History
During the
last days of the 19th century, Lord Curzon (1899-1905), the then viceroy of
India, proposed[1], primarily for
administrative purposes[2],
the creation of North West Frontier Province which got the approval of Lord
George F. Hamilton, the then His Majesty’s Secretary of State for India on
20th December 1900.[3] The
province having formally founded on 9th November, 1901, (the King’s birth
day) had to get one Judicial Commissioner.[4] The N.-W.F.P. Law and Justice Regulation No. VII of 1901 was enacted by the
Governor-General-in-Council[5] in
order to establish judicial institutions. The Regulation repealed the Punjab
Courts Act, 1884. Parts II and III of the Regulation deal with criminal
justice, police and civil justice respectively; while part IV provides in
detail the constitution and powers of courts. Section 2 (1) (a) read with
section 42 of the said Regulation defined the duties and responsibilities of
the Judicial Commissioner who was stated to be the highest civil and criminal
court of appeal or revision in the province.[6] The Judicial Commissioner was also entrusted with duties of general
superintendence and control of all other courts, which were made subordinate
to his office. He was to appoint Registrar and make rules consistent with the
Regulation and any other enactment for the time being in force.[7]
The Regulation, besides the Court of the Judicial Commissioner and the
Courts of Small Causes, established under the Provincial Small Causes Courts
Act, 1887[8], created such other
civil courts as Divisional Court; the Court of the District Judge; the Court
of the Subordinate Judge and the Court of Munsif.[9]
According to the Regulation, appointments to and removal or suspension from
the posts of the Divisional Judge, District Judge and subordinate judge were
to be made by the Local Government; and of Munsif by the Judicial
Commissioner.
In 1931 further steps were taken to consolidate and to amend the law relating
to courts in the province. In this respect the N.-W.F.P. Regulation No. 1 of
1931[10] was promulgated. The
Regulation, while keeping intact some important powers of the Judicial
Commissioner such as precedence over other Judges of the court, distribution
of business, administration, and the highest Civil and Criminal Court of
Appeal or Revision, provided three classes of courts, viz. (i) the Court of
the District Judge; (ii) the Court of the Additional Judge; and (iii) the
Court of the Subordinate Judge,[11] thereby changing the hierarchy of courts provided under Regulation No. VII of
1901[12].The law
required the provincial government to divide the province into civil
districts to be headed by District Judges, who would be assisted by
Additional District Judges, if required. The status of the District
Judge being the principal Civil Court of original jurisdiction was retained.[13] It is clear from the above stated position that the latter enacted law did
not repeal N.-W.F.P. Regulation No. VII of 1901 as a whole; a major portion
of part IV comprising section 45 to 49 pertaining to courts was, however,
repealed.[14]
The Establishment of West Pakistan Act, 1955, which created the province of
West Pakistan, comprised, inter alia, the N.W.F.P.[15]
Soon after the enactment of the said law, a separate High Court for the
province of West Pakistan was created under the High Court of West Pakistan
(Establishment) Order, 1955, Lahore as its principal seat and benches at
Karachi and Peshawar. This repealed the former Lahore High Court, the Chief
Court of Sindh and the Judicial Commissioner Court in the N.-W.F.P. and
Baluchistan and any other Court functioning as High Court for any other
specified territories.[16]
Consequent upon the dissolution of One Unit[17],
which created four provinces and a High Court for each of these provinces,
the President issued a separate Order for the establishment of High Courts;
according to which the High Court for the N.W.F.P had to
be called Peshawar High Court, with its principal seat at Peshawar.[18] Under this law the High Court of the N.-W.F.P. and others were given such
powers, which were conferred on the High Court of West Pakistan.[19]
Legal history evinces that the law of civil
courts has separately been evolved since 1884, the year in which the Punjab
Courts Act was enacted. The West Pakistan Civil Courts Ordinance, 1962
(Ordinance II of 1962) has been promulgated thereafter to establish certain
civil courts.[20] The Ordinance
provided three civil courts, namely, the Courts of District Judge, Additional
District Judge and Civil Judge in addition to the Small Causes Courts
established under the Provincial Small Cause Court Act, 1887. The law
empowered the government to appoint, as per requirement, District and
Additional District Judges[21] and to fix the number of Civil Judges in consultation with the Chief Justice.[22] Under the Ordinance, the power to determine the class and pecuniary
jurisdiction of the Civil Judges rested with the High Court. Accordingly the
Civil Judge of the first class was conferred with pecuniary powers without
limitation, whereas the Civil Judge of the second and third class were
conferred with the pecuniary powers up to Rs 15000 and Rs 5000 respectively.
These pecuniary powers have been enhanced by now. The pecuniary jurisdiction
of Civil Judge first class is without limit, while that of Civil Judge second
class and third class has been enhanced to Rs. 5,00,000 and Rs. 1,00,000
respectively. The pecuniary powers of the District Courts have been enhanced
to Rs. 10, 00,000 vide an amendment in the West Pakistan Civil Courts
Ordinance, 1962.[23]
The Constitution of Pakistan, 1973 provides that Peshawar High Court shall
have a Bench each at Abbottabad and DI Khan.[24] Article 199 of the Constitution lays down in detail the jurisdiction of the
High Court.[25] The
jurisdiction was more or less the same as provided under the Constitution of
1956[26] and further detailed
under the Constitution of 1962.[27]
The Constitution of Pakistan, 1962, Article 98, the jurisdiction included
the various kinds of writs mentioned above.
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