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[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 it.2[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[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

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

1[1] S. Zafar Ahmad v. Abdul Khaliq, P L D 1964 (W. P.) Karachi 149.

2[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[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.
 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 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 Precedent4[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[5]
The doctrine is recognised by our Constitution itself.6[6] It is also true that the rule of precedent, or stare
decisis, is a means and not an end.7[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[8]

ii. Different interpretations of same ‘Question of Law’ by the two SBs of the same High
Court.9[9]

4[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[5] Cardozo, Benjamin N. (1921), The Nature of the Judicial Process, Yale University Press, p.20.

6[6] Op cit. nn. 2,3 supra.

7[7] Radin, M. (1946). “The Trail of the Calf,” Cornell L. Q. Vol. 32, pp. 137, 159.

8[8] Op cit. nn.14-15 infra

9[9]Op cit. nn. 16-18 infra

iii. Different interpretations of two or more High Courts on same ‘Question of Law’.10[10]
(Benches of any strength)

iv. Selective reliance upon the precedents/previous judgements of the same or different High
Courts.11[11]

v. Excessive number of judgments delivered per incuriam.12[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[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[14]
II. Different interpretations of same ‘Question of Law’ by the two Benches of the same
High Court

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[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[16] or difference among various
larger Benches.17[17]

III. One High Court differing from another High Court on same Question of Law

10[10]Op cit. nn. 19-20 infra

11[11] Op cit. nn.14-18, 32-33infra

12[12] Ibid.

13[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).

14[14]For 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.

15[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[16] Op cit. IV. judgments per incuriam.

17[17] Aleem Ashraf v. The State, 2005 M L D 1028 (DB); Azra Bibi v. State, 2004 PCr.LJ 1967 (DB).
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[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[19]
IV. Judgments per Incuriam

‘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[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. Ltd21[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:—
(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;

18[18]Ardeshir 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[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.

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

21[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.
(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 Lords22[22] attempted to liberate the Court
of Appeal from the clutches of the doctrine of Stare Decisis23[23] what in the words of Lord Diplock;

[…] 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[24]

The best reasons for retaining the doctrine intact were stated by Lord Scarman in Tiverton Estates Ltd. v.
Wearwell Ltd.25[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.

22[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)

23[23]Broome v. Cassels & Co. Ltd., [1971] 2 Q.B. 354; Schorsch Meier G.m.b.H. v. Hennin, [1975] Q.B. 416.

24[24] Davis v. Johnson, [1978] UKHL 1; [1978] 2 WLR 553.

25[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)
 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.

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 jurisdictions26[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
Court27[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[28]

The concept of ‘judgments per incuriam’ in Pakistan was considered first time by a Full Bench of Lahore
High Court in 1953.29[29] However, Supreme Court of Pakistan in the case of Province of the Punjab v.
Dr. S. Muhammad Zafar Bukhari30[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[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.

Analysis

There are multiple reasons for this judicial uncertainty and only the superior judiciary can not be held
responsible for it.32[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 Others33[33] observed quite ironically;

26[26] See n. 21 supra

27[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[28] See nn. 20 and 27 supra

29[29] Qadir Bakhsh v. The Crown, P L D 1953 Lahore 588 (F.B.)

30[30] PLD 1997 SC 35

31[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."

32[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[33] P L D 2007 Lahore 231

 [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[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[35] This view
seems to be misconceived and against the doctrine of legal certainty.36[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 question.37[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[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

34[34] See n. 19 supra

35[35]Abdul 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[36] See n. 33 supra

37[37] See n. 26 supra

38[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.”
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[39]

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 Limited40[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.

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[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[42] [emphasis added]

39[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.

40[40] [1998] 1 WLR 1354

41[41] Mst. Sajida Parveen v. The Additional District Judge, Rawalpindi and 2 others, 1991 M L D 745.

42[42] Multiline Associates v. Ardeshir Cowasijee, PLD 1995 SC 423.

 In more elaborated terms a Full Bench of Karachi High Court 43[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;

(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.

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

43[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.
 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[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[45] did not meet any recognition by the
High Courts, therefore there must be a ‘shall’ to make the things certainly work.

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[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[45] Op cit. n. 43 supra