See

discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/283762635

CONFLICTING JUDGMENTS OF HIGH COURTS:

The Principle of Legal Certainty and the Ends of
Justice

Article · January 2009

CITATIONS READS

0 1,086

1 author:

Qaisar Abbas
Lahore High Court, Lahore
6 PUBLICATIONS 0 CITATIONS

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Undue Concentration of Media ownership resulting from vertical integration of broadcasting and
distribution View project

All content following this page was uploaded by Qaisar Abbas on 14 November 2015.

The user has requested enhancement of the downloaded file.

 Pakistan Law Journal, 2009 pp. 253-264
1

CONFLICTING JUDGMENTS OF HIGH COURTS:

The Principle of Legal Certainty and the Ends of Justice

By

QAISAR ABBAS ∗

[It is] as well to create good precedents as to follow them.

Francis Bacon

The judicial organ of the State is supposed to be a balancing, harmonising and

unifying force. Any mistake, slackness or omission on the part of the superior
judiciary can lead to devastating consequences. Therefore, anomalies and
inconsistencies in the judicial system at the top level (apart from organisational
structure, habitual defiance of the Constitution and scarcity of morality), which are
giving rise to a sense of uncertainty and unpredictability, can not easily be
overlooked, it must be resolved in time by nipping the evil in the bud.

It is beyond any contention and controversy that it is the foremost duty as well as
prerogative of the Superior Courts to interpret the law in a consistent and organised
manner to avoid further confusion. 1 The conflicting judgments of High Court(s) in
Pakistan are growing at a horrible rate and the principle of ‘legal certainty’ seems to
be undermined. In this paper, an attempt has been made to identify the levels as well
as types of conflicts, causes behind these conflicts, followed by few suggestions to
remove these conflicts and contradictions.

The Supreme Court of Pakistan is the apex Court under the Constitution of Pakistan,
1973 (Constitution) and its decisions are binding upon all the Courts subordinate to

∗ M.A., D.L.L., LL.M.(Pb)., Advocate High Court, Email: adv_qais@hotmail.com

1 S. Zafar Ahmad v. Abdul Khaliq, P L D 1964 (W. P.) Karachi 149.
 Pakistan Law Journal, 2009 pp. 253-264
2

it. 2 Whereas, the High Court in each province is the highest Court in that province
and has original, appellate, revisional, supervisory and extraordinary Constitutional
jurisdiction and Its decisions are binding upon subordinate courts. 3 It is pertinent to
mention here that unlike some other ‘federations’, there is a uniform and
homogeneous judicial system in Pakistan and the same sets of courts administer both
federal and provincial laws.

While, interpreting the law the court has to observe many legal and technical
formalities for the smooth, transparent and consistent functioning of the judicial
system. The judge is supposed to keep balance between his subjective sense of justice
and objectivity of law and, his personal view should not outwit the established norms
of justice, in a given society. It has been observed quite frequently that very little
attempts have been made to streamline the functioning of High Courts to avoid
conflicts. Sometimes, one federal law has been interpreted in different ways to the
extent of contradiction by the different Benches of the same High Court or by the
different High Courts. In the light of Article 4 and 25 of the Constitution, every
citizen is to be dealt in accordance with law and should receive equal treatment of
law, but in such circumstances the Constitution becomes nothing more than a rolling
stone. It becomes a revelation of personal sense of justice and the written
Constitutional safeguards stand compromised. Moreover, while answering the same
“question of law” (regardless, whether it is a federal or provincial law) it seems quite
habitual one that subjective interpretation/understanding has often been preferred
over harmonic or consistent interpretation... virtually rendering law

2 Constitution of Pakistan, 1973, Article 189. “Decisions of Supreme Court binding on

other Courts.
Any decision of the Supreme Court shall, to the extent that it decides a question of law or is
based upon or enunciates a principle of law, be binding on all other courts in Pakistan.”
Whereas, Article 190 (ibid.) runs as; “Action in aid of Supreme Court. All executive and
judicial authorities through out Pakistan shall act in aid of the Supreme Court.”
3 Constitution of Pakistan, 1973, Article 201. Decision of High Court binding on
Subordinate Courts. Subject to Article 189, any decision of a High Court shall, to the
extent that it decides a question of law or is based upon or enunciates a principle of law, be
binding on all courts subordinate to it.
Whereas Article 203 (ibid.) runs as; High Court to superintend Subordinate Courts.
Each High Court shall supervise and control all courts subordinate to it.
 Pakistan Law Journal, 2009 pp. 253-264
3

reports/precedents not only incredible but also converting them into a source of
profound confusion. The same “question of law” should not have different answers
for any citizen; no matter who is interpreting it (i.e. which High Court).

In this context, the application of the doctrine of Stare Decisis/Rule of Precedent 4

has been considered a useful tool of interpretation in Common Law jurisdictions to
achieve legal certainty, stability and predictability. According to Cardozo, “Stare
decisis is at least the everyday working rule of our law,”5 The doctrine is recognised
by our Constitution itself. 6 It is also true that the rule of precedent, or stare decisis, is
a means and not an end. 7 However, uncalculated innovations and deviations from
the doctrine can breed a sense of injustice and uncertainty. In the prevailing
circumstances, in achieving the ideals of justice, this paper may be a small
contribution.

Identification of the Problem

The types and levels of conflicts can be summarised as:

i. Various interpretations of a federal law. 8

4 Some scholars draw a distinction between the ‘precedent’ and ‘stare decisis’: See, e.g.,
Frederick G. Kempin, Jr. (1959). “Precedent and Stare Decisis: The Critical Years, 1800 to
1850,” AM. J. LEGAL HIST. Vol. 3 pp. 28, 30. (Precedent needs a doctrine developed
through a line of cases; stare decisis can use one case alone as authority); K.K. DuVivier,
(2001. “Are Some Words Better Left Unpublished?: Precedent and the Role of Unpublished
Decisions,” J. APP. PRAC. & PROCESS, Vol.3, pp. 397, 415-16 (explaining that stare decisis
means only “stand by things decided”; precedent is about bases for decision, and is an
“evolving doctrine.”); Polly J. Price, “Precedent and Judicial Power After the Founding,” B.C.
L. REV. Vol. 42, pp. 81, 105.
(2000) (explaining that stare decisis is strict, formalistic; precedent is less so.) I shall treat
them as synonyms, unless noted. They are of the same ilk. Put ‘doctrine of’ in front of them
and they are indistinguishable in ordinary legal usage; though you can have ‘a precedent’ you
cannot have ‘a stare decisis;’ stare decisis is used only for the doctrine.
5 Cardozo, Benjamin N. (1921), The Nature of the Judicial Process, Yale University Press,
p.20.
6 Op cit. nn. 2,3 supra.
7 Radin, M. (1946). “The Trail of the Calf,” Cornell L. Q. Vol. 32, pp. 137, 159.
8 Op cit. nn.14-15 infra
 Pakistan Law Journal, 2009 pp. 253-264
4

ii. Different interpretations of same ‘Question of Law’ by the two SBs of

the same High Court. 9
iii. Different interpretations of two or more High Courts on same ‘Question
of Law’. 10 (Benches of any strength)
iv. Selective reliance upon the precedents/previous judgements of the
same or different High Courts. 11
v. Excessive number of judgments delivered per incuriam. 12

Some instances of conflicts are given herein below only to highlight the issue and
they do not include a wholesome survey of all the reported cases.

I. Various Interpretations of a Federal Statute

In this type of conflict, one federal statute has been interpreted in

different ways by different High Courts. For example, various provisions
of Juvenile Justice System Ordinance, 2000 have been interpreted in
more than one way. 13 In the same way, The West Pakistan Family Courts
Act, 1964 has been construed subjectively by the various judges sitting in
the chambers. 14

II. Different interpretations of same ‘Question of Law’ by the two

Benches of the same High Court

9Op cit. nn. 16-18 infra

10Op cit. nn. 19-20 infra
11 Op cit. nn.14-18, 32-33infra
12 Ibid.
13 See, Azra Bibi v. State, 2004 PCr.LJ 1967 (DB); Muhammad Din v. Muhammad
Jahangir, PLD 2004 Lahore 779; M. Alim Ashraf v. State, 2005 MLD 1028; Qamar Hussain
Shah v. State, P L D 2006 Karachi 331(FB).
14For example,Ghulam Rasool v. Senior Civil Judge With The Powers Of Judge Family
Court, Faisalabad and 4 Others,2008 C L C 775; Noor Hussain v. Azizan Bibi and 2 others,
2006 M L D 1022; Khawaj Muhammad v. District Judge, Mansehra, 1999 MLD 2723; Mst.
Neelam Nosheen v. Raja Muhammad Khakan, 2002 MLD 784.
 Pakistan Law Journal, 2009 pp. 253-264
5

a. In the second category, there are certain types of decisions where one
and the same question of law has been differently construed by
different Single Benches (SB) of the same High Court. 15
b. Or where SB of the same Court takes a different view from the previous
decision of a larger Bench (for multiple set of reasons, to be discussed
later) 16 or difference among various larger Benches. 17
III. One High Court differing from another High Court on same
Question of Law
a. In the third category, there falls such decisions where an SB of one
High Court has not approved the precedent set by the Division Bench
(DB) or by a Bench or greater strength of another High Court on same
‘Question of Law’, 18 or;
b. where SB of a High Court has taken different view from the SB of
another High Court on the same question of law. 19
IV. Judgments per Incuriam

15 Mst. Sajida Parveen V.The Additional District Judge, Rawalpindi and 2 others, 1991 M L
D 745; Muhammad Hayat v. Additional District Judge 1st Okara and 2 others, PLD 1990
Lahore 350.
16 Op cit. IV. judgments per incuriam.
17 Aleem Ashraf v. The State, 2005 M L D 1028 (DB); Azra Bibi v. State, 2004 PCr.LJ 1967
(DB).
18Ardeshir Hormusji Dalal Zoharastrian and 4 Others v.The State and Another, P L D
2001 Karachi 437, disapproved Muhammad Shafi v. D.S.P. Malik Gul Nawaz, PLD 1992
Lahore 178 (FB) and approved State v. Ali Hussain and others, PLD 1974 Karachi 403 (SB).
19 Mazhar Illahi v. State PLD 2008 Peshawar 162; Saleem Hussian v. State, PLJ 1996
Cr.C.(Lahore) 916; Mahboob Ali v. State and 3 others, PLD 1996 Lahore 454; Tariq Latif
Butt and others v. State and 4 others, 1996 MLD 1874; Muhammad Sharif v. S.H.O., P.S.
City Hafizabad, PLD 1997 Lahore 692. Contrary View: Mukhtar Khan v. S.H.O., Police
Station Waris Khan, 2005 YLR 1329; Muhammad Khalid v. The State, 2003 MLD 874;
Zaheer Behzad v. The State, 2003 YLR 1582; Zahid Mahmood Malik v. Director Anti-
Corruption, Punjab, 2008 YLR 1066; Muhammad Yousuf V. Director, Anti-Corruption
Establishment Punjab, Lahore, PLD 2004 Lahore 284; Mukhtar Khan v. S.H.O. Police
Station Waris Khan District Rawalpindi and another, 2004 PCRLJ 976. ... are just few
examples.
 Pakistan Law Journal, 2009 pp. 253-264
6

‘Judgments per incuriam’ are the most important but the least understood
doctrine of common law, because in very rare and exceptional circumstances the
question is raised. Therefore it would not be out of place to explain the concept
which, otherwise with reference to the scope of this paper is also relevant.

Halsbury's Laws of England has commented on the ‘judgment per incuriam’ 20 as

under:

A decision is given per incuriam when the Court has acted in

ignorance of a previous decision of its own or of a Court of
coordinate jurisdiction which covered the case before it, in
which case it must decide which case to follow; or when it has
acted in ignorance of a House of Lords' decision, in which case it
must follow that decision; or when the decision is given it,
ignorance of the terms of a statute or rule having statutory force.
A decision should not be treated as given per incuriam, however,
simply because of a deficiency of parties, or because the Court
had not the benefit of the best argument arid, as a general rule,
the only cases in which decisions should be held to be given per
incuriam are those given in ignorance of some inconsistent
statute or binding authority. (emphasis added)

The application of the doctrine of stare decisis to decisions of the Court of Appeal
was the subject of close examination by a Court of Appeal composed of six of its
eight regular members in Young v. Bristol Aeroplane Co. Ltd 21 wherein it was
held that the Court of Appeal was bound to follow its own decisions and those of
courts of coordinate jurisdiction, and the ‘full court’ was in the same position in
this respect as a division of the court consisting of three members. The only
exceptions to this rule were declared as follows:—

20 . Halsbury's Laws of England, Fourth Edition, Volume 26, paras. 577-578.

21 [1944] K.B. 718. Since then this case has been upheld and followed subject to addition of
few more exceptions. See also, Davis v. Johnson, [1979] AC 264; Morelle Ltd. v. Wakeling,
[1955] 2 QB 379; Bonsor v. Musicians' Union, [1956] A.C. 104 at pp. 120, 128; Nicholas v.
Penny, 1950, 2 King's Bench, page 466.
 Pakistan Law Journal, 2009 pp. 253-264
7

(1). The court [i.e. Court of Appeal] is entitled and bound to decide which of
two conflicting decisions of its own it will follow;

(2) The court is bound to refuse to follow a decision on its own which,
though not expressly overruled, cannot, in its opinion, stand with a
decision of the House of Lords [i.e. in conflict with the ruling of House of
Lords/Supreme Court];

(3) The court is not bound to follow a decision of its own if it is satisfied that
the decision was given per incuriam, e.g., where a statute or a rule having
statutory effect which would have affected the decision was not brought
to the attention of the earlier court.

Although, later on, Lord Denning on the pattern of House of Lords 22 attempted
to liberate the Court of Appeal from the clutches of the doctrine of Stare
Decisis 23 what in the words of Lord Diplock;

22 London Street Tramways v. London County Council [1898] AC 375, was felt not binding
in the Practice Statement issued by House of Lords, which runs as follows; […] Freedom of
House of Lords to depart from their previous decisions where right to do so - Doctrine of
precedent nevertheless an indispensable foundation of decisions of law.
Before judgments were given in the House of Lords on July 26, 1966, LORD GARDINER,
L.C., made the following statement on behalf of himself and the Lords of Appeal in Ordinary:
Their Lordships regard the use of precedent as an indispensable foundation upon which to
decide what is the law and its application to individual cases. It provides at least some degree
of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis
for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development of the law.
They propose therefore to modify their present practice and, while treating former decisions
of this House as normally binding, to depart from a previous decision when it appears right
to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on
which contracts, settlements of property and fiscal arrangements have been entered into and
also the especial need for certainty as to the criminal law. This announcement is not
intended to affect the use of precedent elsewhere than in this House. Practice
Statement [1966] 3 All ER 77. (emphasis added)
 Pakistan Law Journal, 2009 pp. 253-264
8

[…] may be described, I hope without offence, as a one-man

crusade with the object of freeing the Court of Appeal from the
shackles which the doctrine of stare decisis imposed upon its
liberty of decision by the application of the rule laid down in the
Bristol Aeroplane case to its own previous decisions; or, for that
matter, by any decisions of this House itself of which the Court
of Appeal disapproved. 24

The best reasons for retaining the doctrine intact were stated by Lord Scarman
in Tiverton Estates Ltd. v. Wearwell Ltd. 25 in the Court of Appeal are worthy
to be reproduced;

The Court of Appeal occupies a central, but, save for a few exceptions,
an intermediate position in our legal system. To a large extent, the
consistency and certainty of the law depend upon it. It sits always in
divisions of three: more judges can sit to hear a case, but their decision
enjoys no greater authority than a court composed of three. If,
therefore, throwing aside the restraints of Young v. Bristol Aeroplane
Co. Ltd., one division of the court should refuse to follow another
because it believed the other's decision to be wrong, there would be a
risk of confusion and doubt arising where there should be consistency
and certainty. The appropriate forum for the correction of the Court of
Appeal's errors is the House of Lords, where the decision will at least
have the merit of being final and binding— subject only to the House's
power to review its own decisions. The House of Lords, as the court of
last resort, needs this power of review: it does not follow that an
intermediate appellate court needs it and, for the reasons I have given,
I believe the Court of Appeal is better without it, save in the exceptional
circumstances specified in Young v. Bristol Aeroplane Co. Ltd.

23Broome v. Cassels & Co. Ltd., [1971] 2 Q.B. 354; Schorsch Meier G.m.b.H. v. Hennin,
[1975] Q.B. 416.
24 Davis v. Johnson, [1978] UKHL 1; [1978] 2 WLR 553.
25 . [1975]1 Ch. 146; See also, Lord Scarman reaffirmed the same principle in Farrell v.
Alexander [1976] Q.B. 345, “Consistency is necessary to certainty one of the great
objectives of law.” (emphasis added)
 Pakistan Law Journal, 2009 pp. 253-264
9

The judgments labelled as per incuriam lose their binding authority as

precedents. However, it may be noted that the terms decision of its own or of
coordinate jurisdictions 26 fortify the impression that a Court is bound by its
previous decisions and the principle of Horizontal Stare Decisis equally applies to
the Court of simultaneous jurisdiction. It is also pertinent to note that a Single
Bench cannot declare a judgment per incuriam delivered by the Supreme Courts
or by the Benches of greater strength of the same Court 27 and, a bench of greater
strength needs not to declare a judgment per incuriam which is delivered by a
bench of lesser strength. 28

The concept of ‘judgments per incuriam’ in Pakistan was considered first time by
a Full Bench of Lahore High Court in 1953. 29 However, Supreme Court of
Pakistan in the case of Province of the Punjab v. Dr. S. Muhammad Zafar
Bukhari 30 examined the scope of ‘judgments per incuriam'. Wherein a Writ
petition was accepted by the Lahore High Court in ignorance of Supreme Court’s
decision in the case of N. W.F P. and another v. Sheikh Muzffar Iqbal,31
therefore, the judgment of the High Court was declared to be `per incuriam’ and
case was remanded for reconsideration. It may be noted here that Supreme Court
was not needed to declare this judgment per incuriam as it was not binding upon
them.

26 See n. 21 supra
27 Qadir Bakhsh v. The Crown, P L D 1953 Lahore 588 (F.B), [However, if the judgment of
a Bench of greater strength is in conflict with/ignorance of a Supreme Court’s decision then
the later, i.e. of Supreme Court will prevail].
28 See nn. 20 and 27 supra
29 Qadir Bakhsh v. The Crown, P L D 1953 Lahore 588 (F.B.)
30 PLD 1997 SC 35
31 PLD 1994 SC 539; see also P L D 2005 Supreme Court 270; Jamuna Rai and others v.
Chandradip Rai (A I R 1961 Pat. 178 at page 184) "It is well established, that if there are two
conflicting decisions of Division Benches of a High Court, the opinion expressed by the first
Division Bench must prevail; Sashi Bhusan Rai v. Bhuneshwar Rai A I R 1955 Pat. 124. I
would, therefore, in the instant case follow the earlier Bench decisions of this Court in 6 Pat.
L T 451, 14 Pat. L T 702 and 16 Pat. L T 308, in preference to the subsequent Bench decision
of this Court in A I R 1956 Pat. 376."
 Pakistan Law Journal, 2009 pp. 253-264
10

Analysis

There are multiple reasons for this judicial uncertainty and only the superior
judiciary can not be held responsible for it. 32 The foremost is the poorly drafted
legislation that leads to a chaotic situation. Asif Saeed Khosa J. while delivering the
opinion of Full Bench in the case Zahoor Ahmad and 5 Others v. The State and 3
Others observed quite ironically; 33

[T]he law may sometimes be an ass but it cannot be so asinine as

that. […“t]he law sometimes is called an ass but the Judge
should, as far as it is possible, try not to become one". […”L]aw
may be blind but the Judge is not"... (References omitted)

Apart from this, there are various Special Laws besides containing Non obstante
Clauses also contain a Saving clause like in addition to and not in derogation with---
which if literally interpreted renders statute almost of no use for all practical
purposes. 34

It has been frequently observed that a judgment rendered by a Single Bench on the
same point can be only persuasive and not authoritative for any other Single Bench
of the same High Court.35 This view seems to be misconceived and against the
doctrine of legal certainty. 36 High Courts are not the final authority on a question
law, for the view expressed by them can either be affirmed or rejected by the
Supreme Court. Therefore, Lord Scarman’s fears/reservations about Court of Appeal
with reference to non application of horizontal Stare Decisis can literally be applied
to the High Courts that there are around hundred judges and if each judge interprets
the law in his own way, then at least there would be at least fifty opinions upon same

32 Lord Scarman, “The courts are not to be blamed in a case such as this. If there be blame, it
rests elsewhere.” Farrell v. Alexander, [1976] Q.B. 345.
33 P L D 2007 Lahore 231
34 See n. 19 supra
35Abdul Majeed Mugheri v. The State through Advocate General, Sindh, P L D 1996
Karachi 393; Abid Hussain v. The State, 1996 P Cr. L J 1712 and even a Full or Division
Bench’s judgment of one High Court is on meagre footing than the pronouncement of a
Single Bench of the other High Court. See also n. 19 supra
36 See n. 33 supra
 Pakistan Law Journal, 2009 pp. 253-264
11

question. 37 Here it may be said that the absence of application of horizontal Stare
Decisis leads to multifarious interpretations of Federal Laws which is against the
spirit of fundamental rights and the principles of policy laid down in the
Constitution. With reference to provincial laws, where one and the same question of
law receives divergent interpretations, creates legal uncertainty, imparts inequality
and opens doors for pick and choose.

The other important reason for different opinions of various Benches of High Courts
is that judges were not properly assisted by the advocates representing the parties.
The question of the greatest importance is, whether an advocate should present the
actual position of (case) law or he should refer only to those precedents which are
beneficial to the party represented by him? It would be difficult to lay down any
mathematical or rule based modus operandi other than re-emphasising the
adherence to the principles of professional ethics and deference to the social
responsibilities in discharge of their duties.

Foregoing discussion gives us a scattered picture of a judicial system where,

practically little attempts have been made to align and harmonise the mechanism of
interpretation of law and, every judge feels exceptionally free to observe that there is
no horizontal Stare decisis among the judges of coordinate jurisdiction and the
previous decisions of the same courts have only persuasive authority.

The doctrine of Stare Decisis serves the interest of justice by retaining legal
certainty. 38 According to Lord Goldsmith, commitment to "rule of law" is the heart of
parliamentary democracy. The doctrine of legal certainty means that the person
affected by a provision of the law must be able to foresee the manner in which it is to
be applied, particularly where the law has financial consequences for him, and he has
a legitimate expectation that this principle is likely to be observed. 39

37 See n. 26 supra
38 See Broome v. Cassell & Co, [1972] AC 1027 at 1054 “The needs of litigants and their
advisers to know where they stand is not served if a lower court is free to create a conflict of
authority by declining to follow the relevant decision of a higher court.”
39 see generally Gemeente Leusden v Staatsecretis van Financien C-487/01 and C07/02
[2005] ; Fleming (t/a Bodycraft) v Revenue & Customs, [2006] EWCA Civ. 70 STC 508.
 Pakistan Law Journal, 2009 pp. 253-264
12

Therefore, wisdom and certainty demand that each Bench of High court should be
bound by the decision of court of coordinate jurisdiction and this rule should be
applied intra as well as inter High Courts without any difference subject to the well
conceived exceptions, summarised by the Court of Appeal in Limb v. Union Jack
Removals Limited 40 wherein Brooke LJ stated:

(1) Where the court has considered a statute or a rule having the
force of a statute its decision stands on the same footing as any
other decision on a point of law.

(2) A decision of a two-judge Court of Appeal on a substantive

appeal (as opposed to an application for leave) has the same
authority as a decision of a three-judge or a five-judge Court of
Appeal.

(3) The doctrine of per incuriam applies only where another

division of the court has reached a decision in ignorance or
forgetfulness of a decision binding upon it or of an inconsistent
statutory provision, and in either case it must be shown that if
the court had had this material in mind it must have reached a
contrary decision.

(4) The doctrine [of Stare Decisis] does not extend to a case where,
if different arguments had been placed before the court or if
different material had been placed before it, it might have
reached a different conclusion.

(5) Any departure from a previous decision of the court is in

principle undesirable and should only be considered if the
previous decision is manifestly wrong. Even then it will be
necessary to take account of whether the decision purports to
be one of general application and whether there is any other
way of remedying the error, for example by encouraging an
appeal to the House of Lords.

40 [1998] 1 WLR 1354

 Pakistan Law Journal, 2009 pp. 253-264
13

Conclusion and Suggestions

The Courts in Pakistan have also been occasionally expressing their views to adopt
similar kind of principle that ordinarily judgment of a single Judge must be taken as
binding by a brother Judge sitting singly so as to avoid conflict of opinion in the High
Court and confusion in the subordinate Courts whose duty is to follow what is said
and observed by the High Court. 41 With reference to binding authority of the ruling
of Division Bench Supreme Court observed as;

In such circumstances, legal position which emerges is that the

second Division Bench of the High Court should not have given
finding contrary to the findings of the 1st Division Bench of the
same Court on the same point and should have adopted the
correct method by making a request for constitution of a larger
Bench, if a contrary view had to be taken. [...] We, therefore,
hold that the earlier judgment of equal Bench in the High Court
on the same point is binding upon the second Bench and if a
contrary view had to be taken, then request for constitution of
larger Bench should have been made. 42 [emphasis added]

In more elaborated terms a Full Bench of Karachi High Court 43 also observed that in
order to maintain judicial propriety;

(i) the decision of a Division Bench on a question of law should be

followed by the other Bench. If they differ, the proper course to
adopt would be to refer the question for the decision of a Full
Bench;

41 Mst. Sajida Parveen v. The Additional District Judge, Rawalpindi and 2 others, 1991 M L
D 745.
42 Multiline Associates v. Ardeshir Cowasijee, PLD 1995 SC 423.

43 Murad Ali V. Collector of Central Excise and Land Customs, P L D 1963 (W. P.) Karachi
280(F.B). See also Indian Supreme Courts views in Jaisri Sahu v. Rajdewan, AIR 1962 S C
83.
 Pakistan Law Journal, 2009 pp. 253-264
14

(ii) the decision of one Division Bench on a question of fact is not

binding on the other Division Bench;
(iii) if the decision of one Division Bench has not come to the notice
of the other Bench and a different view is taken in the
subsequent Division Bench case and when such two conflicting
decisions are placed before the Bench, the proper procedure to
follow in such a case would be, for the Bench hearing the case, to
refer the matter to a Full Bench in view of the conflicting
authorities without deciding the question itself.

It has been dejectedly observed that no progressive moves have been made by the
courts to stab down such anomalies and to interpret the law in consistent
jurisprudential sense and, contentment is expressed by mere reproduction of facts
and provisions of law followed by there subjective opinions. Consequently, leaving a
room for the subordinate courts to pick and choose amongst the decisions of
Superior Courts and legitimising their corruption.

Following measures are suggested to overcome from this ambiguous situation:-

1. Law Commission of Pakistan should conduct a thorough revision

of existing legislation and should suggest amendments in the
light of the rulings of the Superior Courts to avoid conflicts and
Confusion.
2. A Single Bench of every High Court should be bound by the
decision of the same Court (i.e. any other Bench of the same HC)
and also of the Court of coordinate jurisdiction (i.e. SB of any
other High Court subject to the well defined exceptions). Division
Benches should also apply the same rule.
3. Where a previous decision of the same court seems to be
unreasonable to a bench of same strength, the matter should be
referred to the Bench of Larger strength to avoid conflicting
judgments.
4. Every High Court must be bound by the decision of a Full Bench
of any High Court—regardless the strength of the Bench.
 Pakistan Law Journal, 2009 pp. 253-264
15

5. In Criminal cases, the change of (precedent) law posing adverse

effect on the case of accused amounts to retrospective application
of law. Therefore, any substantive change adversely affecting to
the accused should not be followed. Only those precedents should
be applied which were in the field on the date of commission of
offence--- because it is not the law which is in the statute book
but what the Court says. 44 In this regard, adherence to the
‘Doctrine of Prospective Overruling’ can be beneficial.
6. These suggestions can only be practicable after a categorical
pronouncement by the Supreme Court on this point. So far,
Supreme Court’s ‘should’ 45 did not meet any recognition by the
High Courts, therefore there must be a ‘shall’ to make the things
certainly work.
7. Further, it would be in the interest of justice, certainty and
stability to induct a professionally organized research team for
the assistance of Honourable judges in the chamber.

44 Chief Justice John Marshall observed, “It is emphatically the province and duty of the
judicial department to say what the law is. Those who apply the rule to particular cases, must
of necessity expound and interpret that rule." Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803)
45 Op cit. n. 43 supra

View publication stats