There is a Supreme Court in Pakistan and a High Court in each province, and other courts exercising civil and criminal jurisdiction. The Supreme Court and High Courts have been established under the Constitution and other Courts have been established by or under the Acts of Parliament or Acts of Provincial Assemblies.
Supreme Court of Pakistan
Structure: The Supreme Court is at the apex of the judicial systems of Pakistan. It consists of a Chief Justice known as Chief Justice of Pakistan and a number of other judges as may be determined by the Act of Parliament. The Chief Justice of Pakistan is appointed by the President. Other Judges are also appointed by the President after consultation with the Chief Justice.
Jurisdiction: The Supreme Court has original, appellate and advisory jurisdiction.
Original Jurisdiction: The Supreme Court, to the exclusion of every other Court in Pakistan, has the jurisdiction to pronounce declaratory judgments in any dispute between the Federal Government or a provincial government or between any two or more provincial governments. The Supreme Court, if it considers that a question of public importance, with reference to the enforcement of any of the Fundamental Rights ensured by the Constitution of Pakistan, is involved, it has the power to make any appropriate order for the enforcement of fundamental rights.
Appellate Jurisdiction: The Supreme Court has jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences passed by a High Court, the Federal Shariat Court and the Services Appellate Tribunals. An appeal to the Supreme Court can be made as a matter of right for certain cases while for the rest the Court hears an appeal with its prior permission.
Advisory Jurisdiction: If at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. The Supreme Court considers the question so referred and reports its opinion on the question to the President.
The seat of the Supreme Court: The permanent seat of the Supreme Court is in Islamabad, but it also runs circuits at Lahore, Karachi, Peshawar and Quetta.
Transfer of Cases: The Supreme Court may if it considers expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.
General: The practice and procedure of the Court is regulated by the rules made by the Court. All executive and judicial authorities throughout Pakistan are required to act in aid of the Supreme Court. Any decision of the Supreme Court to the extent it decides a question of law or is based upon or enunciates a principle of law is binding on all courts in Pakistan. The Supreme Court has the power to review any judgment pronounced by it or any order made by it.
High Courts of Pakistan
There is a High Court in each of the four provinces of Pakistan. The Islamabad Capital Territory falls within the jurisdiction of the Lahore High Court of Punjab. A High Court consists of a Chief Justice and as many other Judges as may be determined by law or as may be fixed by the President.
Jurisdiction: A High Court has original and appellate jurisdiction.
Original Jurisdiction: A High Court has, under the Constitution, original jurisdiction to make an order:
(i) directing a person within the territorial jurisdiction of the Court to refrain from doing anything he is not permitted by law or to do anything he is required by law;
(ii) declaring that any act was done by a person without lawful authority is of no legal effect;
(iii) directing that a person in custody be brought before it, so that the court may satisfy itself that he is not being held unlawfully;
(iv) giving such directions to any person or authority, for the enforcement of any of the fundamental rights conferred by the Constitution. Besides the original jurisdiction conferred by the Constitution, a High Court has original jurisdiction in many other matters conferred by or under various laws.
Appellate Jurisdiction: A High Court has extensive appellate jurisdiction against the judgments, decisions, decrees and sentences passed by the civil and criminal courts.
General: A High Court has the power to make rules regulating its practice and procedure and of courts subordinate to it. Each High Court supervises and controls all courts subordinate to it and any decision of a High Court binds all courts subordinate to it.
Shariat Court
Federal Shariat Court comprises eight Muslim Judges including the Chief Justice to be appointed by the President. Of the Judges, four are the persons qualified to be the Judges of the High Courts, while three are Ulema (scholars well-versed in Islamic Law).
Jurisdiction: Federal Shariat Court has original and appellate jurisdiction.
Original Jurisdiction: The Court may examine and decide the question of whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet. If the Court decides that any law or provision of law is repugnant to the injunctions of Islam, it sets out the extent to which such law or provision of law is so repugnant, and specifies the day on which the decision shall take effect. Where any law is held to be repugnant to the injunctions of Islam, the President in the case of Federal law or the Governor in the case of a Provincial law is required to take steps to amend the law so as to bring it in conformity with the injunctions of Islam, and such law ceases to have effect from the specified day.
Appellate Jurisdiction: The Court has exclusive jurisdiction to hear appeals from the decision of criminal courts under any law relating to the enforcement of Hudood Law i.e. laws pertaining to offences to intoxication, theft, Zina (unlawful sexual intercourse) and Qazf (false imputation of Zina).
Civil Courts
In every district of a Province, there is a Court of District Judge which is the principal court of original jurisdiction in civil matters.
Besides the Court of District Judge, there are courts of Civil Judges. Civil Judges function under the supervision and control of the District Judge and all matters of civil nature originate in the courts of Judges. The District Judge may, however, withdraw any case from any Civil Judge and try it himself. Appeals against the judgments and decrees passed by the Civil Judges in cases where the value of the suit does not exceed the specified amount lie to the District Judge.
Criminal Courts
In every district, there is a Court of Sessions Judge and Courts of Magistrates.
Criminal cases punishable with death and cases arising out of the enforcement of laws relating to Hudood are tried by Sessions Judges. The Court of a Sessions Judge is competent to pass any sentence authorised by law. Offences not punishable with death are tried by Magistrates. Among the Magistrates there are Magistrates of 1st Class, 2nd Class and 3rd Class. An appeal against the sentence passed by a Sessions Judge lies to the High Court and against the sentence passed by a Magistrate to the Sessions Judge if the term of sentence is up to four years, otherwise to the High Court.
Special Courts and Tribunals
To deal with specific types of cases, Special Courts and Tribunals are constituted. These are Special Courts for Trial of Offences in Banks, Special Courts for Recovery of Bank Loans, Special Courts under the Customs Act, Special Traffic Courts, Courts of Special Judges Anti-Corruption, Commercial Courts, Drug Courts, Labour Courts, Insurance Appellate Tribunal, Income Tax Appellate Tribunal, Accountability Courts, Anti-Terrorism Courts and Services Tribunals. Appeals from the Special Courts lie to the High Courts, except in the case of Labour Courts and Special Traffic Courts, which have separate forums of appeal.
The Ombudsman (Wafaqi Mohtasib)
The Concept Mohtasib (Ombudsman) is an ancient Islamic concept and the many Islamic States have established the office of Mohtasib to ensure that no wrong or injustice is done to the citizens. In the 18th century, when King Charles XII of Sweden was in exile in Turkey, he observed the working and efficacy of this institution in the Ottoman Caliphate. On regaining his throne, the King established a similar institution in Sweden. Gradually, other developed western countries also adopted this institution.
Establishment in Pakistan: In Pakistan, the establishment of the institution of the Ombudsman was advocated on several occasions. It was Article 276 of the Interim constitution of 1972, which provided for the appointment of a Federal Ombudsman as well as Provincial Ombudsmen for the first time. Subsequently, the Constitution
of 1973 included the Federal Ombudsman at item 13 of the Federal Legislative List in the Fourth Schedule.
The Institution of Ombudsman was, however, actually brought into being through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. The Wafaqi Mohtasib is appointed by the President of Pakistan and holds office for a period of four years. He is assured of the security of tenure and cannot be removed from office except on the ground of misconduct or of physical or mental incapacity.
Jurisdiction: The chief purpose of the Wafaqi Mohtasib is to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of a Federal Agency or a Federal Government official. The primary objective of the office is to institutionalise a system for enforcing administrative accountability.
The term “maladministration” has been defined in the law governing the office of Mohtasib, to cover a very wide spectrum, encompassing every conceivable form of administrative practice. It includes a decision, process, recommendation, an act of omission or commission, which:
(a) is contrary to law, rules or regulations or is a departure from established practise or procedure;
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory or is based on irrelevant grounds;
(c) involves the exercise of powers, or the failure, or refusal to do so, for corrupt or improper motives.
It also includes neglect, inattention, delay, incompetence, inefficiency, ineptitude in the administration, or in the discharge of duties and responsibilities. The term “Agency” has been defined as a Ministry, Division, Department, commission, or Office of the Federal Government, or a Statutory corporation, or any other institution established or controlled by the Federal Government.
Powers: If the Mohtasib finds an element of bad administration in a matter, he can, after investigating the matter, ask the Agency concerned to consider the matter further, to modify or cancel its decision, to take disciplinary action against any public servant, to dispose of the cases within a specified time, or to improve the working of the Agency, or to take any other specified steps. Failure on the part of an Agency to comply with the Ombudsman’s recommendation is treated as “Defiance of Recommendations” which may lead to the reference of the matter to the President of Pakistan, who, in his discretion may direct the Agency to implement the recommendations.
The Mohtasib is empowered to award compensation to an aggrieved person for any loss or damage suffered by that person on account of maladministration. But if the complaint is found to be false, or frivolous, he can also award compensation to the Agency or the functionary against whom the complaint was made.
Jirga
Jirga, a Persian word, means a gathering, or a consultation. Tribes had recourse to jirga to solve their multifarious problems and hence it is now commonly known as the tribal justice system. These problems covered a broad spectrum of subjects from an informal, community-based body that was meant to settle small claims, the ‘jirga’, or council of tribal elders, has in Pakistan been allowed to emerge as a powerful force protecting the interests of the powerful. A recent report by the Human Rights Commission of Pakistan (HRCP) on jirgas traces their history, citing several published sources according to which a British officer, Lt Sandeman, introduced this system of resolving disputes among the Baloch tribes, although it already existed in the Peshawar area.
On April 24, 2004, the Sindh High Court imposed a ban on holding jirgas in the province, but government functionaries, ranging from chief ministers to union council nazims, continue to participate in these meetings, according to the list compiled from newspaper reports by the HRCP.