From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

THE LEGAL SYSTEM

The Development of Law

Introduction

Legal system consists of practical and down-to-earth sets of procedures and rules designed to
provide solutions to ordinary problems.

CRIMINAL AND CIVIL LIABILITY

The distinction between criminal and civil liability is central to the legal system and to the way
in which the court system is structured. The objectives of each category of the law, although
closely connected, are different.

Criminal Law

Law is a set of rules; a society sets to maintain social order in society and protect the civilians
residing in the society from harm. A crime, on the other hand, is a conduct prohibited by the
law. The state usually acts as a prosecutor because it is the general population that suffers as
an aftermath at the hands of crime. A crime usually causes disruption. The creator of such
disruption will be sanctioned in order the further spreading of that particular crime. These
sanctions are usually fines and imprisonment.

The state initiates the criminal proceedings although in some cases, the case may be bought by
a private person. The bi-products of the crimes are the victims. The victims does not benefit
from a conviction, since the fines are payable to the State.
The State is liable to deem the accused as whether they are guilty or not on mere basis of prove
establishing the convict as guilty. The punishment subscribed is brought in the name of state.

Civil Proceedings

Civil law exists to regulate disputes over the rights and obligations of persons dealing with
each other. In any matter that might arise between the individuals, then the State is not really
responsible to tackle the issue. The responsibility remains with the civilians involved in the
case. There is no concept of punishment in this category of law, the basic purpose of this branch
of law is such that the matter is resolved and this resolve usually happens with exchange of
finance usually labeled as damages or other orders.

The civil proceedings pivot the case on the balance of probability. The party bearing the
responsibility of providing the proof is not required to produce absolute proof, nor prove the
issue beyond reasonable doubt. He must convince the magistrate concerned that his assertions
are true.

Tort and contract are the forms of relationship between individuals .The most important areas
of matters of civic liability is for business is the law of contract.
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

A contract is a legally binding agreement, breach of which infringes one person’s legal right
given by the contract to have it performed. A tort is a wrong committed by one person against
another, infringing the general rights given to him by law.

Distinctions between criminal and civil cases

The legal consequence of the act or event in question creates the distinction in the first place.
The two types of law are usually easily distinguished by the differences in the courts, the
procedures and the terminology.

LAW AND THE BUSINESS PROFESSIONAL

The business professionals should be aware when legal problems arise and be able to judge
when outside assistance is required. In these circumstances they should be better able to
communicate with lawyers.

FEATURES OF LAW

Pakistan, upon gaining independence inherited the legal system that was prevalent in British
India., since then; there is a constant progress in the development of the law. As the majority
of the country followed the Islamic faith, this resulted in the alteration of the English law as it
was conflicting with the principles of Islam.

The judge will have to follow the facts and figures of the case that was established earlier by a
superior court unless certain conditions are satisfied. This process is called the doctrine of
precedent.

The legal system that was initially adopted had its association with a harsh system incorporated
with rigid rules catering to the royal court. This was known as the common law. Equity was
developed as a system of law applied by the chancellor where justice did not seem to occur
under ‘common law’. The rules of equity were more flexible, the rules are basically dependent
upon the principles of equality and good conscience.

The relevant rules as derived from existing legislation and from case law may be categorized
in the form of codes. This phenomenon is known as Codification. Case Law is a law that has
been established by the courts. Legislation or statute is made by parliament. In some countries,
the law is minimized into code form which contains the whole of the law in a particular area.
Pakistan lacks the infrastructure needed to codify the laws. Thus, Pakistan has not been
successful in the process of codification.

The cases that are addressed to both the civil and the criminal variety are so different that they
are best administered in separate courts. However no such distinction exists in these separate
courts. There also exists a procedure of revision by appeal to higher courts.

THE DEVELOPMENT OF LAW

The two historical sources of law are common law and equity. These include the procedures,
rules and ways of thinking which has given to rise to today’s current sources of law, referred
to as legal sources.
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

Common Law

Early common law was somewhat inflexible; it would not adjudicate a case that did not fall
precisely under the purview of a particular writ and had an unwieldy set of procedural rules.
Except for a few types of lawsuits in which the object was to recover real or personal property,
the only remedy provided was money damages.

Equity

Citizens who could not obtain redress for grievances under common law petitioned to obtain
relief by direct royal intervention of the King in England. The chancellor, to whom the case
used to be brought about, deals with each petition in his own concern to establish the true
picture of reality and take necessary action neglecting the reflection of technicalities or
procedural points. The chancellor acts to bring out justice in the form of imposing penalties
upon parties for not attending interrogation. Basically the royal power was available to make
the law more effective. The principles on which the Courts decided points upon were based on
fair dealing between two individuals as equals, it became known as equity.

The equity was a method of adding to and improving on the common law; it provided different
dimensions to the field of law. It never was proved to be an alternate to common law.

The interaction of equity and common law produced three major changes;

▪ New Rights Equity recognized and protected rights for which the common law gave
no safeguards

▪ Better Procedure Equity is much more effective than common law in bringing a
disputed matter to a decision.

▪ Better Remedies

The procedure of equity provides the parties with better solutions as in how to tackle a
particular issue in the most adequate way.

The development of equity was based on a number of equitable maxims or principles. These
are the following;

▪ He who comes to equity must come with clean hands

▪ Equality is equity.
▪ He who seeks equity must do equity. This means that a person wanting equitable relief
must be prepared to act fairly in future himself.
▪ Equity looks at the intent, not the form. No matter what the individual tries to display
his actions, equity will only look at the factors that the individual ceases to gain after
the proceedings have taken place.

THE RELATIONSHIP BETWEEN THE COMMON LAW AND EQUITY

Equity accepted common law rights but insisted that they should be exercised in a just fashion.
The procedures put forward by the means of equity usually were in conflict with the means
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

forwarded by common law. There wee even attempts to abolish the common law and be
replaced by the equity system. However, the conclusion was reached that whenever it was
seen that the equity and common law were coming under conflict, equity must end up coming
on top.

Equity originally was not considered as a code of law but merely a disconnected
intervention in the legal disputes. As the time passed by, the chancellors of law were recruited
from the legal profession and therefore, they were trained under common law and equity
became a consistent body of doctrine and at least as technical as the common law.

Thus common law was usually subjected to being overruled by the importance of equity. This
procedure made the legal field very unpredictable. Therefore this dual system eventually
made its end. It is now possible to rely on any principle of common law or equity in any court
of law in which the principle is relevant.

The two branches remain very distinct till date. Common law tends to be automatic in its
effect. Equity on the other hand recognizes the common law and it sometimes offers an
alternative solution but the court is responsible whether to allow an equitable solution instead
of a common law.

THE SOURCES OF LAW

The law is not static but changes and develops, reflecting the values and institutions of each
time period. The main purpose and effect of law is to define and safeguard rights of property
and to uphold public order.

According to Salmond, sources of law can be divided into two branches; formal sources and
material sources. The formal sources of law are the will of the state as manifested in statuettes or
decisions of the courts. The material sources of law are those from which the matter is derived not
the validity of the law forsaken. The material sources are of two types; legal and historical. Legal
sources are those which are the instruments or organs of the state by which legal rules are
formulated. They are the gateway through which new principles find their way in the realm of
law. Historical sources are those where rules, subsequently termed into legal principles, they were
first to be found in an unauthorized form.

THE SOURCES OF LAW: SHARIA

The major difference that prevails between the Sharia law and other legal systems of the world is
that the sharia system is based on the religion of Islam. This is supposed to have two effects on
the matter. First, the law extends into areas of belief and religion. Second, the laws are based upon
the approval of God; this produces a greater impact in maintaining social order.

The Imams are placed against the judges to interpret the laws provided by the sharia legal system.
The key source in Sharia legal system is the Holy Quran. The Quran provides guidance of legal
nature but does not provide adequate knowledge of the matter, therefore other sources of Islamic
principles are needed to be referred. The other sources include the Sunnah of the prophet.
However, there are various problems associated with relying on religious sources to tackle legal
issues. The principal cause is the fact that people claim that the qualification as a rightful Islamic
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

practice are too difficult to meet considering the time period that has taken place since the death
of the Holy Prophet.

In some Muslim states, the State will issue statutes; these should be based upon the principles of
the Sharia. Pakistan has a federal Shariat Court which has a key role in judicial view. One of the
main functions it performs is to determine whether the law that passed is in accordance with the
injunctions laid down by Islam. Another important function is to hear appeals under the Hudood
rules.

THE SYSTEM OF THE COURTS

CRIMINAL

SUPREME COURTS (APPELLATE COURT)

DB (Division Bench of HC)

High Courts (Appellate Court) (ANY OFFENCE & ANY SENTENCE)

Lower Courts

COURTS OF SESSIONS
Sessions & Additional Sessions Judge (Any sentence except death penalty being subject to
confirmation by high court)
Assistant Sessions Judge (Maximum 7 years Imprisonment)

MAGISTRATES COURTS
(Also Some Family, Admin, and Minor Civil Matters)
1st Class: maximum 3 years imprisonment and fine of Rs. 15,000.
2nd Class: maximum 1 year imprisonment and fine of Rs. 5,000.
3rd Class: maximum 1 month imprisonment and fine of Rs. 100.

CIVIL COURTS

Only concerned with cases of a civil nature.

SUPREME COURT (Appellate Court)

DB (Division Bench of HC)

HIGH COURTS (Appellate Court and court of original jurisdiction)

From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

DISTRICT COURTS/ ADDITIONAL DISTRICT COURTS

Original civil suits without limits in all provinces except Karachi.

CIVIL COURTS AND THE CIVIL JUDGE

1st Class: Without limit as per value.( In Karachi, from Rs. 100,000 to 3,000,000)
2nd Class: Maximum Sum of Rs. 50,000 to Rs. 100,000)
3rd Class: Maximum Value of Rs. 50,000.

SMALL CAUSES COURTS

Set by High Court to deal with small matters not exceeding Rs. 100,000 (Only for Recovery of
Amount)

APPEAL:

All appeals from the Lower Courts go to District Judge, and then to High Court in Karachi while
in all other places the right of appeal to a DJ when valued at a max. of Rs. 200,000* . Above this
figure, the appeal is directly made to the High Court.

Appeals to the Supreme Court are only available on a point of law and lie only from the High
Court.

There is also a Federal Shariat Court and decides if any law is repugnant to the teachings of
Islam.

There are also several industrial tribunals aimed at providing speedy solutions through experts.
The right to appeal from here lies to the Service Appeal Tribunal.

Court Systems around the world are increasingly also using ADR (Alternate Dispute Resolution)

CASE LAW AND PRECEDENT

The two most important sources of law are case law and legislation. Case Law is made in the
court whereas Legislation is made by the parliament. The supreme law making body in
Pakistan.

There are two types of legislation; Parliamentary and Delegated, Delegated legislation is law
made an executive authority under powers given to them by primary legislation in order to
implement and administer the requirements of that primary legislation. It is law made by a
person or body other than the legislature but with the legislature’s authority.

The principal legal sources of law are the judicial precedent and statute. Certain procedures are
needed to be considered when these sources of law are applied in order to ensure that the law’s
objective of consistency and fairness are maintained. A court’s decision is believed to be on
the basis of decisions delivered in previous cases. The decisions of the judge must be reasoned.

CASE LAW
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

Consistency is considered to be an important feature of a good decision making process.

Similar cases should be treated in the same way. However, as a particular becomes old, the
judgment provided by those in authority may prove to be a little unjust. One of the most
important functions performed by the high court is to give an authoritative decision on disputed
questions of law.

The basis of the system of judicial precedent is the fact that the court provided an opinion which
the parties and others can use to govern the future relationship of the two parties. Common
Law and equity are both the products of court’s decisions. The laws produced by the court are
based on principle of consistency; under this principle, the laws that made in any later case to
which the same procedures and principle are applicable, they are ought to be applied.

Judicial precedent is based on three elements. First, there must be adequate and reliable reports
of earlier decision. Second, there are certain conditions needing to be fulfilled on a set of facts
the legal principle to be applied again in a broadly similar case. Precedents are classified into
two forms; the binding and the merely persuasive.

Law reports are series of books that contain judicial opinions from a selection of case law
decided by courts. Rule requires a court to apply a legal that was set forth earlier by a court of
the same jurisdiction dealing with a similar set of facts. The following are the contents of a
particular law report:

The parties involved;

The courts where the matter was considered;
The date;
A summary of the points of law established by the case;
A list of earlier cases cited as precedents;
The previous history of the litigation;
The facts;
The name of counsel and their arguments;
The final judgment;
The order of the court;

There are a certain conditions for a precedent to be in the binding form:

Should distinguish the facts;

It may declare the ratio descendi obscure;
It may declare the previous decisions as incorrect;
The earlier decisions may have been subsequently overruled by another court or by statue.

THE ADVANTAGES DISADVANTAGES OF PRECEDENT

Certainty

The principal reason that enforces a precedent is that the law is decided fairly and predictably.
The doctrine gives guidance to judges in order to reduce the number of mistakes that could take
place in a case where there is only one single judge. Therefore, it helps to establish better
judgment. Although, the judges may, at times be forced to make illogical decisions to avoid an
unfair result. The judgment will not have any validity because it would not be able to explain
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

the causes governing the judgment. This might establish the procedure of courts as completely
invalid.

Clarity

Following only the reason in ratio statements should lead to statements of principle for general
application. This is why the High Court must adhere to its own previous decisions and the
Supreme Court departs from its own previous decisions only infrequently. However, the same
judgment may be found to contain propositions which appear inconsistent with each other or
with the precedent which the court purports to follow.

Flexibility

The greatest facet of the system is the fact that it can adjust itself to the changing circumstances
in society. However, the doctrine limits the judges’ discretion and they would be unable to
avoid deciding in line with a precedent which can produce an unfair result.

Detail

Precedent states how the law applies to the facts and that it should be flexible enough to allow
for details to be different, so that the law is all encompassing. As has been noted above judges
often distinguish on facts.

Practicality

Case law is based on the experience of actual cases brought before the courts, not on logic or
theory. This is an advantage against legislation, which is sometimes found wanting when tested.
It can therefore, be established that any phenomenon can only be prevented if it is believed to be
harmful.

Legislation and statutory interpretation

The principal legal sources of are the judicial precedent and statute, these comprise a vast
amount of detailed judgment of rules. When these rules are to be applied in any case then,
certain procedures are to be adopted in order to ensure the law’s objective of consistency and
fairness.

A statute is a formal written enactment of a legislative authority that governs a particular

geographic region. However, they are extremely vague and so the disputes are likely to arise
as to how a particular statute is applied; the court must interpret the statute, determine what it
means and decide whether or not it applies to a given cause.

LEGISLATION

Parliamentary sovereignty gives rise to a number of consequences. Parliament is able to make

the law as it sees fit. It even has the authority to abandon the laws and statutes established
before. The constituent of the parliaments are as follows:
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

President is the head of a state. He approves the statutes forwarded by the national assembly.
The president in Pakistan is to be a Muslim. He guides the prime minister in the matters of vital
importance.

Parliament consists of the Senate and the National Assembly

Senate is any powerful authority characteristically composed of the eldest members of a

community, as a deliberative body of a faculty in an institution of higher learning. All Statutes
passed by the National Assembly are also approved by the senate with the exception of money
bills.

National Assembly is a legislative body consisting of the elected representatives of a nation or

country. The seats of the national assembly are determined on the basis of population of
provinces. The most important function of the National Assembly is law making and
formulation of policies. Various statutes presented in National Assembly are approved or
modified before approval through open debates at the floor of assembly.

The courts are to apply to the relevant statute law no matter how much inappropriate they
consider it to be. The judges have to interpret statute law and explore a meaning which would
seem applicable in a particular situation in a certain case. Although, the statutes are unclear,
their validity is not to be held under questioning. The parliament can make the law clearer by
converting into coded nature.

DELEGATED LEGISLATION

Delegated Legislation is law made by an executive authority under powers given to them by
primary legislation in order to implement and administer the requirements of that primary
legislation. It is a law made by a person or body other than the legislature but with the
legislature's authority. Local Authorities are given statutory powers to make bye-laws, which
apply within a specific locality. Parliament gives power to certain professional bodies to
regulate their members conduct.

Parliament does exercise some control over delegated legislation by restricting and defining
the power to make rules and by keeping the making of new delegated legislation. The power
to make delegated legislation is defined by the Act which confers the power. They should not
conflict with the correct procedure established earlier. If the objection is valid, the court
declares the new establishment as unacceptable. The interpretation and implementation of the
Acts are the responsibility of a judge.

Delegated legislation is unavoidable and is essential for various reasons. The parliament does
not have time to examine these matters of detail. The content is improved if established after
consultation with other groups of the population. If any alterations are required, it can be well
taken care in a short span of time. The system allows the law to be enacted quickly in an
emergency.

PROCESS OF LEGISLATION

The Parliament is divided into two agencies. These are the President and the Houses. The
agency of Houses is further divided into the National Assembly and Senate.
From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

The constitution distributes powers of the Federal Legislature into two divisions commonly
referred as lists. There are two types of lists namely; the Federal Legislative list and the
Concurrent Legislative list. When a particular bill is passed concerning any issue of a particular
society, it is examined by both the houses. The bill can originate in any of the two houses but
it is transmitted to the other house and after being approved by both the assent, it is forwarded
to the President for the final approval. If any bill passed ends up creating a controversy, it is
held under discussion in the sitting of both the houses, where the fate of the bill relies on the
decision of the majority.

The president should assent the bill within thirty days or return it to the parliament for
reconsideration. After being reconsidered by the parliament, the president does not have the
right to evaluate it again; it becomes an Act of the Parliament. 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 the National Assembly. But if the bill is pending in the Senate and passed by the
National Assembly shall not lapse on dissolution of the national assembly.

A Money Bill is a bill solely concerned with taxation or government spending as opposed to
the public laws. A money bill shall originate in the national assembly and after being passed
by the assembly, it will be forwarded to the president, without being transmitted to the senate,
for assent.

Ordinance is a statute enacted by the government. If deemed necessary, the president may take
immediate action. This immediate action will be presented as an ordinance. Such ordinance
shall have the same force and effect as an act of the parliament. The ordinance shall stand
repealed after four months if it is not presented or passed by the parliament.

THE INTERPRETATION OF STATUTES

When the interpretation is required, the court has always been concerned with what the statutes
itself provide. There are a number of situations which might lead to a need for statutory
interpretation;

• Ambiguity might be caused by an error in drafting whereby the words used are capable
of two or more literal meanings.
• Uncertainty may arise when the words of a statute are intended to apply to a range of
factual situations. And the court has to decide whether the case falls in any situation
recognized.
• Unforeseen Developments The parliamentary draftsmen cannot be expected to address.
The statutes should be able to cater to situations that are not predicted but are likely to
occur in time.
• Broad Term the statute addressing to a certain issue should also be covering all the
articles being covered in a broad term.

These are the principles of statutory interpretation, and consist of rules, presumptions and other
aids such as intrinsic and extrinsic.

THE RULES OF STATUTORY INTERPRETATION

From the desk of Barrister Moiz Ahmed, ASC. Prepared for business students.

The Literal rule

Words describing a particular statute should not be used in metaphorical terms. A word should
be construed in the same literal sense wherever it appears throughout the statute. The courts
will use standard dictionaries to aid them in their interpretations.

The Golden Rule

A statute should be construed to avoid a manifest absurdity or contradiction within itself.

The Mischief Rule

If the words of a particular statute are ambiguous and the statute discloses, the court will adopt
the meaning which is likely to give effect to the purpose or reform which the statute is intended
to achieve. This is to take account of the mischief or weakness which the statute is explicitly
intended to remedy.

The eiusdem generic rule

Statutes often list a number of specific things and end the list with more general words.
Therefore, general words are to be limited in their meanings to other things of the same kind
as the specific item which precede them. If the statute forms part of a series which deals with
similar subject matter, the court may look at the interpretation of previous statutes on the
assumptions that parliament intended the same thing.

PRESUMPTIONS OF STATUTORY INTERPRETATION

Unless the statutes contain express words to the contrary it is assumed that the following
presumptions of statutory interpretation apply, which may be rebutted by contrary evidence. A
statute does not alter the existing common law. The statute has to be interpreted in such a way
that it does not alter the common law.

If the statute deprives a person of his property as any consequence, he is to be compensated for
its value. A statute does not have any effect on the crime before being officially established as
a crime. A statute does not repeal other statutes. Any point on which the statutes leave a gap or
omission is considered as outside the scope of the statute

Moiz Ahmed
M.A. (Political Science), L.L.B (London),
Barrister at Law (Lincoln’s Inn, London)
Advocate Supreme Court of Pakistan
Managing Partner: Tanveer Ahmed & Associates.
Cell: 0333-2370820
Email: barristermoizahmed@yahoo.com
URL: www.taalaw.net