INTRODUCTION

TO
LEGAL SYSTEMOF PAKISTAN
Definition of Law
◦ Law means a set of rules or a system of rules of conduct
designed and enforced by the state to control and regulate the
conduct of people
◦ Law is not stagnant. As circumstances and conditions in a
society change, laws are also changed as per the requirements
of the society
◦ The word law may have different meaning for different situations.
It is often preceded by an adjective to give it a more clear
meaning e.g. Civil Law, Criminal Law, Business Law etc
Definition of Mercantile Law
Business Law is the part of civil law which deals with the rights
and obligations of persons dealing with each other. It
includes laws relating to
◦ Contracts
◦ Partnership
◦ Sales of Goods
◦ Negotiable Instruments etc
Need of Study of Law
A general knowledge of some of the more important legal
principles and how they apply to certain problems will help
in avoiding conflict with the people around us.

Civil law involves the problems that impact on people’s

everyday life like debts, tenancy issues, sale of goods etc.

One should know the law to which he is subject because

generally ignorance of law is neither excuse nor defense
Sources of Law in Pakistan
The law consists of rules that regulate the conduct of individuals,
businesses, and other organizations within society.

The legal system is derived from English common law (Equity) and is
based on the constitution of Pakistan 1973 as well as Islamic law
(sharia). Thus we can say that in Pakistan the main sources of law are
following:
1. Legislation
2. Precedent
3. Custom
4. Agreement
1. Legislation
It is the law created by the Parliament of a country and other bodies to whom it has
delegated authority

2. Precedent
Precedent is a judgment or decision of a court which are binding on the
subordinate courts

3. Customs
With the passage of time as the society develops this source of law
diminished its tendency as a source of law. In Pakistan, the customary
law has been replaced by the Shariat Law

4. Agreement
Parties in their agreement stipulate terms for themselves which
constitute law for the contracting parties
Types of Law
There are several branches of the law. Each deals with a different
area of law and legal relationships. Two major branches of the
law are:
1. Criminal Law
2. Civil Law
Criminal Law
Criminal law establishes conduct that the State considers unacceptable, and
which it wishes to prevent. Individuals or organizations that act contrary to the
criminal law are threatened with punishment by the State, in the form of
imprisonment and/or fines.

With criminal law, the State establishes acceptable standards of behavior,

and represents the interests of society as a whole in doing so.

Legal action may be brought by the State against individuals who are
accused of being in breach of the criminal law. It is the responsibility of the
State (and not private individuals) to bring these legal actions, in criminal
trials.
Civil Law
The civil law is a branch of the law that primarily deals with disputes
between individuals and organizations (such as companies), and it
regulates relationships between them regarding their rights and
obligations. A violation of the civil law is a tort (a wrongdoing), but is
not a crime. The civil law provides for remedies for civil wrongs (torts),
but these do not include imprisonment.

Civil law may be established by statute or by case law (common law),

codification, interpretation of the law, consideration, and so on.
Criminal Law or Civil Law?
Many of the legal aspects of commercial and business law are aspects of the civil law,
but the criminal law may also apply. For example fraud and money laundering are
criminal activities that may occur in business.

It is also important to remember that the same action may be in breach of the criminal
law and also a tort in civil law. In such a situation, the action may give rise to:
◦ Criminal prosecution by the State and
◦ Civil action by a private person, claiming a remedy such as damages.

Legal proceedings in the civil law are initiated by an individual or private person against
another. (In contrast, a criminal prosecution is brought to court by the State.) For
example, an individual may bring a civil action against another person, claiming a
wrongdoing by that person and seeking a settlement (for example, seeking money
compensation in the form of ‘damages’.)

A civil case might therefore be identified as: Tanveer v Khatri where a case is brought to
the civil court by Tanveer (the ‘plaintiff’) who is making a claim against Khatri (the
claimant).
Proof of Burden
Another important difference between criminal law and civil law is the
burden of proof that is required by a court.
◦ In criminal cases, the burden of proof is much greater than in civil law
cases. The guilt of an accused person needs to be proved beyond all
reasonable doubts.
◦ In contrast, in civil cases the court needs to be satisfied on the balance
of probabilities that a person is liable.

This means that an individual accused of a crime might be found not

guilty in a criminal court, but the same individual may be sued in a civil
court for the same may be found liable.
Doctrine of Precedent
The Doctrine of binding precedent means that a judge is bound
to apply decisions from earlier cases to the facts of the case
before him provided certain conditions are satisfied.
Types of Precedent
1. Original Precedent is one which creates and applies a new
rule.
2. Binding Precedent is one which is required to be followed
◦ Persuasive precedent is one which is not required to be followed
e.g. a decision by lower court, decision by courts of other
countries.
◦ Declaratory precedent is the application of an already existing rule
of law.
How Precedents be Altered or Avoided?
Precedents can sometimes be altered or avoided by judges.
1. Over Ruling a Precedent:
A precedent established by a lower court can be overruled by a higher court. The
higher court sets aside the decision of the lower court, and the precedent ceases to
apply.

2. Making a Distinction between Cases:

A judge may avoid a precedent by identifying facts in the current case that make it
different from a previous case. If the facts are sufficiently different, the judge in the
current case does not have to follow the precedent of the previous case. Judges who
do not wish to apply a precedent in a particular case may therefore try to identify
distinguishing features in the case, and use these to justify a decision that ignores the
precedent.
Advantages of Binding Precedents
There are several advantages in a system of law based on binding precedent.
It can save time and expense. When a new legal dispute arises, time can be saved
by considering how the court is likely to make its decision based on the relevant precedent.
This may persuade one party to the dispute to reach an out-of-court settlement. If the case
goes to court, the existence of a precedent means that the legal arguments do not have to be
repeated in the current case, because they are already established.

Another important advantage of precedent and case law is that judicial decisions should be
consistent in all cases of a similar nature, because judges are required to treat similar cases in
the same way, as established by the precedent. Consistency in judicial decisions is an
important characteristic of a good system of law, because individuals and organizations who
become involved in legal disputes can often know what to expect if they take their dispute to
court. (They may dispute the facts of the case, but the legal principles should be well-
established.)

Flexibility in the law. Judges are able to interpret the existing law, including statute law, by
creating new precedents. This gives some flexibility to the law, because judges are able to
develop new law without the need for new legislation by statute.
Disadvantages of Binding Precedents
There are also some disadvantages with binding precedent and case law.
The large number of precedents. There are a large number of reported legal cases that can be
cited as precedents in a current case. Lawyers can therefore argue about which precedents
should apply in a particular case. When there is uncertainty about which precedents should
apply, there will be uncertainty about the outcome of the legal dispute. This is a weakness in
the law.

Unjust precedents. In some cases, a precedent might be unfair or unjust. Unless the precedent
is overruled by a higher court, unfair decisions will be continued in future cases. The law is
weakened when it is seen to be unfair.

The judiciary makes the law. Although judges are interpreting the law when they create new
precedents, they are also in effect making new law. It could be argued that the judiciary
should not make new law, but should do no more than interpret the established law.
Structure of Courts in Pakistan
The structure of courts in Pakistan has the following basis levels:

Supreme Court
High Courts Federal Shariat Court

Criminal Courts Civil Courts

Session Magistrate District Civil

Court Court Court Court
1. Supreme Court
◦ The Supreme Court of Pakistan is the highest appellate court of the country and
court of last resort.
◦ It is the final arbiter of the law and the Constitution.
◦ Its orders/decisions are binding on all other courts in the country.
◦ All executive and judicial authorities are bound to act in aid of the Supreme Court.
◦ The Constitution contains elaborate provisions on the composition, jurisdiction,
powers and functions of the Court.
◦ The Constitution assigns the Supreme Court a unique responsibility of maintaining
harmony and balance between the three pillars of the State, namely, the
Legislature, the Executive and the Judiciary.
◦ As guardian of the Constitution, the Court is required to preserve, protect and
defend this basic document.
Jurisdiction of Supreme Court
◦ The Supreme Court exercises original, appellate and review jurisdiction.
◦ It possesses exclusive original jurisdiction for the settlement of intergovernmental
disputes between Federal and Provincial Government(s) or Provincial Governments
inter se.
◦ Under this jurisdiction, the Court pronounces declaratory judgments.
◦ The Supreme Court can also exercise original jurisdiction, with respect to the
enforcement of fundamental rights, if the case involves an issue of public
importance.
◦ The Court also exercises advisory jurisdiction, where under the President may obtain
its opinion on a question of law.
◦ Under its appellate jurisdiction, the Court entertains appeals against orders and
decisions of High Courts and other special courts/tribunals.
Criteria to be Judge of Supreme Court
◦ A person with five years’ experience as a Judge of a High
Court or

◦ Fifteen years standing as an advocate of a High Court is

eligible to be appointed as Judge of the Supreme Court.
2. High Court
There is one High Court in each province, and one in the federal capital, Islamabad,
including:
◦ Lahore High Court, Lahore, Punjab
◦ Sindh High Court, Karachi, Sindh
◦ Peshawar High Court, Peshawar, Khyber Pakhtunkhwa
◦ Balochistan High Court, Quetta, Baluchistan
◦ Islamabad High Court, Islamabad,

The High Court has supervisory role over other Courts subordinate to it. It may issue a writ
of habeas corpus which is an order for the release of a person wrongfully detained, and
also prerogative orders against inferior courts, tribunals and other bodies such as local
authorities in so far as they have a duty to exercise a discretion fairly.
Criteria to be Judge of High Court
◦ Ten years’ experience as an advocate of a High Court or

◦ Ten years’ service as a civil servant including three years’

experience as a District Judge or

◦ Ten years’ experience in a judicial office.

Jurisdiction of High Court
Following are the few areas of jurisdiction of the High Court
◦ Original Civil Jurisdiction
◦ Appellate Civil Jurisdiction
◦ Appellate Criminal Jurisdiction
◦ Supervisory Jurisdiction
◦ Constitutional Jurisdiction
Types of High Court Prerogative Order
1. Mandamus
Mandamus requires the court or other body to carry out a public duty. E.g. a tribunal
may be ordered to hear an appeal which it has wrongly refused to do.

2. Prohibition
It prevents a court or tribunal from exceeding its jurisdiction.

3. Certiorari
Certiorari orders a court or tribunal which has taken action to submit the record of its
proceedings to the High Court for review. It is exercised when an inferior court has
acted illegally, exceeding its jurisdiction or reached its decision contrary to the
principles of natural justice, without giving the person concerned the right to know of
and reply to the case against him.
3. Criminal Court
The criminal courts structure is given below:
Courts Staff Jurisdiction
Chief Justice
Supreme Court of Pakistan Discussed earlier
Justice
Chief Justice
High Court Supervisory control
Justice
Sessions Judge All other offences not covered in Judicial Magistrate
Jurisdiction, but sentence of death is passed subject to
the confirmation of High Court. Cases of enforcement
Additional Sessions Judge
Sessions Court of law relating to Hudood are also tried by sessions
judges.

Assistant Sessions Judge
Judicial Magistrate 1st Class
Judicial Magistrate 2nd Class
Magistrates Court
Judicial Magistrate 3rd Class
Special Judicial Magistrate
Offences with punishment not exceeding seven years.
Offences with punishment of imprisonment for a term
not exceeding three year, fine not exceeding Rs. 15,000
and whipping.
Offences with punishment of imprisonment for a term
not exceeding one year, fine not exceeding Rs. 5,000.
Offences with punishment of imprisonment for a term
not exceeding one month, fine not exceeding Rs. 100.
Provincial Government on recommendation of High
Court confer upon any person powers of Judicial
Magistrate.
4. Civil Court
The criminal courts structure is given below:
Courts Staff Jurisdiction

Chief Justice
Supreme Court of Pakistan Writ Jurisdiction in issues of public importance.
Justice

Chief Justice
Supervisory Control
High Court Company Bench
Justices Banking Court
Justice

District Judge
District Court Certain suits of unlimited value of subject matter.
Additional District Judge

Civil Judge 1st Class Suit of unlimited value of subject matter.

Civil Court / Civil Judge 2nd Class Suit having value of subject matter not exceeding Rs. 50,000.
Rent Controller /
Family Court

Civil Judge 3rd Class Suit having value of subject matter not exceeding Rs. 5,000.
5. Federal Shariat Court

Courts Staff

Chief Justice
Supreme Court of Pakistan
Justice

Chief Justice
Federal Shariat Court
Justice
Composition of Federal Shariat Court
1. The Federal Shariat Court consists of not more than eight Muslim Judges including
the Chief Justice who are appointed by the President in accordance with Article
175A.

2. Out of the number not more than three shall be Ulema having at least fifteen years’
experience in Islamic law, research or instruction and not more than four each, one
of them
◦ is or
◦ has been or
◦ is qualified
to be a Judge of High Court.

3. The judges hold office for a period of three years. However, the President may,
extend such period.
Process of Federal Shariat Court
1. The Court may either
◦ of its own motion or
◦ on the petition of
- citizen of Pakistan or
- the Federal / Provincial Government
◦ examine and
◦ decide
the question whether or not any law or provision of the law is repugnant to the Injunctions of Islam.
2. If Federal Shariat court decides that a law or the provision of any law is repugnant to the Injunctions of Islam, it
shall set out in its decision:
◦ The reasons for its holding that opinion and
◦ The extent to which such law or provision is so repugnant
3. And specify the day on which decision shall take effect.
4. Provided that no such decision shall take effect before the expiration of the period within which an appeal
may be preferred to the Supreme Court or where an appeal has been so preferred, before the disposal of such
appeal.
Appeal to Supreme Court
◦ A party aggrieved by the final decision of the court within
sixty days of such decision may prefer an appeal to the
Supreme Court.

◦ An appeal on behalf of the Federation or a Province may

be preferred within six months of such decision.
6. Alternate Dispute Resolution
Alternate Dispute Resolution (ADR) is any type of procedure or combination of
procedures voluntarily used to resolve issues in controversy, other than court based
adjudication.

ADR is generally classified into following types:

1. Negotiation: In negotiation the participation is voluntary and there is no third party
who facilitates the resolution process or imposes a resolution.

2. Mediation: In mediation there is a third party a mediator is a person who facilitates

the resolution process but does not impose a resolution on the parties.

3. Arbitration: Arbitration is settlement of a dispute by an independent person usually

chosen by the parties themselves.

4. Conciliation: It is a process in which conciliator meets with the parties separately to

resolve the grievances.
Advantages of Alternate Dispute Resolution
1. Speedy: Arbitration is often faster than litigation in court.

2. Cheaper and Flexible: Arbitration can be cheaper and more flexible

for businesses.

3. Privacy: The public and the press have no right to attend a hearing
before an arbitrator.

4. Appeal: In most legal systems, there are very limited avenues for
appeal of an arbitral award.

5. Service of an Expert: The parties may choose the person

Disadvantages of Alternate Dispute Resolution
1. Appeal: Limited Avenue for appeal means that an erroneous
decision cannot be easily overturned.

2. Expensive: In countries where the cost of court action is not so high

this might be more expensive to go to arbitration.

3. Applicability of Law: Rules of applicable law are not necessarily

binding on the arbitrators, although they cannot disregard the law.

4. Delay: When there are multiple arbitrators on the panel, manage

their schedules for hearing dates in long cases can lead to delays.
Qualification to be an Arbitrator
◦ Must be a Muslim

◦ Male

◦ Knowledge in Sharia and

◦ Free from any defects that could affect his ability to arbitrate.
Pakistan’s Law making Authority
1. Pakistan has a Federal Parliamentary System of government, with the
◦ President as the Head of State and
◦ Ppopularly elected Prime Minister as Head of Government

2. Federal Legislature is a two-tier Majlis-e-Shoora (Parliament), composed of

◦ The President
◦ National Assembly (Lower House) and
◦ Senate (Upper House)

3. Law making Three Organs, are

◦ Executive
◦ Legislative
◦ Judicial
Process of Legislation
1. When National Assembly is in session a bill in respect of any matter may originate
in either house.
Scenario 1:
If it is passed by the house in which it is originated then it is transmitted to the other
house and
If the bill is also passed by the other house (without any amendment) then it is
presented to the President for assent.
Scenario 2:
If the bill is transmitted to a House and is passed with amendments it shall be sent
back to the House in which it originated and
If that House passes the Bill with those amendments it shall be presented to the
President for assent.
Scenario 3:
If a bill transmitted to a House is rejected or not passed within ninety days or a Bill sent to a House
with amendments is not passed by that House with such amendments
The bill at the request of the house in which it originated shall be considered in the joint sitting of
both the house i.e. National Assembly and the Senate and
If it is passed by the votes of the majority of the members present and voting in the joint sitting it
shall be presented to the President for assent.
Scenario 4:
When the President has returned a Bill to the Parliament it shall be reconsidered by the Parliament
in Joint Sitting and
If it is again passed with or without amendment by the Parliament by the votes of the majority of
the members of both Houses present and voting.
It shall be presented to the President for assent.

2. The President shall within ten days assent to the bill or return it to the Parliament for
reconsideration (in case of a bill other than money bill) of any provision or any
amendment therein.
3. In case a bill is pending in the National Assembly or passed by it, is pending in the
Senate. The bill shall lapse on the dissolution of National Assembly. But if the bill is
pending in the Senate not passed by the National Assembly shall not lapse on
dissolution of the National Assembly.
Money Bill:
A money bill shall originate in the National Assembly and after it has
been passed by the Assembly it shall (without being transmitted to the
Senate) be presented to the President for assent.

Ordinance:
The President if deems necessary to take immediate action, he has
power to make an Ordinance when the National Assembly is not in
session.
Such Ordinance promulgated thus, shall have the same force and effect
as an Act of the Parliament.
The Ordinance shall stand repealed after one hundred and twenty days if
it is not presented or passed
◦ by the National Assembly in case of Money Bill and
◦ by both houses if it is other than Money Bill.
Delegated Legislation
In Delegated Legislation power is given to an Executive (a minister or public body to
make subordinate or delegated legislation for specified purposes only). E.g. Local
authorities are given statutory powers to make bye-laws which apply within a
specific locality.
Control Over Delegated Legislation
Parliament has some control over delegated legislation by restriction and defining
the power to make rules.

Rules made under delegated power to move legislation may be challenged in the
courts on the grounds that it is ultra vires. In other words that it exceeds the
prescribed limits or has been made without due compliance.

If the objection is valid the court declares it void.

Advantages of Delegated Legislation
Time:
Parliament does not have time to examine matters in detail

Expert Opinion:
Much of the content of delegated legislation is technical and is better
worked out in consultation with professional, commercial or industrial
groups outside Parliament.

Flexible:
Delegated legislation is more flexible than an Act of Parliament. It is far
simpler to amend a piece of delegated legislation than to amend an Act
of Parliament.
Disadvantages of Delegated Legislation
The main criticism of delegated legislation is that it takes law
making away from the democratically elected members.
Power to make law is given to unelected civil servants and
experts working under the supervision of a government
minister.

Because delegated legislation can be produced in large

amounts the volume of such law making becomes
unmanageable and it is impossible to keep up-to-date.
 ACT VERSES ORDINANCE
• ACT
• Passed through Proper Channel
• Lower, Upper House & President
• Act when Passed
• ORDINANCE
• Lower and Upper House Absent
• Validity of Four months
• Had to be Passed by Houses
 AGREEMENT VERSES CONTRACT
BASIS FOR COMPARISON AGREEMENT CONTRACT

Meaning When a proposal is accepted by the When an agreement is enforceable

person to whom it is made, with by law, it becomes a contract.
requisite consideration, it is an
agreement.

Elements Offer and Acceptance Agreement and Enforceability

In writing Not necessarily Normally written and registered

Legal obligation Does not creates legal obligation Creates legal obligation

One in other Every agreement need not be a All contracts are agreement
contract.
Scope Wide Narrow