Common Law

Law developed through the application of settled principles to new circumstances, by reasoning from settled principles to new conclusions or determining that a category was not closed

Further, the law must develop in coherence with the body of law to which it related

Policy considerations may influence the development of the law but only where that development was available having regard to the state of settled principles

Policy considerations could not justify an abrupt change which abrogated principle in favour of a result seen to be desirable in a particular case.

Development occurred not only when a common law rule was changed altogether or a new rule was introduced, but also when a court needed to determine whether a new set of facts fell within or beyond the scope of an existing rule

Development of the common law, therefore, could not take place in a factual vacuum

Whether a new set of facts fell within or beyond the scope of an existing rule may, in appropriate circumstances, be decided on exception, a procedure whereby the facts were assumed to be those pleaded for the purpose of determining whether they legally sustained a cause of action or a plea

Where, however, a common law rule was to be changed altogether, or a new rule was to be introduced, it was better to make a decision only after hearing all the evidence so that the decision could be given in the light of all the circumstances of the case, with due regard to all relevant factors

When exercising their authority to develop the common law, courts should be mindful that, in accordance with the principle of the separation of powers, the major engine for law reform should be the legislature

Relevant factors in such respect included whether the common law rule was a judge-made rule, the extent of the development required and the legislature's ability to amend or abolish the common law.

Resort to a rule of common law of England in reference to the one of Pakistan law on a rule of Islamic Law or jurisprudence or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitutional legal set up.