Huzaima Bukhari & Dr. Ikramul Haq
In view of the hierarchical character of the judicial system in Pakistan, it is of paramount importance that the law declared by courts should be certain, clear and consistent. Inconsistencies create distrust in the administration of justice. It is an established fact that most decisions of the courts are of significance, not merely because they constitute adjudication on rights of parties and resolve disputes between them, but a fortiori in doing so they embody a declaration of law, operating as a binding principle (stare decisis) in future cases. In this latter aspect lies their particular value in developing the jurisprudence of law.
The stare decisis rule is based on a sound legal principle that justice and certainty require that established legal principles, under which rights may accrue, be recognised and followed. A number of misconceptions and misgivings prevail in Pakistan about the doctrine of binding precedents [stare decisis] which need to be removed and dispelled. Usually it is not recognised that the rule is not merely a judicial theory but is regulated by the command of Constitution and statutory provisions of the Law Reports Act, 1875.
In Constitution of Pakistan, the doctrine of stare decisis is reflected in Article 189 and 201, which reads as under:
“189. 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.“
“201. 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.“
Judgments of the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National Industrial Relations Commission have the force of precedent which can be inferred from Explanation to section 5 of the Law Reports Act, 1875 which reads as follows:-
“Explanation: For the purpose of this Act the expression, Court or Tribunal includes the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National Industrial Relations Commission.”
As evident from above, the doctrine of stare decisis has constitutional and statutory command and thus needs to be implemented in letter and spirit. Any violation of this rule will amount to violation of the Constitution and law of the land.
In the light of above explicit provisions, it can be safely concluded that an important element of our legal system is that the reasoning and decisions found in preceding cases are not simply considered with respect or as good guide, but are BINDING. This is known as the principle of stare rationibus decidendis; popularly referred to as stare decisis. It translates simply as ‘let the decision stand’. Stare rationibus decidendis is the more accurate statement because, it is the reasoning (rationibus) that is the vital binding element in judicial precedent. However, nobody refers to it this way [Learning Legal Rules by James A. Holding & Julian S. Webb, Blackstone Press Limited, U.K. Page 119].
RULINGS OF SUPREME COURT
There is a common misconception that only ratio decidendi is applicable and an obiter dictum is to be ignored while applying judgements of the apex court. The legal sweep of Article 189 of the Constitution of Pakistan takes the situation out of the usual circular limits of ratio decidendi, obiter dictum and casual observations. Once the declaration of law that includes obiter dictum is succinct and clear, any attempt to distinguish decisions on facts or to say factual position is almost impermissible. In a recent case reported as Shahid Pervaiz v Ejaz Ahmad and others 2017 SCMR 206, the Supreme Court of Pakistan held as under:
“A fourteen Member Bench of this Court in the case of Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483), has concluded that where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question of law, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 and is binding on all the Courts of Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to high place which the Court holds in the hierarchy in the country enjoy a highly respected position as if it contains a definite expression of the Court’s view on a legal principle, or the meaning of law”.
Declaration of law by the apex court has a binding force and in that regard the position has a special characteristic as distinct from the strength or weakness of a judicial precedent under the theory of precedents. “It is not permissible to bypass decisions under any pretext even where no reason is recorded for dismissal or acceptance”—Shahid Pervaiz v Ejaz Ahmad and others 2017 SCMR 206 [Para 105 at page 254].
Any adverse, derogatory and/or contemptuous remarks about the judgement of the apex court by any subordinate court of an authority can lead to serious consequences as explained in Mirza Shaukat Baig and Other v Shahid Jamil & Others PLD 2005 Supreme Court 530 as under:
“30. The learned Division Bench of Lahore High Court has ignored the case law enunciated in different judgments pronounced by this Court on the grounds which are not tenable and by ignoring the fact that the judgments of this Court being apex Court are binding upon the learned High Court in the view of the provisions as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan which, inter alia, provides that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or initiate a principle of law shall be binding on all other Courts in Pakistan and the learned Lahore High Court is no exception to it. It is well‑entrenched legal proposition that “the ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore 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 is binding on all other Courts in Pakistan.
A decision in suo motu Shariat review petition followed by Supreme Court would be binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government.” (PLD 1971 SC 324, PLD 1985 SC 228. It is worth mentioning here that “where a judgment of Supreme Court has become effective as from a specified date, it would be binding not only on High Court’s and Courts subordinate to it but also on all other Courts of Pakistan from that date. Therefore, High Court rightly preferred Supreme Court decision over decision of Full Bench of High Court. The decision of Supreme Court cannot be ignored on the ground that certain grounds were not urged before Supreme Court” (PLD 1987 Lah.71, 1981 SCMR 520, PLD 1973 Lah 1). “Apart from the Constitutional obligation imposed upon the Courts even the propriety demands that the Courts must follow such a law without any hesitation. Unless the law so declared is altered or overruled by the Supreme Court itself, the High Court has no option but to follow it” (PLD 1975 Lah. 65, PLD 1964 Peshawar 250).
31. We have also noted that the language as used in paragraphs 14, 15, 16 and 17 in the judgment impugned appears to be derogatory and contemptuous which cannot be ignored lightly and it is directed that care and caution must be observed while offering comments on any judgment delivered by this Court in order to avoid the possibility of suo motu action by the Supreme Judicial Council and initiation of proceedings under the contempt laws”.
The decision of Supreme Court cannot be ignored on the ground that certain grounds were not urged before Supreme Court—(1981 SCMR 520, PLD 1987 Lah.71 and PLD 1973 Lah 1). In India it was held that departure from judgement of Supreme Court is impossible while observing that the Court was dealing with almost the other side of the coin of a two-sided question [CIT v Autokast Ltd. (1997) 90 Taxman 103 (Ker.)].
Even in respect of a per incuriam judgement of Supreme Court, it is for the apex court to declare it so; not for any lower court. A decision is given per incuriam when Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate 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 decisions of higher courts, which are binding; or when the decision is given in ignorance of the term 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 and, 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.
Principle of stare decisis has been explained authoritatively by the apex court of Pakistan in the following case:
- PLD 1987 Supreme Court 145:
“There is a distinction in what a case decides generally and as against all the world from what it decides between the parties themselves. Salmond “On Jurisprudence”, Twelfth Edition, at page 175, brings out this distinction in these words:–
“What it decides generally is the ratio decidendi or rule of law for which it is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court’s findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues. According to this principle, these matters are now res judicata between them and cannot be the subject of further dispute. But the Court’s findings will not be conclusive except as between the same parties… Third parties not involved in the original case, however, will not be bound, nor will either of the original parties be bound in a subsequent dispute with a third party.”
Elaborating further, it is the policy of the Court to stand by the ratio decidendi, that is, the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as the doctrine of rule of stare decisis. The rationale behind this policy is the need to promote certainty, stability, and predictability of law. This, however, does not mean that the rule is inflexible. In this context, it will be advantageous to sum up what Hamoodur Rahman, C.J., in the case reported as Asma Jilani v Government of the Punjab PLD 1972 SC 139, said:–
“I am not unmindful of the importance of this doctrine but in spite of a Judge’s fondness for the written word and his normal inclination to adhere to prior precedents I cannot fail to recognize that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can we become mere slaves of precedents….
It will thus be seen that the rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule.”
Even the House of Lords has modified its present practice of giving strict adherence to its own precedents. In this connection, I would here refer to a note published at page 77 in the case reported as Lloyds Bank Ltd. v. Dawson and others (1966) 3 All E R 77, which reads:–
“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 recognize 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 connexion, 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.”
There is, therefore, exception to the rigid adherence to this rule, and I am of the view that this Court being the Court of ultimate jurisdiction has power to review its own judgments. This doctrine should not be confused with res judicata which rests on a different principle.
In American Jurisprudence 2nd, Volume 20, at page 521, the distinction between these two concepts is brought out in these words:–
“While res judicata applies only when the same parties, or their privies, are involved in the subsequent case as were involved in the prior case, the applicability of stare decisis is not affected by the fact that different parties are involved in the case where the precedent was established. Res judicata applies to decisions of both law and fact. Stare decisis, on the other hand, is applicable only on questions of law. Res judicata is a rule of law that must be applied even where the decision binding as res judicata was erroneous, whereas stare decisis is a judicial policy in which a certain flexibility is inherent, and which, therefore, does not prevent a Court from overruling its prior decision if, upon re-examination thereof, it is convinced that the decision was erroneous. It has also been pointed out, as a difference between res judicata and stare decisis, that stare decisis is based upon the legal principle or rule involved in a prior case and not upon the adjudication which resulted therefrom, whereas res judicata is based upon the adjudication.”
Thus, in a given case, it is the thing the Court adjudges which constitutes estoppel under the doctrine of res judicata, but the reasons which the Court may give for the decision are not in themselves to be invoked as the estoppel under the doctrine of stare decisis. See Yazoo & M. V. R. Co. v. Adams 180 US 1, 45 L ed. 395 and Heisler v. Thomas Colliery Co. 260 US 245, 67 L ed. 237. Here lies the distinction.
Cooley in his treatise “On the Constitutional Limitations”, at page 50 while commenting on accepting adjudged cases as precedents, quotes Chancellor Kent as saying:
“A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law.”
This, in my view, is a very subtle exposition of a precedent being the highest evidence of the law and holds the field so long it is regarded as a good law on the principle of stare decisis”.
Main principles that emerge from the above cited elaborate judgement of the Supreme Court and many others pronounced by it are:-
- Law laid down by the apex court is binding on all except Supreme Court itself.
- Subordinate Courts/Tribunal/Appellate Authorities cannot ignore even obiter dicta of Supreme Court.
- Legal position as explained by the apex court has to be considered as always in existence. However, in tax matters, on the basis of a later judgment, authorities cannot reopen/revise any assessment that has attained finality. It is an established law that past and closed transactions cannot be disturbed/unsettled unless allowed under the law. The Supreme Court in ITO, Central Circle II, Karachi & Another v Cement Agencies Ltd  20 TAX 1 (S.C. Pak) strongly disapproved the act of disturbing past and closed transactions in the following terms:
“ I do not see how on the basis of the judgement of this in Octavous Steel & Company Ltd’s case past and closed transactions could be reopened…Mr. Nusrat has not been able to refer to any authority which lends support to the course adopted by the Income-tax Officer. A decision given by a High Court in another case cannot be ground for reopening an issue which stood finally determined by a decision of a subordinate Court or authority”.
SUPREME COURT IS NOT SLAVE OF OWN JUDGEMENTS
The principle of stare decisis does not apply to Supreme Court as explained in 2017 SCMR 206 as under:
“This Court in the case of Hitachi Limited v Rupali Polyester (1998 SCMR 1618), has concluded that the Supreme Court is not a slave of doctrine of stare decisis and can change or modify its view with the passage of time. All the courts and public institutions are bound to follow the principles laid down by this Court. No exception to this principle can be created under the garb of rule or procedural niceties”.
If there is a conflict between two decisions of the Supreme Court, the decision of the larger bench will prevail— CIT v Trilok Nath Mehrota  98 Taxman 462 (SC)/ 231 ITR 278.
Where there is conflict between ratio decidendi and obiter dicta of Supreme Court, obiter will not be binding— CIT v Smt. T.P. Sidhwa  133 ITR 840 (Bom.).
The doctrine that a larger bench of Supreme Court has more authoritative force than a smaller bench is only relevant as between cases which yield different ratio decidendi, and not where one hands down a decision and other merely lays down dictum—Ghansham Singh v CIT  141 ITR 601 (Mad).
BINDING PRINCIPLES FOR HIGH COURTS
Under Article 201 of Constitution subject to Article 189 any decision of High Court shall, to the extent that it decides a question of law or is based upon or enunciate a principle of law, be binding on all Courts subordinate to it and where there are conflict of views between two High Court Courts, the subordinate Courts have to follow the view taken by High Court of that province”—Brown Gymkhana through President v Al-Rehman Hospital through Managing Partner and others PLD 2009 Quetta 21 [Page 32, Para 7].
It is one principle of jurisprudence that the ratio of the decision includes the state of facts from which the decision arises. Divorced from facts there is no ratio decidendi. It is well-established principle of interpretation of judicial decisions that a case is an authority for what it decides only and nothing beyond that—Shahtaj Sugar Mills Limited v GA Jahangir 2004 PTD 1621 (H.C. Lah.). Keeping in view these principles, the judgement of a High Court is, subject to Article 189, binding on all the courts that work within its territorial jurisdiction.
High Court Karachi has strongly disapproved reliance on foreign cases in the presence of contrary view taken by Pakistani courts—Nishat Talkies Karachi v CIT PTCL 1989 CL. 660. However, pre-partition judgments are binding unless overruled by Pakistan courts— Ramkola Sugar Mills Ltd v CIT (1960) 2 Tax (Suppl. 29) (S.C.Pak).
It is trite law, as explained by the apex court in the following cases, that in case of difference of opinion between benches of equal strength of a High Court, larger bench should be formed:
PLD 1995 Supreme Court 423:
“In such circumstances, legal position which emerges is that second Division Bench of the High Court should not have given finding contrary to the findings of the first Division Bench of the same Court on the same point and should have adopted the correct method by making request for constitution of a larger Bench, if a contrary view had to be taken. In support, reference can be made to the cases of Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswar Ganguly v. State of West Bengal (PLD 1958 (Ind.) 337), which is a case of Indian jurisdiction. 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 a larger Bench should have been made”.
PLD 1963 SC 296:
“With respect we must point out that the decision was a direct authority also on this question, as in spite of the rubber‑stamp signature the validity of the order of requisition was upheld and if the learned Judges of the High Court deciding the present case were inclined to take a different view, they should have, in accordance with the rules of their own Court, referred the matter to a larger Bench. Alternatively, they could have expressed their doubts regarding the view taken in the precedent case1 in a Court of co‑equal jurisdiction, while yet following that view, and left the matter to be raised in appeal before this Court”.
It is clear that if a division bench intends to take a different view, it should refer the matter to a larger bench or alternately express its doubt, while yet following the view and leave the matter to be raised in appeal before the Supreme Court. The principle enunciated by the Supreme Court in above case and many others is that a decision of a division bench of High Court is binding on the other division bench and a contrary view cannot be taken, except through the formation of a larger bench.
RULINGS OF HIGH COURTS IN FEDERAL STATUTES
In federal statutes e.g. tax matters, a lot of confusion prevails regarding binding force of judgements of High Courts of territorial jurisdiction. Though it is queer, it is bound to happen in a federation like Pakistan that federal statutes like Income Tax, Sales Tax, Federal Excise and Customs Act are employed differently in all four provinces on account of varying interpretation by their respective High Courts. This can be obviated only if cases involving divergent views are decided out of turn by the Supreme Court. Serious thought and efforts are required to devise a method to achieve unanimity on the provisions of a federal tax statute.
In terms of Article 201 of the Constitution of Pakistan, 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. In other words, the binding authority of High Court does not extend beyond its territorial jurisdiction. The decision of one High Court is not binding precedent for other High Courts. However, in case of federal statutes if only one judgement of a High Court is available then all adjudication and appellate authorities, including those working outside the territorial jurisdiction of the said Court, are bound to follow the said judgement [Atlas Bank v CIT etc 2005 PTD 2586 (High Court Karachi), CIT v Knit Foulds (P.) Ltd  217 ITR 79 (Punj. & Har.) & PTCL 2002 CL. 95]. But this principle will not apply if there are conflicting judgements of two High Courts in existence. In such a case even Appellate Tribunal Inland Revenue (ATIR) of Federal Customs Tribunal, although enjoying all-Pakistan jurisdiction, is bound to follow the law of precedent within the area, which is coterminous with that of the territorial jurisdiction of the High Courtover the situs of the Adjudication Officer/Appellate Forum because a taxpayer assessed in Karachi cannot file reference application in Lahore High Court to take advantage of some favourable judgment therefrom on the plea that ATIR is all-Pakistan appellate forum. Likewise, ATIR or Federal Customs Tribunal while deciding any particular law point has to keep in view the binding precedent of the High Court, which exercises territorial jurisdiction over the situs of the Officer who passed the order. The same principle will apply to other Tribunal as well that are working in all provinces and deal with federal statutes.
On account of doctrine of judicial precedent and rule of binding efficacy of law, judgment of a High Court having territorial jurisdiction over the situs of officer passing order will prevail and not that of the Tribunal even if sitting at a place other than where the Officer passed the order. The Sindh High Court has also elaborated this principle in 2000 PTCL. CL.515 that for the purpose of Article 201 and 203 there is no reason to give the term “Courts” appearing therein any narrow or pedantic meaning so as to exclude judicial or quasi-judicial forums of administrative tribunals from its purview.
In Suresh Desai & Associates v. Commissioner of Income Tax (1998) 99 TAXMAN 114 (Delhi) similar questions were presented before Delhi High Court and it was held as under:
“On account of the doctrine of precedents and the rule of binding efficacy of the law laid down by the High Court within its territorial jurisdiction, the questions of law arising for decision in a reference should be determined by the High Court which exercises territorial jurisdiction over the situs of the Assessing Officer. Else, it would result in serious anomalies. An assessee affected by an assessment order at Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it and suited to him and, thus, get rid of the law laid down to the contrary by the High Court of Bombay not suited to the assessee. This could not be allowed.”
In an Indian High Court judgement [CIT v B. Nagi Reddi (1983) 144 ITR 62], it is held that where two conflicting decisions of the same High Court exist, later decision has to be followed.
RULINGS OF TRIBUNALS
The raison d’etre of establishing special tribunals has been to dispense better quality of justice where people, better trained in particular fields and disciplines could provide quality decisions and resolution of disputes. For the purpose of Article 203, there is no reason to give the term “courts” appearing therein any narrow or pedantic meaning so as to exclude judicial or quasi-judicial forums of administrative tribunals from its purview [206 ITR 727 (Bom)]. It is well-established that decisions of the Tribunal are binding on all the subordinate appellate authorities [(1996) 73 Tax 132 (Trib.)].
STARE DECISIS VS ‘PER INCURIAM’ JUDGMENTS
In recent years, the different benches of Tax and other Tribunals have started declaring as “per incuriam” earlier judgments passed by benches of co-equal strength or even benches of high strength and higher courts, which has created a situation of chaos and anarchy. This trend is disastrous as the very rationale behind doctrine of stare decisis is the need to promote certainty, stability and predictability of law in criminal, fiscal and constitutional matters–Pir Bakhsh v Chairman, Allotment Committee PLD 1987 Supreme Court 145.
Before we proceed further it will be advantageous to see what the Supreme Court has itself said about per incuriam decisions. In Criminal Review Petition No. 44 of 2003 [On review from the judgment/order dated 08.05.2003 passed in Cr. Misc. Appeal No.27 of 2001], the Supreme Court held as under:
“In the different dictionaries like Jewett’s Dictionary of English Law—Second Edition, the definition of the ‘judgment in per incuriam’ is “the decision given through want of care or a decision which is the result of oversight”. In Bourier’s Law Dictionary, ‘judgment in per incuriam’ has been defined as “decision given through inadvertence”. Similarly in Bellentine’s Law Dictionary –Third Edition, the word ‘judgment in per incuriam’ is defined “passed through lack of care”. Likewise Black’s Law Dictionary defines the expression “judgment in per incuriam” as follows:-
“Per incuriam (per in-kyoor-ee-am) adj. (of a judicial decision) wrongly decided, usually, because the Judge or Judges were ill-informed about the applicable law.
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence.” Rupert Cross & J.W. Harris President in English Law 149 (4th Ed. 1991).”
In “Words and Phrases” First Editionby D.Varagarajan, the expression “per incuriam” has been defined as follows:-
“A decision would be treated as given per incuriam when it is given in ignorance of term of statute, or a rule having the force of law. An order passed without reference to the relevant provisions of the Act and without any citation of authority is per incuriam (see Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989 SC 38). In the case of Punjab Land Development and Reclamation Corporation Ltd. Presiding Officer (1990) 77 FJR 17; (1990) 3 SCC 682, the Supreme Court explained the principle of per incuriam and held that the Latin expression per incuriam means through inadvertence. A decision can be said to be given per incuriam when a High Court has acted in ignorance of the decision of the Supreme Court.”
In Wharton’s Law Lexicon, the word ‘per incuriam’ has been defined as follows:-
“Per incuriam through want of care. An order of the Court obviously made through some mistake or under some misapprehension is said to be made per incuriam”.
This Court in the case of Province of the Punjab v Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) had an occasion to examine the scope of ‘per incuriam’. As per facts of this case, Dr. S. Muhammad Zafar Bukhari and others instituted a writ petition in the Lahore High Court, Lahore being aggrieved of amendment in the Punjab Health Department Service Rules, 1979. The Writ Petition was accepted holding that the writ petitioners are eligible to be considered for promotion as Professors. The Government approached this Court, inter alia, on the strength of arguments that the matter, decided by the High Court, pre-eminently falls within the exclusive jurisdiction of the Service Tribunal, and High Court had wrongly assumed the jurisdiction. Reliance was placed in support of the proposition on NWFP and another v Sheikh Muzffar Iqbal (PLD 1994 SC 539). This Court after examining the judgment observed that it was not brought to the notice of the learned Judge of the High Court, thus the direction issued, could have not been made, therefore, the judgment of the High Court was declared to be ‘per incuriam’. Relevant para therefrom is reproduced herein below for convenience:-
“A decision is given per incuriam when Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate 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 the decision; or when the decision is given in ignorance of the term 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 and, 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.”
The Supreme Court in the above case declared its earlier order per incuriam. The question arises whether any subordinate court could have done the same thing at its own. Apparently, in the presence of Article 189 of the Constitution strictly speaking all the courts are bound always to follow the decisions of Supreme Court and cannot apply the technical rule of per incuriam. It is for the Judges of Supreme Court to change their mind; not for any other court to decide the issue for them. However, it was done by the Sindh High Court in Abdul Razzak v Collector of Customs 1995 CL 1453 at page 1455 in the following words:
“The observation appears to be in the nature of obiter dicta but even an obiter dictum of the apex court is binding. However, the quoted observation, because it does not take into consideration the constraints in section 96, CPC, is ex facie, with all respect, per incuriam. A per incuriam decision, even of the highest court, does not bind any other court and it matters little that such court itself be at the lowest rung in the hierarchy of Courts”.
The above judgment of the Sindh High Court where a judgement of Supreme Court in Ghulam Hussain v Shahbaz Khan 1985 SCMR 1925 was not followed and declared per incuriam paved a way for lower courts to declare judgements of higher court inapplicable—see (2000) 81 Tax 95 (Trib.) where Tribunal declared judgement of Sindh High Court in Releigh Investment Company Ltd v CIT (1983) 47 Tax 214 as per incuriam. Interestingly, the Sindh High Court followed the same judgement which earlier declared per incuriam by Tribunal in CIT v Unilever PLC, UK 2002 PTD 44 (H.C. Kar.).
The view taken by the Sindh Court was not endorsed by the Lahore High Court [though without taking into account the Sindh High Court judgement in Razzak v Collector of Customs 1995 CL 1453] as Justice Nasim Sikandar in 2004 PTD 2180 (H.C. Lah.) while elaborating the theory of ‘per incuriam’ in great detail held that “even all the Judges of a High Court sitting together cannot declare a judgement of Supreme Court as per incuriam”. If this is true for Supreme Court the same position will prevail for High Courts under Article 201 and subordinate courts within their territorial jurisdiction will have to follow their judgements even though per incuriam.
The following paragraph from 2004 PTD 2180 (H.C. Lah.) is an eye-opener for those who believe that even judgment passed by the highest court can be declared ‘per incuriam’ by a lower court:
“…all Judges of a High Court sitting together much less to say of a Judge in Chambers cannot declare a judgment of the apex Court to be per incuriam. The term “per incuriam” in Concise La Dictionary by Osborn, 1964 Edition is defined as “a decision of the Court which is mistaken”. A decision of the Court is not a binding precedent if given per incuriam, i.e., without the Court’s attention having been drawn to the relevant authorities, or statutes.” The Dictionary of English Law by Earl Jowitt, 1959 Edition defines the word “per incuriam” through want of care, a decision or dictum of a Judge which clearly is the result of some oversight.” In Halsbursy’s Laws of England, Third Edition, Vol. XXII, P-800 as summarized by Mr. S.M. Zafar, Advocate in his book, “Judge made Law”, the subject has been treated as follows:–
- “A decision is given per incuriam when the Court has acted in ignorance of a previous decision of the House of Lords, of its own or of a Court of coordinate jurisdiction which covers the case before it.
- A decision may also be given per incuriam when it is given in ignorance of the terms of same inconsistent statute or a rule having the force of a statute.”
Learned counsel for the petitioners have not been able to cite any authoritative pronouncement which could directly or indirectly lead one to a conclusion that a subordinate Court can hold a judgment of the superior Court to be per incuriam. The principle that emerges from the case-law on the subject appears very clear. It is that to declare a judgment per incuriam is only for the author of a judgment or a higher strength in terms of number of Judges in a Bench. It would simply mean that the author of a judgment of a superior Court can record a finding that his earlier view was wrong on account of its being per incuriam. That very finding can be recorded by a Bench of two or three Judges in respect of a judgment recorded by a Single Judge of that Court. To me it appears that in such like situation the judgment sought to be declared per incuriam must by itself be under assail before a higher strength of Judges belonging to the same Court or a higher Court. Where a judgment is only cited as a precedent before the same Court irrespective of the number of Judges, it can be refused to be followed on the ground that it is contrary to the dictum laid down by a higher Court. In PLD 1997 SC 351 a judgment of High Court contrary to the law laid down by the Supreme Court was held to be per incuriam. Before a superior Court not only the impugned judgment but also any other judgment cited to support that judgment can very well be declared to be per incuriam if the most important condition namely that it was recorded when the Court’s intention was not drawn to an earlier authoritative precedent or the provision of a statute is satisfied.
These principles appear to be settled right from the first authority on the subject, which is relied upon by the learned counsel for the petitioners re: Young v. Bristol Aeroplane Company (supra). In the following para of that judgment which was confirmed by the House of Lords in (1946) 1 All ELR 98 the principle was discussed by Lord Greene M.R. (1944) 2 All ELR 293 in these words:–
“In considering the question whether or not this Court is bound by its previous decisions and those of Courts of coordinate jurisdiction, it is necessary to distinguish four classes of cases.
The first is that with which we are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or of a Court of coordinate jurisdiction which covers the question before it and there is no conflicting decisions of this Court or of a Court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this Court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of cases it is beyond question that the previous decision is open to examination. In the second class, the Court is unquestionably entitled to choose between the two conflicting decisions. In the third class of cases the Court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment.
Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law, but where the Court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam.”
In another judgement [(2004) 90 Tax 152 (H.C. Lah.), the distinguished Judge of Lahore High Court, Justice Nasim Sikander, after citing a number of case law, elucidated that theory of per incuriam has to be applied with great caution and after proper deliberations. The honourable Judge held as under:
“The principle that emerges from the case law on the subject appears very clear. It is that to declare a judgement per incuriam is only for the author of the judgement or a higher strength in terms of number of judges in a bench. It would simply mean that the author of a judgement of a superior court can record a finding that his earlier view was wrong on account of its being per incuriam. That very finding can be recorded by a bench of two or three judges in respect of a judgement recorded by a single judge of that court”.
As evident from above, there exists conflicting viewpoints of Lahore High Court and Sindh High Court regarding binding value of per incuriam judgements i.e. Messers International Tanners & Industries (Pvt) Limited Lahore v Federation of Pakistan and Others 2004 PTD 2180 (H.C. Lah.) versus Abdul Razzak v Collector of Customs 1995 CL 1453. The judgement of Sindh High Court had serious ramifications for the well-established principle of stare decisis aimed at ensuring proper dispensation of justice which is a fundamental right guaranteed to all the citizens of Pakistan. It created complications, confusion and chaos resulting in uncertainty—on the basis of this even the lower courts, Tribunals and in some cases taxation officers started declaring the orders of higher forums as per incuriam.
The issue was finally resolved by the Supreme Court itself in Mirza Shaukat Baig v Shahid Jamil PLD 2005 Supreme Court 530 in the following words:
“It is well-entrenched legal proposition that the ultimate responsibility of interpreting the law of the land is that of the Supreme Court……..Apart from the Constitutional obligation imposed upon the Courts even the propriety demands that the Courts must follow such a law without any hesitation. Unless the law so declared is altered or overruled by the Supreme Court itself…….it is directed that care and caution must be observed while offering comments on any judgement delivered by this Court in order to avoid the possibility of suo motu action by the Supreme Judicial Council and initiation of proceedings under the contempt laws”.
The above paragraph of the Supreme Court is warning for all those who think they can hold any judgement of the Supreme Court per incuriam. The correct method is to approach Supreme Court under Article 188 of the Constitution for review of judgement if some mistake apparent on record has crept into. In this regards Order XXVI, Part IV of Supreme Court Rules 2007 provides remedy.
Justice system, as a matter of law and principle, should be independent in the true sense of the word. The Supreme Court of Pakistan has elaborated this principle in Government of Baluchistan v Azizullah Memon PLD 1993 SC 31 by holding that “separation of judiciary from executive is the cornerstone of independence of judiciary”. Right of access to justice for all is a well-recognized inviolable right enshrined in the Constitution of Pakistan. It concludes “the right to be treated according to law, the right to have a fair and proper trial and right to have an impartial court or tribunal. Justice therefore can only be done if there is an independent judiciary which is free from all clutches. The Tribunals are still under the control of Executive which is violative of separation of judiciary from administration—PLD 1982 SC 146. It is a matter of record that none of the governments in Pakistan, military or civilian, have ever followed these directions of the Supreme Court aimed at enforcement of fundamental rights— Human Rights Case reported as 2014 SCMR 220, Mustafa Impex, Karachi and others v. The Government of Pakistan (2016) 114 TAX 241 (S.C.Pak.) and Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan 2013 SCMR 1337.
In the given Pakistani political milieu, it is imperative that all judicial and quasi-judicial authorities should be regulated and supervised by the High Court under whose territorial jurisdiction they work. This is the only way to ensure independence of judiciary in its true substance and constitutional requirement [Article 203]; and the implementation of rule of stare decisis as envisaged in Article 189 and 201.
The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are member Adjunct Faculty of Lahore University of Management Sciences (LUMS)