Resolving conflicting decisions in Pakistan

bakhtawaratif
Aug 6
5 min read

Background

Pakistan’s legal system follows the common‑law doctrine of stare decisis. The Constitution instructs that the law declared by the Supreme Court is binding on all other courts (Art. 189) and that decisions of a High Court are binding on the courts subordinate to it (Art. 201). Courts also observe a well‑developed hierarchy of benches: a single bench is a single judge of the High Court; a division bench has two judges; a Full/Larger bench has more judges. The key issue is what happens when two single benches of the same High Court give contradictory judgments on the same question of law with a gap of years between them.

Principle laid down by the Supreme Court and High Courts

Earlier judgment of a bench of equal strength is binding

In Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296), the Supreme Court held that if judges of a High Court intend to take a different view from an earlier decision of a co‑equal bench, they must refer the matter to a larger bench. The Court noted that if the judges were inclined to take a different view, “they should have … referred the matter to a larger Bench” or followed the earlier view and left the matter to be raised on appeal.
This principle has been reiterated repeatedly. In Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423) and Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883), the Supreme Court again emphasised that a bench of co‑equal strength cannot depart from an earlier decision and must request the Chief Justice to constitute a larger bench.
An article on conflicting judgments of High Courts summarises the position: “the earlier judgment of an equal bench in the High Court on the same point is binding upon the second bench and, if a contrary view has to be taken, a request for constitution of a larger bench should be made”. The same article recommends that a single bench of every High Court should be bound by the decision of any other bench of that Court and of co‑ordinate benches.
The business‑law newspaper Business Recorder explains that the Supreme Court’s judgments in Province of East Pakistan and Sindheswar Ganguly held that the earlier judgment of an equal bench is binding and the proper course for a bench wishing to take a different view is to request constitution of a larger bench. The article clarifies that if a division bench intends to take a different view, it should refer the matter to a larger bench or express its doubts while following the earlier view.
A 2019 commentary by Justice Qazi Faez Isa (then a judge of the Supreme Court) noted that if a bench comprising an equal number of judges does not concur with the view of another bench, a larger bench should be constituted and cited the Multiline Associates case in support.

Supreme Court re‑affirmations (2021 and 2024)

In 2021, an 11‑page Supreme Court verdict reported by The Express Tribune explained that judicial discipline and propriety require a two‑judge bench to follow a three‑judge bench. More broadly, the Court stated: “the earlier judgment of a bench of this court is binding not only upon the benches of smaller numeric strength but also upon the benches of co‑equal strength … A bench of co‑equal strength cannot deviate from the view held by an earlier bench; if a contrary view is to be taken, the proper course is to request the Chief Justice for constitution of a larger bench”. This pronouncement reaffirms that even the Supreme Court adheres to the “earlier equal bench” rule.
In the Pakistan Army Act case (reported as 2023 SCLR 31 = PLD 2024 SC 337), Justice Yahya Afridi’s note summarised the rule under Article 189 of the Constitution: an earlier judgment of a Supreme Court bench is binding on benches of equal or smaller strength, and if a different view is to be taken, the matter should be referred for constitution of a larger bench. The note cited earlier cases—including Multiline Associates, to support this rule.

Academic commentary

The Courting the Law analysis on the law of binding precedents observes that, citing Province of East Pakistan and other cases, the earlier judgment of a High Court division bench (and by analogy a single bench) is binding on a later bench of the same strength; if judges wish to depart, they must request a larger bench. The article further notes that this principle is intended to maintain certainty and prevent “chaos and anarchy”.

Application to single‑bench judgments

Binding effect within the same High Court

Earlier single‑bench decision governs. Where a single judge (single bench) of a High Court has decided a question of law and, years later, another single bench comes to a contrary conclusion on the same legal question, the earlier decision is binding. This flows from the Supreme Court’s guidance that benches of co‑equal strength are bound by earlier decisions. A later single bench should either follow the earlier decision or refer the matter to the Chief Justice for constitution of a larger bench to reconsider the earlier view. Issuing a conflicting judgment without referring the matter to a larger bench is regarded as improper and the later decision is generally treated as having been rendered per incuriam (in ignorance of a binding precedent) and therefore lacking binding force.
Rule of judicial discipline. The rationale is to maintain consistency and legal certainty. The Supreme Court emphasised that a bench of equal strength cannot deviate from an earlier view and must instead seek the formation of a larger bench. This rule applies equally to single benches (one judge) because a single judge constitutes a bench of one; when confronted with a previous decision of a single bench of the same court on the same legal question, the later judge is bound to follow it or refer the matter to the Chief Justice for larger bench constitution.
High Court decisions binding on subordinate courts but not on other High Courts. Article 201 of the Constitution specifies that decisions of a High Court are binding on subordinate courts within its territorial jurisdiction. The binding force does not extend to other High Courts; however, in the case of federal statutes, if only one High Court decision exists, tribunals and authorities across Pakistan often follow it. When conflicting High Court decisions exist, each province’s courts and tribunals follow the decision of the High Court with jurisdiction over them. The same reasoning applies to conflicting single‑bench judgments across different High Courts.

Exceptional circumstances and per incuriam

Per incuriam decisions. A decision given per incuriam (through oversight or in ignorance of binding authority) lacks precedent value. If the earlier single‑bench decision ignored a binding statute or Supreme Court decision, a later bench may treat it as per incuriam. However, even then, the appropriate course is to follow the earlier decision but note the issue and refer the matter to a larger bench, leaving the conflict for appellate resolution.
Later decision by larger bench or Supreme Court. If, after the earlier single‑bench decision, a larger bench of the same High Court or the Supreme Court decides the issue differently, the larger bench’s decision supersedes the single‑bench decision because larger benches bind smaller ones.
Absence of an earlier decision. If no earlier single‑bench decision exists on the point (and no larger bench or Supreme Court decision), a single bench may decide the issue. Where two High Courts differ on a federal statute, subordinate courts follow the decision of the High Court having jurisdiction over the situs of the case.

Conclusion

In Pakistan’s judicial system, when two single‑bench judgments of the same High Court conflict on the same point of law, the earlier judgment is the one that must be relied upon. The later single bench is expected to either follow the earlier decision or refer the matter to the Chief Justice for constitution of a larger bench to reconsider the issue. Departing from this rule undermines judicial discipline and may render the later decision per incuriam. Only a larger bench or the Supreme Court can lawfully overrule the earlier decision.