Courts In Pakistan Research Articles

A Comparative Study of Maṣlaḥah and Mischief Rule: Pakistani Perspective

At present, almost all the legal systems are concerned with establishing a flexible interpretive policy to make the law to resolve the everyday complex issues for the benefit of the people at large. It is, however, a matter of great concern that the higher courts in Pakistan are still following static and foreign interpretive modes like a literal rule, the golden rule, and mischief rule etc, in the presence of dynamic interpretive principles of Islam. In this context, this research aims to analyze critically, the mischief rule and to present maslahah, a vibrant Islamic interpretive principle. This article argues that the Holy Prophet (SAW), his companions and the traditional Muslim jurists had to decide the contemporary issues by the way of maṣlaḥah which led to the development of Islamic jurisprudence and resulted in the ease of the people. While interpretive rules of English common law are static and have become outdated. This research, thus, concludes that unlike mischief rule, maslaha is more flexible and favorable by Islam for resolving the present-day socio-economic issues of the people. It recommends the higher courts of Pakistan to follow the principle of maṣlaḥah during the process of interpretation. It is also acclaimed that the Renaissance of this vibrant principle of ijtihād would be a revival of the interpretive policy of the Prophet (SAW), his companions and the traditional Muslim jurists. It would also lead to the development of Islamic jurisprudence in the light of changed context.

Affirmative Action in the Forensic Arena: Pakistan's Perspective

Being a weaker stratum of society, special measures should be taken to protect women and children. It is a basic obligation of all and sundry to safeguard and uplift women and children, but in the Courts of Law, they are the least protected. When the stage of realization of the basic rights comes, the Courts treat them like chattels on one pretext or other, especially on the ground of judicial restraint. They are not given equal treatment with men; what to say about special treatment in the Courts in Pakistan. Although on paper, women and children are the most privileged persons at the end of the day, they are victims of the men-made game. Everyone has been watching it since the creation of Pakistan and will continue seeing it forever. This article will explore the fraud being played on women and children from a forensic perspective.

One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘ and its Exposition by the Superior Courts in Pakistan

One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘ and its Exposition by the Superior Courts in Pakistan

Conviction to Acquittal in Narcotic Cases by Higher Courts in Pakistan

This study is conducted with objective to investigate the reasons/factors behind the high number of acquittals in narcotic cases in the Higher Courts of Pakistan. Other objectives of this study includes the analysis of CNSA (Control of Narcotics Substance Act 1997) which deals with the narcotic/drug related cases in Pakistan , highlight the deficiencies in the investigation of police in narcotic cases in the light of latest judgments given by Higher Courts (High and Supreme Court) in Pakistan. The study also provides some suggestions to fill the lacunas and improve the conviction rate in narcotic cases in Pakistan. To understand the main factors responsible for the acquittal in the narcotic cases, this study analysis the latest judgments of High Courts and Supreme Court of Pakistan where accused were acquitted from the charges due to different reasons. The study also analyzes the Control of Narcotics Substance Act 1997 for this purpose. The results of study Highlights the most common reasons given by the Higher Courts in narcotic cases where accused were acquitted. The study also recommends some steps needed to improve the situation and increase the conviction rate in drug related cases.

Confrontations and Limitations on the Freedom of Expression in Pakistan

The significance of the right to free speech is evident from the fact that the societies that curb and limit the freedom of expression are more prone to crimes and incidents of torture, ill-treatment and disappearances. Almost every state has imposed restrictions on the right to free speech on account of national security, defamation, religious hatred, extremism or radicalism. This article starts with the general discussion on the topic of free speech under the Pakistani laws and current regime. It examines the limitations on the freedom of speech under judicial interpretations. The article explores the confrontations in the context of defamation, blasphemy laws and contempt of court in Pakistan. It concludes that the limitations and restrictions imposed on the right to free speech must be clearly defined and reasonable.

Family Courts in Pakistan:

Family law in Pakistan underwent a fundamental change when the Family Courts Act, 1964 was enacted and family matters were entrusted to family courts instead of ordinary civil courts. Since then, family courts have been administering family law to provide ‘better remedies’ to women and children. This paper aims to highlight the objectives of enacting Family Courts Act 1964 and how does it regulate its own proceedings under the judicial structure. It is significant to examine that the provisions of (Civil Procedure Code, 1908) CPC are generally not applicable to the trials before family courts, however usually proceedings are more or less the same; yet, family courts have special powers to discover the possibilities of amicable settlement of family disputes. This paper investigates various procedures in several family issues like a suit for maintenance, dissolution of marriage, a suit for dower and other dowry articles, inheritance and custody of children. It also interrogates that how far the objectives of the said law are achieved? I also argue that there is a dire need of establishing family courts separately like other administrative tribunals as the spirit of the law demands. This research mainly emphasizes that the environment of the courts should be segregated for the decorum of the families whose domestic disputes are usually exposed publically that I cite as a great reason for not accessing legal protection in Pakistani society. The paper also stresses that the milieu of the courts should also be affable for the visit of the child for the best interest and welfare of children and women.

Dying Declaration; Admissible in Evidence: A Case in Pakistan

It is well settled principle of law that a dying man can`t tell a lie. A statement of a dying person as to cause or transaction causing his death is dying declaration within meanings of Article 46(1) of Qanoon e Shahdat Ordinance, 1984. Dying declaration is admissible in evidence in Pakistan, though subject to some critical test for admissibility. It is considered to be a corroborative piece of evidence, if it qualifies all the tests of credibility. This article discussed the admissibility of Dying declaration is legal system of Pakistan and test of credibility of that dying declaration in purview of judicial dicta of superior courts of Pakistan.

Admissibility of Evidence Produced via Modern Devices and Techniques: A Look in Pakistani Prospective

The time flies and had approached an era where every walk of life is being surrounded by Computer and other allied techniques. The evidence collected through modern computer devices was admissible in evidence in many developed legal systems but the study of judgments and decisions of apex courts of Pakistan transpires that the law of evidence in Pakistan has also widely allowed decisions of cases on evidence collected and generated through modern devices. However, there are some valuable techniques i.e polygraph test and FMRI which are not honored by Pakistani legal system to produce admissible evidence so Pakistan shall build laboratories and judges shall have to establish a judicial mindset in order to utilize evidence gathered through modern devices. This article is an analysis of judicial dictums of Pakistani Apex Courts before Judge Arshad Malik`s video scandal`s case titled Istiaq Ahmad Mirza vs Federation of Pakistan (PLD 2019 SC 675).

Evolution and Exercise of the Power of Judicial Review of Executive Actions in Pakistan

In the modern democracies the protection of fundamental rights has gained immense importance. The fundamental rights are guaranteed by the constitutions of democratic states. The courts are empowered through the power of judicial review to protect fundamental rights against any violations of these. The concept of judicial review of executive actions emerged from the concept that the powerful executive can jeopardize the rights of the people for their political interests and there should be an independent forum to check the abuses of the human rights by the executive. In the modern era the power of judicial review has proceeded one step further as, in addition to the violation of fundamental rights, it has started examining the issues of good governance and disputes between state organs. Pakistan inherited the idea of judicial review of executive actions from the supervisory jurisdiction of English Courts to issue prerogative writs. Subsequently, Pakistan specifically incorporated the judicial review powers in the 1962 Constitution. The provincial high courts and the Supreme Court are entrusted with the power of judicial review; however, the Supreme Court can adjudicate upon matters of fundamental rights if they involve public importance. This research work examines the importance of judicial review of executive actions for the protections of fundamental rights. Then the evolution and exercise of judicial review of executive actions by the higher courts in Pakistan is analysed. This study finds that the superior courts in Pakistan have actively used this power to protect fundamental rights but in their drive to protect fundamental rights sometimes they have encroached into the jurisdiction of the other state institutions.

Do Civil Courts (In Pakistan) Have Power of Judicial Review?

This paper attempts to highlight that power of judicial review is not limited to superior constitutional courts in Pakistan. Civil Courts have effective power of judicial review of administrative and legislative actions/acts. Acquaintance with this power can give poor litigants a cost effective remedy at local level. Nature of the power and grounds of action for judicial review before civil courts are stated.

Jadhav Case (India v. Pakistan) (I.C.J.)

In May 2017, India commenced proceedings before the International Court of Justice (ICJ) against Pakistan, accusing it of “egregious violations of the Vienna Convention on Consular Relations” (VCCR). The dispute concerns the treatment of an Indian national, Kulbhushan Sudhir Jadhav, who was detained, tried, and sentenced to death by a military court in Pakistan. The Court essentially upheld the claim by its judgment of July 17, 2019.

Analysis of China-Pakistan Cross Border Trade Conflicts Resolution Mechanism

This research paper significantly discusses ‘China Pakistan bilateral investment trade regime’ and the issues relating to dispute settlement as these are considered as high risks to disturb the trade agreements made between Pakistan and China after the huge investment in recent years. Pakistan and China have strong bilateral investment treaty agreements; however, such agreements cannot provide the suitable environment for current bilateral trade and investment, hence required to be amended. In this research authors examine the China Pakistan bilateral investment legal regime and dispute resolution mechanism by way of historical and comparative legal research approaches and considered these as legal risks in the way of foreign investment and the operation difficulties it may encounter. During this study, comparative legal research is applied to find out the differences among Pakistan legal system and international laws to make foreign investment more beneficial. Furthermore, under this research authors maintain the discussion through analytical approach that dispute resolution mechanism prevailing in Pakistan may not be capable to provide required support in favor of Pakistan where international arbitration and trade disputes are still in evolution process and assessed as a barrier in the way of bilateral trade. The objectives of this research are to examine the China Pakistan cross border trade conflict resolution mechanism in depth followed by good social, economic and legal policies for Pakistan. The intention of the researchers through this research is to provide to a stronger, safer and beneficial dispute resolution mechanism towards the socio-economic progress of Pakistan through enhancing the standards of such mechanism. This research concludes that Free Trade Agreement (FTA) and Bilateral Investment Treaty (BIT) between two countries are obsolete and required many amendments on the account of current investments. To fulfill the objective of current research paper, this study suggests the creation of international commercial court in Pakistan to deal with bilateral investment disputes.

Judicial Activism in Pakistan is Challenging for Foreign Investor in the Context of China and Pakistan Econonic Corridor

The judiciary has an important role in Pakistan. If the judicial system of any state provides appropriate law and justice,it would not only benefit local investors, but also provide a favorable environment for foreign investors to enhance their business. The support of the judiciary system is crucial for foreign investors in order to enhance FDI. In the past few years foreign investors were facing challenges by the courts in Pakistan. Due to judicial activism not only Pakistan being a host state had to experience failure in investment projects, but also the foreign investors had to become a victim of massive loss.In the constitution of Pakistan the courts have the power to take action against any case in the interest of the public. Suo moto is a constitutional power and judiciary have the right to use this power in any case.China is initiating a huge investment in Pakistan, which will not only provide great scope to the investors in growing their businesses but also will promote job opportunities, technology transfer,economics and prosperity of Pakistan. The judiciary system of Pakistan is likely to impose great challenges to the Chinese investors.It has been observed in the past that the judiciary in Pakistan had played a role in creating issues in the development of foreign investment leading to termination of the investment agreement.Moreover in some cases foreign investors were compelled to leave the country. Due to judicial activism privatization of Steel mill had been halted which became a burden to the Government of Pakistan. The foreign investment in Rental Power Project had also been terminated due to judicial activism. Chinese investment in Orange train is a recent example of judicial activism in Pakistan, which led to huge loss to the Chinese investors on account of halting of its construction after the agreement. Keywords. Judiciary,Foreign investor protection,Judicial Activism,CPEC DOI: 10.7176/JLPG/95-13 Publication date: March 31 st 2020

Women activists’ strategic use of the courts in Pakistan

ABSTRACTThe women's movement in Pakistan strategically used the courts to fight for rights-based empowerment over the last 40 years. Its demand to hold the state and judiciary accountable for delivering on its constitutional promise of fundamental rights has led to landmark public interest litigation jurisprudence. This paper presents for the first time the movement's full history of litigation in its key areas of concern: sexual and reproductive rights, protection from discriminatory laws and informal justice mechanisms, socio-economic and environmental rights and political rights. Achievements include positive verdicts, sensitizing judges, progressive legislation and increased public awareness.

Empire’s accidents: Law, lies, and sovereignty in the “war on terror” in Pakistan

This essay tracks the relationship between the legal and the lethal in the Central Intelligence Agency’s operations in Pakistan as part of the U.S.-led war on terror. I juxtapose an account of an automobile accident in Lahore on 26 January 2011 involving the Blackwater employee, Raymond Davis, with a drone strike in the North Waziristan Agency in Pakistan’s (former) Federally Administered Tribal Areas (FATA), the day after Davis was released by a court in Pakistan. I examine these “sovereign accidents” as articulations of the legal, political and democratic, and as sites upon which to (re)build understandings of sovereignty and its flourishes. Contrary to the popular tendency to see FATA as a marginal border region, that quintessential space of exception, I examine the FATA as jurisdiction. I thread together political discourse and practice in the U.S. and Pakistan, and by examining media coverage and litigation around the accidents, I show how a question of freedom of information in one setting is a question of life itself in another setting. At stake is the meaning and valence of law, the political, and the promise of postcolonial sovereignty.

Insights from outside BJOG

Insights from outside BJOG

Impact of Self-Control, Financial Literacy and Financial Behavior on Financial Well-Being

Financial knowledge is empowering the new generation of the 21st century in the era of transformative marketing (Kumar, 2018), which leads to the well-planned financial structure for long terms. However, it is imperative to know that on what scales they are managing their budgets. Understanding the impact of selfcontrol, financial literacy, and financial behavior is very vital for living a successful life (Sarstedt et al., 2017). The literature shows, people with good self-control and financial literacy tend to behave well compared to people with less self-control and financial literacy. This study examines the relationship between self-control financial literacy, financial behavior and financial wellbeing. A survey was conducted on 416 people from educational institutions, corporate sectors and food courts in Pakistan to empirically examine the impact of self-control and financial literacy on financial behavior and financial well-being of people. Better self-control and financial literacy lead to greater financial well-being. This research paper concludes that self-control and financial literacy affect financial well-being through financial behavior. Financial literacy has a significant direct impact on financial wellbeing, however the direct impact of self-control on financial well-being is insignificant. Impact of financial behavior on financial well-being is stronger than the impacts of financial literacy and self-control on financial well-being. This paper will be useful for economists and companies in Pakistan to better understand consumer market and to make decisions accordingly.

Formation and Working of Federal Shari’at Court in Pakistan

Formation and Working of Federal Shari’at Court in Pakistan

Application of Therapeutic Concept of Shared Parenting, in Child Custody Litigation

The law pertaining to the guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890. The primary consideration in guardian courts whilst granting custody of minors to either parent or sometimes to grandparents or other relatives is the welfare of the minor. The said law is the main mode of attaining custody of children. In a guardian/custody proceedings pending adjudication in a family/guardian court there are three parties to the proceedings: the Custodial Parent, the Non Custodial Parent and the Minor. Family matters are not to be decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of technicalities;paramount consideration before the court must be the welfare of the minor and betterment of the minor. Courts in such a matter are required to act in a Loco Parentis position and many issues are required to be kept into consideration by the guardian Court, however, this is not the practice observed by the Courts adjudicating guardian and custody matters pending adjudication in Pakistan. What has actually been done in the vast majority of cases pending in multiple guardian courts in Pakistan is that the non-custodial parents are subjected to abuse and victimization in the name of procedural technicalities, especially during the pendency of divorce and custody of minor proceedings. Even after waiting for months for the first face to face meeting with his/her own children, the non-custodial parent gets extremely limited visitation schedule to meet their children. This visitation schedule is often as little as once a month for two hours within court premises. Surprisingly, this visitation schedule has been followed widely in the guardian courts of Pakistan for decades and has now become precedent. In other words “once a month for 2 hours in court” has become a “template” of visitation orders being granted to non-custodial parents in guardian courts. In addition even the above said visitation schedule of two hours can be conveniently avoided by a custodial parent simply by presenting a fake medical certificate. In such cases the non-custodial parent is left with no choice but to wait for the next scheduled meeting. The guardian courts are generally very casual towards such excuses furnished by custodial parents. Being a lawyer I have witnessed that in most cases the flawed court systems were being manipulated to take revenge upon the non-custodial parent (who is usually a father) by not letting him meet his/her children. It is extremely easy to delay the proceedings simply by filing frivolous applications/appeals and appealing the orders to higher courts. Using similar delaying tactics, thousands of children are kept from meeting their non-custodial parent for months and in some cases years. The guardian courts are unwilling to acknowledge the simple fact that the nature of a child custody case is entirely different from routine civil cases. Child custody litigation is a true representative of judicial litigation where “justice delayed is justice denied”. The mind of a child is like a perishable commodity. With the passage of time it is easy to change the innocent mind. Within months due to the lack of interaction with a non-custodian parent and constant brain washing by the custodian parent and his/her family, the children start forgetting and in many cases begin disliking the non-custodian parent who once used to be extremely dear and loved. This phenomenon has been named as Parental Alienation Syndrome or simply “PAS” by psychiatrists.

Mulla's Principles of Mahomedan Law in Pakistani Courts: Undoing/Unraveling the Colonial Enterprise?

Sir Dinshah Fardunji Mulla’s magnum opus the Principles of Mahomedan Law is a famous and frequently cited book on Muslim personal law in Pakistan. It was authored in British India and was immersed into the context which shaped it in numerous ways. It unfolds a window to understand the processes embryonic in the formation of Anglo-Muhammadan law during British colonial era of Indian subcontinent. In addition to exploring the nexus of Mulla’s book with its context, this paper surveys how it is treated by the courts in Pakistan. The courts generally turn towards Mulla’s book for ascertaining the point of view of Muslim personal law as it is the most concise, handy, and easy to use reference material on the subject sanctified by chain of precedents dating back to British India. In addition to the deference accorded to the book by the courts, one comes across those cases where the courts have gone beyond the dictums expounded by Mulla. These cases are not in plenty, but they appear to be an inchoate step towards undoing/unraveling the colonial enterprise underlying the construction of Anglo- Muhammadan law. The complicated relationship between Pakistani courts and Mulla has been readjusting over the years, but still it is difficult to attribute it any precise caption.