The Contentious Nature of Right to Appeal

Executive summary

The right to Appeal must explicitly come from statutes or the Constitution; it cannot be created through rules alone. The nature of appeal as a right is a substantive, vested right determined at the commencement of proceedings. Appeals are a continuation of a case, and first appeals allow comprehensive factual and legal review; second appeals are limited to points of law. Appeals are not automatically guaranteed by principles of natural justice or constitutional provisions like Article 10A unless explicitly conferred by statute.

Statutory Origin of the Right to Appeal

In Pakistan, the right of appeal is not an inherent or common-law entitlement, but strictly a creation of statute (or the Constitution). No litigant can claim an appeal as of right unless a law expressly confers it. For instance, Section 404 of CrPC declares in unequivocal terms that no appeal exists from a criminal court’s decision unless the law affirmatively provides for it. Similarly, in civil cases, Section 96 CPC and related provisions (in Part VII) allow a first appeal from every original decree, with certain exceptions, implying that outside those provisions no appeal is available. Similarly, appeals in constitutional matters (like appeals to the Supreme Court from High Court judgments) are governed by constitutional provisions (e.g. Article 185 of the 1973 Constitution) or specific statutes, there is no general “natural” right to appeal absent such authorization.

In Ibrahim v. Muhammad Hussain (PLD 1975 SC 457), the Supreme Court clarified that the right of appeal “is a creature of statute and cannot be assumed in the absence of explicit statutory provisions.” If a statute does not provide an appellate remedy for a particular decision, then none exists, and one cannot be created by inference or by resort to general principles. Likewise, in President, All Pakistan Women Association v. Muhammad Akbar Awan (2020 SCMR 260), the Court held that where a law expressly bars an appeal or declares a decision final, that bar cannot be bypassed indirectly through a constitutional petition. These cases reinforce the overarching rule: the availability of an appeal must stem from an enabling law, whether an Act of the legislature or the Constitution itself.

If legislation is silent on appeals, or explicitly says a decision is final, then no appeal lies. For example, many special statutes (tax laws, anti-corruption laws, service laws, etc.) create specific appellate tribunals or forums and often stipulate that beyond those forums, no further appeal is available. The courts uphold such limits, reasoning that the legislature’s intent is paramount in determining how far a litigant can contest a decision.

Subordinate legislation (rules, regulations) cannot on their own confer a right of appeal that the parent statute did not authorize. A right of appeal must be conferred in the Act itself, not merely in the Rules, because an appeal involves invoking the jurisdiction of a higher court, a substantive right beyond the scope of procedural rule-making. If the Act delegates power to make rules “for carrying out the purposes of the Act” and specifically or implicitly includes the power to set up an appellate process, then a rule-based appeal may be valid, but in essence it is still the statute conferring that right via delegated legislation. Any attempt by rule-makers to create an appellate forum without statutory basis would be ultra vires (beyond their powers).

A rule or regulation made under an Act cannot override the Act’s silence or prohibition on appeals. Any appellate mechanism mentioned in rules must be traceable to an authority in the statute. If the Act delegates power to make rules “for carrying out the purposes of the Act” and specifically or implicitly includes the power to set up an appellate process, then a rule-based appeal may be valid, but in essence it is still the statute conferring that right via delegated legislation.

For example, the Civil Servants Act and similar statutes often empower the government to make rules for discipline and appeals of public employees. Pursuant to this, Civil Servants (Appeal) Rules might allow a civil servant to appeal a departmental penalty to a higher authority. That right of appeal, though described in “rules,” is effective because the statute authorized the creation of an appellate remedy as part of the procedural framework. By contrast, in the absence of such statutory backing, an attempt to create an appellate forum by rule would have no legal force. The superior courts have invalidated or refused to recognize appeals that were not grounded in the parent law. For example, the Lahore High Court in Mirza Muhammad Akbar Baig v. ADJ (2024 CLC 979) stressed that while the Family Courts Rules, 1965 set a 30-day time limit for filing an appeal, they do not and cannot themselves confer the right to appeal, that right comes from the Family Courts Act, and the rules merely regulate the procedure. Notably, the court in that case treated the 30-day limit with some flexibility (allowing condonation of delay for good cause) precisely because the right to appeal under the Act is substantive. Thus, rules operate within the scope of the statutory right, rather than creating it.

Appeal as a Continuation of the Original Proceeding

An appeal, particularly a first appeal (such as under Section 96 CPC), is regarded as a continuation of the original proceeding, not a wholly new lawsuit. In a first appeal especially, the entire case, factual and legal, is reopened before the appellate court for review. The appellate court stands in the shoes of the trial court to the extent of re-examining the evidence and law, and it wields essentially the same powers to adjudicate the case (e.g. to affirm, reverse, or modify the lower court’s decision). An appellate court’s powers under Section 107 CPC are “co-extensive with the powers of the court of original jurisdiction,” meaning the appellate bench can consider new arguments on the law and is duty-bound to reappraise all relevant evidence afresh in a first appeal. In this sense, the appeal is not a separate dispute but the next phase of the same dispute. The pleadings and record from the trial court carry over, and the rights of the parties are determined on the appellate court’s judgment which supplants the trial verdict. The appellate court rarely sends cases back merely because the facts are unclear; it typically conducts its own thorough re-assessment. However, in exceptional cases, such as when there is insufficient evidence or procedural irregularities affecting fair adjudication, the appellate court may remand the case to the lower court for additional investigation or evidence collection. In Shahzadi Maharunisa & another Vs Mst. Ghulam Sughran & another" PLD 2016 SC 358, the court held that, “an appeal is a continuation of the original proceedings and when an appeal is filed the entire case is reopened for examination both on the question(s) of fact and the points of law”.

The appellate court is considered the final arbiter on facts: it must independently evaluate the oral and documentary evidence and come to its own conclusions, rather than merely reviewing for errors. In 2022 SCMR 933, for example, the Court reaffirmed that an appellate court must make its own findings on all issues of fact and law, treating the matter as if it were being decided anew, albeit on the record of the trial. Even earlier, in PLD 2010 SC 906, the Supreme Court described the appellate jurisdiction as a “continuity of the original proceedings”, emphasizing that the appellate stage is essentially part of the same lis (controversy) that began in the trial court. That said, an appeal is a continuation only to the extent the law allows a rehearing. Second appeals, subject to conditions in Sections 100 and 102 CPC, are limited to substantial questions of law or jurisdictional errors and do not allow the appellate court to re-assess evidence or determine factual issues anew.

Appeal is in contrast to other remedies like review or revision, which are not treated as continuations but as distinct, constrained proceedings. An appeal is a continuation of the original proceedings, while a review is governed by Article 188 of the Constitution and is ordinarily heard by the same bench that gave the judgment.

Requirement of Express Authorization vs. Rules and Natural Justice

A related question is whether a right of appeal can be derived from constitutional or natural justice principles, such as the right to a “fair trial” (Article 10A of the Pakistani Constitution) or audi alteram partem (the right to be heard). Generally, the existence of an appeal is not considered a mandatory element of natural justice or fundamental rights, so long as the person has received a fair hearing at the first instance. The right to a fair trial guarantees each party an opportunity to present its case before an impartial forum, but it “does not inherently guarantee the right to appeal.” The High Courts and Supreme Court have explicitly held that Article 10A (inserted in 2010 to constitutionalize the right to fair trial) does not by itself create a right to multiple tiers of appeals in every case. For example, in a challenge to the Family Courts Act’s limitation of appeals, the Lahore High Court observed that restricting family cases to a single appeal (and barring further appeals) did not violate Article 10A or deny access to justice, particularly because the High Court’s constitutional supervisory jurisdiction remains available to correct jurisdictional or illegality issues. As long as one full opportunity to be heard is provided (trial plus one appeal as given by statute), the demands of fair trial are satisfied; the Constitution does not insist on a second or third appeal as a matter of right.

However, the judicial system does provide safety valves when no statutory appeal is available. If a decision is not appealable, an aggrieved party may often invoke the High Court’s constitutional jurisdiction under Article 199 (the writ jurisdiction) as a substitute check. This is not an appeal on the merits, but the High Court can examine whether the order was passed without lawful authority, in violation of law or fundamental rights, or in breach of natural justice. The Supreme Court has cautioned, though, that the writ jurisdiction should not be misused to indirectly obtain an appellate review of factual findings where the legislature intended finality. The proper role of constitutional review is to ensure legality and due process, not to give a dissatisfied litigant a second bite at the apple on facts. For instance, once a civil appeal is decided by a District Court in a family matter (and the law says no further appeal), the High Court cannot entertain a constitutional petition merely to re-weigh evidence or rehear the case, since that would undermine the statutory finality. In Shajar Islam v. Muhammad Siddique, PLD 2007 SC 45, and numerous other cases, courts emphasize that extraordinary writ powers are to be exercised within their narrow scope and not as an overarching appellate forum in disguise.

Across different domains:

Civil law: The CPC and special civil statutes spell out appeal routes (e.g. first appeal, second appeal on substantial questions of law), and courts hold those provisions as exhaustive. No civil appeal lies unless the Code or another act permits it.

Criminal law: The CrPC provides who may appeal (convicts, the government, etc., in specified situations) and pointedly bars appeals when not provided. The hierarchy (magistrate to sessions, sessions to High Court, etc.) is strictly statutory.

Constitutional law: Appeals to the Supreme Court require constitutional authorization – for example, Article 185 gives limited as-of-right appeals and otherwise appeals only by leave of the Supreme Court. If the Constitution is silent (as with many High Court writ decisions), no appeal lies as of right except the possibility of discretionary leave to appeal by the Supreme Court. Recent legislative attempts to introduce new appellate rights (such as the Supreme Court (Practice and Procedure) Act, 2023, which created an appeal from suo motu decisions) had to withstand constitutional scrutiny, with the Court noting the substantive nature of the right of appeal in that context.

Administrative law: Statutes establishing tribunals or authorities often build in an appellate or review mechanism (e.g. an appeal from a departmental order to a tribunal, or from a tribunal to the High Court/Supreme Court). Where they do not, the only recourse is usually judicial review, not an appeal on merits. The principle remains that one must look at the statute to see if an appeal is provided. If none is provided, none exists – no matter how desirable an appeal might seem from a fairness standpoint. The aggrieved party can petition under Article 199 or Article 184(3) (for violation of fundamental rights) as appropriate, but those are extraordinary remedies, not substitutes for a statutory appeal.