The Legal System of Pakistan

1.1. Jurisdiction

Pakistan, with a population of over 174 million, has the sixth largest population in the world . A land of rich culture and heritage, Her earliest recorded history comes from the Indus valley civilization which flourished around 2500 BC and is proven to have commerce relationships with Mesopotamia in Iraq . Over the centuries, the area that now comprises Pakistan has seen Buddhist, Gandhara, Greek, and Hindu influences . However, the most lasting and permanent traditions to date, especially legal traditions, are those from Islamic and British influences.

1.2. Pakistan's Legal Traditions

Pakistan is traditionally a common law country . Pakistan's judicial system has seen four distinct staged of historical development, the Hindu Kingdom, Muslim-rule, British colonial domination and since 1947, as a sovereign and independent Islamic State . Pakistan also embodies Islamic and chthonic / indigenous legal traditions.

1.2.1. Advent of the Islamic Legal Tradition

The Indian sub-continent was exposed to Islam through Muhammad bin Qasim's expedition in 712 AD , who annexed almost half of present day Pakistan and established the first Muslim colony in the region. Subsequent to Islamic conquest by Turks and Afghans initiated in 979 AD, various Muslim dynasties ruled the Indian sub-continent for over 800 centuries, notably the Moughals .

The Islamic legal tradition took the strongest roots in the sub-continent during the eras of Moughal emperors Akbar (r. 1556-1605) and Aurangzeb (r. 1658-1707). Akbar '..... declared himself the final arbiter in all disputes of law derived from the Quran and the Sharia' . Aurangzeb, the last great Moughal emperor, aggressively enforced orthodox Sunni Islam . During the Moughal era, civil and criminal disputes were settled according to the Islamic law, with a tolerance for secular and indigenous (chthonic) customs and institutions by allowing them to continue alongside .

1.2.2. Advent of the Common Law Tradition

Under British colonial rule in the Indian sub-continent (1765-1947), the Islamic legal system was initially preserved . However, after the re-organization of courts in 1772 , English law became applicable in the Presidencies (administrative divisions) of British India. These English courts had jurisdiction over the English people in India , whereas Sharia continued to apply on Muslims . In 1862, the Indian Penal code, based on English criminal law, replaced the Islamic criminal law. The criminal law was thus secularised and Sharia was gradually confined only to Muslim family law . Furthermore, it had been recommended by the Fourth Law Commission of 1879 that the process of codification in British India be on the pattern of English Law, with necessary modifications suited to local Indian and Islamic traditions . By the beginning of the twentieth century, English Common Law was the law of the land in British India.

1.2.3. Efforts to Islamize the State of Pakistan

Pakistan achieved independence in August 1947 through the Indian Independence Act of 1947 , the main ideology being the creation of a separate Islamic state for Indian Muslims, free from Hindu domination. The Government of India Act 1935 was initially retained as a provisional Constitution, as were the legal system and judicial structure of the British period . After initial political turmoil and abolition of the 1956 and 1963 constitutions which could not gain national consensus, the extant Constitution of Pakistan was promulgated