HIGH COURTS IN PAKISTAN
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Introduction:
There is a High Court in each of
the four provinces. A High Court
consists of a Chief Justice and so many other Judges as may be determined by
law or as may be fixed by the President. 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.
Appointment
of High court Judges:
A Judge of the High Court is
appointed by the President after consultation with the Chief Justice of
Pakistan, the Governor of the Province and the Chief Justice of the High
Court in which appointment is to be made.
No person is appointed as a Judge
of the High Court unless he is a citizen
of Pakistan having forty years of age and has been an advocate of the
High Court or has held a judicial office for ten years and has for a period
of not less than three years, served as or exercised the functions of a
District Judge in Pakistan. A Judge of a High Court holds office until he
attains the age of sixty-two years, unless he sooner resigns or is removed
from office in accordance with the Constitution.
The principal seat
of the Lahore High Court is at Lahore and it has three Benches at Bahawalpur,
Multan and Rawalpindi. The principal seat of the High Court of Sindh is at
Karachi with a Bench at Hyderabad and Sukkur. The principal set of Peshawar
High Court is at Peshawar and it has two Benches at Abbottabad and Dera
Ismail Khan. The principal seat of High Court of Baluchistan is at Quetta
with a Bench at Sibi. Each High Court may have more Benches at other places
as the Governor on the advice of the Cabinet and in consultation with the
Chief Justice of the High Court may determine.
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 done by a person without lawful
authority is of no legal effect; or
(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.
A High Court has the power to
withdraw any civil or criminal case from a trial court and try it itself.
Appellate Jurisdiction:
A High Court has extensive appellate
jurisdiction against the judgments, decisions, decrees and sentences passed
by the civil and criminal courts.
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CONSTITUTION
OF
THE
ISLAMIC REPUBLIC OF PAKISTAN, 1973
The Judicature: CHAPTER 1: THE COURTS
Article:
175 Establishment
and jurisdiction of Courts
(1)
There shall be a Supreme Court of Pakistan, a High Court for each Province [and a High Court for the Islamabad Capital
Territory] and such other courts as may be established by law.
[Explanation.--Unless
the context otherwise requires, the words “High Court” wherever occurring in
the Constitution shall include “Islamabad High Court.]
(2)
No court shall have any jurisdiction save as is or may be conferred on it by
the Constitution or by or under any law.
(3)
The Judiciary shall be separated progressively from the
Executive within [fourteen] years
from the commencing day.
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Comparative Table of Article 175 of the Constitution of Pakistan, 1973
:
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|||
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Constitution of Pakistan 1962 :
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49
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Constitution of Pakistan 1956 :
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30,148,165
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Constitution of India 1950:
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124
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Government of India Act 1935:
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200
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CHAPTER 3:
THE HIGH COURTS
Article: 192 Constitution of High Court
(1) A High Court shall consist of a Chief Justice
and so many other Judges as may be determined by law or, until so determined as
may be fixed by the President.
(2) The Sind and Baluchistan High Court shall cease
to function as a common High Court for the Provinces of Baluchistan and Sind.
(3) The President shall, by Order, establish a High
Court for each of the Provinces of Baluchistan and Sind and may make such
provision in the order for the Principal seats of the two High Courts, transfer
of the Judges of the common High Court, transfer of cases pending in the common
High Court immediately before the establishment of the two High Courts and,
generally, for matters consequential or ancillary to the common High Court
ceasing to function and the establishment of the two High Courts as he may deem
fit.
(4) The jurisdiction of a High Court may, by Act of
2[Majlis-e-Shoora (Parliament)], be extended to any area in Pakistan not
forming part of a Province.]
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Comparative Table of Article 192 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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91
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Constitution of Pakistan 1956 :
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165
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Constitution of India 1950:
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216
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Government of India Act 1935:
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220
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Article: 193 Appointment of High Court Judges
(1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article I75A.
(2) A person shall not be appointed a Judge
of a High Court unless he is a citizen of Pakistan, is not less than
[forty-five] years of age, and –
(a) He has for a period of, or for periods
aggregating, not less than ten years been, an advocate of a High Court
(including a High Court which existed in Pakistan at any time before the
commencing day); or
(b) he is, and has for a period of not less than
ten years been, a member of a civil service prescribed by law for the purposes
of this paragraph, and has, for a period of not less than three years, served
as or exercised the functions of a District Judge in Pakistan; or
(c) He has for a period of not less than
ten years, held, a judicial office in Pakistan.
Explanation: In computing the period during which a
person has been an advocate of a High Court or held judicial office, there
shall be included any period during which he has held judicial office after he
became an advocate or, as the case may be, the period during which he has been
an advocate after having held judicial office.
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Comparative Table of Article 193 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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92
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Constitution of Pakistan 1956 :
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166
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Constitution of India 1950:
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217
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Government of India Act 1935:
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220(2)
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Article:
194 Oath of office
Before
entering upon office, the Chief Justice of a High Court shall make before the
Governor, and any other Judge of the Court shall make before the Chief Justice,
oath in the form set out in the Third schedule.
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Comparative Table of Article 194 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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93
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Constitution of Pakistan 1956 :
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215
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Constitution of India 1950:
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219
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Government of India Act 1935:
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220(4)
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Article:
195 Retiring age
A Judge of
a High Court shall hold office until he attains the age of sixty-two years,
unless he sooner resigns or is removed from office in accordance with the
Constitution.
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Comparative Table of Article 195 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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94
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Constitution of Pakistan 1956 :
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166(2)
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Constitution of India 1950:
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217
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Government of India Act 1935:
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220(2)
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196. Acting Chief Justice
At any time when-
(a) The office of Chief Justice of a High Court
is vacant, or
(b) The Chief Justice of a High Court is absent
or is unable to perform the functions of his office due to any other cause, the
President shall appoint [one of the other Judges of the High Court, or may request one of the
Judges of the Supreme Court], to act as Chief Justice.
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Comparative Table of Article 196 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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95
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Constitution of Pakistan 1956 :
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168
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Constitution of India 1950:
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223
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Government of India Act 1935:
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222(1)
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Article: 197 Additional Judges
At any time when-
(a) The office of a Judge of a High Court is
vacant; or
(b) A judge of a High Court is absent or is
unable to perform the functions of his office due to any other cause; or
(c) For any reason it is necessary to increase
the number of Judges of a High Court,
the President may, in the manner provided in
clause (1) of Article 193, appoint a person qualified for appointment as a
Judge of the High Court to be Additional Judge of the Court for such period as
the President may determine, being a period not exceeding such period, if any,
as may be prescribed by law.
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Comparative Table of Article 197 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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96
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Constitution of Pakistan 1956 :
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168
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Constitution of India 1950:
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224
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Government of India Act 1935:
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222(2)(3)
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Article: 198 Seat of the High Court
(1) Each High Court in existence
immediately before the commencing day shall continue to have its principal seat
at the place where it had such seat before that day.
(1A) The High Court for Islamabad Capital Territory
shall have its principal seat at Islamabad.
(2) Each High Court and the Judges and divisional
Courts thereof shall sit at its principal seat and the seats of its Benches and
may hold, at any place within its territorial jurisdiction, circuit Courts
consisting of such of the Judges as may be nominated by the Chief Justice.
(3) The Lahore High Court shall have a Bench
each at Bahawalpur, Multan and Rawalpindi; the High Court of Sind shall have a
Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad
[, Mingora] and Dera Ismail Khan and the High Court of Baluchistan shall
have a Bench at Sibi [and Turbat].
(4) Each of the High Courts may have
Benches at such other places as the Governor may determine on the advice of the
Cabinet and in consultation with the Chief Justice of the High Court.
(5) A Bench referred to in clause (3), or
established under clause (4), shall consist of such of the Judges of the High
Court as may be nominated by the Chief Justice from time to time for a period
of not less than one year.
(6) The Governor in consultation with the
Chief Justice of the High Court shall make rules to provide the following
matters, that is to say,
(a) Assigning the area in relation to which
each Bench shall exercise jurisdiction vested in the High Court; and
(b) For all incidentals, supplemental or
consequential matters.
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Comparative Table of Article 198 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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97
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Constitution of Pakistan 1956 :
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165(3)
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Constitution of India 1950:
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214
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Government of India Act 1935:
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219
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Article:
199 Jurisdictions of High Court
(1)
Subject to the Constitution, a High Court may, if it is satisfied that no other
adequate remedy is provided by law,
(a) On
the application of any aggrieved party, make an order
(i)
directing a person performing, within the territorial jurisdiction of the
Court, functions in connection with the affairs of the Federation, a Province
or a local authority, to refrain from doing anything he is not permitted
by law to do, or to do anything he is required by law to do; or
(ii)
declaring that any act done or proceeding taken within the territorial
jurisdiction of the Court by a person performing functions in connection with
the affairs of the Federation, a Province or a local authority has been done or
taken without lawful authority and is of no legal effect; or
(b) On
the application of any person, make an order –
(i)
directing that a person in custody within the territorial jurisdiction of the
Court be brought before it so that the Court may satisfy itself that he
is not being held in custody without lawful authority or in an unlawful manner;
or
(ii)
requiring a person within the territorial jurisdiction of the Court holding or
purporting to hold a public office to show under what authority of law he
claims to hold that office; or
(c)
on the application of any aggrieved person, make an order giving such
directions to any person or authority, including any Government exercising any
power or performing any function in, or in relation to, any territory within
the jurisdiction of that Court as may be appropriate for the enforcement of any
of the Fundamental Rights conferred by Chapter 1 of Part II.
(2)
Subject to the Constitution, the right to move a High Court for the enforcement
of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be
abridged.
(3) An order shall not be made under clause (1) on
application made by or in relation to a person who is a member of the Armed
Forces of Pakistan, or who is for the time being subject to any law relating to
any of those Forces, in respect of his terms and conditions of service, in
respect of any matter arising out of his service, or in respect of any action
taken in relation to him as a member of the Armed Forces of Pakistan or as a
person subject to such law.
(4)
Where
(a)
An application is made to a High Court for an order under paragraph (a) or
paragraph (c) of clause (1), and
(b) the
making of an interim order would have
the effect of prejudicing or
interfering with the
carrying out of a
public work or
of otherwise being harmful to
the public interest [or State property] or of impeding the assessment or
collection of public revenues,
the
Court shall not make an interim order unless the prescribed law officer has
been given notice of the application and he or any person authorized by him in
that behalf has had an opportunity of being heard and the Court, for reasons to
be recorded in writing, is satisfied that the interim order
(i)
Would not have such effect as aforesaid; or
(ii)
Would have the effect of suspending an order or proceeding which on the face of
the record is without jurisdiction.
(4A) An interim order made by a High Court on an
application made to it to question the validity or legal effect of any order
made, proceeding taken or act done by any authority or person, which has been
made, taken or done or purports to have been made, taken or done under any law
which is specified in Part I of the First Schedule or relates to, or is
connected with, State property or assessment or collection of public revenues
shall cease to have effect on the expiration of a period of six months
following the day on which it is made:
Provided that the matter shall be finally decided by
the High Court within six months from the date on which the interim order is
made.
(5)
In this Article, unless the context otherwise requires,
“person”
includes any body politic or corporate, any authority of or under the control
of the Federal Government or of a Provincial Government, and any Court or
tribunal, other than the Supreme Court, a High Court or a Court or tribunal
established under a law relating to the Armed Forces of Pakistan; and
“Prescribed
law officer” means
(a)
In relation to an application affecting the Federal Government or an authority
of or under the control of the Federal Government, the Attorney-General, and
(b)
In any other case, the Advocate-General for the Province in which the
application is made.
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Comparative Table of Article 199 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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98
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Constitution of Pakistan 1956 :
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170
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Constitution of India 1950:
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226
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Government of India Act 1935:
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223A
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Article: 200 Transfer of High Court Judges
(1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justice of both High Courts
Explanation: In this Article,
"Judge" does not include a Chief Justice, but includes a Judge for
the time being acting as Chief Justice of a High Court other than a Judge of
the Supreme Court acting as such in pursuance of a request made under paragraph
(b) of Article 196.
(2) Where a Judge is so transferred or is appointed
to an office other than that of Judge at a place other than the principal seat
of the High Court, he shall, during the period for which he serves as a Judge
of the High Court to which he is transferred, or holds such other office, be
entitled to such allowances and privileges, in addition to his salary, as the
President may, by Order, determine.
(3) If at any time it is necessary for any
person to increase temporarily the number of Judges of a High Court, the Chief
Justice of that Court may require a Judge of any other High Court to attend
sittings of the former High Court for such period as may be necessary and,
while so attending the sittings of the High Court, the Judge shall have the
same power and jurisdiction as a Judge of that High Court:
Provided that a Judge shall not be so required
except with his consent and the approval of the President and after
consultation with the Chief Justice of Pakistan and the Chief Justice of the
High Court of which he is a Judge.
Explanation: In this Article, "High Court"
includes a Bench of a High Court.
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Comparative Table of Article 200 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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99
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Constitution of Pakistan 1956 :
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172
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Constitution of India 1950:
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222
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Article: 201 Decision of High Court binding on subordinate Courts
Subject to Article 189, any decision of a High
Court shall, to the extent that it decides a question of law or is based upon
or enunciates a principle of law, be binding on all courts subordinate to it.
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Comparative Table of Article 201 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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100
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Article: 202 Rules of procedure
Subject to the Constitution and law, a High Court
may make rules regulating the practice and procedure of the Court or of any
Court subordinate to it.
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Comparative Table of Article 202 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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101
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Constitution of Pakistan 1956 :
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–
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Constitution of India 1950:
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227
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Government of India Act 1935:
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223
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Article: 203 High Court to superintend subordinate Courts
Each High Court shall supervise and control all
courts subordinate to it.
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Comparative Table of Article 203 of the Constitution of Pakistan, 1973
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Constitution of Pakistan 1962 :
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102
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Constitution of Pakistan 1956 :
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171
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Constitution of India 1950:
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227-228
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Government of India Act 1935:
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224(1)&225
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