STARE DECISIS

LIST OF NOTIFICATIONS REPRODUCED IN THE raised that since the Supreme Court in Maqbool Ahmed Qureshi v. Islamic Republic of Pakistan, PLD 1999 SC 484 has held the rule of primogeniture referred to in rule 19 of the Punjab Land Revenue Rules 1968 to be repugnant to the Injunctions of Islam therefore the son has no legal right to claim appointment on the basis of that rule. The Supreme Court rejected the said point. The Supreme Court said: "Now turning towards the objection of the respondent that the rule of primogeniture has been declared contrary to Injunctions of Islam, in view of the judgement of the Shariat Appellate Bench of this Court in the case of Maqbool Ahmed Qureshi (ibid). In this behalf it is note-worthy that as per the Court's order the provisions of section (sic) [rule] 19(2) of the Rules, 1968 has been declared repugnant to Injunctions of Islam. Consequently, Rule 25 and 26 of the Rules, 1968 were also held to be repugnant to the Injunctions of Islam only to the extent they recognize the appointment of a minor or an incapable person as a Lambardar, therefore, said provision shall cease to have effect with effect from 1st September, 1999 on which date the decision of Shariat Appellate Bench of Supreme Court shall take effect. Admittedly cause of action has accrued to the petitioner with effect from 19th November, 1983, when his father had died, therefore, his case is ought to be decided as per Rule 19(2) of the Rules, 1968 as it was existing at that time. Thus objection raised by the learned counsel for private respondent in this behalf is repelled being without force." Whether or not the son's claim for appointment as headman on the basis of the rule of primogeniture, as an individual case, has actually been affected by the Supreme Court's decision in case Maqbool Ahmed Qureshi v. Islamic Republic of Pakistan is not the subject-matter of this comment. The subject-matter of this comment is to note: Has the holding of the Supreme Court in Noor Muhammad's case that 'since the cause of action has accrued to the son with effect from November 19, 1983 when his father died therefore his case is ought to be decided as per rule 19(2) of the Rules 1968 as it existed at that time' not overruled the decision of the Supreme Court in Maqbool Ahmed Qureshi's case and also affected the rule of stare decisis? Clause (1) of Article 203D of the Constitution provides that the Federal Shariat Court may, either of its own or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Prophet. Clause (3) of Article 203D ibid provides if any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, (a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect. Article 203F of the Constitution provides that any party to any proceedings before the Court under Article 203D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court and the provisions of clauses (2) and (3) of Article 203D shall apply to and in relation to the Supreme Court. Thus, where the Federal Shariat Court, or the Supreme Court holds that any law or provision of law is repugnant to the Injunctions of Islam such law ceases to have effect on the day on which the decision of the Federal Shariat Court, or as the case may be, of the Supreme Court takes effect. The question how far any right or privilege acquired or accrued under any law or provision of law or any legal proceeding or remedy in respect of any such right or privilege which may be instituted, continued or enforced is affected where the law or provision of law on which the right or privilege and legal proceeding or remedy is founded is declared to be repugnant to the Injunctions of Islam was considered by the Supreme Court (M. Haleem CJ, Muhammad Afzal Zullah, Naseem Hassan Shah, Shafiur Rehman, Zafar Hussain Mirza JJ) in Sardar Ali v. Muhammad Ali PLD 1988 SC 287 and the Supreme Court held that the effect of any law or provision of law having cease to have effect under Article 203D (3)(b) of the Constitution is not similar to the effect of repeal of laws. The effect of repeal of laves is that the repeal does not affect (i) the previous operation of the law, (ii) any right, privilege etc. acquired or accrued under the law, and (iii) any legal proceeding or remedy in respect of any such right or privilege. The Supreme Court concluded that a law or provision of law which ceases to have effect under Article 203D (3)(b) affects the cause of action as well as pending proceedings. Only the proceedings where a favourable decision has been made in favour of a person claiming any right, privilege etc. under the law or provision of law which is declared to be repugnant to the Injunctions of Islam and has ceased to have effect would be saved. It appears that the Supreme Court's holding in Noor Muhammad v. Member (Revenue) Board of Revenue that where a cause of action has arisen to a person before a law or provision of law ceases to have effect in pursuance of the provision of Article 203D (3)(b) of the Constitution his case ought to be decided under the law as it existed when the cause of action arose is not in line with the decision of the Supreme Court in Sardar Ali v. Muhammad Ali and has affected the rule of stare decisis. It may be relevant to point out that Sardar Ali's case was a well-argued case. An illuminating galaxy of more than two dozen of lawyers was heard in the said case. It is conceded that the Supreme Court being the Court of ultimate jurisdiction can depart from any of its earlier precedent but it shall exercise that power only after full consideration of the matter and existing precedent on the point.