplinary proceedings against judicial officers are usually 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. 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 deciding
appeals against the final orders of departmental authority. The judges of the respective High Court
man such tribunals. Appeal against their decision lies to the Supreme Court.
The Judicial System of Pakistan
18
8.1 Workload
The judiciary works under heavy workload. As against the bulging population and surge in litigation,
the strength of judges has not increased in equal proportion. Thus, there are around 4200 judges
(combined strength of judges of Superior Courts, Subordinate Courts and Special
Courts/Administrative Tribunals) for a population of 180 million in Pakistan. It means that there is
one judge for 42857 persons, which is far below the international standards. And whereas all the
courts have heavy dockets, the Subordinate Courts have to bear the brunt. As first instance trial
courts, most of the civil and criminal litigation is conducted at this level. According to one estimate,
around 90% of litigation in Pakistan is conducted at the level of Subordinate Courts and the rest at
the level of High Courts and Supreme Court. The Subordinate Courts also operate under many
constraints. There exists shortage of courtrooms, judicial officers, ministerial staff and office
equipment. The strength of Subordinate Judiciary has not kept pace with the rise in litigation due to
which huge backlog of pending cases is accumulated, and there are enormous delays in deciding
cases. As against the recommendations of several law reform commissions and committees that the
number of cases pending with a civil judge should not be more than 500 and the number of units
pending with a District & Sessions Judge should not be more than 450 at a time, in actual practice,
the number of cases and units is far in excess of this prescribed limit.
8.2 National Judicial Policy
In an effort to reduce the backlog and streamline the judicial system in the country, and make it
responsive to the present-day requirements of society, the National Judicial Policy 2009 was framed.
The Policy was formulated by the National Judicial (Policy Making) Committee, headed by the Chief
Justice of Pakistan, with Chief Justices of Federal Shariat and High Courts as members.
The National Judicial Policy was aimed at ensuring easy access to justice at the grassroot level. It was
formulated in the aftermath of Judges-Restoration Movement (2007-2009), with a view to improve
the performance of justice sector in order to enhance public trust in the administration of justice. The
salient features of the Policy were: strengthening the independent of judiciary, its complete
separation from the executive, eradication of corruption and expeditious disposal of cases.
The major thrust of the Policy was on disposal of pending cases in the superior courts as well as
Subordinate Courts all over the country. The courts, especially the Subordinate Courts, performed
very well and achieved the targets, set for disposal. During the first year of its operation i.e.1st June
2009 till 31st May 2010, the Supreme Court, Federal Shariat Court, all High Courts and all
Subordinate Courts in the country, decided a total of 30, 93,658 cases. The Policy worked well, made
the people aware of their rights and motivated them to approach the courts for quick disposal of
their cases.
In the subsequent years, the backlog was further curtailed. As a result, currently in the province of
Balochistan, there is no backlog at any level. A civil or criminal case is decided within a year of its
institution. In the province of KPk, the trial span is reduced to 1-1/2 year. The remaining provinces i.e.
Sindh and Punjab are catching up. As per latest data available, on 31st December 2013, in the

Province of the Punjab, the number of pending cases was 1,107,634, in Sindh, 124,190, in KPk,
63 132,762, in Baluchistan 8444 and in Islamabad Capital Territory 30300.
The courts worked hard and extra hours to achieve the disposal targets. The bar and litigants also
cooperated and extended support in the endeavor to reduce to backlog and decide cases more
expeditiously. During the year 2012-13, the superior courts i.e. the Supreme Court, Federal Shariat
Supreme Court of Pakistan
Federal Shariat Court
Lahore High Court, Lahore
High Court of Sind, Karachi 54290 30358 18145 66475
Peshawar High Court, Peshawar 27295 19878 20457 26716
High Court of Balochistan, Quetta
Islamabad High Court, Islamabad
District Courts, Punjab 1024517 1929236 1759600 1107634
District Courts, Sind 114832 225999 216151 124190
District Courts, KPK 111062 309437 294726 132762
District Courts, Balochistan 8505 27349 27410 8444
District Courts, Islamabad 27797 59955 39251 30300
Total 1559803 2767530 2519674 1709345
The discrepancy in figure between various High Courts is on account of variation between
sanctioned and working strength and delays in the appointment of judges in such courts. Even
though there is lack of basic infrastructure, judicial and administrative staff and other paraphernalia,
these targets have been achieved within the existing resources. The strength of judges in the
The Judicial System of Pakistan
20
Supreme Court came down from 29 to 18, following a ruling of this Court in the case of Sindh High
Court Bar Association v Federation wherein the judges who had taken oath under the Provisional
Constitution Order (PCO) 2007. Similarly, close to one hundred judges of High Courts were also hit by
the ruling and were denotified. The High Courts then took some time to regain their strength,
through fresh induction.
The Subordinate Courts continue to face the daunting challenge of shortage of strength, support
staff, equipment and other budgetary constraints. The judiciary – 3rd pillar of the State – is not
getting even 1% of the total budgetary allocation of the federal/provincial governments.
Notwithstanding the deficiency in strength and budgetary constraints, due to efficient
performance and better service delivery, the institution of cases in courts is a sign of enhanced
Public confidence in the judiciary

Organization of Judicial Administration
The judicial system is structured like a pyramid, with the Supreme Court at the appex and the court of
Civil Judge-cum-Judicial Magistrate at the base. The appex Court is the Court of ultimate appeal
SUPREME COURT OF PAKISTAN Shariat Appellate
Supreme Court
Federal Shariat Court

2ct & Sessions Judge
Addl. District & Sessions
Judge
District & Sessions Judge
Addl. District & Sessions
Judge
District & Sessions Judge

The Judicial System of Pakistan
9.2 Strength of Judges
The sanctioned strength of judges of the superior and administrative court
The Judicial System of Pakistan